The Supreme Court of Ohio ruled today that several errors made in the malpractice case of an Akron doctor deprived him of a fair trial.

In an opinion authored by Chief Justice Maureen O’Connor, the court today held that the trial court abused its discretion when it admitted an illustration from a learned treatise as an exhibit, refused to give the jury a properly drafted interrogatory, and prohibited the doctor from contesting the injured party’s medical bills by presenting evidence of write-offs unless an expert testified that the write-off payments were the reasonable value of the medical services rendered.

The 5-2 decision reverses the judgment of the Ninth District Court of Appeals and returns the case to the trial court for a new trial.

Following an emergency room visit for lower back pain, Larry J. Moretz of Akron was referred by a family physician to Dr. Kamel Muakkassa, a board-certified neurosurgeon, who determined that Moretz had a large cyst at the base of his spine. Because of the cyst’s rare location, Dr. Muakkassa recommended that Moretz consult Dr. Gary Williams, a general surgeon, for its removal using a laparoscopic approach. On September 28, 2005, Moretz underwent surgery to remove the mass from his pelvis. Dr. Williams’s attempt to remove the cyst laparoscopically was not successful, so he completed the surgery by opening Moretz’s abdomen, according to a contingency plan. Dr. Muakkassa checked in on the surgery, but he did not participate or perform any part of the procedure himself. A pathologist found no nerves in the tissue that was submitted for analysis. As a result of the surgery, Moretz permanently lost bladder, bowel, and sexual function. Moretz and his wife filed a lawsuit against Drs. Williams and Muakkassa and alleged that the doctors’ malpractice had caused Mr. Moretz’s injuries. The case against Dr. Muakkassa proceeded to trial.

The jury found that Dr. Muakkassa was negligent, and the trial court awarded a final judgment of nearly $1 million. The Ninth District Court of Appeals affirmed four parts of the trial court’s decision in favor of the Moretzes, and Dr. Muakkassa appealed those issues to the Supreme Court.

The first issue involved the late filing by the Moretzes of a transcript of a videotaped deposition. Dr. Muakkassa’s attorney tried to prevent the Moretzes from playing a videotaped deposition of their expert witness, board-certified neurosurgeon Dr. Gary Dennis, on the ground that the transcript had not been timely filed. The Rules of Civil Procedure require that any deposition intended to be used as evidence “must be filed at least one day before the day of trial or hearing unless for good cause shown the court permits a later filing.” Although the trial court acknowledged that the defense was “absolutely correct” that a violation had occurred, it excused the Moretzes’ failure to file the transcript as “technical noncompliance” and permitted the video deposition to be played for the jury.

Chief Justice O’Connor explained that the Supreme Court today reaffirms the important principle that “[t]rial courts have a duty to ensure proper adherence to the governing rules, including Civ.R. 32(A), in order to afford fairness to all parties.” The chief justice explained that the trial court here “made sufficient inquiry to establish that Dr. Dennis’s trial deposition was not taken until the Wednesday before trial.” And she noted, when defense counsel moved to exclude Dr. Dennis’s videotaped testimony based on the failure to comply with Civ.R. 32(A), the Moretzes’ counsel told the trial court that he still had not received a transcript. Accordingly, she reasoned that the trial court’s “[u]se of the phrase ‘technical noncompliance’ implies that the trial court acknowledged the late filing but excused it for a good reason, i.e., good cause.” She noted that, in turn, “the Ninth District held that ‘the trial court exercised proper discretion in determining there was good cause’ to permit a later filing. In doing so, the court of appeals engaged in an extensive discussion of why, on this record, a violation of Civ.R. 32(A) could not have prejudiced or surprised Dr. Muakkassa. To that end, the court of appeals appropriately gave great weight to the fact that Dr. Muakkassa had ample notice that the Moretzes intended to use the deposition at trial.” The chief justice agreed, stating: “There is every indication that the timing of Dr. Dennis’s trial deposition was carefully coordinated by everyone involved, considering the schedules of one busy physician and three lawyers in the midst of trial preparation.” As a result, she concluded that, in this case, if the trial court committed any error in failing to expressly determine whether good cause existed for the delay, it was harmless.

Second, Dr. Muakkassa’s attorney objected at trial to the admission of an illustration from a medical textbook showing an “anterior sacral meningocele,” which was Dr. Muakkassa’s initial diagnosis of Moretz’s cyst. However, the illustration represented that nerves were wrapped around the cyst, and the parties vigorously disputed whether there were nerves in Moretz’s cyst. Chief Justice O’Connor explained that the trial court admitted the illustration as an exhibit over Dr. Muakkassa’s objection, and it refused to apply the hearsay rule that governs the use of learned treatises, Evid.R. 803(18).

The chief justice wrote: “Here, Evid.R. 803(18) clearly prohibited admission of the illustration as an exhibit. Nevertheless, it was so admitted, and the Moretzes’ trial counsel described the exhibit as proving that ‘that cyst has nerves.’ . . . In deciding that [hotly contested] issue, the jurors were invited to interpret a highly technical medical illustration in the jury room, by themselves.”

