Luettke v. St. Vincent Mercy Med. Ctr.

[Cite as Luettke v. St. Vincent Mercy Med. Ctr., 2006-Ohio-3872.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

Appellant

Joanne Luettke

St. Vincent Mercy Medical Center, et al.

Appellees

Court of Appeals No. L-05-1190

Trial Court No. CI-0200304833

DECISION AND JUDGMENT ENTRY

Decided: July 28, 2006

Martin W. Williams, James M. Tuschman, and R. Ethan Davis, for appellant.

Jeffrey M. Stopar, for appellees.

* * * * *

HANDWORK, J.

{¶1} This case is before the court on appeal from the judgment of the Lucas

County Court of Common Pleas, wherein a jury found in favor of appellees John Dooner,

M.D., Joan Eischen, CRNA (“CRNA Eischen”), and Associated Anesthesiologists of

Toledo, Inc. (“AAT”). Appellant, Joanne M. Luettke, appeals the April 29, 2005 jury

verdict and asserts the following assignments of error:

{¶2} I. “The trial court erred and abused its discretion in granting the

defendants’ motion in limine, and excluding any evidence of St. Vincent’s ‘Resident

Manual’ and ‘Rules and Regulations of the Medical Staff.'”

{¶3} II. “The verdict of the jury is against the manifest weight of the evidence.”

{¶4} III. “The trial court erred in its instructions to the jury, and in its refusal to

submit appellant’s requested jury instructions.”

{¶5} In early 2001, appellant was diagnosed with a paraesophageal hernia. This

type of hernia occurs when a portion of the stomach comes up into the chest, behind the

heart. Joseph Sferra, M.D., a general surgeon, recommended that appellant undergo a

Nissen fundoplication surgery to correct the hernia.

{¶6} During the surgery, an esophageal dilator device known as a “bougie” is

routinely passed down the esophagus and used as a sizer to make sure that when the wrap

is performed the opening of the esophagus remains wide enough so that the patient can

swallow freely. The bougies come in a series of diameters to accommodate each

individual patient’s esophagus. In Toledo, the general practice is that the anesthesia team

passes the bougie at the surgeon’s request.

{¶7} Appellant was admitted to St. Vincent Mercy Medical Center (“St.

Vincent”) on March 1, 2001 for her surgery. In the pre-operative waiting area, appellant

met Sherrie Lynn who introduced herself as follows:

{¶8} “Good morning. My name is Sherrie. I am a registered nurse with the

anesthesia department, and I will be one of the people taking care of you today. I am

working with Joan Eischen who is a nurse anesthetist, and Dr. Dooner is the

anesthesiologist who is working with us as well.”

{¶9} Lynn was a registered nurse, enrolled as a student in the certified registered

nurse anesthetist (“CRNA”) training program at Wayne State University. Through an

affiliation program with St. Vincent, students in the Wayne State program participate in

clinical training at the hospital. Dr. Dooner, CRNA Eischen and Lynn understood that

Lynn would be performing all of the anesthesia related procedures in appellant’s surgery

from beginning to end. However, Lynn did not identify herself to appellant as a student

in training, nor did she discuss with appellant that she would be performing all anesthesia

aspects of the surgery.

{¶10} When surgery commenced, Dr. Dooner instructed Lynn to perform the

induction and intubation of appellant. After this was accomplished, Dr. Dooner left the

operating room. He did not return until he was called back, more than an hour and a half

later, after complications arose.

{¶11} Once appellant was anesthetized, Dr. Sferra requested that the anesthesia

team pass the bougie down appellant’s esophagus. Under the supervision of CRNA

Eischen, Lynn successfully passed a size 40 bougie. Dr. Sferra determined the device

was within the esophagus and told Lynn to remove it and insert a larger, size 44 bougie to

further dilate appellant’s esophagus. Lynn inserted the device and indicated that it had

been placed at a sufficient distance that it should have been perceptible in the operative

field. Dr. Sferra, however, could not see the bougie. Lynn then withdrew the bougie and

attempted to pass it a second time. Again, Dr. Sferra was unable to see it. CRNA

Eischen then attempted to insert the device, but it was still not perceptible in the operative

field. Dr. Sferra then suggested that Dr. Dooner be called back into the operating room.

{¶12} Dr. Dooner arrived back in the room and was briefed on the situation.

