[Cite as Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio1913.] 

HAYWARD, APPELLEE, v. SUMMA HEALTH SYSTEM/AKRON 

CITY HOSPITAL ET AL., APPELLANTS. 

[Cite as Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 

2014-Ohio-1913.] 

When a jury’s answers to interrogatories make it clear that the jurors found that 

the defendant was not negligent and the jury’s verdict is consistent with 

that finding, a remote-cause jury instruction, even if improper, cannot be 

found to have misled the jury in a manner materially affecting a 

substantial right. 

(No. 2013-0021—Submitted November 20, 2013—Decided May 8, 2014.) 

APPEAL from the Court of Appeals for Summit County, 

No. 25938, 2012-Ohio-5396. 

____________________ 

KENNEDY, J.

{¶ 1} In this discretionary appeal from a judgment of the Ninth District 

Court of Appeals, we determine whether the court of appeals erred in holding that 

a remote-cause jury instruction in a medical-malpractice case resulted in 

prejudicial error requiring a new trial. 

{¶ 2} We accepted defendants-appellants’ following proposition of law: 

The Ninth District’s decision in finding reversible error 

with respect to a remote cause jury instruction where a jury finds 

no negligence has effectively redefined what constitutes 

“prejudicial error” in jury instructions and, consequently, the Ninth 

District has created a direct conflict with this court and other 

appellate courts throughout Ohio. 
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{¶ 3} We hold that when a jury’s answers to interrogatories make it clear 

that the jurors found that the defendant was not negligent and the jury’s verdict is 

consistent with that finding, a remote-cause jury instruction, even if improper, 

cannot be found to have misled the jury in a manner materially affecting a 

substantial right. We reverse the judgment of the court of appeals on this issue 

and remand the cause for the court of appeals to consider the assignments of error 

it previously determined were moot. 

I. Facts and Procedural History 

{¶ 4} Defendants-appellants Dr. Michael Cullado, a board-certified 

colorectal surgeon, and Dr. Steven Wanek, a fifth-year surgical resident at 

defendant-appellant Summa Health System/Akron City Hospital, performed 

abdominal surgery on Theresa Hayward, plaintiff-appellee, in October 2007. 

During this procedure, the surgeons used a device called a Bookwalter retractor, a 

flat metal ring that is positioned above the incision and has retractors attached to 

the ring that hold the abdominal wall away from the surgery site. The retractor 

allows the surgeons to see and operate on the surgical area. 

{¶ 5} The Bookwalter retractor is used routinely in abdominal surgery, 

but its use carries known risks. One risk is damage to the femoral nerve, which, 

as one of the defendants testified, is “one of the major nerve conduits to the leg.” 

However, damage to the femoral nerve is a risk of abdominal surgery even when 

a Bookwalter retractor is not used. 

{¶ 6} While in the hospital recovering from surgery, Hayward 

experienced numbness in her left leg and, as a result, was unable to stand. Dr. 

Cullado sought the expertise of Dr. Robert Lada, a neurologist, who ran a nerveconduction study and other tests on Hayward. The study showed nerve damage, 

and further tests ruled out other common causes of femoral-nerve damage, such as 

diabetes and hematoma. Hayward was released from the hospital in a wheelchair. 
January Term, 2014 

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She improved with time and therapy, but there is some permanent impairment, 

and she now walks with a cane. 

{¶ 7} In March 2009, Hayward filed a claim for relief against 

defendants-appellants, alleging that medical malpractice caused her femoral-nerve 

damage. Dr. Cullado testified at trial that in performing the surgery, and 

specifically, in placing the Bookwalter retractor, he conformed to or exceeded the 

proper standard of care. But he also stated that he believed Hayward’s injury was 

caused by the retractor during surgery, as did Dr. Lada. 

{¶ 8} Both the plaintiff’s and defendants’ expert witnesses, however, 

testified that when a femoral-nerve injury is caused by a Bookwalter retractor, a 

doctor was negligent. Hayward’s expert testified that femoral-nerve damage 

caused by the retractor is not a foreseeable risk of this kind of operation unless the 

retractor blades are not properly placed and that only physician negligence could 

have caused her injury. The defense expert acknowledged that the proper 

standard of care “can eliminate femoral nerve injuries caused by retractor blades.” 

But he also testified that the plaintiff’s expert was drawing “inappropriate 

conclusions” from the femoral-nerve injuries because it was clear from Dr. 

Cullado’s surgical notes that he was a careful doctor, “other factors” may cause 

such injuries, and the appropriate standard of care cannot reduce the risk of 

femoral-nerve injuries to zero. He said that Dr. Cullado had “met the standard of 

care required of him.” 

