[Cite as Schmidt v. Crayne,
2024-Ohio-4726.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Philip L. Schmidt, as Administrator Court of Appeals No. L-23-1194
of The Estate of Joel Pasienza,
Deceased, et al. Trial Court No. CI0202102800
Appellants/Cross-appellees
v.
John A. Crayne, M.D., et al. DECISION AND JUDGMENT
Appellees/Cross-appellants Decided: September 27, 2024
…
Carasusana B. Wall, Damon C. Williams, and
Ameena Alauddin, for appellants/cross-appellees
Jeff M. Smith, for appellee/cross-appellant,
John A. Crayne, M.D.
Brianna M. Prislipsky, Susan Blasik-Miller,
and Meredith Turner-Woolley, for appellee,
Toledo Clinic, Inc.
…
MAYLE, J.
{¶ 1} Following a jury trial, plaintiffs-appellants/cross-appellees, Philip L.
Schmidt, Administrator of the Estate of Joel Pasienza, Peter Pasienza, and Joanne
Pasienza, appeal the July 25, 2023 judgment of the Lucas County Court of Common
Pleas in favor of defendant-appellee/cross-appellant, John A. Crayne, M.D., and
defendants-appellees Toledo Clinic, Inc., Shakil A. Khan, M.D., and Fateh U. Ahmed,
M.D. For the following reasons, we affirm.
I. Background
{¶ 2} Joel Pasienza (“Joel”) was a 37-year-old man who suffered from cerebral
palsy and was nonverbal and non-ambulatory. He died on September 5, 2017, about five
hours after being released from St. Anne Hospital, where he had spent 11 days
undergoing treatment for a bowel obstruction. Following an autopsy, the Lucas County
Coroner determined that Joel died of sepsis caused by klebsiella pneumoniae. Plaintiffs
filed suit on February 12, 2019, against numerous health care providers, alleging medical
negligence and wrongful death. They voluntarily dismissed their complaint without
prejudice on June 4, 2021, then refiled on August 18, 2021, against only St. Anne
hospitalist, Dr. John Crayne, and Toledo Clinic pulmonologists, Drs. Shakil Khan and
Fateh Ahmed, along with their employers.
{¶ 3} Beginning July 10, 2023, plaintiffs’ claims were tried to a jury. Those
claims centered around their experts’ opinions that (1) radiological imaging showed that
Joel had pneumonia that his physicians failed to treat, and (2) this untreated pneumonia
(specifically, klebsiella pneumoniae) led to sepsis, which caused Joel’s death. Drs.
Crayne, Khan, and Ahmed, and their hired experts, denied that Joel had pneumonia while
hospitalized; they maintained that contrary to the coroner’s ruling, he died of a massive
aspiration.
2.
A. Joel’s Final Hospitalization
{¶ 4} According to the testimony offered at trial, on August 25, 2017, Joel
presented to St. Anne Hospital’s emergency department with abdominal pain. A CT and
x-ray of his abdomen showed that he had a bowel obstruction. Joel was admitted to the
hospital under the care of hospitalist, Dr. Crayne.
{¶ 5} While imaging was performed to determine the source of Joel’s abdominal
pain, his lungs, or portions of his lungs, were visible in the August 25, 2017 imaging.
The radiologist who read the CT noted “”[m]ultiple bilateral lower lobe patchy airspace
densities most suggestive of pneumonia.” The radiologist who read the x-ray observed
what “appear[ed] to be minimal bibasilar atelectasis.” Atelectasis means that the lung is
airless.
{¶ 6} On August 28, 2017, Joel underwent surgery for the bowel obstruction. He
was administered cefazolin, an antibiotic given perioperatively, one gram every eight
hours from August 28, 2017, through September 2, 2017. Because he was placed on a
ventilator for the procedure, his surgeon ordered a pulmonology consult for post-
operative care. Dr. Ahmed provided care from August 29, 2017, to September 1, 2017.
His partner, Dr. Khan, took over Joel’s care from September 2, 2017, until Joel’s
discharge on September 5, 2017.
{¶ 7} Joel was successfully extubated on August 29, 2017, and placed on room air.
Portable chest x-rays were performed on August 28, 2017, August 29, 2017, August 31,
2017, September 1, 2017, and September 2, 2017. The reason provided for the August 28
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and 29, 2017 x-rays was that the patient was intubated. The reason provided for the
remaining chest x-rays was the presence of an infiltrate.
{¶ 8} The radiologist who read the August 28, 2017 x-ray noted “mild left
retrocardiac airspace disease. Lungs are otherwise clear.” The report further stated that
“[m]ild left retrocardiac airspace disease may represent pneumonia and/or atelectasis.”
{¶ 9} The radiologist who read the August 29, 2017 x-ray noted “[n]o pulmonary
venous congestion or edema. There are low lung volumes. Left retrocardiac opacity is
unchanged. Blunting of the left lateral costophrenic angle is redemonstrated. No
sizeable pleural effusion. No pneumothorax.”
{¶ 10} The radiologist who read the August 31, 2017 morning x-ray noted “low
lung volume exam. Stable dense retrocardiac airspace consolidation with stable blunting
of the left lateral costophrenic angle.”
{¶ 11} The radiologist who read the September 1, 2017 x-ray noted ”[l]eft lower
lobe atelectasis is . . . stable. Blunting of the left lateral costophrenic angle is . . . stable.
Limited inspiratory volume of both lungs. Mild pulmonary vascular congestion.”
{¶ 12} And the radiologist who read the September 2, 2017 x-ray noted “grossly
unchanged left lower lobe atelectasis and small effusion.” Joel’s right lung was noted to
be “relatively clear. No pneumothorax or free air.”
{¶ 13} Joel’s vital signs were monitored frequently during his hospitalization. For
the most part, he was afrebile, except briefly on August 26 and 31, 2017, when he had a
temperature of 100.4, and on August 29, 2017, where he twice had temperatures of 101.5
and 101.8. His oxygen saturation never fell below 90 percent. His respiratory rate stayed
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20 or below, except two readings on August 28 and 29, 2017, when it was 23 and 22,
respectively. His pulse sometimes exceeded 100. And his blood pressures were often
low. Joel’s white blood count (“WBC”) was normal, but for a couple of elevations post-
operatively, and even then it was no greater than 11.3; a WBC of 3.5 to 11 is considered
normal.
{¶ 14} At no time during this hospitalization was Joel treated for pneumonia. Of
note, he had a history of aspiration pneumonia. He was admitted to St. Anne from May
21, 2017, to June 2, 2017 for aspiration pneumonia; Drs. Khan and Ahmed treated him
during this time. When he was admitted in May, his temperature was 101.7, his oxygen
saturation was 89 percent, his respiratory rate was 22, his pulse was 144, his blood
pressure was 142/76, and his WBC was 15.
{¶ 15} Joel was also admitted to St. Anne from August 3, 2017, to August 8, 2017,
for abdominal pain, and was seen there again on August 20, 2017, for the same
complaint; Dr. Crayne treated Joel during his early August admission. Imaging was
performed during his previous hospitalizations and visit. His most recent chest x-ray
from August 20, 2017, noted that Joel’s lungs were clear.
{¶ 16} Joel was discharged from St. Anne on the evening of September 5, 2017,
and at approximately 6:00 p.m., he returned to Ann Grady Center, the facility where he
lived. Daily documentation from one of his caregivers stated that “Joel had a good
afternoon[,] was in bed[,] watched tv & napped. A lot of coughing[.] [N]o problems.”
However, Joel’s condition changed at approximately 10:55 p.m. The nursing notes
indicate that the nurse “[h]eard some gurgling - set up suction machine[.] Called JP’s
5.
name - he turned his head toward me - took 1 deep breath and closed his eyes.
Immediate color change noted to face. Pulse checked - unable to palpate. DSP called
911 - writer et DSP began CPR. AED brought to home by B home nurse. AED applied -
CPR continued until Springfield Fire & Rescue arrived.”
{¶ 17} Efforts to resuscitate Joel were unsuccessful. He was pronounced dead at
11:48 p.m. An autopsy was performed. The coroner ruled that Joel’s death was caused
by “sepsis (klebsiella pneumoniae (hours-day(s)).” It listed significant conditions to
include “acute pneumonia, complications of recent small bowel obstruction, spastic
quadriplegia cerebral palsy.”
B. The Experts’ Opinions
{¶ 18} The parties retained expert witnesses who provided standard of care and
causation opinions. Plaintiff presented testimony from hospitalist, Mohammad Alhabbal,
M.D.; infectious disease specialist, Julie Jordan, M.D.; forensic pathologist, Joseph Felo,
M.D.; and pulmonologist, Hooman Poor, M.D. Dr. Crayne presented testimony from
internal medicine specialist, Gordon Moss, M.D.; and infectious disease specialist, Keith
Armitage, M.D. And Drs. Ahmed and Khan presented testimony from pulmonary critical
care specialist, Johnathan Parsons, M.D.; and infectious disease specialist, Daniel Kaul,
M.D.
1. Dr. Alhabbal
{¶ 19} Dr. Alhabbal, a hospitalist, opined that Dr. Crayne’s care fell below the
standard of care for a hospitalist because he failed to address bilateral opacities evident in
the August 25, 2017 CT, which the radiologist noted were “most suggestive of
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pneumonia.” He described the CT results as obvious and striking and said they should
have been addressed. He testified that Joel had pneumonia upon admission to St. Anne,
and this pneumonia and sepsis caused his death.
{¶ 20} According to Dr. Alhabbal, given Joel’s history and risk factors for
pneumonia and aspiration pneumonia, Dr. Crayne should have treated this condition as
pneumonia until proven otherwise, and he should have consulted pulmonology with this
suspicion at the beginning of Joel’s hospitalization. Dr. Alhabbal opined that the failure
to do so led to an evolving process, including the klebsiella pneumoniae and sepsis that
caused Joel’s death.
{¶ 21} On cross-examination, Dr. Alhabbal acknowledged that pulmonology was
consulted and cared for Joel from the day after his surgery until his discharge, but he
noted that this was at the surgeon’s request and was because Joel was intubated—not
because of the findings on the CT. He conceded that the emergency doctor did not
diagnose pneumonia, nor did the surgeon or anesthesiologist who performed surgery for
Joel’s bowel obstruction.
{¶ 22} Although he described that Joel’s vital signs were “not striking,” Dr.
Alhabbal characterized them as “fluctuating.” He maintained that Joel’s presentation was
atypical and did not include the typical signs and symptoms of pneumonia—e.g.,
shortness of breath, elevated pulse, fever, sweating, elevated respirations, and elevated
WBC—like those Joel experienced when he was hospitalized for aspiration pneumonia in
May. He explained that an atypical presentation can be the result of chronic disease,
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frequent hospitalization, a history of coughing and aspiration, and the inability to express
oneself.
{¶ 23} Dr. Alhabbal maintained that the August 28, 29, and 31, 2017 chest x-rays
are consistent with pneumonia. He agreed that the radiologists who read the September 1
and 2, 2017 x-rays noted atelectasis, not pneumonia, but he emphasized that while these
x-rays were read as evidencing “no significant changes,” what this actually means is that
Joel’s condition never improved. Dr. Alhabbal was critical that no chest x-rays were
ordered during the first few days of Joel’s admission.
{¶ 24} Dr. Alhabbal agreed that a hospitalist would typically defer to a
pulmonologist to diagnose and treat pneumonia, and the pulmonology defendants here
agreed that it was appropriate to discharge Joel. Dr. Alhabbal also acknowledged that
Joel was treated by respiratory therapists, who cleared his secretions, and this could
explain coughing reported by Joel’s parents and sputum described in the nurse’s notes.
2. Dr. Jordan
{¶ 25} Dr. Jordan is an infectious disease specialist. She opined that Joel had
pneumonia and sepsis before his September 5, 2017 discharge. She believes that if the
pneumonia had been diagnosed and timely treated with appropriate antibiotics at the right
dosage, it would not have spread through Joel’s bloodstream and progressed to sepsis.
