[Cite as Woessner v. Toledo Hosp., 2016-Ohio-5764.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

Catherine Woessner, etc. Court of Appeals No. L-14-1260 

 

 Appellee/Cross-Appellant Trial Court No. CI0201201614 

v. 

The Toledo Hospital, et al. DECISION AND JUDGMENT

Appellants/Cross-Appellees Decided: September 9, 2016 

* * * * * 

 Jeffrey T. Stewart, Robert M. Scott and Peter D. Traska, 

 for appellee/cross-appellant. 

 John S. Wasung, Susan Healy Zitterman and Anne M. Brossia, 

 for appellants/cross-appellees. 

 Anne Marie Sferra and Sean McGlone, for amici curiae, Ohio 

 Hospital Association, Ohio State Medical Association and Ohio 

 Osteopathic Association. 

* * * * * 

JENSEN, P.J. 

{¶ 1} Defendants-appellants/cross-appellees Patrick White, M.D. and Toledo 

Hospital appeal from a judgment rendered against them, following a jury verdict, in a 
2. 

medical malpractice wrongful death action. Plaintiff-appellee/cross-appellant Catherine 

Woessner, Administrator of the Estate of Brady Woessner, appeals a decision denying 

Woessner’s motion for pre-judgement interest. 

The Toledo Hospital and Dr. White assign the following errors for review: 

I: The Trial Court Erred In Denying Defendants’ Motions For A 

Directed Verdict. 

 II: The Trial Court Erred In Denying Defendants’ Motion for 

Judgment Notwithstanding The Verdict. 

 III: The Trial Court Erred In Denying Defendants’ Motions To 

Strike Plaintiff’s Proximate Cause Expert Dr. Pelletier Under Evid.R. 

702(C). 

 IV: The Trial Court Erred In Overruling Defendants’ Objection And 

Instructing The Jury On Causation Theories Of Both A Traditional 

Wrongful Death And Lost [sic] Of Less Than Even Chance. 

 V: The Trial Court Erred In Holding That The Cap On 

Noneconomic Damages, R.C. 2323.43, Is Unconstitutional, And Declining 

To Apply it Here. 

 VI: The Trial Court Erred In Denying Defendants’ Motion For A 

New Trial Or Remittitur. 

 
3. 

{¶ 2} Woessner assigns the following error for our review: 

Plaintiff respectfully submits that the trial court erred in denying 

plaintiff’s post-trial motion for prejudgment interest and the subsequent 

motion for reconsideration. 

{¶ 3} On February 17, 2011, Brady Woessner arrived at the Toledo Hospital’s 

emergency room complaining of severe abdominal pain. Brady revealed that he had 

previously been diagnosed with alpha-1 antriypsin deficiency, a genetic disorder that 

caused him to suffer from portal hypertension (an increase in the blood pressure within 

the portal vein system), cirrhosis (slow progressing disease in which healthy liver tissue 

is replaced with scar tissue), and esophageal varices (swollen veins in the lining of the 

lower esophagus). 

{¶ 4} Various tests were performed and Brady was admitted to the hospital. The 

radiologist who reviewed results of a CT scan reported abnormalities in a segment of 

Brady’s small bowel “reflective of a mechanical obstruction,” but noted that ischemia (an 

inadequate blood supply) or inflammation were also possibilities. The radiologist 

reported a density change within the branches of Brady’s superior mesenteric vein, the 

vein that transports blood out of the small intestine. 

{¶ 5} Dr. White treated Brady conservatively—no food or drink, intravenous 

fluids, and a nasogastric tube—consistent with a diagnosis of a partial small bowel 

obstruction. While it initially appeared to Dr. White that Brady’s condition was 

improving, Brady’s health took a turn for the worse on February 22, 2011. A second CT 
4. 

scan was performed. The radiologist noted “extensive small bowel thickening with mild 

dilation. Possible cause ischemia and hemorrhage.” Dr. White decided to transfer Brady 

to a liver transplant center for further treatment and evaluation. 