{¶ 9} The trial judge read aloud the jury instructions while showing them 

on a screen. He instructed the jurors on preponderance of the evidence, direct 

evidence, circumstantial evidence, inference, witness credibility, and expert 

testimony. 

{¶ 10} The trial judge next instructed the jury on negligence. He first 

explained that negligence alone is insufficient to prove liability because to prove 

liability, the plaintiff must also prove proximate cause. He explained “proximate 
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cause” as follows: “Proximate cause occurs when the injury is the natural and 

foreseeable result of the act or failure to act.” As the defense requested, the judge 

added the following “remote-cause instruction”: “A person is not responsible for 

damages to another if his negligence is a remote cause and not a proximate cause. 

A cause is remote when the result could not have been reasonably foreseen or 

anticipated as being a natural or probable cause of any damage.” Earlier, when 

the judge had told the attorneys the instructions he planned to give the jury, 

Hayward objected to the remote-cause jury instruction. But she did not object to 

this instruction when it was given, even though the trial judge asked whether the 

parties had any objections to the instructions that they wanted to put on the 

record. The judge then instructed the jurors on economic and noneconomic loss 

and told the jurors that if they found in favor of Hayward, they should sign the 

general-verdict form in favor of Hayward and answer the interrogatories about 

damages Hayward suffered. 

{¶ 11} The judge then gave instructions for answering the interrogatories. 

In doing so, the judge omitted some of the instructions and made some 

misstatements. The judge directed the jurors to answer Interrogatory No. 1, 

which asked whether Dr. Cullado was negligent in the care and treatment of 

Hayward. The judge then told the jurors to complete the general-negligence 

verdict form, which he called “the second form,” if they answered “No” to 

Interrogatory No. 1. The form he was referring to was labeled “Verdict Form 

‘A,’ ” which reads that the jury finds in favor of Dr. Cullado “on the issue of 

liability.” 

{¶ 12} The judge then instructed the jurors to answer Interrogatory No. 2 

if they answered “Yes” to Interrogatory No. 1. Interrogatory No. 2 asks whether 

Summa Health System, through its employee, Dr. Wanek, was negligent in the 

care or treatment of Hayward. Therefore, the answer to Interrogatory No. 1 has 

no bearing on Interrogatory No. 2. 
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{¶ 13} The judge seems to have mistaken Interrogatory No. 2 for 

Interrogatory No. 3, which asks whether Dr. Cullado’s negligence caused injury 

to Hayward, and is the question that should have been answered only if the jury 

answered “Yes” to Interrogatory No. 1. 

{¶ 14} The judge then told the jurors to “complete the general verdict 

form which follows in favor of Summa Health System” if they answered “No” to 

Interrogatory No. 2. The judge was referring to “Verdict Form ‘B,’ ” but he did 

not identify it specifically. 

{¶ 15} The judge then began to instruct on Interrogatory No. 3, which 

asked whether Dr. Cullado’s negligence caused injury to Hayward. In the midst 

of the instruction, he realized his earlier error and tried to correct it: “If you 

answer yes, then you would go to Interrogatory No. 3—let me back that up. If 

you answer yes to Interrogatory No. 1, then you would go to Interrogatory No. 3, 

regardless of what you do on Interrogatory No. 2. These are separate claims.” 

The judge added shortly thereafter, “Okay. If you get confused, please ask.” The 

jurors did not ask for clarification, and the parties did not raise any objections 

regarding how the instructions were given. 

{¶ 16} The court then instructed the jurors on what to do if they answered 

“Yes” to Interrogatory Nos. 3 or 4 (Interrogatory No. 4 asks whether the 

negligence of Summa Health System, through Dr. Wanek, caused injury to 

Hayward). The judge did not instruct the jurors to leave Interrogatory Nos. 3 and 

4 blank if they answered Interrogatory Nos. 1 and 2 with “No.” 

{¶ 17} The remaining interrogatories and verdict forms pertain to plaintiff 

verdicts. Jury Interrogatory Nos. 5, 6, and 7 asked the jurors to compute 

damages. Verdict Forms C, D, and E were to be signed if the jurors found for the 

plaintiff. 