Dr. Jordan provided no opinions regarding standard of care.
{¶ 26} Dr. Jordan explained that pneumonia is a lung infection caused by a virus
or bacteria. Typical indications include fever, cough, and sometimes sputum that is
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yellow-green or brown. Pneumonia may be seen in imaging on either chest x-ray or CT
scan.
{¶ 27} More specific to this case, Dr. Jordan testified that klebsiella pneumoniae is
a gram-negative bacteria that can cause pneumonia, in addition to other infections. It is
treated with antibiotics. If left untreated, it can spread throughout the body, go into the
bloodstream, cause organ damage, cause an infectious, life-threatening condition called
sepsis, and can cause death. A patient with sepsis will typically have low blood pressure,
rapid pulse, and fever. The time it takes for an infection to develop from sepsis to
ultimate death depends on many factors. According to Dr. Jordan, a person who has been
hospitalized, has received antibiotics, has a weak immune system, and whose body does
not function like normal people are at a higher risk for infection to progress quickly.
{¶ 28} Dr. Jordan opined that Joel had active pneumonia from klebsiella
pneumoniae that was left untreated or partially treated, and spread through the
bloodstream. She testified that her opinion is based on the CT scan, which was
suggestive of pneumonia, reports that he was coughing, reports of low blood pressure,
fever, and high pulse rate, reports of yellow-brown sputum, the autopsy report indicating
an active infection and presence of klebsiella pneumoniae, and his risk factors for
infection, including cerebral palsy, trouble swallowing, inability to verbalize, history of
aspiration, and history of pneumonia.
{¶ 29} Dr. Jordan acknowledged that Joel received cefazolin, an antibiotic started
as a prophylaxis for surgery, but she explained that it was not the proper dose and he did
not receive the full course of antibiotics. The dose required to treat klebsiella
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pneumoniae is two grams every eight hours—less than that would be only a partial
treatment. Joel received only one gram for only four days. She claimed that because the
cefazolin partially treated the infection, it suppressed the WBC and fever.
{¶ 30} On cross-examination, Dr. Jordan disagreed that Joel’s vitals on August 25,
2017, were inconsistent with an active infection. She described that Joel’s blood pressure
was low normal at admission, but at other times it was low; his pulse was persistently
high, above normal; his respirations were high normal, and his oxygen saturation was low
normal. Dr. Jordan pointed out that Joel’s WBC rose after a few days in the hospital.
She conceded that this was after surgery, which can happen, but she said that the
physicians still needed to consider infection. Dr. Jordan acknowledged that cefazolin was
stopped at 6:00 a.m. on September 2, 2017, and 72 hours after it was stopped, Joel’s
temperatures were all within normal limits. She claimed that his fever would not have
spiked right away.
{¶ 31} Dr. Jordan recognized that blood pressure can fluctuate due to fluid shifting
during surgery. She conceded that other vitals were either within normal limits or only
slightly outside normal limits, but she pointed out that Joel’s vitals were frequently
flagged in the chart as abnormal. She claimed that his mean arterial pressure was
indicative of sepsis. Dr. Jordan agreed that the only time that the color of Joel’s sputum
was documented, it was noted to be clear and thin. Other times it was not documented
because he swallowed it.
10.
3. Dr. Felo
{¶ 32} Dr. Felo is a forensic pathologist. He agrees with the Lucas County
coroner that Joel’s cause of death was sepsis caused by klebsiella pneumoniae and that
Joel had significant conditions that increased his risk of developing sepsis and
contributed to his death, including acute pneumonia, complications of recent small bowel
obstruction, and spastic quadriplegic cerebral palsy. Dr. Felo believes that Joel became
infected while he was in the hospital, but before his discharge.
{¶ 33} Dr. Felo explained that pneumonia starts locally and expands out to the rest
of the lungs. He did not know where samples of lung tissue (analyzed at autopsy) were
taken from, so he does not know if the tissue samples came from the central organizing
pneumonia. He conceded that the tissue samplings from the autopsy are not consistent
with Joel having been infected with pneumonia as of August 25, 2017.
{¶ 34} Dr. Felo discussed some of the findings described in the autopsy report. He
testified that the report described that the pulmonary parenchyma exuded large amounts
of blood and pus, which he said is a sign of either a bacterial or fungal infection and is
typical in cases of pneumonia. There were extravasated red blood cells, indicating that
blood passed through the lungs, leaked through the capillaries, and filled Joel’s air sacs.
There was intra-alveolar edema, meaning that fluid had built within the air sacs,
essentially preventing Joel from breathing. And there was diffuse polymorph nuclear cell
infiltration of the bronchi and intra alveolar spaces, indicating that acute inflammatory
cells were reacting to the bacteria or whatever was present in the lung tissues. Dr. Felo
explained that these findings demonstrate the presence of fresh or acute pneumonia, and
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the presence of pus means that while Joel was alive, his body was reacting and trying to
fight off the infection. This pus, fluid, and blood within his airways prevented Joel from
breathing effectively.
{¶ 35} Dr. Felo opined to a reasonable degree of medical probability that Joel did
not die of a massive aspiration event. He explained that aspiration means breathing or
inhaling food, fluid, or vomit into the airway. Here, the tracheobronchial trees of the
lungs were patent, meaning they were open and not filled with fluid, and no records
showed that gastric fluid or vomit was involved in the cause of death. Dr. Felo explained
that clinically, Joel would have been spewing, coughing, or gagging if he had
experienced a massive aspiration.
{¶ 36} On cross-examination, Dr. Felo agreed that when a patient is resuscitated
but passes away, there can be blood in the lungs. He acknowledged that a person can
aspirate vomit or gastric fluids—it comes from the stomach and gets regurgitated and
breathed into the lungs. These fluids enter the patient’s trachea and effectively choke the
patient, provided that they occlude the airway from the vocal cords all the way down into
the lungs. He conceded that vomit was observed at autopsy.
{¶ 37} Dr. Felo agreed that aspiration can cause inflammation and death. He
acknowledged that neutrophils and eosinophils are generally present at the site of
inflammation, and he observed neutrophils and eosinophils on the slides he reviewed. He
explained that neutrophils and eosinophils have a limited lifespan of about three days.
Where an infection lasts nine to 11 days, more chronic inflammatory cells would be
visible under the microscope and fewer neutrophils and eosinophils. The chronic
12.
inflammatory cells that happen after a person has been infected for nine to 11 days cause
red hepatization, which appears as a beefy inflamed lung. With a bronchopneumonia
infection lasting ten to 12 days, he would expect to see chronic inflammatory cells
causing red hepatization. He did not see that in this case. Dr. Felo agreed that the
autopsy is inconsistent with pneumonia that has been present since August 25, 2017,
however, it remains his opinion that klebsiella pneumoniae sepsis was the cause of Joel’s
death.
4. Dr. Poor
{¶ 38} Dr. Poor is a pulmonologist. He opined that Drs. Ahmed and Khan
deviated from the standard of care in their treatment of Joel, and Dr. Khan further
breached the standard of care by discharging Joel prematurely. He believes that
pneumonia was present on August 25, 2017, which led to sepsis and ultimately death.
{¶ 39} Dr. Poor explained that pneumonia is an infection of the airspaces of the
lungs, whereas bronchitis is an infection of the airways. The airways are branched to
prevent the inhaling of dust and microbes. Those things generally get trapped in mucus
and coughed out. Coughing protects the airway and prevents these things from getting
into the lungs. When a person’s defense mechanisms break down, they can become at
risk for developing pneumonia.
{¶ 40} Klebsiella pneumoniae is a bacteria commonly found in the gut. If bacteria
is aspirated into the lungs, it can grow and wreak havoc. Sepsis is the body’s
inappropriate response to infection and is life-threatening.
13.
{¶ 41} Dr. Poor agreed with the radiologist who read Joel’s August 25, 2017 CT
that there were multiple airspace opacities that were highly suggestive of pneumonia.
When airspace opacities are seen, the differential diagnosis includes fluid, blood, or pus.
Pus in the airspaces is pneumonia, and pus was observed at autopsy. Dr. Poor compared
the August 25, 2017 CT to the one performed three weeks earlier. He observed that there
are findings in the second CT that weren’t present in the first CT, which tells him that it
wasn’t scarring or chronic changes depicted in the August 25, 2017 CT. Dr. Poor opined
that Joel should have been treated empirically for pneumonia or it should’ve been further
investigated to determine whether it was pneumonia. It appeared to Dr. Poor that the
August 25, 2017 CT was essentially ignored.
{¶ 42} Dr. Poor acknowledged that atelectasis and a lung filled with fluid or pus
can look similar, but he explained that when there is a splotchy appearance, it is not
atelectasis. He testified that both pulmonologists deviated from the standard of care by
failing to address the pulmonary infiltrates and airspace opacities, and by failing to order
a repeat CT scan to make sure the opacities were resolving. According to Dr. Poor, Joel
should not have been discharged until the issue of the CT and chest x-rays was resolved,
however, he testified that it was appropriate for a hospitalist to rely on the
pulmonologists.
{¶ 43} Dr. Poor said that infections progress at varying rates. An infection may
begin as mild and progress rapidly. He acknowledged that Joel was given cefazolin,
which is not an appropriate antibiotic for the empiric treatment of pneumonia, but he
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claimed that the cefazolin partially treated the infection and kept it slightly at bay. The
infection could worsen rapidly once the antibiotics were removed.
{¶ 44} Dr. Poor conceded that Joel did not exhibit signs of active sepsis during his
hospitalization, but he opined that Joel’s vital signs were not inconsistent with pneumonia
because by the end of his hospitalization, his heart rate was in the hundreds, oxygen
saturation was not completely normal, and his blood pressures were low.
{¶ 45} On cross-examination, Dr. Poor agreed that there are four criteria for sepsis
and all four criteria were not met at the same time. There was no fever on the day of
discharge, but he insisted that a person can have pneumonia without a fever. Although
Joel’s pulse was above 90, Dr. Poor agreed that an elevated heart rate is a nonspecific
finding. Dr. Poor acknowledged that Joel’s respiratory rate was not above 20, and his
WBC was not greater than 12.
{¶ 46} Dr. Poor agreed that all the x-rays during the August admission looked
relatively similar, but he said that there may have been some slight progression. He also
agreed that the report for the September 1, 2017 x-ray did not mention opacities, and the
September 2, 2017 report described atelectasis, not opacities. He pointed out that it also
mentioned a small effusion which is fluid outside the lung. He emphasized the
limitations of a chest x-ray.
{¶ 47} Dr. Poor acknowledged that at Ann Grady, Joel’s blood pressure was not
low, his temperature was 100.4, his pulse was 106, his respirations were 12, and he was
coughing. He opined that the presence of the fever and pulse is consistent with sepsis but
not septic shock. Dr. Poor did not rule out massive aspiration as part of the cause of
15.
death, but he said that there would have been a lot of vomit on autopsy if massive
aspiration was the cause of death.
5. Dr. Parsons
{¶ 48} Dr. Parsons is a pulmonary critical care physician. He concluded that there
was no breach of the standard of care by the pulmonologists and there was no reason to
delay discharge. He opined that Joel did not have pneumonia in August. Dr. Parsons
believes that Joel suffered a massive aspiration at Ann Grady and had a large inoculation
of klebsiella pneumoniae into his lungs when he aspirated.
{¶ 49} Dr. Parsons went over the radiology findings for the chest x-rays. He
described the August 28, 2017 x-ray as unremarkable. The report noted “mild left
retrocardiac airspace disease, may represent pneumonia and/or atelectasis,” but Dr.
Parsons said that this was a common spot for atelectasis in a patient with an endotracheal
tube. He opined that the report required no action.
