[Cite as Ratliff v. Mikol, 2011-Ohio-2147.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 94930

STACY RATLIFF, ET AL.

PLAINTIFFS-APPELLANTS 

vs.

SHARON MIKOL, M.D., ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-666457 

BEFORE: S. Gallagher, J., Stewart, P.J., and Rocco, J. 

RELEASED AND JOURNALIZED: May 5, 2011 
ATTORNEYS FOR APPELLANTS 

For Amanda Buzo

Michael F. Becker

David A. Kulwicki 

The Becker Law Firm Co., LPA 

134 Middle Avenue 

Elyria, Ohio 44035 

For Stacy Ratliff, et al. 

Paul W. Flowers 

Paul W. Flowers Co., LPA 

Terminal Tower, 35th Floor 

50 Public Square 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEES 

Joseph A. Farchione 

Christina J. Marshall 

Sutter, O’Connell & Farchione Co., LPA 

3600 Erieview Tower 

1301 East Ninth Street 

Cleveland, OH 44114 

SEAN C. GALLAGHER, J.: 

{¶ 1} Plaintiffs-appellants Stacy Ratliff and Robert Ratliff Baker, Jr. 

(“Baker”) appeal the judgment of the Cuyahoga County Court of Common 

Pleas following a jury verdict after a two-week-long trial.1 The jury rendered 

 1

 Stacy Ratliff dismissed her claims against Dr. Mikol prior to trial. 
a verdict in favor of defendant-appellee Sharon Mikol, M.D. (“Dr. Mikol”) and 

against Baker. Baker argues that the trial court erred by furnishing the jury 

with a legally inaccurate “foreseeability” instruction over his objection. Dr. 

Mikol claims the instruction correctly stated Ohio law. For the following 

reasons, we affirm the judgment of the trial court. 

{¶ 2} On May 29, 1987, Dr. Mikol handled Baker’s delivery and birth. 

Unfortunately, Baker was born with severe brain damage. Baker alleges 

that Dr. Mikol failed to order an emergency Caesarean section delivery 

despite the presence of a number of indications that the fetus was under 

distress. The distress allegedly caused Baker to suffer oxygen deprivation, 

which led to the brain damage. 

{¶ 3} At trial, both parties presented contradicting expert testimony 

regarding Dr. Mikol’s standard of care in handling the delivery. Dr. Mikol 

proposed the “foreseeability” jury instruction to which Baker objected. 

Specifically at trial, Baker opposed the use of the word “likely” in the last line 

of the instruction. The trial court overruled the objection and included the 

instruction with those read to the jury. It is from that decision that Baker 

appeals, raising a single assignment of error: “The trial judge erred to 

plaintiff-appellant’s substantial detriment by furnishing the jurors with a 

legally erroneous foreseeability instruction.” 
{¶ 4} In reviewing jury instructions, if the instruction incorrectly states 

the law, the standard of review we apply is to “consider the jury charge as a 

whole in determining ‘whether the jury charge probably misled the jury in a 

matter materially affecting the complaining party’s substantial rights.’” 

Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 1995-Ohio-84, 652 N.E.2d 

671, quoting Becker v. Lake Cty. Mem. Hosp. W. (1990), 53 Ohio St.3d 202, 

208, 560 N.E.2d 165. “An inadequate jury instruction that misleads the jury 

constitutes reversible error.” (Citations omitted.) Groob v. KeyBank, 108 

Ohio St.3d 348, 355, 2006-Ohio-1189, 843 N.E.2d 1170. 

{¶ 5} We review whether the trial court’s decision to give or omit 

instructions constituted an abuse of discretion under the facts and 

circumstances of the case. Berardi’s Fresh Roast, Inc. v. PMD Ents., Inc., 

Cuyahoga App. No. 93920, 2010-Ohio-5124, ¶ 12. “[A] trial court has 

discretion whether to give a requested jury instruction based on the 

dispositive issues presented during trial. It is the duty of a trial court to 

submit an essential issue to the jury when there is sufficient evidence 

relating to that issue to permit reasonable minds to reach different 

conclusions on that issue.” (Citations and quotations omitted.) Renfro v. 

Black (1990), 52 Ohio St.3d 27, 30, 556 N.E.2d 150. 

{¶ 6} In the current case, the instruction challenged involves the 

foreseeability of the injury as it relates to the standard of care Dr. Mikol owed 
to Baker. Under Ohio law, in order to present a prima facie claim of medical 

malpractice, a plaintiff must establish: (1) the standard of care, as generally 

shown through expert testimony; (2) the failure of defendant to meet the 

requisite standard of care; and (3) a direct causal connection between the 

medically negligent act and the injury sustained. Bruni v. Tatsumi (1976), 

46 Ohio St.2d 127, 346 N.E.2d 673. The existence of a duty, or standard of 

care, depends on the foreseeability of the injury. Menifee v. Ohio Welding 

Products, Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707. In order to 

determine what is foreseeable, a court must determine “whether a reasonably 

prudent person would have anticipated that an injury was likely to result 

from the performance or nonperformance of an act.” (Emphasis added.) Id. 

at 77. 

{¶ 7} The trial court instructed the jury on the general rule of law using similar 

language and entirely based on the pattern instructions from the Ohio Jury Instructions 

(“OJI”). The instruction read at trial is as follows: 

“In determining whether reasonable care was used you must consider whether the 

defendant should have foreseen under the attendant circumstances that the natural 

and probable result of an act or omission on [Dr. Mikol’s] part would cause some 

injury to [Baker]. 

