IN THE SUPREME COURT OF OHIO

JENNIFER BAKER, Individually and as Executrix of the Estate of JANET COLSTON, Deceased,

Appellant, v. ANTHONY DERISO, II, M.D. -and- LAKESIDE HEART AND LUNG CENTER, INC.

Appellees.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

On Appeal from the Erie County Court of Appeals, Sixth Appellate District Court of Appeals No. E-14-0137

______________________________________________________________________________

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT JENNIFER BAKER

WILLIAM J. NOVAK (0014029)

SCOTT D. PERLMUTER (0082856)

CHELSEA M. SHENTON (0092438)

Novak Pavlik Deliberato, L.L.P.

Tower City Center

Skylight Office Tower

1660 West Second Street, Suite 950

Cleveland, Ohio 44113-1498

Phone: (216) 781-8700

Fax: (216) 781-9227

WNovak@NPDcleveland.com

Scott@NPDcleveland.com

CShenton@npdcleveland.com

Counsel for Appellant, Jennifer Baker

DONALD J. MORACZ, ESQ. (0055369)

TAYLOR C. KNIGHT, ESQ. (0089531)

Reminger Co., L.P.A.

237 West Washington Row, 2nd Floor

Sandusky, Ohio 44870

Phone: 419-609-1311

Fax: 419-626-4805

dmoracz@reminger.com

MARTIN T. GALVIN, ESQ. (0063624)

Reminger Co., L.P.A.

101 West Prospect Avenue, Suite 1400

Cleveland, Ohio 44115

Phone: 216-687-1311

Fax: 216-687-1841

mgalvin@reminger.com

Counsel of Appellees, Anthony

DeRiso, II, M.D. & Lakeside Heart and

Lung Center

Supreme Court of Ohio Clerk of Court - Filed July 29, 2015 - Case No. 2015-1244

Table of Contents

Page

EXPLANATION OF WHY THIS CASE

IS A CASE OF PUBLIC OR GREAT

GENERAL INTEREST ...………………………………………………………………..… 1

STATEMENT OF THE CASE AND FACTS ………………………………………..………. 2

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW …………………………..… 4-8

Proposition of Law No. I: In a medical malpractice case the specialist standard of care

jury instruction is proper when the defendant-physician’s specialty is at issue in the plaintiff’s

claim, however, it is not proper and should not be used every time a defendant-physician is a

specialist because they are a specialist.

CONCLUSION ……………………………………………………………………….………... 8

CERTIFICATE OF SERVICE ……………………………………………………………… 10

APPENDIX

Appx. Page

Decision and Judgment Entry of the

Erie County Court of Appeals (June 16, 2015) ……………………..………………...…..….. 1

1

EXPLANATION OF WHY THIS CASE IS A CASE

OF PUBLIC OR GREAT GENERAL INTEREST

In a medical malpractice case, the most material issue for a jury to “properly understand .

. . is the standard of care.” Kurzner v. Sanders, 89 Ohio App.3d 674, 680, 627 N.E.2d 564 (1st

Dist. 1993). Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), this Court’s seminal

medical malpractice case, contains two standards of care - a general standard of care and a

specialist standard of care. This case presents a critical issue for the future of medical

malpractice plaintiffs in Ohio: whether Bruni’s specialist jury instruction is appropriate merely

because the defendant-physician is a specialist as opposed to the specialist jury instruction being

appropriate only when the defendant-physician’s specialty impinges on the standard of care.

In this case, the court of appeals ruled the specialist jury instruction was in accordance

with the law merely because defendant-physician Dr. DeRiso - a cardiothoracic surgeon - is in

fact a specialist. This decision fails entirely to account for the actual treatment at issue. By

taking the easy road and pinning the standard of care jury instruction to defendant-physician’s

specialty, the court of appeals failed to relate the standard of care jury instruction to the actual

standard of care issue the case presented, setting a dangerous precedent. This decision would

permit instructions on the most critical aspect in medical malpractice cases to mislead the jury.

This Court urgently needs to correct this decision. The implications of the decision of the

court of appeals are dire for medical malpractice plaintiffs, requiring them, in essence, to select

their expert witness based not on their qualifications and competency but rather on artificial

specialist designations, in no way tailored to the specific issue(s) the case presents. If allowed to

stand, the court of appeals’ decision would impose yet another unnecessary burden for plaintiffs

in medical malpractice actions, further narrowing their ever constricting window of opportunity.

In short, using the specialist jury instruction based solely on the defendant-physician’s specialty

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is another way of closing the courthouse door to medical malpractice plaintiffs with otherwise

meritorious claims, merely because they chose a medical expert who despite being competent

and qualified to testify as to the standard of care (and any breach by defendant-physician of the

same), does not share the same specialty as the defendant-physician.