{¶ 50} Dr. Parsons described the August 29, 2017 x-ray as fairly normal. He
explained that “low lung volumes” is not clinically relevant in most cases involving an
intubated patient and it just means that the lungs haven’t expanded post-surgery. “[L]eft
retrocardiac opacity is unchanged” suggests to Dr. Parsons stable, non-progressive
atelectasis. If Joel had pneumonia upon admission on August 25, 2017, Dr. Parsons
would expect worsening plus clinical indications of an untreated infection.
{¶ 51} In the August 31, 2017 x-ray, Joel’s endotracheal tube had been removed.
There was a stable area of atelectasis on the left, but the x-ray was otherwise
unremarkable. If Joel had pneumonia, Dr. Parsons would have expected to see
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progressive changes after the tube was removed. The radiologist’s report recommended
follow up “if clinically relevant.” Dr. Parsons would not have done anything further to
follow up because there was no evidence of infection.
{¶ 52} The September 1, 2017 x-ray had a similar pattern to all the other ones.
There were no new infiltrates and there was still persistent atelectasis on the left side. Dr.
Parsons explained that atelectasis usually resolves over time once the patient is up and
moving or can be treated by non-invasive therapies at bedside. Atelectasis is not life-
threatening and patients in Joel’s condition often have persistent low lung volumes and
atelectasis.
{¶ 53} The September 2, 2017 x-ray indicates that Joel was supine, which means
he was on his back. Low lung volumes are more common in patients lying down supine.
But he sees the same pattern in this x-ray: low lung volumes, stable atelectasis, and no
new infiltrates. The radiologist report says there were no infiltrates or abnormalities in
the right lung. The August 25, 2017 CT said there were bibasilar infiltrates. If this was
pneumonia, Dr. Parsons would not expect the right lung to be clear in the September 2,
2017 x-ray without antibiotics. One gram of cefazolin would not have cleared up the
lung if it was pneumonia. The September 2, 2017 x-ray report also says there are no
significant changes, which he agrees with, but it also said there was a “small effusion,”
which he does not agree with because there was no shortness of breath and Joel’s vitals
were stable.
{¶ 54} Dr. Parsons compared Joel’s presentation from May to his presentation in
August. In May, his pulse was 140, he had a fever over 101 degrees, his respirations
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were in the twenties, and his oxygen saturation was below 90. His CT and chest x-ray
were also consistent with pneumonia. In August, the imaging is patchy and chronic
looking. Also, the x-rays are markedly different than the May x-rays. When correlated
with his vitals, the imaging does not necessarily suggest pneumonia.
{¶ 55} Doctors usually treat pneumonia with their best guess of antibiotics that
they think will fight the infection without sampling the material that caused it. He does
not agree that Joel should have been given antibiotics because his clinical presentation
was not consistent with pneumonia. He had no fever, his oxygen saturation was normal,
his heart rate was for the most part normal, and his blood pressure was normal. Physical
exams were being performed daily. Although the pulmonologists heard rhonchi, this is
nonspecific and would be expected in someone with a history of chronic aspiration. Dr.
Parsons insisted that another CT was not needed because it was not clinically indicated.
{¶ 56} Dr. Parsons explained the different stages of sepsis. The first is SIRS
(systematic inflammatory response syndrome). It requires evidence of two abnormal
vitals at the same time in order to be significant. The second is SIRS plus presumed
infection. Here, there was no evidence of a presumed source of infection. The third is
severe sepsis. It requires sepsis plus some degree of organ dysfunction. Here, there was
no evidence of organ dysfunction. The fourth is septic shock. It requires severe sepsis
plus hypotension that does not respond to fluids. Dr. Parsons reviewed the Ann Grady
records and found no evidence of septic shock. He noted that prior blood pressures that
were low were not persistent or trending. He also noted that mean arterial pressures were
above 65, and most critical care specialists use below 65 as a cutoff. Although Dr.
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Parsons agreed that the criteria of sepsis are often debated, he said that he has never seen
a patient with sepsis who did not meet any of these criteria. There is a risk of death at all
stages of sepsis.
{¶ 57} Dr. Parsons agreed that cough can be a sign of pneumonia, but he claimed
that Joel’s cough was not concerning for pneumonia because of his history of chronic
aspiration. He also observed that Joel was treated by respiratory therapists. His cough
was noted to be strong, which is good because it indicated that he was able to clear his
airways. Dr. Parsons testified that Joel swallowed his secretions, so nurses and
respiratory therapists were unable to assess color. Where color was noted, it was noted to
be clear and thin, and therefore, unlikely to be related to an infectious process. There was
no documentation of yellow, green, or brown sputum.
{¶ 58} Although Dr. Parsons acknowledged that Joel had been colonized with
klebsiella pneumonia, he emphasized that Joel had a history of chronic aspiration. He
believes that Joel suffered a massive aspiration at Ann Grady and had a large inoculation
of klebsiella pneumoniae into his lungs when he aspirated. He said that a large amount of
material from the stomach and esophagus spilled into the lungs, which can cause death
suddenly. Dr. Parsons disagreed that the absence of vomitus at autopsy rules out massive
aspiration as the cause of death, but he agreed that usually, vomitus will be observed on
the patient’s gown or clothes and in their mouth. As for the autopsy report noting a large
amount of blood in the lungs, Dr. Parsons explained that this can be caused by CPR, and
pus can find its way into the lungs from a massive aspiration plus CPR.
19.
{¶ 59} On cross-examination, Dr. Parsons acknowledged that air bronchograms
are abnormal. He saw them in the September 2, 2017 x-ray, but not in any of the other
serial x-rays. He noted that Joel had received Lasix to try to remove some fluid, so the
presence of air bronchograms was not necessarily persistent.
{¶ 60} Dr. Parsons recognized that in May, Joel went to the hospital already very
sick with pneumonia; he wasn’t there for something else and they just happened to catch
it. He agreed that the findings on the CT could not be ignored even though the CT was
ordered for purposes of diagnosing Joel’s bowel issue and happened to show portions of
the lung.
{¶ 61} Even assuming that the family reported yellow or green sputum, Dr.
Parsons theorized that it could be bile mixed with mucous, which would be consistent
with Joel having had a small bowel obstruction, serious aspiration pneumonia in May,
chronic coughing, and a history of underlying conditions that put him at risk of chronic,
on-going aspiration.
6. Dr. Moss
{¶ 62} Dr. Moss is an internal medicine specialist. He opined that Dr. Crayne
adhered to the standard of care in his treatment of Joel. He testified that once the
pulmonologists became involved, those specialists were responsible for Joel’s pulmonary
care. Moreover, the pulmonologists and Joel’s surgeon were consulted and agreed to
Joel’s discharge, so Dr. Crayne did not violate the standard of care by discharging Joel.
Dr. Moss also opined that Joel did not have pneumonia on August 25, 2017, and he
disagreed that Dr. Crayne should have prescribed antibiotics on an empiric basis.
20.
{¶ 63} Dr. Moss explained that a hospitalist is a generalist who is responsible for
coordinating a patient’s care among consulting physicians in various sub-specialties and
is also responsible for coordinating discharge planning when the consultants agree that
discharge is appropriate. Here, Dr. Crayne managed some of Joel’s medical conditions
and consulted other specialists for those that required a higher degree of specialization.
Dr. Moss testified that a hospitalist should defer to consultants with a higher level of
specialized training.
{¶ 64} Dr. Moss believes that basilar infiltrates visible in the August 25, 2017 CT
were also present in films from May and early August. He also believes that Joel’s
clinical picture was not suggestive of pneumonia, infection, or sepsis. His WBC,
respiratory rate, and oxygenation were all normal. His heart rate was only slightly
elevated, which can also happen with a small bowel obstruction. He had a low-grade
fever twice, after surgery, and a slightly elevated WBC for a day or two after surgery,
both of which are normal.
{¶ 65} Dr. Moss testified that if Joel had untreated pneumonia during his
hospitalization from August 25 to September 5, 2017, it would have produced
overwhelming sepsis, and Joel’s clinical course during his hospitalization was
inconsistent with sepsis. His blood pressure would have been persistently low, and he
would have experienced clinical deterioration and multi-organ failure; it would not have
been subtle. Dr. Moss found nothing concerning about Joel’s pulse and blood pressure.
He explained that patients who undergo surgery for a bowel obstruction often experience
21.
fluid shifts that will affect pulse and blood pressure, and his surgeons would have been
monitoring those numbers post-operatively.
{¶ 66} Dr. Moss opined that Joel died acutely of a massive emesis aspiration. He
highlighted the presence of vomitus around the mouth and the observation that Joel was
gurgling before he died. In his view, the autopsy does not confirm that there was
pneumonia, and nothing suggests to him that Joel’s death was the result of sepsis.
{¶ 67} On cross-examination, Dr. Moss opined that it was inconceivable that Joel
had pneumonia as of August 25, 2017, yet he had a fever only on August 29 and 30,
despite not being treated for pneumonia. He insisted that the dose of cefazolin Joel
received would not have treated klebsiella pneumoniae. Dr. Moss conceded that Dr.
Crayne did not consult pulmonology pre-operatively despite the CT results, but he
clarified that the pulmonary service wasn’t needed in the days preceding the surgery.
7. Dr. Armitage
{¶ 68} Dr. Armitage is an infectious disease specialist. He opined that Joel did not
have an active klebsiella pneumoniae infection during his hospitalization. He reasoned
that Joel’s clinical course was not consistent with an active infection, and the Ann Grady
charting was not consistent with klebsiella pneumoniae or sepsis. Dr. Armitage believes
that Joel suffered an acute fulminant infection from a large aspiration with a high
inoculum of klebsiella pneumoniae. This combination of klebsiella pneumoniae and
aspiration caused rapid clinical deterioration within hours.
{¶ 69} Dr. Armitage testified that klebsiella pneumoniae does not cause atypical
pneumonia—it quickly makes people sick and causes rapid deterioration. The
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pulmonologists sometimes described hearing rhonchi, but Dr. Crayne and the Ann Grady
nurse described clear lungs. He explained that rhonchi can be temporary sounds related
to secretions.
{¶ 70} Dr. Armitage testified that untreated sepsis evolves rapidly and can cause
death at any stage in its progression. He opined that Joel was not septic during his
hospitalization. He said that the Ann Grady notes do not describe a septic patient.
{¶ 71} Dr. Armitage explained that klebsiella pneumoniae would cause vital signs
to deteriorate. He acknowledged that Joel had a temporary increase in temperature and
WBC, but he emphasized that both resolved without treatment and neither would be
unusual following abdominal surgery. Joel’s intermittent low blood pressures could also
be attributable to post-operative fluid shifts. While Dr. Armitage agreed that Joel’s vitals
varied somewhat, he said that if he had pneumonia, there would have been a pattern of
deteriorating vital signs—a couple of isolated abnormalities is not consistent with
pneumonia. Dr. Armitage addressed the fact that Joel had been coughing. He said that
the treatments by the respiratory therapist would produce coughing and sputum.
{¶ 72} Dr. Armitage testified that most pneumonias are diagnosed from x-rays. If
Joel had pneumonia, the serial chest x-rays would have shown progression; they did not.
Although he conceded that the finding by the radiologist who read the August 25, 2017
CT required clinical correlation, Dr. Armitage maintained that there was no indication for
a repeat CT scan.
{¶ 73} Cefazolin would not be used to treat pneumonia; it is aimed at skin or
abdominal infections. It would not prevent fever or abnormal vitals if a patient had
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klebsiella pneumoniae. Dr. Armitage said that a broad spectrum antibiotic would be used
to treat pneumonia. He explained that it is not good medical practice to prescribe
antibiotics reflexively.