Chief Justice O’Connor explained: “By admitting the illustration as an exhibit, the trial court failed to do what was required, i.e., it failed to prevent the jurors from giving excessive weight to [the] illustration and from interpreting the illustration in the jury room on their own.” She concluded: “By failing to do what was required, the trial court deprived Dr. Muakkassa of his right to a fair jury deliberation.”

The third issue concerned the trial court’s refusal to submit to the jury a properly drafted interrogatory from Dr. Muakkassa’s attorney. The interrogatory would have asked the jury to explain in what respect the doctor was negligent.

In Freeman v. Norfolk & W. Ry. Co. (1996), Chief Justice O’Connor noted, the Ohio Supreme Court held that the Rules of Civil Procedure (Civ.R. 49) impose a mandatory duty upon the trial court to submit an interrogatory to the jury when both its content and its form are proper. “[B]ecause several distinct allegations of negligence were made, Dr. Muakkassa was entitled to have the jury specify of what the negligence consisted,” she explained. “Moreover, the narrative form of the proposed interrogatory was proper because it tracked the precise language that we approved in Freeman. The trial court’s error in rejecting the interrogatory deprived Dr. Muakkassa of his right to test the jury verdict.”

On the fourth issue, the Supreme Court found that the trial court abused its discretion when it prohibited Dr. Muakkassa from attempting to show that the reasonable value of medical services was equal to the amount paid after write-offs unless he laid a foundation through expert testimony.

“We reaffirm our holdings in Robinson [v. Bates (2006)] and Jaques [v. Manton (2010)] and hold that pursuant to R.C. 2317.421, evidence of ‘write-offs,’ reflected in medical bills and statements, is prima facie evidence of the reasonable value of medical services,” Chief Justice O’Connor stated. “But whether this sort of evidence requires the party offering it to lay a foundation for its admission through expert testimony is an open question.”

“As we explained in Robinson, that language [in R.C. 2317.421] plainly permits plaintiffs to offer the statements to prove that the reasonable value of the medical services is equal to the charges,” the chief justice wrote. “And we explained in Jaques that defendants may offer evidence of write-offs to prove that the reasonable value of the medical services is equal to the amount paid after write-offs. There is no basis for requiring expert witness testimony that the actual amounts charged for medical services are reasonable, when the initial charges for the services are admissible into evidence without such testimony. Eliminating the need for expert testimony allows both parties to avoid the expense and ‘the usually empty ceremonial’ of expert testimony on reasonableness. Thus, we conclude that R.C. 2317.421 obviates the necessity of expert testimony for the admission of evidence of write-offs, reflected on medical bills and statements, as prima facie evidence of the reasonable value of medical services.”

The court’s majority opinion was joined by Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French.

Justice Paul E. Pfeifer entered a dissent, joined by Justice William M. O’Neill.

In his dissent, Justice Pfeifer wrote that the majority’s opinion “essentially determin[es] that any error in a civil trial justifies sending the case back for a new trial. That is not the standard in criminal trials, even trials where a person’s life is at stake, and it certainly should not be the standard in civil trials.”

On the specific issues of the admission of the medical illustration, the never-submitted interrogatory asking the jury to describe Dr. Muakkassa’s negligence, and the write-offs on the medical bills, Justice Pfeifer wrote: “[A]dmitting the illustration as an exhibit was not within the discretion of the court, but rather was error, mere error, and that given the abundance of other evidence presented in support of the verdict, the error was harmless.”

“By allowing open-ended questions to be asked of juries, Civ.R. 49(B) causes more harm than good,” he continued. “It allows defendants to attempt to confuse or distract juries, often on minor points that have little or no bearing on the outcome and the issues they are to decide. The only thing saving the civil-justice system from daily train wrecks caused by a literal reading of Civ.R. 49(B) is the common sense and wisdom of trial judges who reject interrogatories that are designed to confuse or distract. This court should have the sense to affirm trial courts when they so act, especially when, as here, the defense had the alternative of asking straightforward yes/no questions that were unlikely to confuse or distract the jury.”

“During the trial, the defense had ample opportunity to introduce evidence about the reasonableness of the write-offs,” Justice Pfeifer reasoned. “Given that the defense did not proffer evidence of the reasonableness of the write-offs at trial, I conclude that the defense should be precluded from contesting that issue on appeal.”

He concluded: “The jury verdict in this case was proper. The finding of negligence and the amount of damages do not reflect passion and prejudice. Nothing in the jury verdict suggests that Dr. Muakkassa did not receive substantial justice. … The trial court’s rulings were appropriate, any error was harmless under the circumstances, and the court of appeals should be affirmed, not chastised.”

2012-0797. Moretz v. Muakkassa, Slip Opinion No. 2013-Ohio-4656.

View oral argument video of this case.

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