Suspecting a perforation of appellant’s esophagus at this point in time, Dr. Sferra

requested that Dr. Dooner pass the bougie. Dr. Dooner attempted the procedure, but

again Dr. Sferra was not able to perceive the device in appellant’s esophagus. Dr. Sferra

began to manipulate the esophagus and saw that the bougie was outside the esophagus.

Upon confirming that the device had in fact perforated appellant’s esophagus, Dr. Sferra

immediately consulted with a cardiothoracic surgeon at St. Vincent. They concluded

appellant’s surgery would have to be converted to an “open” procedure, which involved

an incision in the abdomen as opposed to using a laparoscope. Surgery was performed to

repair the esophagus at that time as well.

{¶13} Due to the perforation and the repair, it was necessary to put appellant on a

feeding tube and keep her in a “coma-like state” for four days. Fluids accumulated in

appellant’s lungs and were evacuated. She also developed blood clots in her arms. It

took three to four days before appellant was stable enough to be removed from the

ventilator. Following the perforation, appellant experienced severe pain, gagging,

nausea, loss of appetite, poor esophageal motility, and depression. Two months after the

procedure, appellant was still unable to eat on her own and was continuously nourished

through feeding tubes.

{¶14} As a result of appellant’s complications, she was admitted to the University

of Michigan Hospital where it was determined that she had no esophageal motility, as

well as anxiety and depression. Appellant’s depression was so severe that she required

electric shock therapy, which caused severe memory loss and was subsequently

discontinued as a result. Appellant continues to choke and gag when she eats and is

afraid to go out to eat in public because of the symptoms.

{¶15} Subsequently, appellant filed suit against appellees CRNA Eischen, Dr.

Dooner and his professional practice group, AAT. Also named as defendants were

student nurse Lynn and St. Vincent.1 Appellant asserted claims for medical malpractice

and informed consent.

{¶16} Prior to trial, the trial court granted, in part, appellees’ motion in limine,

which excluded any evidence and/or testimony with respect to the policies, provisions,

and standards concerning the supervision of anesthesia procedures performed by

students, informed consent for student participation, and patient rights, as set forth within

St. Vincent’s Resident Manual (“Manual”) and Rules and Regulations of the Medical

Staff (“Regulations”). Appellant’s claims were ultimately tried to a jury which returned a

verdict in favor of appellees on all counts. This appeal now follows.

1Due to pre-trial rulings, appellant dismissed her claims against St. Vincent.
Because Lynn had no malpractice insurance, the court also dismissed the claims against
her as well. The parties stipulated and agreed that at all times during appellant’s
procedure, Lynn was acting as an agent of AAT and that Dr. Dooner and CRNA Eischen
had ultimate responsibility for her conduct.

{¶17} In her Assignment of Error No. I, appellant argues that the trial court

abused its discretion in granting appellees’ motion in limine and excluding any evidence

of St. Vincent’s Manual and Regulations.

{¶18} Appellant repeatedly attempted to introduce as evidence both the Manual

and Regulations to demonstrate that St. Vincent established a specific standard of care to

be followed by the entire medical staff and that appellees violated that standard. The

Manual contains safety standards of care promulgated by St. Vincent for the supervision

and responsibilities of students in training. The Manual provides, in part, that:

{¶19} “*** all anesthetic procedures, other than locals, shall be performed in the

presence and under the supervision of a qualified anesthesiologist.” (Emphasis added.).

{¶20} It further states that a patient has the right to:

{¶21} “Know the name and professional status of your health care providers, the

reasons for any changes, and the relationship to any other health care or educational

institution involved in your care.”

{¶22} The Regulations further define the hospital’s standard of conduct and care

required of all medical providers. It provides for the rights and responsibilities of the

patient, which include the right to know the identity and training status of student

caregivers, in addition to the rules governing consent for procedures and “other

research/educational projects.” Regarding the identity of caregivers, the Regulations

provide:

{¶23} “Patients should be told of the identity and professional status of

individuals providing service to them, and which physicians or other practitioners are

primarily responsible for their care. Patients should also be informed of the relationship

between the medical center and other institutions involved in their care. Persons engaged

in clinical training programs or in the gathering of data for research purposes should

identify themselves.” (Emphasis added.).

{¶24} The Regulations go on to address the topic of consent and state that:

{¶25} “Patients have the right to make reasonably informed decisions involving

their health care, and the right to the information necessary to make such decisions.”

{¶26} “Patients should be informed about who is responsible for performing

procedures or treatments.” (Emphasis added.).