{¶ 74} Dr. Armitage opined that there are two explanations for Joel’s death: (1) a
massive aspiration without infection, or (2) a large aspiration event with acute infection
and sepsis. Either way, the event was acute, not chronic, which means that it was not
present on August 25, 2017. He believes it is more likely that that there was a large
aspiration complicated by infection and sepsis. Dr. Armitage maintained that both the
infection and the sepsis developed after he was discharged, while he was at Ann Grady.
He explained that a large aspiration with a large inoculum can produce sepsis quickly.
8. Dr. Kaul
{¶ 75} Dr. Kaul is an infectious disease doctor. He opined that it was reasonable
for Dr. Khan to agree to Joel’s discharge. He disagreed with Dr. Armitage that sepsis
developed between discharge and death. Dr. Kaul believes that Joel died of an aspiration
event rather than progressive sepsis. He explained that the observations of the nurses at
Ann Grady were particularly significant to his opinion because Joel’s vitals looked good,
he was responsive one moment, then he looked away and became unresponsive. Dr.
Kaul explained that this is consistent with an aspiration event. He emphasized that it
does not take a large amount of vomitus to cause death—just enough to plug up the
airway. Vomitus around Joel’s mouth at autopsy is consistent with a massive aspiration.
{¶ 76} Dr. Kaul explained that while sepsis can be somewhat unpredictable,
there’s a recognizable progression to it. He described that a person with sepsis will
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generally show signs and symptoms of infection; the process takes time and is very
recognizable to medical providers. Although some bacteria can rapidly lead to sepsis,
klebsiella pneumoniae is not one of them. He saw pictures of Joel playing cards in the
hospital. Visually, he did not look like a patient suffering from sepsis. There would be
signs of obvious distress.
{¶ 77} Dr. Kaul disagreed that Joel should have been given antibiotics empirically.
He explained that antibiotics should be considered carefully before prescribing. He
recalled that Joel was given cefazolin in connection with his surgery on August 28, 2017,
until September 2, 2017. If he had an infection, there would have been a progression of
his symptoms once the cefazolin was stopped.
{¶ 78} Dr. Kaul acknowledged that Joel had a low fever post-operatively, but said
this is not something doctors would worry about. The overall tenor of his vitals was that
he was improving overall and from a respiratory standpoint, was doing quite well.
Moreover, intermittent low blood pressure is not indicative of severe infection and
sepsis—he would expect to see persistent low blood pressure.
{¶ 79} Dr. Kaul saw no evidence of a purulent cough. A productive cough, even a
colored cough, is common after extubation because the airway is irritated. To that end, if
Joel had pneumonia, they would not have been able to extubate him so quickly. That Joel
swallowed sputum does not affect Dr. Kaul’s opinions.
25.
C. The Treating Physicians
1. Dr. Crayne
{¶ 80} Dr. Crayne was Joel’s attending physician during his final hospitalization.
As Joel’s hospitalist, he was charged with taking care of the things he could take care of
and referring out the things he could not. In this case, a surgeon became involved to
address Joel’s bowel issues and the surgeon ordered a pulmonology consult as a matter of
course because Joel was intubated and admitted to the ICU. Dr. Crayne acknowledged
that Joel’s surgery was performed on August 28, 2017, no pulmonology consult was
requested before the surgery, and he did not consult pulmonology to address the August
25, 2017 CT findings.
{¶ 81} Dr. Crayne agreed that Joel had a history of hospitalizations for pneumonia,
including aspiration pneumonia, and was at high risk of aspiration and pneumonia. It was
Dr. Crayne’s view that despite the August 25, 2017 CT findings, pneumonia was ruled
out clinically. He said he followed Joel every day, assessed him, and looked at his vital
signs. He testified that it is very difficult for a radiologist to make a firm diagnosis by
simply looking at images, and he debated that the radiologist diagnosed pneumonia
because the report said that what was seen on the CT was suggestive of pneumonia—not
that it was pneumonia. Dr. Crayne explained that a diagnosis requires consideration of a
patient’s whole picture, including their clinical presentation, past medical history,
individual physical condition, and risk factors, and the course of treatment is dictated by
the clinical diagnosis. He did not order treatment for pneumonia because he did not
believe that Joel had pneumonia.
26.
{¶ 82} Dr. Crayne agreed that he did not order a chest CT, did not order a chest x-
ray, did not consult an infectious disease specialist, did not prescribe antibiotics, and did
not order any cultures. He conceded that he did not create a plan of care to monitor Joel
for resolution of abnormalities seen on the August 25, 2017 CT, however, he insisted that
he was following him clinically and monitoring his vitals in looking at the big picture—
that was the plan of care.
{¶ 83} Dr. Crayne acknowledged that the radiologist who reviewed the August 31,
2017 chest x-ray found that there was low lung volume and dense retrocardiac left basilar
airspace consolidation; the radiologist recommended follow up. Dr. Crayne interpreted
that as a recommendation to whoever ordered the test, which, in this case, was
pulmonology. Dr. Crayne explained that if pulmonology didn’t think follow-up was
necessary, he would defer to their expertise.
{¶ 84} Dr. Crayne coordinated discharge planning for Joel and was responsible for
signing off on discharge after speaking with other specialists. He agreed that the goal in
discharge planning is to reduce the likelihood of readmission and provide for long-term
care, which, in this case would mean follow up with his primary care doctor. Dr. Crayne
testified that he did as thorough a job as he could and there is nothing he would have
done differently here. He does not dispute the coroner’s finding that the cause of death
was sepsis, thus it is his position that Joel developed pneumonia that triggered sepsis after
his discharge from the hospital.
27.
2. Dr. Ahmed
{¶ 85} Dr. Ahmed is a pulmonologist and critical care doctor. He cared for Joel
from August 28 to September 1, 2017, and during his May hospitalization. After
September 1, 2017, Dr. Ahmed transitioned Joel’s care to Dr. Khan. Dr. Ahmed believes
that given Joel’s clinical picture, Joel died of a massive aspiration.
{¶ 86} Dr. Ahmed acknowledged that Joel had a history of pneumonia and was at
high risk of aspirating, but the pulmonology consult was ordered by the surgeon here
because Joel had been on a ventilator. Dr. Ahmed said that when he saw Joel the day
after the surgery, the x-rays showed that the right-sided changes on the CT resolved and
the changes on the left side were stable. He reviewed Joel’s labs and the vital signs were
all good, so he was able to extubate him.
{¶ 87} Dr. Ahmed described that to discern between postsurgical inflammation
and other kinds of inflammation, he would look to clinical exams, labs, x-rays, and the
patient’s overall picture. He agreed that CTs have a higher level of detail than x-rays.
Dr. Ahmed conceded that a radiologist can diagnose some things, like broken bones, but
there are processes where the radiologist can provide his or her impression, but cannot
make a diagnosis. For instance, a radiologist may describe that he or she is seeing an
opacity, and may call it “a suggestion of pneumonia.” He said that radiologists leave it to
the clinician at the bedside to make the actual diagnosis.
{¶ 88} Dr. Ahmed testified that the clinical signs and symptoms of pneumonia,
and their severity, may vary to a certain extent from person to person. It is possible for a
patient to have more subtle symptoms of pneumonia. Coughing, and coughing up
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phlegm, can be a symptom of numerous conditions, including pneumonia, and should be
documented if it is significant. Dr. Ahmed was not concerned about Joel’s cough
because the endotracheal tube itself irritates the throat, plus Joel’s cerebral palsy affected
his swallowing process and how he handled mucous and secretions; Joel could not
effectively clear his throat. He does not recall the nurses reporting concern about Joel’s
cough, and the respiratory therapists were evaluating him and suctioning him on a regular
basis.
{¶ 89} Post-surgery, Dr. Ahmed ordered serial x-rays because Joel had been
intubated. He was not concerned that Joel had pneumonia, but he recognized that Joel
had a risk of pneumonia as any post-op patient would. Dr. Ahmed explained that he was
not just looking at Joel’s lungs, he was also checking labs to make sure Joel was not
developing bleeding, infection, pleural effusion (fluid outside the lungs), or pulmonary
edema (fluid inside the lungs). Dr. Ahmed testified that Joel showed no signs, symptoms,
or lab values that would cause concern about pneumonia. He said that he did not treat
Joel for pneumonia because there was none to be treated.
{¶ 90} Dr. Ahmed believes that a shadow visible in the lung on the chest x-rays
was atelectasis. He agreed that on an x-ray, it can be difficult to distinguish between
pneumonia and atelectasis. He said that it can also be difficult to distinguish between
pneumonia and pneumonitis. But Dr. Ahmed testified that one follow-up x-ray is
sufficient to follow up on an opacity, and he would not have ordered a CT to distinguish
between pneumonia and atelectasis. He explained that the x-ray was consistent with
atelectasis. He pointed out that the radiologist started describing the findings as
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atelectasis as opposed to pneumonia. He believes the images were overread at first
because the process initially visible on the right side was gone by September 2, 2017, and
the process on the left side was not changing. Dr. Ahmed insisted that atelectasis stays
the same; pneumonia doesn’t. Moreover, he said that pneumonia would not simply go
away on its own in three days without any treatment.
{¶ 91} Dr. Ahmed would expect Dr. Crayne to rely on his expertise in considering
whether Joel had any lung issues. He confirmed that even if he had seen Joel on day one
of his admission, he would not have diagnosed pneumonia, prescribed antibiotics, or
changed the course of treatment in any way.
{¶ 92} Other of Dr. Ahmed’s testimony will be more fully discussed in our
analysis of plaintiffs’ assignments of error.
3. Dr. Khan
{¶ 93} Dr. Khan is a pulmonologist and critical care doctor. He cared for Joel
from September 2 through 5, 2017, and in May 2017 as well. Dr. Khan agreed that Joel
had classic, bilateral pneumonia in May.
{¶ 94} When Dr. Khan took over Joel’s care, he would have gotten a report from
Dr. Ahmed. His practice is to review the patient’s assessment, notes, and x-rays, review
lab data, talk to nurses, make rounds with a nurse, try to get a hold of the respiratory
therapists, and examine the patient. He writes his impression and plan. He does not
recall if he looked at the CT images or just the report. Dr. Khan agreed that the patient’s
medical history and risk factors are important to consider, and Joel had a history of
pneumonia and aspiration. He emphasized, however, that you would not treat a patient
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for pneumonia just because he had it in the past. He explained that he did not order an
antibiotic because there was no reason to do so.
{¶ 95} Dr. Khan is familiar with klebsiella pneumoniae. It lives in the gut and
gastrointestinal tract, but can travel to other parts of the body. In the lungs, it will usually
be present in the upper lobes. Dr. Khan explained that Joel was given cefazolin
prophylactically in connection with the bowel surgery because there is a lot of bacteria in
the bowel that could spill into the peritoneum and into the bloodstream.
{¶ 96} Dr. Khan remarked that Joel got off the respirator easily, which is unusual.
His oxygen saturation was excellent despite atelectasis. Dr. Khan did not order any
additional x-rays, CTs, or blood tests after September 2, 2017, because Joel was showing
progressive improvement and his labs were all fine. He said that he looked at the five x-
rays and compared them to one another. Dr. Khan agreed that it is hard to distinguish
between pneumonia and pneumonitis in a CT, but he disagreed that it’s difficult to tell the
difference on an x-ray between pneumonia and atelectasis. He described that on an x-ray,
if the patient has pneumonia, he will usually see bronchograms.
{¶ 97} Typically, a patient with pneumonia will experience fever, shaking, chills,
marked shortness of breath, tachypnea (rapid respiratory rate) in the 30s, and tachycardia
(increased heart rate) in the 140s. There will also usually be bilateral infiltrates visible on
the chest x-ray. He conceded that it is possible for a patient with pneumonia to be
afrebile, but insisted that there will be other findings consistent with pneumonia.
{¶ 98} Joel was ready to be discharged on September 5, 2017. Nobody
communicated to him any concerns about discharging Joel. Dr. Khan insisted that if he
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had had any doubts pulmonary-wise, he would have kept him in the hospital. From a
pulmonary standpoint, it was appropriate for Dr. Crayne to rely on his determination that
discharge was appropriate.
