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Roetenberger v. Christ Hospital9/30/2005
n Roetenberger's vital signs required the giving of a "negative" or "adverse inference" instruction.
{ } The nurse who was monitoring Karen Roetenberger during the ERCP procedure testified that she continuously observed the patient. The nurse testified that typically the protocol machine recorded a patient's vital signs. At the end of the surgical procedure, it was the nurse's job to print the record from the protocol machine and to staple it to the nurse's notes. According to the nurse, Karen Roetenberger's protocol machine record was not printed because at the end of the procedure all attention was focused on resuscitating Mrs. Roetenberger. By the time the nurse returned to the protocol machine to print out the vital signs, another nurse had turned off the machine, rendering Karen Roetenberger's vital signs irretrievable.
{ } In Brokamp v. Mercy Hosp. Anderson, supra, we held that the fact that a nurse did not chart an injection site did not warrant a conclusion of gross neglect or require an "adverse inference" instruction. No "adverse inference" instruction was warranted where a plausible explanation was given for the loss or misplacement of several biopsy slides. See Chervosky v. St. Luke's Hosp. of Cleveland, supra. Where there was nothing to show that the destruction of evidence was willfully designed to disrupt the plaintiff's case, an "adverse inference" instruction was inappropriate. See Vernardakis v. Thriftway, Inc. (May 7, 1997), 1st Dist. No. C-960713. Without evidence that the doctor or the hospital staff intentionally disposed of the doctor's dictation, an "adverse inference" instruction was not appropriate. See Keen v. Hardin Memorial Hosp., 3rd Dist. No. 6-03-08, 2003-Ohio-6707.
{ } We hold that the evidence did not support a "negative" or "adverse inference" instruction in this case. There was no strong showing of malfeasance. The nurse provided a plausible explanation for the absence of a record of Karen Roetenberger's vital signs. The trial court did not err in refusing to give the instruction. The fourth assignment of error is overruled.
{ } The fifth assignment of error, which alleges that the verdict was against the manifest weight of the evidence, is made moot in light of our disposition of the first and second assignments of error, and we decline to review it at this time.
{ } The judgment of the trial court is reversed, and this cause is remanded for a new trial and for further proceedings consistent with law and this decision.
Judgment reversed and cause remanded.
SUNDERMANN, J., concurs.
GORMAN, J., dissents.
GORMAN, J., dissenting.
{ } The majority's opinion joins a recent trend in this appellate district to reverse jury verdicts in medical malpractice cases supposedly because comments by counsel for the physician or hospital went beyond the bounds of closing argument. I disagree with the majority's conclusion in this appeal and find no support for the argument that Dr. Saeed's counsel "grossly and persistently abuse his privilege" in closing argument. See Snyder v. Stanford (1968), 15 Ohio St.2d 31, 238 N.E.2d 563, paragraph one of the syllabus.
{ } In the sixty-two pages of transcript that comprise the closing argument of Dr. Saeed's counsel, Roetenberger objected only four times. Three objections targeted counsel's use of the words "rich people," "brand with malpractice," and "during." The fourth objection related to an argument by Roetenberger's counsel comparing the preponderance-of-evidence standard to half a glass of water. Dr. Saeed's counsel said, "Now let me take their glass of water here that they put and they say just trickle
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