{¶27} “Patients shall be informed if the medical center or health care professional

proposes to engage in, or perform experiments or other research/educational projects

affecting their care or treatment and may consent or refuse to participate in any such

activity.” (Emphasis added.).

{¶28} The trial court, however, granted appellees’ motion in limine and excluded

both the Manual and Regulations. Its basis for granting the motion was that the

documents were irrelevant in determining the standard of care. The court found, in the

alternative, that if the documents had relevance, admission would mislead or confuse the

jury. The court further supported its conclusion by stating that “expert testimony rather

than documents or other evidence establish [sic] the proper standard of care in a medical

setting.”

{¶29} A motion in limine is designed “to avoid the injection into a trial of a

potentially prejudicial matter which is not relevant and is inadmissible.” Reinhart v.

Toledo Blade Co. (1985), 21 Ohio App.3d 274, 278. To be relevant and therefore

admissible, evidence must have a tendency “to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Evid.R. 401.

{¶30} Appellees maintain that neither document is relevant to provide evidence of

a standard of care. They contend that the Manual pertains to “residents” and medical

students only.2 Because Lynn does not fall under either classification, appellees argue

that it does not apply to her. Nevertheless, appellees fail to present any document that

does pertain to Lynn or any other student nurse anesthetist. They would have this court

believe that there is no written standard that applies to student nurses when there is an

entire manual that controls the conduct of medical students and residents. To argue that

residents and medical students are required to perform all anesthetic procedures “in the

presence and under the supervision of a qualified anesthesiologist,” but a lesser trained

student nurse anesthetist performing the exact same procedures is not, is illogical and

offensive to one’s sensibilities. The terms and conditions of the Manual with respect to

2A resident is a licensed physician who has completed medical school. A medical
student is one who is in medical school pursuing a medical degree.

the supervision of anesthetic procedures should be applicable regardless of whether the

procedure is being performed by a resident, a medical student, a student nurse, or a

student nurse anesthetist.

{¶31} Appellees further echo the conclusion made by the trial court and argue that

both the Manual and Regulations are irrelevant because expert testimony, not documents,

establishes the standard of care in a medical setting. While appellees’ and the lower

court’s contention is correct, the Ohio Supreme Court held that hospital rules and

regulations are, at the discretion of the judge, also admissible to provide evidence of the

standard of care. Berdyck v. Shinde (1993), 66 Ohio St.3d 573; Burks v. The Christ

Hospital (1969), 19 Ohio St.2d 128, 131. See, generally, Gray v. Grandview Hospital

(Jan. 22, 1979), 2d Dist. No. 5849; Siebe v. University of Cincinnati (Ct. Claims 2001),

117 Ohio Misc.2d 46. Therefore, the trial court’s stated basis for excluding both

documents is contrary to established law. Moreover, if self-imposed policies, rules and

regulations are not relevant to help determine a hospital’s standard of care, as appellees

and the lower court would have one believe, then why would an organization create such

policies in the first place? The whole purpose of promulgating documents, such as the

ones at issue here, is to ensure that employees follow a consistent standard of care and

quality at all levels of an organization.

{¶32} In further support of their relevance, both the Manual and Regulations

substantiate the assertions of appellant’s expert witness regarding the standard of care, as

well as the ethical guidelines established by the American Society of Anesthesiologists

(“ASA”). Appellant argues that because such evidence, if presented, would make the

existence of appellees’ violation of the standard of care more probable than not, the

documents are relevant and therefore should have been admitted. We agree. All of the

excluded evidence endorses a standard of care that requires supervision of student nurse

anesthetists by an anesthesiologist. It further endorses a standard that requires the

medical profession to inform patients of the identity and training status of the individuals

involved in their care. It is undisputed that Lynn failed to disclose her student status to

appellant and the extent of her involvement in appellant’s surgery. Appellees also do not

dispute that Dr. Dooner failed to supervise Lynn during the bougie procedure. The

actions taken by appellees and Lynn were in clear violation of St. Vincent’s policies,

rules, and regulations. Thus, the Manual and Regulations, if admitted, would have made

the existence of appellees’ violation of the standard of care, i.e. the duty to disclose

training status and the required supervision of student nurse anesthetists, more probable

than not. For that reason, both documents are relevant and admissible pursuant to

Evid.R. 401.

{¶33} However, even if evidence is relevant, it must be excluded under Evid.R.