{¶ 99} Dr. Khan maintained that Joel did not have a pulmonary infection between
August 25 to September 5, 2017. He disagrees that Joel died of sepsis with acute
pneumonia. He believes that he died of an aspiration. He cited three facts in support of
his position: (1) the Anne Grady notes, which demonstrate that Joel had good
oxygenation, his blood pressure was normal, he was smiling and watching television until
the caregiver heard gurgling, at which time Joel turned his head and stopped responding;
(2) the autopsy report shows that there was vomitus around his mouth; and (3) the
autopsy report shows that he had 200 cc’s of fluid in his stomach, some of which went
into his lungs.
{¶ 100} Medical interventions were described in the autopsy report and indicate
that an endotracheal tube was placed. In attempting resuscitation, first responders would
have cleared the airway to allow for placement of that tube.
{¶ 101} Other of Dr. Khan’s testimony will be more fully discussed in our analysis
of plaintiffs’ assignments of error.
D. Joel’s Family
{¶ 102} Joel’s mother, Joanne Pasienza (“Joanne”), testified at trial, as did his
father, Peter Pasienza (Peter”), and his sister, Amanda Mashburn (“Amanda”). Plaintiffs
ordered and filed the transcript of Joanne’s testimony, but omitted Peter and Amanda’s.
32.
There is no explanation in the record for why only a partial transcript of the trial
testimony was ordered and filed.
{¶ 103} Joanne testified that Joel was coughing a lot in the hospital and “gunk”
came out when he coughed. Hospital staff gave them a tube to suction Joel whenever
they felt like he needed it. At her deposition, she described that Joel was gurgling. She
did not remember if they had to suction him any more than usual on the day of discharge.
She did not recall there being anything to suction him with that day. She and her husband
saw him that night at Anne Grady. He did not sign to her that he did not feel well, but
she said that before she left, Joel grabbed her hand tightly and squeezed it.
E. The Verdict
{¶ 104} The jury rendered a defense verdict. Interrogatories indicate that it found
that the doctors did not breach the standard of care in their treatment of Joel. As such, the
jury did not reach the issue of whether a breach of the standard of care proximately
caused Joel’s death.
{¶ 105} The Pasienzas assign the following errors for our review:
First Assignment of Error: The trial court committed reversible
error by allowing testimony from the defendants that lacked foundation,
was inadmissible hearsay under Evid.R. 803, and should have been
excluded pursuant to Evid.R. 403.
Second Assignment of Error: The trial court committed reversible
error by misinterpreting a stipulation by the parties and excluding testimony
about the reliability of the medical documentation evidence.
33.
Third Assignment of Error: The trial court committed reversible
error through the cumulative effect of its evidentiary decisions.
Dr. Crayne assigns the following error for our review:
The trial court erred as a matter of law when it denied Dr. Crayne’s
Motion for Directed Verdict, because Plaintiffs failed to put forth evidence
establishing proximate cause.
II. Law and Analysis
{¶ 106} Plaintiffs’ assignments of error challenge the trial court’s evidentiary
rulings. In their first assignment of error, they argue that the court committed reversible
error when it permitted Drs. Ahmed and Khan to testify about the contents of an EMS
report that was not disclosed in the parties’ exhibit lists. In their second assignment of
error, they argue that the trial court committed reversible error when it prohibited them
from introducing evidence concerning errors and discrepancies in Dr. Crayne’s
documentation. And in their third assignment of error, they argue that the cumulative
effect of other individually-harmless errors resulted in cumulative error requiring
reversal.
{¶ 107} In his sole assignment of error, Dr. Crayne argues that the trial court erred
in denying his motion for directed verdict.
A. Testimony About the EMS Report
{¶ 108} After plaintiffs rested and all the retained experts finished testifying, Drs.
Ahmed and Khan testified in their own case-in-chief. Their attorney sought to utilize and
admit into evidence the EMS report generated by the first responders who were
34.
dispatched in response to the 9-1-1 call from Joel’s providers at Ann Grady. The report
stated as follows:
Narrative
37 y/o Unresp. M. Staff at Ann Grady st. they were suctioning pt.
airway because “It sounded gurgley” when they noted pt. “became limp and
pale”. Per staff they then started CPR. 1sts on scene upon arr. CPR
initiated. Asystole initial rhythms per 1sts. Pt. ax. v/s, and COT as listed.
1sts st. initial CO2=24 c BVM. Pt. initial CO2=55 c King Airway. Pt.
airway was suctioned multiple times to remove bile/emesis. IO est. Pt.
given meds as listed. Pt. did convert into PEA c idioventricular as
underlying rhythm. Approx. 30 min. on scene report radio was given to St.
L’s. Per Dr. Lumbreezer termination of effort OK’d. Time of Death 2348.
Pt. left in care of LCSO and NH Staff’s incident.
{¶ 109} At trial, plaintiffs objected to the admission of the EMS report and to “the
contents of that document” because (1) the report was not disclosed on anyone’s exhibit
list; (2) the report did not constitute “medical documentation,” the admission of which the
parties had stipulated to; (3) it was a surprise document, offered by the doctors at a time
when plaintiffs’ medical experts were no longer available to testify, could not assist
counsel to prepare for cross-examination, and could not, logistically, be recalled on
rebuttal; (4) the doctors were unfairly advantaged because unlike plaintiffs, they had the
medical knowledge to enable them to testify about the report without assistance from
their medical experts; (5) there was no witness who could lay a foundation for its
admission; and (6) the probative value of the evidence was outweighed by the danger of
unfair prejudice.
{¶ 110} The trial court agreed that if the report was not disclosed, “the jury will
not receive it.” And ultimately, upon objection by plaintiffs, it did not admit the
document or permit the defense to display it to the jury. However, the court permitted the
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doctors to testify about its contents. In their first assignment of error, plaintiffs argue that
this was error requiring reversal.
{¶ 111} On direct examination, Dr. Ahmed testified that as a critical care
physician, he runs codes to resuscitate people who have stopped breathing. He
explained:
Person who is not responsive, whose heart stopped, who is not
breathing, very first thing we have to do is start the CPR. And the second
step we have to do is make sure that they are able to get oxygen in their
lungs or in the body. And to do that, we have to put tube which is made of
plastic with the help of a scope and that tube we place from the mouth,
going in their mouth.
Dr. Ahmed was asked about the procedure where a person has coded as the result of a
massive aspiration. He described:
So in that situation, first of all, it’s hard to establish an airway or
hard to put the tube in. When you lift the mouth, you look in the back of
their throat, it’s full of vomitus, so it’s hard to see where the vocal cords
are, where you have to put the tube. So in that case, we always when we
are trying to put the tube in, we have suctioning available to us and we
suction the person to the best of our ability. And once we know where the
landmarks are, where the vocal cords are, we place the tube in there. And
then we know if we are seeing that much of a vomitus in the throat area, in
the back of the tongue area, all of that area, then we are going to see a lot
more which has gone in the lung and that needs to be aspirated right away.
So once we put the tube in, our respiratory therapist already know, they
start aggressively suctioning that material which has gone into the lung.
And that’s how not only we are able to push air, air can go to the – to the
lung to oxygenate them.
{¶ 112} Dr. Ahmed was asked whether he had reviewed the medical records in the
case. He said that he had and that he had continued to think about what happened here
that led to the findings on autopsy, so he asked his attorney for the EMS report.
Regarding that report, Dr. Ahmed told the jury that the EMTs “described the whole
36.
scene” and “exactly what happened at that time.” He said that the “nurses [were] present
at the bedside suctioning patient.” The EMTs were “not able to do the airway which I
do,” so they “put their own airway . . . through patient’s mouth,” “they ke[pt] on
suctioning,” “they did it multiple times,” and “they report[ed] vomitus and bile from the
lungs.” Dr. Ahmed told the jury that because these interventions were undertaken by the
EMTs who tried to resuscitate Joel, he was left with “no doubt about what exactly caused
the whole process here.” He said that this explained why, on autopsy, there was no
vomitus found in the airway—this was “the whole reason why in the autopsy they were
not able to see anything in that trachea or bronchial tube because when they put the
airway in, very first thing we do is we suctioning with a catheter.”
{¶ 113} Similarly, Dr. Khan explained to the jury:
[The EMTs] would do chest compressions that will blow out some
stuff from the lung. And they will put the endotracheal tube in, which we
do normally in the ICU, and they will suction it. That’s the first thing they
do because there was also saying from EMT that there was gurgling sounds
like the nurse described and that would be cleared up. They have to clear
that up to be able to ventilate him with a bag.
Dr. Khan told the jury that there were no secretions in Joel’s lungs at autopsy because
“we had endotracheal tube and suctioning. And big, bulky guys with life support team,
EMT, they came in and did the CPR, so they also brought up all the secretions from the
lung and that’s why there were not seen secretions in the lung. But there’s no question.”
{¶ 114} Plaintiffs did not object during the doctors’ testimony—they lodged the
above-described objections before the doctors testified—however, they now argue on
appeal that the doctors should not have been permitted to testify about the contents of the
37.
EMS report because (1) the report was not properly disclosed, introduced, or admitted
during trial and its introduction on the morning of trial constituted unfair surprise; (2) the
doctors lacked personal knowledge about the contents of the report; (3) the testimony
constituted hearsay (and hearsay within hearsay) to which no exception applies; (4) the
doctors used the facts perceived by the EMTs as the basis for “lay opinions” and “blurred
[the] lines from their professional, lay opinions, and a relaying of the events of the EMS
response”; and (5) the probative value of the testimony was outweighed by the danger of
unfair prejudice, confusion of the issues, and misleading the jury.
{¶ 115} The physicians argue that (1) plaintiffs waived or forfeited error here
because they made a single objection that encompassed only the admission of the EMS
report and not the doctors’ testimony; (2) plaintiffs failed to cite hearsay as the basis for
their objection; (3) the testimony was merely cumulative of other evidence; (4) there was
no unfair surprise or undue delay, and the jury was not misled or confused; (5) the jury
never reached the issue of causation; and (6) Drs. Ahmed and Khan are board-certified
physicians who treated Joel, were disclosed as expert witnesses, and had sufficient
expertise and training to permit them to testify about resuscitating and intubating patients.
They also deny that Dr. Khan testified about the EMS report—they claim he testified
primarily about his experience resuscitating aspirated patients, generally.
1. Preservation of Error
{¶ 116} The first issue we must resolve is whether the plaintiffs properly
preserved their objection to the doctors’ testimony. Under Evid.R. 103(A)(1), “[e]rror
may not be predicated upon a ruling which admits . . . evidence unless a substantial right
38.
of the party is affected; and . . . a timely objection or motion to strike appears of record,
stating the specific ground of objection, if the specific ground was not apparent from the
context.” The failure to object to trial testimony or specify the basis for an objection
waives all but plain error. State v. Hartman, 93 Ohio St.3d 274, 281 (2001); see City of
Beachwood v. Brown,
1997 WL 547964, *2 (8th Dist. Sept. 4, 1997).
{¶ 117} Here it is clear that plaintiffs objected to the admission of the EMS
report—the parties agree on this point. But they disagree (1) whether plaintiffs objected
to the doctors’ testimony about the report, (2) whether plaintiffs’ single objection
registered before the doctors testified was sufficient to preserve the error for review on
appeal, and (3) whether plaintiffs preserved their hearsay objection given that they did
not cite “hearsay” as a basis for their objection.
a. Objection to Testimony
{¶ 118} The record suggests that just before Dr. Ahmed was called to testify,
counsel for Drs. Ahmed and Khan alerted plaintiffs’ counsel that she intended to utilize
the EMS report in her direct examination of her clients. When defense counsel called Dr.