{¶ 6} On February 23, 2011, Brady was transferred to the University of Michigan 

Health System. A third CT scan was performed. A team of University of Michigan 

medical professionals diagnosed a thrombus (clot) in a branch off of and into the superior 

mesenteric vein. The team attempted to break up the clot with thrombolytic therapy 

(non-surgical injection of anticoagulants into the vein), but the clot did not dissolve. 

{¶ 7} On February 25, 2011, University of Michigan surgeons removed necrotic 

(dead tissue) portions of Brady’s bowel. A second surgery removed more necrosis. 

Brady developed multi-system organ failure and several episodes of sepsis. On May 11, 

2011, Brady was transferred to The Cleveland Clinic. He died on May 21, 2011. 

{¶ 8} Catherine Woessner filed this matter alleging, in relevant part, that Dr. 

White was negligent and that his negligence was the direct and proximate cause of 

Brady’s death. 

{¶ 9} At trial, Dr. Todd Campbell testified that, under the applicable standard of 

care, Dr. White should have transferred Brady to a liver transplant facility for specialized 

treatment in the first 24-36 hours of his arrival at Toledo Hospital. 

{¶ 10} Dr. Campbell opined that ischemia was “a cause” of Brady’s death and the 

“main reason” Brady “ended up getting an infection and then subsequently getting sepsis, 

septic shock and then death.” Dr. Campbell acknowledged that Brady suffered from an 
5. 

underlying liver disease, but indicated he did not have an opinion as to whether Brady 

would have survived the disease had Dr. White not breached the standard of care. 

{¶ 11} Dr. Shawn Pelletier is a liver and bile duct surgeon formerly employed as 

the director of liver transplantation at the University of Michigan. Dr. Pelletier testified 

that upon Brady’s arrival at the University of Michigan, he and his team determined that 

Brady’s immediate problem was “ischemic bowel from mesenteric venous thrombosis.” 

In other words, there was a clot in Brady’s superior mesenteric vein. Dr. Pelletier 

explained, “the outflow of blood from the bowel through those veins was blocked off to 

the point the bowel * * * [was] not getting enough blood supply to stay viable, and we 

were worried that it had progressed to the point of having gangrene, what we would call 

being necrotic.” 

{¶ 12} Dr. Pelletier testified that he and the team tried to restore blood flow to 

Brady’s bowel with thrombolytic therapy. The therapy, however, proved unsuccessful. 

The following day, Dr. Pelletier opened Brady’s abdomen and removed 100 centimeters 

of necrotic bowel. A second surgery was later performed and additional necrotic bowel 

was removed. 

{¶ 13} Dr. Pelletier opined that Brady had both bowel eschemia and a 

decompensated liver before he arrived at Toledo Hospital. He further opined that bowel 

necrosis was “the major cause that led to all the other problems and death.” The 

following exchange occurred during direct examination: 
6. 

Q. Now, Doctor, looking at the bowel ischemia itself – and, I’m 

sorry, let’s close the circle. You said bowel ischemia is a deadly process 

itself? 

A. Yes. 

Q. Was it a deadly process in Brady Woessner? 

A. Yes. 

Q. Going back to the 17th, do you have an opinion to a reasonable 

degree of medical probability as to whether Brady’s bowel ischemia could 

have been successfully treated had you been able to start then rather than on 

the 23rd? 

A. I do. 

* * * 

Q. What is your opinion, doctor? 

A. Based on the clinical findings that when he came in, I believe 

that he had bowel ischemia, but it had not progressed to necrosis at that 

point. 

Q. Do you have an opinion to a reasonable medical certainty as to 

whether if the treatment you wound up initiating six days later had been 

started six days earlier, it would more likely than not have been successful? 

A. I do. 

 
7. 

Q. And what is that opinion? 

A. I believe that if early treatment was started for the bowel 

ischemia, there is a high likelihood of success; the process could have been 

reversed. 

Q. Now, Doctor, Brady Woessner was a liver patient on top of that? 

A. That’s correct. 

Q. Does that complicate his overall situation? 

A. Absolutely. 

Q. What are the things that can go wrong with a liver patient even if 

they recover or are in the process of recovering from their bowel ischemia? 

