Background
Michelle Protich underwent a kidney transplant at Cleveland Clinic after being taken off Coumadin, which she used because of a mechanical aortic valve. Following surgery, clinicians restarted Coumadin and prescribed Lovenox as a bridge until the Coumadin reached a therapeutic level. She was discharged on April 27, 2023.
Early the next morning, her husband Ryan Protich called the Clinic about her abdominal pain and bloating. A resident recommended treatment for constipation and testified that he also instructed the Protiches to return to the emergency room if her symptoms worsened or she began vomiting, although Ryan disputed receiving those instructions. Michelle later declined transport after an EMS evaluation, began vomiting repeatedly, and did not return to the hospital until that evening. She died shortly after arrival from a retroperitoneal bleed. Ryan sued individually and as estate administrator for medical malpractice, wrongful death, and loss of consortium, but the jury returned a verdict for the Clinic.
The Court’s Holding
The Eighth District affirmed. It held that evidence about the Protiches’ actions between the early-morning call and Michelle’s return to the hospital was relevant to the Estate’s negligence claims, the foreseeability of her injury, and proximate cause. The court did not hold that this evidence established comparative negligence. It also rejected the Estate’s directed-verdict argument because the Estate never actually moved for a directed verdict on foreseeability; it instead moved to prevent the defense from arguing that the injury was unforeseeable. In any event, the Clinic had not conceded foreseeability, and the issue was not conclusively established as a matter of law.
The court also upheld admission of testimony from three treating physicians. They could testify about their personal observations and treatment, and the trial court permissibly relied on affidavits when determining under Evid.R. 104(A) that they were qualified to give expert opinions. The Estate had also opened the door to much of the challenged testimony. Any error concerning one physician’s opinion about the resident’s handling of the telephone call was harmless given the conflicting testimony about what the resident said and the other evidence concerning Michelle’s later symptoms and delayed return.
Finally, the trial court acted within its discretion by retaining Juror No. 7. She disclosed her medical training and 14 years of nuclear-cardiology work during voir dire, and counsel did not initially ask about her job titles or responsibilities. Two additional rounds of questioning revealed no inability to remain impartial or follow the evidence, and her deliberation question about avoiding reliance on outside medical knowledge demonstrated concern about complying with the court’s instructions rather than bias.
Key Takeaways
- Evidence about events after the disputed medical advice was admissible because it bore on negligence, foreseeability, and proximate cause, not because the appellate court deemed it proof of comparative negligence.
- The Estate did not move for a directed verdict on foreseeability; it moved to bar the Clinic from arguing unforeseeability, and the issue was neither conceded nor conclusively established.
- A trial court may consider affidavits when deciding preliminary expert-qualification questions, and a party cannot ordinarily challenge testimony on subjects that party introduced.
- A juror’s disclosed medical background does not require removal absent evidence of partiality or inability to decide the case solely from the admitted evidence and instructions.
Why It Matters
The decision illustrates that a medical-malpractice defendant may introduce evidence of a patient’s post-treatment course when it is relevant to foreseeability and causation, even if the plaintiff characterizes the evidence as an improper comparative-fault argument. The precise purpose for which the evidence is admitted remains important.
It also underscores the need to state trial motions accurately, develop expert-foundation objections before or during trial, and conduct complete voir dire when a prospective juror discloses specialized professional experience.