{¶ 18} After the instructions were given, the jurors deliberated. The 

jurors returned, having signed Verdict Forms A and B finding for defendants “on 
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the issue of liability.” They had also circled “No” on Interrogatory Nos. 1 and 2, 

indicating their finding that the defendants were not “negligent in the care and 

treatment of Theresa Hayward.” The jurors also circled “No” on Interrogatory 

Nos. 3 and 4, indicating their finding that the defendants’ negligence did not 

cause injury to Hayward. However, the jurors had not signed Interrogatory Nos. 1 

though 4. The jurors had left blank Verdict Forms C, D, and E and Interrogatory 

Nos. 5, 6, and 7. 

{¶ 19} After reviewing the verdicts and interrogatories, the judge 

acknowledged the verdicts but responded, “This may be my fault, but we will 

have to have you sign the interrogatories that you answered. * * * You would do 

the first, the second, three, four—okay.” Without objection by the parties, the 

jurors returned to the deliberation room and signed the four interrogatories. 

{¶ 20} Upon resuming, the court did not note any discrepancy or 

inconsistencies between the completed interrogatories and the verdicts. The judge 

then read the verdicts, which found for the defendants, and the four answered 

interrogatories, which were consistent with the defense verdicts. Hayward’s 

counsel examined the completed verdict forms and interrogatories and made no 

objection. Neither the judge nor the parties raised concerns about the manner in 

which the jurors had completed the interrogatory and verdict forms or noted any 

inconsistencies between them. The judge then accepted the jury’s verdicts and 

findings as consistent. 

{¶ 21} Hayward filed a timely motion for judgment notwithstanding the 

verdict pursuant to Civ.R. 50(B) or a new trial pursuant to Civ.R. 59(A)(6) (a new 

trial may be granted when “[t]he judgment is not sustained by the weight of the 

evidence”). Hayward argued that the verdicts cannot be “reconciled with the 

evidence,” which is that a femoral-nerve injury caused by retractor placement 

always results from medical malpractice. As evidence that the jury had lost its 

way, Hayward cited the jury’s completion of the interrogatories on causation 
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(Interrogatory Nos. 3 and 4) and argued that answering these would have been 

unnecessary unless the jury had already found negligence. The trial court denied 

the motion, holding that under Civ.R. 49(B), the “function of jury interrogatories 

is to test the correctness of the general verdict.” Summit C.P. No. CV 2009 03 

2529, 5 (Apr. 20, 2011). The court noted that the party challenging a general 

verdict must show that the answers to the interrogatories are irreconcilable with 

the general verdict, citing Becker v. BancOhio Natl. Bank, 17 Ohio St.3d 158, 

163, 478 N.E.2d 776 (1985). Here, the interrogatories supported the general 

verdicts for the defense. 

{¶ 22} Hayward appealed. In one of five assignments of error, Hayward 

argued that because the trial court had instructed the jury on remote cause, “the 

jury engaged in a logical impossibility—finding no causation for negligence that 

it did not find occurred.” The court of appeals agreed. Though holding that the 

trial court had properly overruled Hayward’s motion for judgment 

notwithstanding the verdicts because an expert had testified that the surgeon did 

not deviate from the standard of care, it reversed the judgment and remanded for a 

new trial because the remote-cause instruction was “clearly not warranted.” 9th 

Dist. Summit No. 25938, 2012-Ohio-5396, ¶ 10, 17. It cited the jurors’ 

completion of the interrogatories on causation, notwithstanding their finding no 

negligence, as evidence that “the instructions did confuse the jury” and misled the 

jury in a matter materially affecting Hayward’s substantial rights. Id. at ¶ 17. The 

court of appeals said that the jury instruction “could have confused the issue of 

the breach of the standard of care with remote causation.” Id. The defendants 

filed this discretionary appeal. 

 II. Legal Analysis 

{¶ 23} We declined to accept jurisdiction over the issue whether the 

remote-cause jury instruction was appropriate. The only determination we make 

in this case is whether the court of appeals, after finding that the remote-cause 
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instruction was not appropriate, properly applied Civ.R. 61 and R.C. 2309.59 and 

related case law in determining that the plaintiff’s substantial rights were 

materially affected by the instruction. Because we are presented with a question 

of law, we apply a de novo standard of review. Goodyear Tire & Rubber Co. v. 

Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. 

{¶ 24} R.C. 2309.59 directs a court of appeals as follows: 

In every stage of an action, the court shall disregard any 

error or defect in the pleadings or proceedings which does not 

affect the substantial rights of the adverse party. No final judgment 

or decree shall be reversed or affected by reason of such error or 

defect. * * * If the reviewing court determines and certifies that, in 

its opinion, substantial justice has not been done to the party 

complaining as shown by the record, such court shall reverse the 

final judgment or decree and render, or remand the case to the 

lower court with instructions to render, the final judgment or 

decree that should have been rendered. 