A. Basically the bowel ischemia can be the process that sets off the 

decompensation. Many times if you can reverse whatever process it was 

that started the decompensation, patients go back to their baseline. So, 

there’s some chance in Brady’s case if the ischemia was reversed, he may 

have developed liver failure, maybe even temporary kidney failure, 

infections, had a long hospital stay, but ultimately, after a period of weeks 

or months, gone back to the state that he was at. There’s also a chance that 

the liver failure may not have been reversible, but if he did not develop the 

sepsis and severe infections that ensued after that, he would have been a 

liver transplant candidate at that point. 

* * * 
8. 

Q. There’s also a chance, however, that none of those things would 

go well, correct? 

A. That is true. 

Q. When you look at the whole picture, the chance that you might 

not succeed in treating the bowel ischemia, the chance that one of these 

other things might go wrong, have you tried to form an opinion that you 

can state to a reasonable medical probability as to what Brady’s chances 

were of clearing all of those hurdles and being with us today? 

A. I have. 

Q. What is your opinion? 

A. My opinion is that he had at least a 40 percent chance going 

through all those hurdles if therapy had been started when he initially – 

initially presented. 

{¶ 14} Appellants moved for a directed verdict pertaining to the claim under the 

traditional theory of wrongful death from medical malpractice. They argued that 

Woessner failed to present any evidence that the alleged deviations from the standard of 

care proximately caused Brady’s death. Appellants asserted that the matter would best be 

construed under the loss of less-than-even chance of recovery or survival theory first 

recognized in Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St.3d 483, 668 

N.E.2d 480 (1996), overruling Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio 

St.2d 242, 272 N.E.2d 97 (1971). 
9. 

{¶ 15} To the contrary, appellee cited McMullen v. Ohio State Univ. Hosps., 88 

Ohio St.3d 332, 725 N.E.2d 1117 (2000) and Segedy v. Cardiothoracic & Vascular 

Surgery of Akron, Inc., 182 Ohio App.3d 768, 2009-Ohio-2460, 915 N.E.2d 361 (9th 

Dist.), for the proposition that “a plaintiff who may very well die of an underlying 

condition has a traditional malpractice case when discrete acts of negligence bring about 

the death, even though it is conceivable that death would have ensued anyway.” In 

support of her position, appellee highlighted the following excerpt from Dr. Pelletier’s 

direct testimony: 

Q: By the time [Brady] got to the University of Michigan with 

active bowel necrosis as you discovered a couple of days later, do you have 

an opinion as to whether that active bowel necrosis contributed or – I’m 

sorry – was the principal reason why he wound up dying? 

A: It was the major cause that led to all the other problems and 

death, yes. 

Q: Did he have to be a liver disease patient for that to be true? 

A: No. 

* * * 

Q: Was the liver disease an essential ingredient of his dying of his 

bowel ischemia? 

A: Bowel ischemia alone is a deadly process. 
10. 

After lengthy discussion with counsel outside the presence of the jury, the trial court 

denied appellants’ motion for directed verdict stating, “the passage of which Mr. Stewart 

highlighted to the Court I believe is sufficient enough to get past a directed verdict.” 

{¶ 16} The jury awarded a verdict in the amount of $4 million against Dr. White 

and White’s employer, The Toledo Hospital. As part of the verdict, the jury answered 

several interrogatories. In these interrogatories, the jury found that Dr. White was 

negligent and that his negligence was a direct and proximate cause of the death of Brady 

Woessner. The jury was instructed, because of its proximate cause conclusion, to skip 

the interrogatory addressing the loss of less-than-even chance of recovery or survival 

theory (often referred to as the “lost chance” theory). 

{¶ 17} The general verdict form was journalized by the trial court on February 18, 

2014. The trial court denied Woessner’s motion for pre-judgment interest and a 

subsequent motion to reconsider the denial. 

{¶ 18} This appeal and cross-appeal followed. 

{¶ 19} Under their first assignment of error, appellants assert that the trial court 

erred when it denied their motion for directed verdict on the traditional medical 

malpractice wrongful death claim. The crux of their argument is that Woessner failed to 

offer sufficient evidence to allow reasonable minds to differ as to whether Dr. White’s 

alleged breach of the standard of care proximately caused the death of Brady Woessner. 