Judges should hear the medical testimony relative to standard of care before determining

the jury instruction that most appropriately reflects that standard, they should not select a jury

instruction that misleads the jury on the main issue the jury is there to determine based on an

individual’s title alone. To assure fairness and avoid placing unfair and unnecessary burdens on

medical malpractice plaintiffs, this court must grant jurisdiction to hear this case and review the

court of appeals’ erroneous and dangerous decision.

STATEMENT OF THE CASE AND FACTS

This case arises from Appellant Jennifer Baker’s medical malpractice and wrongful death

claims filed after the death of her mother, Janet Colston (hereinafter “Ms. Colston”). See Plaintiff

Jennifer Baker’s Complaint. A trial of these claims in the Erie County Court of Common Pleas

resulted in a jury verdict for the defendants, Anthony DeRiso, II, M.D. (hereinafter Dr. DeRiso”)

and Lakeside Heart and Lung Center, Inc. (hereinafter collectively “Appellees”). Thereafter, the

trial judge entered a November 25, 2014 Judgment Entry in Appellees’ favor, Appellant

appealed therefrom.

In October of 2009 Ms. Colston came under Dr. DeRiso’s care following a finding of a

potential lung cancer. Following a biopsy to diagnose the lung cancer, Ms. Colston was

scheduled to undergo a lobectomy for removal. However, prior to that, Ms. Colston developed a

deep vein thrombosis (hereinafter “DVT”) and was placed on Lovenox, an anticoagulant. Since

3

anticoagulants increase bleeding risks and a lobectomy is a major surgery, Ms. Colston’s

anticoagulation would need to be stopped preoperatively and resumed postoperatively.

Ms. Colston’s lobectomy went without complication but on December 12, 2009, while

ambulating in the hospital, Ms. Colston collapsed and, despite resuscitative measures, expired.

Appellant contended Dr. DeRiso was negligent in his care of Ms. Colston and breached the

standard of care by not properly managing and treating Ms. Colston’s DVT preoperatively: by

not completing a full course of anticoagulation therapy or by failing to place an inferior vena

cava (IVC) filter. Appellees disputed Appellant’s contentions.

At trial Appellant presented the testimony of Paul E. Collier, M.D. (hereinafter “Dr.

Collier”), a general and vascular surgeon. Dr. Collier testified that the standard of care in the

preoperative treatment and prophylaxis of DVTs is the same for vascular and cardiovascular

surgeons. Appellees did not dispute that contention, nor did they contest Dr. Collier’s

competence. Dr. Collier further testified that Dr. DeRiso breached that standard of care.

Following the presentation of evidence, the trial court instructed the jury. Over Appellant’s

objection, the trial court instructed the jury that the applicable standard of care is that of a

specialist, cardiothoracic surgeon (found at 1 CV OJI 417.01(3), rather than that of a non-

specialist (found at 1 CV OJI 417.01(2)).

Thereafter, Appellant appealed from the trial court’s judgment entry, challenging the trial

court’s use of the specialist jury instruction. The court of appeals affirmed, holding that if the

parties do not dispute that the defendant-physician is a specialist, then the trial court is correct in

giving the specialist standard of care jury instruction. Appellant now appeals from the court of

appeals’ decision.

4

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proposition of Law No. 1: In a medical malpractice case the specialist standard of care

jury instruction is proper when the defendant-physician’s specialty is at issue in the plaintiff’s

claim, however, it is not proper and should not be used every time a defendant-physician is a

specialist because they are a specialist.

In Bruni v. Tatsumi, this court outlined two separate standards of care to apply in medical

malpractice cases. 46 Ohio St. 127, 346 N.E. 2d 673 (1976). Bruni’s first syllabus contains a

non-specialist standard of care and its second syllabus contains a specialist standard of care. Id.

At 1 CV OJI 417.01 the Ohio Jury Instructions track Bruni’s separate standards of care. In

pertinent part 1 CV OJI 417.01 reads:

1. INTRODUCTION. This is a medical negligence claim brought by

the plaintiff to recover compensation for injuries claimed to have been caused

by the defendant’s negligence. The plaintiff must prove by the greater weight

of the evidence that the defendant was negligent and that the defendant’s

negligence was a proximate cause of injury to the plaintiff. A (physician)

(surgeon) is negligent if the (physician) (surgeon) fails to meet the required

standard of care.