Ahmed to the stand, plaintiffs’ counsel asked to approach the bench. We described above
the specific objections counsel offered during that bench conference. The doctors deny
that those objections encompassed the doctors’ testimony—they contend that they
encompassed only the report itself.
{¶ 119} During the bench conference, the court stated that it didn’t know if the
report would be admitted into evidence given plaintiffs’ representation that it wasn’t
disclosed in the defendants’ exhibit list, “[b]ut if [defense counsel] is going to question
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[the doctors] about it, that’s different.” Plaintiffs’ counsel responded that “if the jury
hears the contents of that document the prejudicial value is established regardless of
whether it’s admitted and goes back with them.” She referenced the difficulty she would
have examining the doctors concerning “the contents” of the report and the prejudice that
would result from “even just the discussion of its contents.” We find that this objection
was sufficient to encompass not only the admission of the report, but also testimony
concerning the contents of the report.
b. Single Objection
{¶ 120} Plaintiffs made a single objection before the doctors testified. The doctors
argue that this was not sufficient to preserve error, particularly with respect to the
doctors’ general testimony about the procedure for running a code on a patient who has
aspirated. Plaintiffs respond that it is unnecessary to renew an objection once the court
has made a definitive ruling.
{¶ 121} To address the sufficiency of plaintiffs’ single objection, we need to
briefly examine their arguments in support of the assigned error. Plaintiffs argue that the
defendant doctors lacked personal knowledge of what was described in the EMS report.
They claim that the doctors could not provide general testimony about resuscitation
because they did not attempt to resuscitate Joel and did not supply expert reports. They
claim that Drs. Ahmed and Khan’s testimony was the only source of information
suggesting that resuscitation efforts—and the suctioning of Joel’s airway—was the
reason that a volume of vomit consistent with massive aspiration was not found at
autopsy. They claim that when testifying about the contents of the EMS report, the
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doctors “wove those contents in with testimony of their personal experiences with
patients requiring CPR and suctioning, along with quasi-hypotheticals from their
counsel,” and “blurred [the] lines from their professional, lay opinions, and a relaying of
the events of the EMS response,” thereby misleading and causing confusion for the
jurors. And they claim that the doctors embellished to add self-serving details not
reflected in the four corners of the EMS report.
{¶ 122} The failure to object to a witness’ qualifications or purported foundational
deficiencies generally forfeits any challenge on appeal. Michigan Millers Mut. Ins. Co. v.
Christian, 2003-Ohio-2455, ¶ 32 (3d Dist.). That is because such deficiencies could have
been resolved at trial had they specifically been brought to the trial court’s attention. See
Hammond v. Nichols,
2003-Ohio-6463, ¶ 5 (4th Dist.).
{¶ 123} Plaintiffs’ arguments illustrate why a single objection did not suffice here.
For instance, specific objections would have allowed the court to differentiate between
aspects of the doctors’ testimony of which they had personal knowledge (e.g.,
resuscitation in general) versus aspects of which they did not have personal knowledge
(e.g., the specific efforts to resuscitate Joel); determine whether the contents of the report
were improperly embellished; rule on the appropriateness of asking the defendant-
pulmonologists “quasi-hypotheticals”; consider whether a proper foundation was laid
before the doctors testified that suctioning during resuscitation expelled large enough
quantities of vomit to explain their massive-aspiration theory; and prevent the doctors
from repeating statements summarized in the report. When the substance of plaintiffs’
arguments is considered, it is clear that specific objections registered at the time of the
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testimony could have allowed the court to resolve claimed deficiencies if brought to its
attention. This is not a situation where it was appropriate for plaintiffs to rely on a single
objection entered before the witnesses testified. Objections to specific questions or
responses should have been registered while the doctors were testifying.
c. Basis for Objection
{¶ 124} Where hearsay claims are not preserved by objection at trial, they are
waived, absent plain error. State v. Keenan, 81 Ohio St.3d 133, 142 (1998). Plaintiffs
did not specifically cite “hearsay” as the basis of their objection to the doctors’ testimony,
however, they maintain that the specific ground for an objection need not be articulated
where it is apparent from the context. They argue that the objections they articulated
sufficiently conveyed that hearsay was one of the bases for their objection.
{¶ 125} The Ohio Supreme Court addressed a similar issue in Plain Local Schools
Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2011-Ohio-3362, ¶ 18-20. In that case, the
school board challenged a decision of the Board of Tax Appeals. The BTA had affirmed
the decision of the Franklin County Board of Revision, which had determined that the
true value of an office building owned by a bank was substantially less than the
originally-appraised value. On appeal, the school board argued, inter alia, that the BOR
and BTA erred by determining the value of real property based on factual material
contained in a written appraisal report, where the appraiser who prepared the report did
not testify.
{¶ 126} At the BOR hearing, an appraiser (“the testifying appraiser”) testified that
she reviewed an appraisal report prepared by another appraiser (“the non-testifying
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appraiser”) who inspected the property. She said that the report was consistent with her
own inspection and analysis. Counsel for the school board asked no questions of the
testifying appraiser, but he objected to the admission of the appraisal report because (1) it
did not offer an opinion of the value of the building as of the tax-lien date, and (2) it was
not prepared for ad valorem taxation purposes. He did not object on the basis that the
information contained in the appraisal report constituted hearsay. The BOR reached a
decision unfavorable to the school board and relied on the report’s valuation in doing so.
{¶ 127} The school board appealed to the BTA, waived a hearing, but renewed its
objections in its brief. It argued that the appraisal report was inadmissible because it did
not offer an opinion of value as of the tax-lien date and asserted that the testifying
appraiser’s testimony was not sufficient evidence of value because she did not perform an
appraisal herself. Again, the school board did not assert that the information contained in
the appraisal report was inadmissible on hearsay grounds. The BTA affirmed,
determining that the testifying appraiser provided her opinion of the property’s worth on
the tax lien date and supported that opinion with evidence from the non-testifying
appraiser’s written report. It noted that it could not rely on the non-testifying appraiser’s
ultimate opinion of value, but it explained that it had considered the information
contained in that report together with the testifying appraiser’s testimony.
{¶ 128} On appeal to the Ohio Supreme Court, the school board again argued that
the appraisal report did not constitute evidence of the value of the property on the tax-lien
date. And for the first time, it raised a hearsay objection to the contents of the appraisal
report. It argued that the appraisal report was itself inadmissible because its preparer did
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not testify, therefore, the testifying appraiser’s opinion of value was unsupported and did
not provide reliable and probative evidence of value. The bank pointed out that the
school board did not object to the testifying appraiser’s testimony or the factual
information contained in the appraisal.
{¶ 129} The Ohio Supreme Court agreed that the school board did not object to
the report on hearsay grounds, nor did it object on the grounds that the testifying
appraiser lacked personal knowledge of the matters contained in the appraisal report. The
Court explained that “when it comes to the admissibility of evidence, the general rule is
that ‘[h]earsay challenges are waived, absent plain error, if not objected to during the
subject proceedings.’” (Citations omitted.) Id. at ¶ 21. It found the failure to object on
hearsay grounds fatal to the school board’s appeal. It further concluded that
consideration of the appraisal report did not constitute plain error because the record
contained indicia of reliability for the contents of the report—i.e., it was prepared by a
certified appraiser for a specific business purpose of the bank and was used for that
business purpose, and its contents were certified by the non-testifying appraiser who
prepared the report.
{¶ 130} Similarly, in Morris v. McQuillen, 2009-Ohio-2848 (5th Dist.),
respondent appealed the entry of a civil protection order against him. At the full hearing
on the petition, the appellee attempted to read from a police report. Respondent’s counsel
objected on the ground that she had no personal knowledge of its contents, and the court
did not permit her to read from the report, nor did it admit the report into evidence.
Nevertheless, without further objection, the petitioner testified at length regarding
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statements contained in the police report and respondent cross-examined her regarding
the statements and incidents to which she testified on direct.
{¶ 131} On appeal, respondent argued that the court’s findings were based on
inadmissible hearsay. The appellate court observed that “[i]t is well-settled that a party
must object in order to preserve an issue for appeal.” Id. at ¶ 14. And because the
respondent failed to object to the testimony during the hearing, the court reviewed the
trial court decision for plain error. It found no plain error because while respondent
specifically objected to the police reports, he failed to object to the balance of petitioner’s
testimony and cross-examined her about it. See also Amerifirst Savings Bank of Xenia v.
Krug, 136 Ohio App.3d 468, 481-82 (2d Dist.1999) (finding that it was unclear that
hearsay was the basis of appellant’s objection to witness’s testimony concerning the
authentication of documents).
{¶ 132} “Failure to either object or move to strike evidence at trial on the basis of
hearsay, a witness’ qualifications, or purported foundational deficiencies, waives any
challenge on appeal, save plain error.” (Citations omitted.) Michigan Millers Mut. Ins.
Co., 2003-Ohio-2455, at ¶ 32 (3d Dist.). Because plaintiffs failed to object on the basis
of hearsay, we conclude that they have forfeited their challenge on appeal unless we find
plain error.
3. Plain Error
{¶ 133} Because we have found that plaintiffs’ single objection to the challenged
testimony was not sufficient, and because we have found that plaintiffs failed to object to
the testimony on the basis of hearsay, we are limited to a plain-error review. In appeals
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of civil cases, the plain error doctrine is not favored and may be applied only in the
extremely rare case involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the basic fairness, integrity, or
public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997),
syllabus. “To constitute plain error in a civil case, the error must be ‘obvious and
prejudicial’ and ‘if permitted, would have a material adverse effect on the character and
public confidence in judicial proceedings.’” Kebe v. Bush,
2019-Ohio-4976, ¶ 23 (8th
Dist.), quoting Friedland v. Djukic,
2010-Ohio-5777, ¶ 37 (8th Dist.). Here, we do not
find that this is the extremely rare case involving exceptional circumstances justifying
reversal under the plain-error doctrine.
{¶ 134} First, this document was available—and its contents should have been
familiar—to all parties. The EMS report documents the last medical interventions
attempted with respect to this patient. That it was never provided to any expert witness
and had never been the subject of interest or inquiry until the final two witnesses’ trial
testimony is, frankly, unusual. In fact, it is unusual that first responders and Ann Grady
personnel who were present that night were not deposed and did not testify at trial. We
cannot say that the basic fairness of the judicial process itself was seriously affected by
allowing the doctors to testify about a report that was equally available, and should have
been familiar, to both parties.
{¶ 135} Second, like the appraisal report in Plain Local Schools Bd. of Edn., 2011-
Ohio-3362, the EMS report contains indicia of reliability. Although not authenticated,
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the EMS report shares much of the same indicia of reliability as the medical records the
witnesses relied on at trial.
{¶ 136} Third, the EMS report was not the only source of some of the information
referenced in the pulmonologists’ testimony. For instance, the Ann Grady notes make
clear that Joel made gurgling sounds, nurses prepared to suction his airway, and EMS
attended to him for approximately 30 minutes. Additionally, the autopsy report indicates
that an endotracheal tube was placed during resuscitation efforts, evidencing that attempts
were made to clear Joel’s airway. We cannot say that the basic fairness of the judicial
process was seriously affected given that the challenged document was not the only
source of the pulmonologists’ testimony.
{¶ 137} Finally, the absence of the entire trial transcript prevents us from finding
reversible error here. That is, portions of the trial testimony were not ordered to be
transcribed and were not filed with this court. Appellants have a duty to provide a
transcript of all parts of the trial court proceedings pertinent to their appeal. App.R. 9(B).
Under Civ.R. 61, “[n]o error in either the admission or the exclusion of evidence . . . is
ground for . . . vacating, modifying or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with substantial justice.” “To
find that substantial justice has not been done, a court must find (1) errors and (2) that
without those errors, the jury probably would not have arrived at the same verdict.”