{¶ 20} “A motion for directed verdict * * * does not present factual issues, but a 

question of law, even though in deciding such a motion, it is necessary to review and 
11. 

consider the evidence.” O’Day v. Webb, 29 Ohio St.2d 215, 280 N.E.2d 896 (1972), 

paragraph three of the syllabus. Because we are presented with a question of law, we 

apply a de novo standard of review. White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio6238, 959 N.E.2d 1033, ¶ 1. 

{¶ 21} When a trial court rules on a directed verdict motion, it must not consider 

either the weight of the evidence or witness credibility. See Texler v. D.O. Summers 

Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679-80, 693 N.E.2d 271 (1998); 

Wagner v. Roche Laboratories, 77 Ohio St. 3d 116, 671 N.E.2d 252 (1996); Strother v. 

Hutchinson, 67 Ohio St.2d 282, 284, 423 N.E.2d 467 (1981). Instead, a directed verdict 

motion tests the legal sufficiency of the evidence. See Eldridge v. Firestone Tire & 

Rubber Co., 24 Ohio App.3d 94, 96, 493 N.E.2d 293 (1985). “‘If there is substantial 

competent evidence to support the party against whom the motion is made, upon which 

evidence reasonable minds might reach different conclusions, the motion must be 

denied.’” Strother at 284-285, quoting Hawkins v. Ivy, 50 Ohio St.2d 114, 115, 363 

N.E.2d 367 (1977) (citation omitted); see also Texler. The Civ.R. 50(A)(4) “reasonable 

minds” test “calls upon the court only to determine whether there exists any evidence of 

substantial probative value in support of [the nonmoving party’s claims].” Wagner at 

119-120; see also Texler at 679-80; Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 

68-69, 430 N.E.2d 935 (1982). 

{¶ 22} In order to prove traditional medical malpractice, the plaintiff has the 

burden of demonstrating, by a preponderance of the evidence, that the defendant 
12. 

breached the standard of care owed to the plaintiff and that the breach proximately caused 

an injury. Segedy, 2009-Ohio-2460 at ¶ 11, citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 

346 N.E.2d 673 (1976), paragraph one of the syllabus. 

{¶ 23} Expert testimony with respect to proximate cause must be stated in terms of 

probability. Stinson v. England, 69 Ohio St.3d 451, 633 N.E.2d 532 (1994), paragraph 

one of the syllabus. “In a medical malpractice action premised on a failure to properly 

diagnose or treat a medical condition which results in a patient’s death, the proper 

standard of proof on the issue of causation is whether with proper diagnosis and treatment 

the patient probably would have survived.” Miller v. Paulson, 97 Ohio App.3d 217, 222, 

646 N.E.2d 521 (10th Dist.1994). “‘Probably’ is defined as ‘more likely than not’ or a 

greater than fifty percent chance.” Id. 

{¶ 24} In the present case, the parties do not dispute there was sufficient evidence 

produced at trial to demonstrate that Dr. White breached his duty of care. Appellee 

presented testimony from Dr. Campbell that Dr. White should have transferred Brady to a 

liver transplant facility for specialized treatment in the first 24-36 hours of arrival at 

Toledo Hospital. However, in order to proceed under the traditional theory of medical 

malpractice, appellee was also required to demonstrate a causal link between the breach 

and Brady’s death. Because of the complications involved with Brady’s underlying liver 

disease, expert testimony that the ischemia was “the principal reason” Brady “wound up 

dying” is not sufficient. On this point, appellee’s causation expert, Dr. Pelletier, testified 
13. 

that Brady had “at least a 40 percent chance” of survival if thrombolytic therapy had been 

initiated when he initially presented at Toledo Hospital. 

{¶ 25} Here, the issue is whether the evidence warranted a directed verdict on the 

traditional medical malpractice claim that would have allowed the trial to continue on the 

lost chance theory only. As stated above, in a traditional medical malpractice claim, 

proximate cause must be established by a probability. The loss-of-chance theory, 

however, is an exception to “the traditionally strict standard of proving causation in a 

medical malpractice action.” Roberts, 76 Ohio St.3d at 485. 