403(A) “if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” Despite the mandatory

terms of Evid.R. 403(A), a decision to admit or exclude evidence will be upheld absent

an abuse of discretion. O’Brien v. Angley (1980), 63 Ohio St.2d 159, 163 (Citations

omitted.). “‘The term ‘abuse of discretion’ connotes more than an error of law or

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judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.'” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, quoting State

v. Adams (1980), 62 Ohio St.2d 151, 157.

{¶34} As noted, the trial court excluded the Manual and Regulations based on

irrelevancy in determining the standard of care. The court further determined that if the

documents had relevance, admission would mislead or confuse the jury. We have

already decided that both documents are relevant to provide evidence of St. Vincent’s

standard of care and appellees’ violation of that standard. However, we must now

consider whether the documents fall under Evid.R. 403(A) and would be therefore

inadmissible.

{¶35} Appellees maintain that even if the documents were relevant and

subsequently admitted into evidence, they should be excluded because they would

ultimately confuse the jury as to the applicable standard of care. They contend that the

jury would have the daunting task of determining the standard of care from the testimony

of two competing expert witnesses, from the ASA ethical guidelines, and from the

hundreds of pages of hospital policies and regulations. Appellees argue that the jury

could potentially have to decide between five different standards of care based upon the

documents and expert testimony, as opposed to two standards of care based solely on

expert testimony.

{¶36} What appellees fail to mention, however, is that four out of the five pieces

of evidence, including the Manual and Regulations, endorse one uniform standard of

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care, while appellees’ expert witness endorses another. It is difficult to understand how

admitting into evidence documents that support one of two standards of care would be

confusing to the jury. Furthermore, when a hospital publishes its own policies,

procedures, rules, and regulations establishing its standard of care, it defies logic to think

that such documents would be confusing or misleading to a jury. If anything, St.

Vincent’s documents would have helped the jury determine the applicable standard of

care. We find both documents to be relevant and the trial court’s grounds for exclusion to

be outside the parameters of the statute. Thus, the trial court’s decision to exclude the

Manual and Regulations was not justified and clearly contrary to reason. Consequently,

we find that the trial court acted unreasonably and arbitrarily in refusing to admit St.

Vincent’s Manual and Regulations and, therefore, the court’s grant of appellees’ motion

constituted an abuse of discretion.

{¶37} However, even in the event of an abuse of discretion, a judgment will not

be disturbed due to exclusion of evidence unless the abuse affected the substantial rights

of the adverse party or is inconsistent with substantial justice. Civ.R. 61; O’Brien, 63

Ohio St.2d at 164-165. Appellees maintain that appellant’s substantial rights were not

affected by the exclusion of the Manual and Regulations. Rather, they claim the trial

court’s decision to exclude both documents was merely harmless error. See Civ.R. 61.

They maintain that appellant was able to introduce other evidence on the issues for which

the documents were offered and refer specifically to appellant’s expert witness, John W.

Schweiger, M.D. Dr. Schweiger testified that the standard of care for student

12.

participation requires disclosure of the student’s status, as well as an explanation of the

role the student will play in the patient’s treatment. Dr. Schweiger’s testimony was

likewise identical to the standards set forth by St. Vincent and the ethical guidelines

promulgated by the ASA.

{¶38} Oddly enough, however, appellees’ expert witness, Richard Prielipp, M.D.,

who, in fact, practices at St. Vincent, testified contrary to Dr. Schweiger with regard to

St. Vincent’s written policies and the ASA guidelines. Dr. Prielipp testified that the

standard of care did not require Dr. Dooner, CRNA Eischen or Lynn to disclose to

appellant that Lynn was a student nurse anesthetist. He also testified that the standard of

care did not require Dr. Dooner to be present in the operating room during the bougie

placement, and that Dr. Dooner properly supervised Lynn during the one and a half hour

period that he was not present in the operating suite. CRNA Eischen also testified that

there was no policy that required students to indicate they were students. Dr. Dooner

further testified that, in his opinion, there were no formal consent procedures for the

participation of student CRNA’s in patient procedures without the patient’s knowledge.

{¶39} It is undisputed that appellees and their expert witness’s testimony directly

conflicts with the aforementioned standard of care set forth by St. Vincent in the Manual

and Regulations. It is also undisputed that Dr. Dooner and Dr. Prielipp, who both

testified and acknowledged that the ASA has well-defined ethical guidelines regarding

the disclosure of student participation in anesthesia procedures, later testified that the

applicable standard of care was contrary to those guidelines. Consequently, appellant

13.

was prejudiced by the exclusion of both documents in her ability to impeach appellees

and their expert witness with evidence of the hospital standards. The jury was also

prevented from considering crucial evidence that affected the credibility of appellees and

their expert witness.