Hayward v. Summa Health Sys./Akron City Hosp., 2014-Ohio-1913, ¶ 25,
citing Hallworth v. Republic Steel Corp.,
153 Ohio St. 349 (1950), paragraph three of the
syllabus. Regardless of whether we review for plain error or otherwise, plaintiffs’
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assignments of error require us to review the entire record in considering whether
prejudicial error occurred. See Kirn v. Toth Buick-Opel,
1981 WL 3994, *2 (9th Dist.
May 27, 1981), citing Civ.R. 61 (observing that “where it appears from the entire record
that substantial justice was accomplished,” a judgment will not be reversed on the basis
that evidence was improperly excluded or disregarded); Lourdes K. v. Gregory Q.,
1997
WL 256681, *6 (6th Dist. May 16, 1997) (reviewing entire record and determining that
error in admission of hearsay evidence was harmless).
{¶ 138} In sum, this is not the extremely rare case involving exceptional
circumstances justifying reversal under the plain-error doctrine. We find no plain error in
the trial court’s decision permitting Drs. Ahmed and Khan to testify about the contents of
the EMS report, which describe the last medical interventions pertinent to Joel’s care.
Accordingly, we find plaintiffs’ first assignment of error not well-taken.
B. Stipulation
{¶ 139} Before trial, plaintiffs and Dr. Crayne entered into the following
stipulation:
Plaintiffs and Defendant John A. Crayne, M.D. stipulate that
Defendant John A. Crayne, M.D.’s documentation in the medical records,
including, but not limited to, any alleged inaccuracies in his documentation,
do not constitute a departure from accepted standards of medical care.
Plaintiffs and Defendant further stipulate that the documentation of
Defendant John A. Crayne, M.D. was not a proximate cause of Plaintiffs’
decedent’s injuries and death as alleged in Plaintiff’s Complaint.
Accordingly, Plaintiffs will not assert that Defendant Crayne’s
documentation in the medical record constitutes a departure from the
accepted standards of medical care or was the proximate cause of Plaintiffs’
decedent’s injuries and death. The stipulation neither precludes Plaintiffs
from describing, introducing, or otherwise addressing Defendant Crayne’s
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documentation in the medical record for other purposes nor precludes
Defendant John A. Crayne, M.D. from opposing such use by Plaintiffs
either by motion practice or at the time of trial.
{¶ 140} Citing this stipulation, Dr. Crayne filed a pretrial motion in limine asking
the court to prohibit any witnesses from testifying to errors or discrepancies in Dr.
Crayne’s documentation in the medical record. The trial court granted this motion.
Plaintiffs argue that this was error requiring reversal.
{¶ 141} In his motion in limine, Dr. Crayne argued that when plaintiffs’ counsel
deposed Dr. Moss, she questioned him about discrepancies in—and the reliability or
accuracy of—Dr. Crayne’s charting. This questioning culminated in her asking: “Do the
discrepancies noted in the records here cause you any concern as to the degree of
diligence that Dr. Crayne utilized while caring for Mr. Pasienza?” Dr. Crayne argued
that these questions demonstrated that plaintiffs intended to argue that alleged errors in
Dr. Crayne’s documentation called into question other aspects of his care of the patient.
He maintained that this ran afoul of the stipulation. He also claimed that questions about
discrepancies or errors in Dr. Crayne’s charting were not relevant, violated Evid.R.
404(B)(1), and were unfairly prejudicial.
{¶ 142} Plaintiffs responded that Dr. Crayne’s interpretation of the stipulation was
overly broad and inconsistent with its terms. They insisted that the stipulation prohibited
them from asserting that Dr. Crayne’s documentation violated the standard of care or
proximately caused Joel’s injuries and death, but did not prevent them from “describing,
introducing, or otherwise addressing” the documentation for other purposes. They
claimed that the documentation is important evidence of the medical care Joel received
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and was relied upon by the expert witnesses as factual evidence. As such, they argued
that it was fair for plaintiffs to inquire about the reliability of those records and the extent
to which experts or other defendants relied on the documentation. They disputed the
applicability of Evid.R. 404(B)(1), and insisted that the probative value of the evidence
outweighed any danger of unfair prejudice.
{¶ 143} The trial court granted Dr. Crayne’s motion. It held that the witnesses
were prohibited from testifying as to any errors or discrepancies in Dr. Crayne’s
documentation in the medical record.
{¶ 144} Plaintiffs argue that the trial court erred in granting Dr. Crayne’s motion
because (1) the plain language of the stipulation allowed for other types of testimony
regarding Dr. Crayne’s medical documentation; (2) discrepancies in Dr. Crayne’s
medical documentation raised questions about Joel’s true physical condition during the
relevant time period; and (3) the extent to which experts relied on records with errors and
discrepancies is highly probative of their credibility.
{¶ 145} Dr. Crayne responds that plaintiffs failed to proffer evidence to enable the
trial court to make a final determination as to its admissibility and to preserve the
objection for appeal. He also reiterates that the stipulation rendered testimony about
documentation discrepancies not relevant; plaintiffs sought to disparage Dr. Crayne’s
character by arguing that his allegedly poor charting practices provide insight into the
care provided to his patients; all the experts reviewed and relied on the same records in
rendering opinions, therefore, if the defense experts were less credible because they
reviewed and relied on the documentation, so were plaintiffs’ experts; and plaintiffs’ only
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purpose for highlighting documentation deficiencies was to inflame the jury and allow
them to assume that Dr. Crayne was a sloppy physician.
{¶ 146} Plaintiffs reply that the trial court’s ruling was definitive, thus they were
not required to renew their objection, and they preserved the issue on appeal by raising it
during Dr. Alhabbal’s testimony. They disagree that evidence of Dr. Crayne’s
documentation was “other acts” or other improper character evidence.
{¶ 147} “[T]he admission of evidence lies within the broad discretion of the trial
court, and a reviewing court should not disturb evidentiary decisions in the absence of an
abuse of discretion that has created material prejudice.” State v. Conway, 2006-Ohio-
2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion
connotes that the trial court’s attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983). An unreasonable decision is one
that lacks sound reasoning to support the decision. Hageman v. Bryan City Schools,
2019-Ohio-223, ¶ 13 (10th Dist.). “An arbitrary decision is one that lacks adequate
determining principle and is not governed by any fixed rules or standard.”
Id., quoting
Porter, Wright, Morris & Arthur, LLP v. Frutta del Mondo, Ltd.,
2008-Ohio-3567, ¶ 11
(10th Dist.). And an unconscionable decision is one “that affronts the sense of justice,
decency, or reasonableness.”
Id.
{¶ 148} The stipulation permits plaintiffs to “describe[e], introduce[e], or
otherwise address[] Defendant Crayne’s documentation in the medical record” for
purposes other than arguing that inaccuracies or errors in the documentation were a
departure from the accepted standard of care that proximately caused Joel’s injuries and
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death. The trial court held that the witnesses could not testify about errors or
discrepancies in Dr. Crayne’s documentation.
{¶ 149} We begin by briefly addressing the issue of whether plaintiffs properly
preserved error here. Plaintiffs correctly point out that “[o]nce the court rules definitely
on the record,” Evid.R. 103 no longer requires a party to renew an objection or offer of
proof to preserve a claim of error for appeal. While this is true—and while the trial court
did rule definitely—the problem here is that without knowing specifically what evidence
plaintiffs claim they were prevented from introducing, we are left to speculate. We
decline to do that and will address plaintiffs’ arguments in the context of the single
example described in their briefs: “discrepancies between Dr. Crayne’s documentation as
to his assessment of the patient’s lungs as compared to the documentation of the
pulmonologist’s assessment of the patient’s lung.”
1. Plain Language of the Stipulation
{¶ 150} Concerning plaintiffs’ more general claim that the trial court misapplied
the plain language of the stipulation, we find that it did not. Criticism that Dr. Crayne’s
charting contained errors, discrepancies, or inaccuracies is just another way of asserting
that his charting was negligent—exactly what the stipulation prohibited. The court’s
ruling was not inconsistent with the stipulation.
2. Joel’s True Condition
{¶ 151} Concerning plaintiffs’ claim that discrepancies in Dr. Crayne’s medical
documentation “raise[d] questions about Joel’s true physical condition during the relevant
time period,” the court’s pretrial ruling did not prevent plaintiffs from questioning
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witnesses on this topic. In the one example plaintiffs identify, they claim that they were
prevented from exploring “discrepancies between Dr. Crayne’s documentation as to his
assessment of the patient’s lungs as compared to the documentation of the
pulmonologist’s assessment of the patient’s lung.”
{¶ 152} First, we note that at Dr. Armitage’s trial deposition—taken before the
order on the motion in limine—plaintiffs questioned him about this discrepancy. As far
as this court can tell, the jury heard the entirety of Dr. Armitage’s trial deposition. As
such, this “discrepancy” was highlighted for the jury.
{¶ 153} Second, this is a poor example of an “error or discrepancy” in Dr.
Crayne’s charting given that there was no evidence presented that this did not accurately
reflect Dr. Crayne’s observations. Rather, it suggests either that rhonchi were present
when the pulmonologists examined Joel but were not present when Dr. Crayne examined
him or that rhonchi were present when Dr. Crayne examined Joel but he failed to
appreciate this when auscultating Joel’s chest. In either of these scenarios, the alleged
error or discrepancy lay in the examination findings—not the charting itself—and the
court’s order did not prevent plaintiffs from exploring this topic.
{¶ 154} Third, if plaintiffs truly believed that Dr. Crayne did not accurately chart
his findings and intended to emphasize this to the jury, they should not have entered into
the stipulation agreeing that alleged inaccuracies in his documentation did not violate the
standard of care. Characterizing the charting as inaccurate is exactly what plaintiffs
agreed not to do.
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{¶ 155} In sum, the court’s ruling did not prevent plaintiffs from exploring Joel’s
“true physical condition.” They were simply prevented from claiming that Dr. Crayne
inaccurately charted his findings, which is a distinction with a difference.
3. Credibility of the Experts
{¶ 156} Finally, concerning their claim that the experts’ reliance on records with
errors or discrepancies is probative of their credibility, plaintiffs claim that “a medical
expert’s willingness to rely on incorrect or inconsistent records can provide information
to the jury about that expert’s credibility.” As an initial matter, as Dr. Crayne points out,
the experts all received—and therefore relied on—the same medical records. And in any
event, plaintiffs fail to identify in what manner the records were “incorrect or
inconsistent.” The example they provide suggests that the doctors’ examination findings
differed—not that the charting itself was inaccurate. To that end, it was possible to test
the expert witnesses by posing hypotheticals, asking them to assume that Dr. Crayne was
correct that Joel’s chest was clear, or asking them to assume that Dr. Crayne was
incorrect that Joel’s chest was clear. Plaintiffs were not prevented from exploring the
topic—they were prevented from doing so in a manner that implied to the jury that Dr.
Crayne made errors in his charting rather than in his examination.
{¶ 157} We conclude that the trial court’s ruling on Dr. Crayne’s motion in limine
did not misapply the parties’ stipulation. We find plaintiffs’ second assignment of error
not well-taken.
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C. Cumulative Error
{¶ 158} In their third assignment of error, plaintiffs argue that the cumulative
effect of the following errors requires reversal: (1) allowing Dr. Kaul, an infectious
disease specialist, to render pulmonology and family-care standard of care opinions; (2)
permitting the mischaracterization of Dr. Felo’s testimony; (3) excluding demonstrative
evidence during Dr. Alhabbal’s testimony; (4) excluding evidence of who “owned” Joel’s
care while he was hospitalized; and (5) incorrectly sustaining objections on the basis that
they were leading.
{¶ 159} Under the doctrine of cumulative error, a judgment may be reversed when
the cumulative effect of errors deprives a defendant of his or her constitutional rights,
even though such errors are not prejudicial singly. State v. Williams, 2002-Ohio-4831, ¶
36 (6th Dist.), citing State v. DeMarco,
31 Ohio St.3d 191, 196-197 (1987). For the
cumulative error doctrine to apply, there must first be a finding that multiple errors were
committed at trial. State v. Moore,
2019-Ohio-3705, ¶ 87 (6th Dist.), citing State v.