2. NONSPECIALIST. The existence of a (physician-patient)

(surgeon-patient) relationship places on the (physician) (surgeon) the duty to

act as a (physician) (surgeon) of reasonable skill, care, and diligence under like

or similar conditions or circumstances. This is known as the standard of care.

The standard of care is to do those things which a reasonably careful

(physician) (surgeon) would do and to refrain from doing those things which a

reasonably careful (physician) (surgeon) would not do. The required standard

of care is the same throughout the United States. If you find by the greater

weight of the evidence that the defendant failed to meet this standard of care,

then you shall find that he/she was negligent.

3. SPECIALIST. A specialist is a (physician) (surgeon) who holds

himself/herself out as specially trained, skilled, and qualified in a particular

branch of (medicine) (surgery). The standard of care for a (physician)

(surgeon) in the practice of a specialty is that of a reasonable specialist

practicing (medicine) (surgery) exercising reasonable skill, care, and diligence

under like and similar circumstances, regardless of where he/she practices. A

specialist in any branch has the same standard of care as all other specialists in

that branch. If you find by the greater weight of the evidence that defendant

failed to meet this standard of care, then you shall find that he/she was

negligent.

5

Two years after Bruni, this Court ruled that there is no “same specialist” requirement for

expert witnesses in medical malpractice cases. Alexander v. Mt. Carmel Medical Center, 56 Ohio

St.2d 155, 158, 383 N.E.2d 564 (1978). In Alexander, this Court wrote “a witness may qualify

as an expert even though he does not practice the same specialty as the defendant . . . .” Id.; see

also Trevena v. Primehealth, 171 Ohio App. 3d 501, 505, 2006-Ohio-6535, 871 N.E.2d 1217

(11th Dist.) (“In a medical-malpractice case, it is not required that the witness practice in the

same specialty as the defendant-physician”) (quoting Schutte v. Mooney, 165 Ohio App.3d 56,

62, 2006-Ohio-44, 844 N.E.2d 899 (2nd Dist.)). The Alexander court explained that the test to

determine if an expert witness is qualified is whether that witness “will aid the trier of fact in the

search for the truth.” 56 Ohio St.2d at 159 (citing Faukner v. Pezeshki, 44 Ohio App.2d 186, 193,

337 N.E.2d 158 (4th Dist.1975)). Finally Alexander held “it is the scope of the witness’

knowledge and not the artificial classification by title that should govern the threshold question

of his qualifications.” 56 Ohio St.2d at 160 (emphasis added).

All physicians who “perform a medical or surgical procedure are subject to the same

standard of care. . . . [and t]hat standard is not dependent upon a practitioner's specialty. . . .

Differences in areas of specialization go to the weight evidence is to be given by a fact finder.”

Berlinger v. Mt. Sinai Med. Ctr., 68 Ohio App.3d 830, 835, 589 N.E.2d 1378 (8th Dist. 1990)

(citing King v. LaKamp, 50 Ohio App.3d 84, 553 N.E.2d 701 (1st Dist. 1988)) (emphasis added).

Again, courts have emphasized that when different specialties of medicine overlap, “‘more than

one type of specialist may perform [a] treatment, [and] a witness may qualify as an expert even

though he does not practice the same specialty as the defendant.’ . . . [T]he word "treatment" [is

emphasized] because that is the focal point of the analysis . . . .” King, 50 Ohio App.3d at 85.

6

The fact that Dr. DeRiso bears the title “cardiothoracic surgeon,” alone should not justify

the specialist standard of care jury instruction. Again, it is important to emphasize, Appellant’s

criticism of Dr. DeRiso went to his preoperative treatment of Ms. Colston, specifically the

management and treatment of her DVT. This type of treatment is in no way limited to

cardiothoracic surgeons and decisions made in rendering that care are not impacted by a treating

physician being a cardiothoracic surgeon or not; cardiothoracic surgery does not impinge on the

standard of care for that treatment. Here, this point was further emphasized by the early

involvement of other physicians in the early stages of treating Ms. Colston’s DVT. In Schutte v.

Mooney, the trial court excluded plaintiff’s expert, a vascular surgeon, from testifying against

emergency-room physician defendants regarding diagnosis of a DVT. 165 Ohio App.3d 56,

2006-Ohio-44, 844 N.E.2d 899. In overruling the trial court’s decision, the appellate court held:

[Plaintiff’s expert] presented significant evidence that the standard of care for

the diagnosis of DVT does not vary based on whether the patient presents

herself to a family practitioner, an emergency-room physician, or a specialist in

vascular disease. Accordingly, the trial court erred in concluding that

[plaintiff’s expert’s] lack of recent experience in emergency medicine rendered

him unqualified to testify as to the standard of care required of [the emergency-

room physician defendants].