(Emphasis added.) That provision is consistent with Civ.R. 61: “The court at 

every stage of the proceeding must disregard any error or defect in the proceeding 

which does not affect the substantial rights of the parties.” 

{¶ 25} In ascertaining whether prejudicial error exists, the court is “bound 

by the disclosures of the record.” Makranczy v. Gelfand, 109 Ohio St. 325, 329, 

142 N.E. 688 (1924). To find that substantial justice has not been done, a court 

must find (1) errors and (2) that without those errors, the jury probably would not 

have arrived at the same verdict. Hallworth v. Republic Steel Corp., 153 Ohio St. 

349, 91 N.E.2d 690 (1950), paragraph three of the syllabus. Even an erroneous 

jury instruction “ ‘may not be sufficiently prejudicial to justify a reversal.’ ” 
January Term, 2014 

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Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169, 186, 729 N.E.2d 

726 (2000), quoting Smith v. Flesher, 12 Ohio St.2d 107, 114, 233 N.E.2d 137 

(1967). To conclude that a party’s substantial rights were materially affected, an 

appellate court must find that the jury charge was so misleading and prejudicial as 

to result in an erroneous verdict. Cleveland Elec. Illum. Co. v. Astorhurst Land 

Co., 18 Ohio St.3d 268, 274, 480 N.E.2d 794 (1985). Making such a 

determination requires a “thorough review of the entire transcript of proceedings 

before the trial court.” Hampel at 186. 

{¶ 26} “A jury instruction must be considered in its entirety and, 

ordinarily, reversible error does not consist of misstatements or ambiguity in a 

part of the instruction.” Sech v. Rogers, 6 Ohio St.3d 462, 464, 453 N.E.2d 705 

(1983). “[W]e will not assume the presence of prejudice * * * but must find 

prejudice on the face of the record.” Wagner v. Roche Laboratories, 85 Ohio 

St.3d 457, 462, 709 N.E.2d 162 (1999). In addition, an appellate court must 

determine not only whether there was prejudice, but also “the degree of 

prejudice.” Id. at 461. The jury instruction given in error must be “so prejudicial 

* * * that a new trial is warranted.” Id. 

{¶ 27} In determining that the plaintiff was deprived of substantial justice, 

the court of appeals did not carefully consider the record. Instead, the court 

speculated that the jury had been confused by the remote-cause instruction: 

[I]n light of the fact that an instruction on remote causation was so 

clearly not warranted, * * * and because there is evidence that the 

instructions did confuse the jury, we conclude that “the jury charge 

probably misled the jury in a matter materially affecting the 

complaining party’s substantial rights.” Becker [v. Lake Cty. Mem. 

Hosp. W.], 53 Ohio St.3d [202] at 208[, 560 N.E.2d 165 (1990)]. 

Despite the fact that the jury interrogatories indicated that the jury 
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should only complete interrogatory number three, which dealt with 

causation, if the jury concluded that one of the defendants was 

negligent, the jury completed interrogatory number three anyway. 

Thus, the jury considered causation and could have confused the 

issue of the breach of the standard of care with remote causation. 

While there could be another explanation for this confusion, it 

nonetheless evidences that the jury was confused. In light of all of 

the above, we conclude that the jury instruction was unwarranted 

and that a new trial is required. 

(Emphasis sic.) 9th Dist. Summit No. 25938, 2012-Ohio-5396, ¶ 17. 

{¶ 28} The court of appeals did not take into account the trial judge’s 

instructions to the jury concerning the interrogatories and verdict forms. 

Specifically, it ignored the trial judge’s instructions to the jury to sign the four 

interrogatories: “the first, the second, three, four.” The quoted passage reveals 

that the court of appeals misunderstood the record. The trial judge misspoke 

while instructing the jurors and did not clarify that they should not answer 

Interrogatory Nos. 3 and 4 in the event they answered Interrogatory Nos. 1 and 2 

for the defense. Nevertheless, the plaintiff did not express any concerns about 

juror confusion and made no objection during the proceedings. Moreover, 

nothing in the record supports the finding that the remote-cause jury instruction 

resulted in the jury’s completion of the interrogatories. 

{¶ 29} Furthermore, the jurors’ answering Interrogatory Nos. 3 and 4 in 

favor of the defense, while unnecessary, was not inconsistent with answering 

“No” to Interrogatory Nos. 1 and 2, because Verdict Forms A and B, which the 

jurors also signed, state that the jurors find for the defendants “on the issue of 

liability.” The trial court had instructed the jurors that liability requires findings 

on both negligence and proximate cause. Although the appellate court remarked 
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that “there could be another explanation” for the jury’s completion of the 

causation interrogatories, it did not carefully examine the record for another 

explanation. The court of appeals found that Hayward’s substantial rights had 

been materially affected by the remote-cause instruction. 