{¶40} When a hospital promulgates specific supervisory standards for anesthetic

procedures, as well as patients’ rights regarding disclosure of student status, it is clearly

prejudicial to find them inadmissible. The exclusion of St. Vincent’s Manual and

Regulations, in the case sub judice, was not harmless error. It is, therefore, our

conclusion that substantial justice has not been done, and that the trier of facts might not

have reached the same conclusion had this error not occurred.

{¶41} In sum, we find that the Manual and Regulations are relevant documents

and should have been presented to the jury to provide evidence of a standard of care.

Moreover, the exclusion of such documents was an abuse of discretion and undermined

appellant’s substantial rights. Accordingly, appellant’s first assignment of error is found

well-taken. Appellant’s final two assignments of error are therefore rendered moot and

need not be considered here.

{¶42} Nonetheless, appellees set forth a cross-assignment of error, pursuant to

App.R. 3(C)(2), to prevent reversal of the trial court’s judgment. The cross-assignment of

error reads:

{¶43} “The trial court’s final judgment could be upheld on the alternative basis

that appellant’s informed consent claim was without merit as a matter of law.”

14.

{¶44} R.C. 2317.54 provides:

{¶45} “Written consent to a surgical or medical procedure or course of procedures

shall, to the extent that it fulfills all the requirements in divisions (A), (B), and (C) of this

section, be presumed to be valid and effective, in the absence of proof by a

preponderance of the evidence that the person who sought such consent was not acting in

good faith, or that the execution of the consent was induced by fraudulent

misrepresentation of material facts, or that the person executing the consent was not able

to communicate effectively in spoken and written English or any other language in which

the consent is written. Except as herein provided, no evidence shall be admissible to

impeach, modify, or limit the authorization for performance of the procedure or

procedures set forth in such written consent.

{¶46} “(A) The consent sets forth in general terms the nature and purpose of the

procedure or procedures, and what the procedures are expected to accomplish, together

with the reasonably known risks, and, except in emergency situations, sets forth the

names of the physicians who shall perform the intended surgical procedures.

{¶47} “(B) The person making the consent acknowledges that such disclosure of

information has been made and that all questions asked about the procedure or

procedures have been answered in a satisfactory manner.

{¶48} “(C) The consent is signed by the patient for whom the procedure is to be

performed, * * *.” (Emphasis added.)

{¶49} In the case before us, the material provisions of the consent form read:

15.

{¶50} “* * * I hereby authorize Dr. Sferra and/or such assistants, designees or

hospital personnel as may be selected by him, to perform the above described

procedure(s) necessary to diagnose and/or treat my condition(s).

{¶51} “* * *

{¶52} “Additionally, I consent to the administration of anesthesia under the

direction and supervision of the above doctor(s) or such anesthesiologist as they shall

select, and to the use of such anesthetic agents as they may deem advisable.”

{¶53} At the trial of this case, Dr. Sferra testified that he was not responsible for

the personnel or procedures used in administering anesthesia. Rather, it is clear that Dr.

Dooner was responsible for that aspect of the medical procedure. Neither his name nor

the name of his student nurse anesthetist appear in the implied consent form. Therefore,

the requirement found in R.C. 2317.54(A) was not met. Furthermore, the informed

consent form signed by appellant shows through its own terms and by a preponderance of

the evidence that there was a material misrepresentation of the facts. Specifically, the

form consents only to the administration of anesthesia under the direction and

supervision of Dr. Dooner. As noted previously, appellees do not dispute that Dr. Dooner

failed to supervise Lynn during the bougie procedure. Accordingly, appellant’s cross-

assignment of error is found not well taken.

{¶54} On consideration whereof, this court finds substantial justice was not done

the party complaining, and the judgment of the Lucas County Court of Common Pleas is

reversed. This case is remanded to that court for further proceedings consistent with this

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judgment. Appellees are ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment for the clerk’s expense incurred in preparation of the record, fees allowed by

law, and the fee for filing the appeal is awarded to Lucas County.

JUDGMENT REVERSED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.

Peter M. Handwork, J.

_______________________________
JUDGE

17.

Mark L. Pietrykowski, J.

Arlene Singer, P.J.
CONCUR.

_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.