Madrigal,
87 Ohio St.3d 378, 397 (2000).
1. Dr. Kaul
{¶ 160} First, plaintiffs argue that Dr. Kaul should not have been permitted to
provide standard of care opinions for pulmonologists or a family physician because he is
an infectious disease specialist and is not qualified to do so. They maintain that although
other experts had supplied the same opinions, this created “an extreme imbalance” in the
number of doctors telling the jury that Drs. Crayne, Ahmed, and Khan did not violate the
standard of care.
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{¶ 161} The pulmonologists respond that Dr. Kaul’s specialty overlaps with
pulmonology, therefore, Dr. Kaul was properly permitted to provide standard of care
opinions. Similarly, Dr. Crayne responds that Dr. Kaul testified about an aspect of
medicine that is cross-disciplinary—hospital discharge. As such, he claims, Dr. Crayne
was permitted to testify as to the standard of care in the discharging process.
Additionally, Dr. Crayne argues that under Evid.R. 601(B)(5)(c), an expert in one
medical specialty may not testify against a health care provider in another medical
specialty unless the expert shows both that the standards of care and practice in the two
specialties are similar and that the expert has substantial familiarity between the
specialties.” (Emphasis added.) Because Dr. Kaul did not testify against the physicians
here, Dr. Crayne maintains that Evid.R. 601 does not apply.
{¶ 162} Evid.R. 601(B)(5)(c) provides:
A person giving expert testimony on the issue of liability in any
medical claim . . . against a physician . . . arising out of the diagnosis, care,
or treatment of any person by a physician . . . unless . . . [t]he person
practices in the same or a substantially similar specialty as the defendant.
The court shall not permit an expert in one medical specialty to testify
against a health care provider in another medical specialty unless the expert
shows both that the standards of care and practice in the two specialties are
similar and that the expert has substantial familiarity between the
specialties.
Regardless of whether there is any merit to Dr. Crayne’s position that Evid.R.
601(B)(5)(c) is inapplicable to defense experts, the trial evidence demonstrates that the
standards of care and practice as between infectious disease and pulmonology specialists
are similar respecting the diagnosis and treatment of pneumonia. Both infectious disease
and pulmonology specialists diagnose and treat pneumonia, and both are knowledgeable
56.
about the risks and benefits of prescribing antibiotics to treat respiratory infections. Dr.
Kaul specifically testified that the scope of his practice overlaps with pulmonology.
Given that both infectious disease and pulmonology specialists are consulted and treat
patients with respiratory infections, including pneumonia, under the circumstances of this
case, we find that Dr. Kaul was qualified to provide opinions with respect to Drs. Ahmed
and Khan’s treatment of Joel. See Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d
155, 158 (1978) (“Where, as here, the fields of medicine overlap and more than one type
of specialist may perform the treatment, a witness may qualify as an expert even though
he does not practice the same specialty as the defendant.”).
{¶ 163} As for whether Dr. Kaul was qualified to render opinions pertinent to the
standard of care applicable to Dr. Crayne, a family physician, Dr. Kaul testified simply
that it was appropriate for Dr. Crayne to discharge Joel without further investigation. He
had already explained that Joel’s clinical course was not consistent with pneumonia,
antibiotics should not have been prescribed empirically, and no further investigation
needed to be performed before discharging Joel. Although Dr. Kaul does not practice as
a family physician or hospitalist, given his expertise in infectious diseases, it does not
strike us as an abuse of discretion to allow him to testify that Dr. Crayne acted reasonably
in discharging Joel without further investigation when Dr. Kaul himself—more specially
trained in the field—found no evidence consistent with an infectious process. Had Dr.
Kaul testified conversely—i.e., that Dr. Crayne, a physician with less particularized
training, violated the standard of care by discharging Joel—it may have been problematic
because the effect would be to hold Dr. Crayne to a higher standard of care than would
57.
reasonably be expected of a hospitalist or family physician. But given that Dr. Kaul
opined that Dr. Crayne satisfied the standard of care despite having less specialized
knowledge, it is less problematic. We find no abuse of discretion in the trial court’s
decision allowing him to render a standard of care opinion concerning the reasonableness
of Dr. Crayne’s discharge of Joel.
{¶ 164} As for tallying up the number of expert witnesses, we do not find that it is
appropriate to “keep score” in this manner. And even if we did, we conclude that
allowing the hospitalist and pulmonologists to call two experts each was not an abuse of
discretion.
2. Dr. Felo
{¶ 165} Second, plaintiffs argue that the doctors were permitted to twist Dr. Felo’s
testimony to state “there is nothing in the autopsy report consistent with [Joel] having
pneumonia on 8/25,” when in fact he testified that Joel developed pneumonia before his
discharge, but was not permitted to explain that a lack of advanced pneumonia in autopsy
slides from an unknown part of the lung is not evidence that he did not have pneumonia
dating back to August 25, 2017.
{¶ 166} All the doctors deny that Dr. Felo’s testimony was mischaracterized—
they insist that Dr. Felo testified that he could not date the pneumonia back to August 25,
2017. Dr. Crayne argues that plaintiffs’ counsel’s concern here—that Dr. Felo was not
permitted to explain that just because the slides he viewed did not show evidence of
advanced pneumonia does not mean that slides from another part of the lung would not
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have shown a more advanced pneumonia dating back to August 25, 2017—was cured on
redirect, so plaintiffs cannot now ignore the cure and claim error.
{¶ 167} We do not find that the defendant doctors misrepresented Dr. Felo’s
testimony. Dr. Felo, in fact, testified that the slides that were available to him—samples
from an unknown part of the lung—were not consistent with pneumonia that had been
present since August 25, 2017. Although plaintiffs make the point that slides from
another part of the lung may have shown a more advanced pneumonia, the fact remains
that the evidence available to Dr. Felo from the autopsy was not consistent with
pneumonia that began on August 25, 2017. Dr. Felo responded affirmatively when
defense counsel asked him whether it was true that pneumonia present on August 25,
2017 would be inconsistent with anything sampled for the autopsy. We do not believe
that the defendant doctors misstated the evidence, thus there was no error in this regard.
3. Demonstrative Evidence
{¶ 168} Third, plaintiffs argue that upon objection from Dr. Crayne’s counsel,
they were precluded from using a demonstrative exhibit that would have helped Dr.
Alhabbal more easily summarize Joel’s vital signs by displaying exclamation marks to
indicate abnormalities.
{¶ 169} Dr. Crayne maintains that his objection rested on plaintiffs’ failure to
explain and lay a foundation for the exclamation marks, and he insists that he simply
requested that the exclamation marks be taken down “until there’s a reason to put them
up.” He explains that plaintiffs’ counsel removed the exclamation marks and used the
remainder of the demonstrative exhibit.
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{¶ 170} The demonstrative exhibit is not contained in the record. Without being
able to review that exhibit, we cannot say that it was error for the trial court to sustain an
objection to its contents.
4. “Owning” Joel’s Care
{¶ 171} Fourth, plaintiffs argue that the trial court erred in sustaining an objection
to their expert witness testifying that as a hospitalist, he would “own” the care of the
patient, which he explained meant that he was responsible for knowing all the details
about the patient’s care, reviewing labs and x-ray results, and making sure that he is on
common ground with consultants. Plaintiffs clarify that “owning” meant that the
hospitalist owed a duty to the patient—an essential element of their negligence claim.
Plaintiffs maintain that when the court sustained this objection, it prevented them from
meeting their burden of proof as to the elements of negligence. Dr. Crayne argues that
the jury was left to speculate to what ownership entailed, and insists that plaintiffs’
counsel could have simply rephrased her question, but did not.
{¶ 172} We agree with Dr. Crayne. When the trial court sustained Dr. Crayne’s
objection to Dr. Alhabbal’s use of the phrase “owning the patient,” it was incumbent on
plaintiffs to rephrase their questions to elicit testimony in terms more typically used in the
context of medical negligence claims—that the physician owed a duty to the patient. It
was not error to require plaintiffs to do so.
5. Leading Questions
{¶ 173} Finally, plaintiffs argue that the trial court erred by incorrectly sustaining
objections to questions that defense counsel argued were leading. They cite three
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examples: (1) “Is pneumonitis something that has to be treated?”; (2) “[C]an you
describe any effect that having consulted with pulmonologists on day one that Dr. Crayne
would have in your opinion that he deviated from the standard of care as to the discharge
on September 5th?”; and (3) “[I]n examining the contacts for patient, what would be the
justification for limiting the review of the patient’s information to signs and symptoms
only?”. Plaintiffs maintain that these rulings interrupted their presentation of evidence
and created the false impression that plaintiffs were attempting to circumvent proper
procedure.
{¶ 174} Dr. Crayne responds that the objections were not clearly erroneous and, at
worst, they were close calls. He criticizes the first question as suggesting a response of
“yes,” which he claims renders it leading. He points out that plaintiffs’ counsel rephrased
the question and elicited a more nuanced answer. He criticizes the second question as
confusing, but nevertheless maintains that it was a leading question because it suggested
the response. And he insists that the third question was leading, and plaintiffs’ counsel
rephrased the question and elicited the response she was looking for.
{¶ 175} “A leading question is ‘one that suggests to the witness the answer desired
by the examiner.’” State v. Diar, 2008-Ohio-6266, ¶ 149, quoting 1 McCormick,
Evidence (5th Ed.1999) 19, Section 6. “Under Evid.R. 611(C), ‘[l]eading questions
should not be used on the direct examination of a witness except as may be necessary to
develop the witness’s testimony.’”
Id.
{¶ 176} We agree with Dr. Crayne that these examples present close calls as to
whether or not they are leading. To that end, we cannot say that the court’s rulings on the
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objections were unreasonable, arbitrary, or unconscionable. In any event, with respect to
the first and third examples, plaintiffs’ counsel restated her questions, asked better,
clearer questions, and elicited the responses she was seeking. We agree that even if not
leading, the second question was confusing as worded. And while the objections and
rulings may have momentarily interrupted the presentation of evidence, we disagree with
plaintiffs that the objections and rulings created the false impression that plaintiffs were
attempting to circumvent proper procedure.
{¶ 177} In sum, we conclude that these various evidentiary rulings did not produce
cumulative error requiring reversal. We find plaintiffs’ third assignment of error not
well-taken.
D. Dr. Crayne’s Cross-Appeal
{¶ 178} Our resolution of plaintiffs’ assignments of error renders Dr. Crayne’s
cross-appeal moot.
III. Conclusion
{¶ 179} Plaintiffs failed to properly preserve error with respect to their objections
to Drs. Ahmed and Khan’s testimony about the contents of the EMS report. Having
reviewed their challenge under a plain-error standard of review, we find no plain error.
Plaintiffs’ first assignment of error is not well-taken.
{¶ 180} The trial court did not misapply the parties’ stipulation in prohibiting
plaintiffs from eliciting testimony as to errors or discrepancies in Dr. Crayne’s charting.
The court’s ruling was not inconsistent with the plain language of the stipulation, did not
prevent plaintiffs from exploring Joel’s “true physical condition,” and did not prevent
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plaintiffs from challenging the experts’ credibility. Plaintiffs’ second assignment of error
is not well-taken.
{¶ 181} The trial court’s evidentiary rulings did not produce cumulative error
requiring reversal. Plaintiffs’ third assignment of error is not well-taken.
{¶ 182} We dismiss as moot Dr. Crayne’s cross-appeal.
{¶ 183} We affirm the July 25, 2023 judgment of the Lucas County Court of
Common Pleas. Plaintiffs are ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
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.supremecourt.ohio.gov/ROD/docs/.
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