Id. at ¶ 35.

Appellees did not object to Dr. Collier’s competency to testify as to the standard of care

in this case, as such, this is not a “same specialty” question in the normal sense, i.e. competency

of an expert witness. However, this case still presents a “same specialty” issue because the legal

standards used to determine whether a medical expert is competent, and as such that their

testimony admissible, should inform the standard of care the jury applies to the defendant-

physician.

7

Here, when the jury was instructed to review, by a cardiothoracic surgeon specialist

standard of care, Dr. DeRiso’s treatment of Ms. Colston’s DVT they were given the undue

impression that the standard of care expected of Dr. DeRiso relative Appellant’s criticism of him

derived from his specialty – cardiothoracic surgery. This however was entirely incorrect as Dr.

DeRiso’s specialty does not dictate the appropriate standard for the treatment at issue.

If a specialist jury instruction is given, despite the treatment at issue not relating to

defendant’s specialty, it is confusing to a jury and results in imposition of a “same specialty”

requirement for plaintiffs hoping to successfully prosecute their medical malpractice case. If the

court of appeals’ decision stands, future plaintiffs in medical malpractice cases whose claims

resemble Appellant’s (i.e. the defendant-physician’s specialty does not dictate the applicable

standard of care) will be forced to choose a medical expert from within the same-specialty as the

defendant-physician, for no reason other than to have an expert with the same title as the

defendant-physician. For if plaintiffs choose not to do so they will face the unfair, confusing,

and illogical use of a standard of care jury instruction pinned to and chose solely because of a

medical specialty not at issue.

In cases such as this one, the specialist instruction gives the impression that defendant’s

specialty is critical to decision making on the treatment at issue and, as such, testimony from an

expert witness not within that “same specialty” is automatically prejudiced for the jury and given

disparate treatment for no logical reason. This is prejudicial and illogical given that, in this case

for example, a cardiothoracic surgeon specialty is not critical to the preoperative management

and treatment of a DVT, as evidenced by Dr. Collier’s testimony. Typewritten Videotaped

Deposition of Paul E. Collier, M. D., p. 7:18-22.

8

If Appellant criticized Dr. DeRiso’s performance of the December 7, 2009 lobectomy,

the specialist jury instruction would be applicable (and Appellant would not have a colorable

appeal) given Dr. DeRiso’s specialty clearly informs that procedure. However, this was is not

the case. Dr. DeRiso was not managing and treating Ms. Colston’s DVT solely as a

cardiothoracic surgeon, but rather as a physician; the same as would other treating physicians

from different specialties, such as Dr. Collier. The specialist jury instruction imposed a same

specialty” requirement by instructing the jury that the law is that the standard of care was how

reasonable cardiothoracic surgeons manage and treat DVTs, but that is not accurate as DVTs

can, and routinely are, managed and treated by non-cardiothoracic surgeon physicians, including

vascular surgeons, and the standard of care for the treatment of DVTs is identical for all of those

physicians. See Typewritten Videotaped Deposition of Paul E. Collier, M. D., p. 7:18-22.

Here, the sole treatment at issue was the management and treatment of Ms. Colston’s

DVT. While Dr. DeRiso is a specialist, a cardiothoracic surgeon, and was treating Ms. Colston

because at some point after her DVT she needed separate treatment from a cardiothoracic

surgeon, Appellant’s expert testified that Dr. DeRiso’s specialty did not dictate the standard of

care and as such, the specialist jury instruction was inappropriate and a misrepresentation of the

law. The specialist instruction improperly instructed and confused the jury regarding the

appropriate standard of care, the most critical issue in a medical malpractice case.

CONCLUSION

Given the foregoing, this case involves matters of public and great general interest.

Appellant respectfully requests that this Court accept jurisdiction in this case so that the

important issue presented herein will be reviewed on the merits.

9

Respectfully submitted,

William J. Novak, Counsel of Record

/s William J. Novak__________________

William J. Novak

COUNSEL FOR APPELLANT,

JENNIFER BAKER

10

Certificate of Service

I certify that a copy of this Memorandum in Support of Jurisdiction of Appellant Jennifer Baker

was sent by ordinary U.S. mail to counsel for appellees, Donald J. Moracz, Esq. and Taylor C.

Knight, Esq. at 237 West Washington Row, 2nd Floor Sandusky, Ohio 44870 and Martin T.

Galvin, Esq. 101 West Prospect Ave., Suite 1400 Cleveland, Ohio 44115 on this 29th day of

July, 2015.

/s William J. Novak _______________

William J. Novak

COUNSEL FOR APPELLANT,

JENNIFER BAKER