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Xirafakis v. Custodio6/2/2005
{ } Plaintiff, Theofanis Eleftherios Xirafakis, in his individual capacity and on behalf of the Estate of Eleftherios Xirafakis, deceased, appeals the trial court denying his motion for a new trial in this medical malpractice case.
{ } At the time of his death in June 1997, decedent was 47 years old. On October 17th of the preceding year, decedent was diagnosed with bronchitis by his primary care physician, Dr. Ramon J. Custodio. That same day, after seeing Dr. Custodio, decedent went to defendant Med Center One, a local urgent care facility operated under the aegis of defendant Robinson Memorial Hospital.
{ } At Med Center One, decedent complained of shortness of breath and chest tightness. Dr. Vo treated decedent. A chest x-ray was taken and decedent was diagnosed with pneumonia. Dr. Vo did not order an EKG or prescribe any prescriptions for decedent. Instead, Dr. Vo instructed decedent to see Dr. Custodio the next day for a follow-up.
{ } Over the next several months, decedent continued to be treated by Dr. Custodio and Dr. Kenneth Rupp for recurring bronchitits. By May 1997, decedent's condition had deteriorated and he was diagnosed with biventricular heart failure. Decedent underwent cardiac bypass surgery at the Cleveland Clinic Foundation. Within days of being discharged from the hospital, however, decedent died.
{ } Plaintiff filed suit and the case proceeded to trial. The jury determined that Dr. Vo had been negligent for failing to do an EKG in order to ascertain whether decedent might have been suffering from an abnormal heart condition. Despite finding Dr. Vo negligent, however, the jury returned a verdict in favor of defendants because plaintiff had not demonstrated that their actions/inactions proximately caused decedent's death.
{ } Plaintiff timely filed a motion for new trial, which the court denied. Appealing that order, plaintiff presents one assignment of error:
THE TRIAL JUDGE ABUSED HER DISCRETION BY OVERRULING PLAINTIFF-APPELLANT'S MOTION FOR NEW TRIAL NOTWITHSTANDING THE FUNDAMENTAL EVIDENTIARY FLAW IN THE JURY'S VERDICT.
{ } Plaintiff argues that the manifest weight of the evidence is against the jury's verdict and, therefore, the trial court erred when it denied his motion for a new trial.
{ } Civ. R. 59(A)(6), authorizes the trial court to grant a motion for new trial if " he judgment is not sustained by the weight of the evidence *." Civ.R. 59(A)(6); See Kolomichuk v. Grega, (Sept. 20, 2001), Cuyahoga App. No. 78870, 2001 Ohio App. LEXIS 4210, at *5. A new trial should be granted only when the jury's verdict is not supported by "some competent, credible evidence going to the essential elements of the case *." Kolomichuk, 2001 Ohio App. LEXIS 4210, at *5, citing Star Bank National Assn. v. Cirrocumulus Ltd. Partnership (1997), 121 Ohio App.3d 731, 700 N.E.2d 918.
{ } On appeal the propriety of the trial court's decision on this motion is reviewed under an abuse of discretion standard. Rohde v. Farmer (1970), 23 Ohio St.2d 82, paragraph one of the syllabus. "A reviewing court must view the evidence favorably to the trial court's action rather than to the jury's verdict." Chaffins v. Mohamed Al-Madani, Portage App. Nos. 2002-P-0037 and 2003-P-0090, 2004-Ohio-6703, at , citing Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 448, 1996-Ohio-311, 659 N.E.2d 1242.
{ } In the case at bar, plaintiff argues that he presented uncontroverted evidence that if Dr. Vo had ordered an EKG decedent's "cardiac condition would most likely have been found and the Decedent properly treated while there was still time to save him." Plaintiff's Brief
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