 

“The test for foreseeability is not whether [Dr. Mikol] should have foreseen the 

injury in its precise form, but whether in light of all the circumstances the reasonable 

prudent person would have anticipated that an injury was likely to result to someone 

from the act or omission.” 
(Emphasis added.) 

{¶ 8} In comparison, the foreseeability instruction from OJI Section 401.07 is as follows: 

“In deciding whether (reasonable) (ordinary) care was used, you will consider 

whether the (defendant) (either party) in question should have foreseen under the 

circumstances that the likely result of an act or failure to act would cause some 

(injury) (damage). 

 

“The test for foreseeability is not whether a person should have foreseen the (injury) 

(damage) exactly as it happened to the specific (person) (property). The test is 

whether under all the circumstances a reasonably careful person would have 

anticipated that an act or failure to act would likely (result in) (cause) some (injury) 

(damage).”

{¶ 9} Baker proposed changing the emphasized word “likely to” to “may” as an alternative 

to omitting the entire instruction. 

{¶ 10} Baker did not cite to any authority for the proposition that “may” 

should have replaced “likely,” arguing that using “likely” instead of “may” 

creates a heightened burden for plaintiff to establish duty. We agree there 

may be merit to this argument. However, the trial court mimicked the 

language given by the Supreme Court and used by the pattern jury 

instructions. See Menifee, 15 Ohio St.3d at 77; Miller v. Defiance Regional 

Med. Ctr., Lucas App. No. L-06-1111, 2007-Ohio-7101, ¶ 52 (finding that the 

common pleas court did not abuse its discretion in giving the foreseeability 
instruction based on the Ohio Jury Instruction2). The instruction therefore 

is a correct statement of Ohio law. 

{¶ 11} Moreover, Baker’s only argument as to whether the trial court 

should have omitted the foreseeability instruction altogether is that since 

foreseeability is a factor for duty, an issue of law for the court, the jury should 

not be charged with foreseeability. The parties presented dueling evidence 

on the standard of care. It was in the province of the trier of fact to 

determine whether, based on the evidence presented, the standard of care 

owed to Baker included performing an emergency Caesarean section, as 

Baker argued. We therefore cannot say that the trial court erred in 

including or with regard to the language of the foreseeability instruction. 

We agree with Dr. Mikol that the foreseeability instruction given is a correct 

statement of law, is required by the issues of the case, and is clear in setting 

out the general rule. We therefore do not need to address whether the jury 

was misled by the instruction. 

{¶ 12} For the first time on appeal, Baker challenges the proximate 

cause instruction given by the trial court, claiming it erred in reading 

foreseeability into the proximate cause instruction. Baker’s argument is 

without merit for the following reasons. 

 2

 Miller refers to O.J.I. 7.13. In Carr v. Preferred, Inc. (Aug. 10, 2000), Cuyahoga 

App. No. 76476, the court quoted O.J.I. 7.13, and that reference is identical to the 

pattern instruction at issue in the current case.
{¶ 13} In order to preserve the right to appeal the giving or failure to 

give an instruction, a party must object to the instruction before the jury 

begins deliberating. Civ.R. 51(A). We therefore cannot sustain any 

assigned error relating to jury instructions unless the party raises the 

objection to the trial court. Baker argues that the proximate cause 

instruction was part of the foreseeability instruction, and therefore his 

objections to the trial court as to the foreseeability instruction encompassed 

the proximate cause one as well. 

{¶ 14} In reviewing the record, both sides proposed a proximate cause 

instruction separate from foreseeability. Dr. Mikol separately submitted 

the foreseeability and proximate cause instructions from the Ohio Jury 

Instructions. 1 Ohio Jury Instructions (2004), Sections 401.07 and 405.01. 

Dr. Mikol’s proposed jury instruction on proximate cause did not contain any 

reference to foreseeability. Baker also submitted a version of the proximate 

cause instruction: defendant’s proposed jury instruction number nine. Baker 

did not propose any foreseeability instruction, and his proposed proximate 

cause instruction omitted any reference to the foreseeability instruction 

language. It also contained, as the definition of “cause,” the specific 

language to which he objects. Neither party proposed one foreseeability 

instruction that combined the proximate cause instruction language. They 

both were separately presented for review. 
{¶ 15} In reviewing this argument, we agree that by defining “cause” with 

reference to foreseeable, the court improperly conflated proximate cause with duty. 

However, Baker proposed the language to which he objects. Even if there 

was error in defining “cause” with a reference to “foreseeable,” such error was 

invited by Baker and cannot be the grounds for sustaining his assignment of 

error. Patton v. Cleveland (1994), 95 Ohio App.3d 21, 26, 641 N.E.2d 1126 

(finding the trial court did not err in giving the instruction at issue because 

defendant invited this error by providing the court with the erroneous jury 

instruction and failing to timely object). More importantly for our review, 

since Baker did not object to the proximate cause instruction at trial before 

the jury retired to deliberate, he waived any objection as to that instruction 

on appeal. Baker’s sole assignment of error is overruled. 

{¶ 16} The judgment of the trial court is affirmed. 

It is ordered that appellees recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common pleas 

court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 
SEAN C. GALLAGHER, JUDGE 

MELODY J. STEWART, P.J., and 

KENNETH A. ROCCO, J., CONCUR