{¶ 30} Because the interrogatory answers were consistent with the general 

defense verdicts, the trial court was required to enter judgment for the defendants. 

Civ.R. 49(B) directs, “When the general verdict and the answers are consistent, 

the appropriate judgment upon the verdict and answers shall be entered * * *.” 

See also Becker, 17 Ohio St.3d at 163, 478 N.E.2d 776. Hayward did not object 

to the remote-cause jury instruction when it was given and did not object to the 

proceedings during and after the return of the verdict. Therefore, the parties 

acknowledged the regularity of the proceedings, and the court entered judgment 

as required by law. 

{¶ 31} The Ninth District’s speculation that the remote-cause instruction 

spawned juror confusion materially affecting Hayward’s substantial rights was 

therefore erroneous. The record does not support the conclusion that the remotecause jury instruction caused juror confusion. Hampel, 89 Ohio St.3d at 186, 729 

N.E.2d 726. 

{¶ 32} Although it is established for purposes of this appeal that the 

remote-cause instruction was improper, the record does not indicate that the 

instruction resulted in the jurors’ completing the causation interrogatories. We 

conclude, contrary to the court of appeals’ ruling, that Hayward can show no 

prejudice from the instruction. The answers to the interrogatories were consistent 

with the general verdicts. Therefore, the court of appeals erred in speculating that 

the instruction materially affected Hayward’s substantial rights. A reviewing 

court cannot order a new trial upon a presumptive finding of prejudice where the 

record actually establishes the contrary. 

 
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III. Conclusion 

{¶ 33} We agree with defendants-appellants that the Ninth District 

erroneously found prejudicial error in the remote-cause jury instruction. The 

record does not indicate that the trial court’s remote-cause jury instruction 

confused the jurors, as the trial court instructed the jurors to sign the four 

interrogatories, and they were consistent with the general defense verdicts. 

Therefore, the court of appeals erred in asserting that the instruction materially 

affected Hayward’s substantial rights. We hold that when a jury’s answers to 

interrogatories make it clear that the jurors found that the defendant was not 

negligent and the jury’s verdict is consistent with that finding, a remote-cause jury 

instruction, even if improper, cannot be found to have misled the jury in a manner 

materially affecting a substantial right. We therefore reverse the portion of the 

judgment of the court of appeals granting a new trial, and we remand the cause to 

the court of appeals to address the assignments of error that it determined to be 

moot and did not address. 

Judgment reversed 

and cause remanded. 

O’CONNOR, C.J., and O’DONNELL, LANZINGER, FRENCH, and O’NEILL, JJ., 

concur. 

PFEIFER, J., dissents. 

____________________ 

PFEIFER, J., dissenting. 

{¶ 34} That the trial court erred by including an instruction on remote 

cause in its jury instructions is not at issue in this case—the majority recognizes 

that the court of appeals’ holding on that issue is not before the court. This court 

accepted jurisdiction in this case merely to review the issue whether the trial 

court’s error was prejudicial. We normally rely on courts of appeals to make that 

kind of record-intensive determination. Whether the non-unanimous jury (the 
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13 

vote was six to two in defendants’ favor) was misled in this case remains 

unresolved. The majority makes a cogent case that the jury’s interrogatory 

answers are not evidence of prejudice, but that does not mean there was no 

prejudice. The remote-cause instruction may have provided the pathway for the 

majority of the jury to reach a defense verdict. Regardless, although undoubtedly 

important to the parties involved, this case is about this case only, and with no 

one’s personal liberty at stake, it does not meet this court’s jurisdictional 

requirement of a case “of public or great general interest.” Ohio Constitution, 

Article IV, Section 2(B)(2)(e). I would hold that jurisdiction was improvidently 

allowed. 

____________________ 

Amer Cunningham Co., L.P.A., Jack Morrison Jr., Thomas R. Houlihan, 

Vicki DeSantis, and Michael Schmeltzer, for appellee. 

Roetzel & Andress, L.P.A., Douglas G. Leak, Michael J. Hudak, and Betty 

Davis, for appellants. 

Rhonda Davis & Associates, L.L.C., and Rhonda Gail Davis; Jacquenette 

S. Corgan; and Susan J. Lax Law Office and Susan Lax, urging affirmance for 

amicus curiae Summit County Association for Justice. 

_________________________