{¶ 26} Appellee argues “the testimony established that bowel ischemia is a disease 

independent of liver disease; that it can occur and kill without any liver disease being 

present; and that more likely than not, Mr. Woessner’s bowel ischemia would have been 

reversed had treatment not been delayed.” While the foregoing is an accurate 

representation of a portion of Dr. Pelletier’s testimony, it ignores the doctor’s qualifying 

testimony on direct examination explaining the unique complications presented by 

Brady’s underlying liver disease. Notably, Dr. Pelletier testified that the ischemia—even 

if diagnosed and treated properly—could have started the decompensation (failure) of 

Brady’s liver. “Many times,” Dr. Pelletier explained, “you can reverse whatever process 

it was that started the decompensation, patients go back to their baseline.” While Dr. 

Pelletier explained there was a chance that Brady “after a period of weeks or months” 

could have gone back to the state he was in before the ischemia, there was also “a chance 

that the liver failure may not have been reversible.” If the liver failure was reversible and 
14. 

had Brady not developed sepsis, he would have been a liver transplant candidate with a 

good chance of survival. There was a third possibility, however, and that was “that none 

of those things would go well.” So, when “look[ing] at the whole picture,” Dr. Pelletier 

opined, Brady “had at least a 40 percent chance going through all those hurdles if therapy 

had been started when he initially * * * presented.” 

{¶ 27} We disagree with appellee’s assertion that Dr. Pelletier’s testimony was 

sufficient for a jury to determine that Dr. White’s “negligence was the proximate cause of 

the harm” and that the “failure to diagnose and treat the bowel ischemia was as much an 

independent cause of death as the mishandling of the endotracheal tube in McMullen.” 

{¶ 28} In fact, when reviewed in its entirety, Dr. Pelletier’s testimony proves this 

case to be exactly what appellants’ counsel argued at trial: a lost chance case and not a 

case where the evidence is sufficient to meet the elements of a traditional medical 

malpractice claim. In McMullen, Justice Alice Robie Resnick explained: 

In reviewing the many cases on the subject, a particular factual 

situation is discernible to which the [lost chance] doctrine is invariably 

applied. In those cases, the plaintiff or the plaintiff’s decedent is already 

suffering from some injury, condition, or disease when a medical provider 

negligently diagnoses the condition, fails to render proper aid, or provides 

treatment that actually aggravates the condition. As a result, the underlying 

condition is allowed to progress, or is hastened, to the point where its 

inevitable consequences become manifest. Unable to prove that the 
15. 

provider’s conduct is the direct and the only cause of the harm, the plaintiff 

relies on the theory that the provider’s negligence at least increased the risk 

of injury or death by denying or delaying treatment that might have inured 

to the victim’s benefit. The focus then shifts away from the cause of the 

ultimate harm itself, and is directed instead on the extent to which the 

defendant’s negligence caused a reduction in the victim’s likelihood of 

achieving a more favorable outcome. (Citations omitted.) McMullen, 88 

Ohio St.3d at 338. 

{¶ 29} In order to survive a motion for directed verdict on a traditional medical 

malpractice claim alleging a failure to properly diagnose and treat Brady’s blood clot, 

Woessner was required to present sufficient evidence that but for the alleged negligence, 

Brady had a greater than fifty percent chance of survival. In examining the trial 

testimony, the only evidence produced on the issue of proximate cause was Dr. Pelletier’s 

testimony that Brady had “at least a 40 percent chance” of survival if the blood clot had 

been diagnosed and treatment had been initiated upon arrival at Toledo Hospital. Dr. 

Pelletier’s testimony, when taken in its entirety, failed to establish Brady had a greater 

than 50 percent chance of survival. After construing the evidence in a light most 

favorable to the appellee, we find there did not exist evidence of substantive probative 

value to create a factual question for the jury on the issue of proximate cause in 

appellant’s traditional malpractice claim. For this reason, the trial court erred in 

overruling a directed verdict in favor of Dr. White on that claim. 
16. 

{¶ 30} Appellants’ first assignment of error is found well-taken. The remaining 

assignments of error and cross-assignment of error are moot, and we decline to address 

them. See App.R. 12(A)(1)(c). The judgment of the Lucas County Court of Common 

Pleas is reversed and the cause remanded for further proceedings consistent with this 

decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. 

Judgment reversed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

James D. Jensen, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.