HLD, v. 32, n. 2 (February 2004)
Ohio Appeals Court Says Plaintiff Failed To Show Physician's Drug
Use Affected Outcome Of Surgery
In April 1998, plaintiff Christina Schwaller consulted with Dr.
Sean Maguire, the chief resident of the Plastic Surgery Clinic at the University
of Cincinnati, about breast lift surgery. Plaintiff and Maguire discussed the
surgery and plaintiff also chose to have liposuction on her thighs and hips.
Plaintiff, Maguire, and Dr. Lawrence Kurtzman, who was to perform the procedures
with Maguire, met to discuss the surgery risks and plaintiff signed a consent
form for the procedures. The procedures were performed, but a few months later
plaintiff became dissatisfied with the results. Plaintiff sued Maguire, Kurtzman,
and University Hospital, Inc. (defendants) for malpractice, based on negligence,
lack of informed consent, and battery. Maguire and University Hospital moved
for summary judgment on the lack of informed consent and battery claims, which
the trial court granted. The remaining issue of negligence went to trial and
the jury returned a verdict for defendants. Plaintiff appealed.
The Ohio Court of Appeals affirmed the judgment of the trial court.
As an initial matter, the appeals court noted that plaintiff failed to appeal
the summary judgment on her claim of lack of informed consent and therefore
the claim was waived. Plaintiff argued that on her battery claim defendants
had failed to obtain her informed consent because Maguire's undisclosed addiction
to painkillers at the time of the surgery negated her consent. For a battery
claim, a plaintiff must show that there was consent to the medical treatment
and present evidence that treatment was either performed without consent or
the treatment exceeded the consent. In this case, said the appeals court, the
evidence established that plaintiff was informed of the risks of the surgery,
that Maguire and Kurtzman were authorized by plaintiff to perform mastopexy
and liposuction procedures, and that they only performed those procedures. The
appeals court also determined that plaintiff failed to show that the procedures
caused her harm, that Maguire's drug use caused her harm, or that he was impaired
during the surgery. Therefore, the appeals court held plaintiff failed to demonstrate
a genuine issue of material fact sufficient to overcome summary judgment on
the issue of battery.
The appeals court then turned to plaintiff's contention that the
trial court had erred in excluding evidence of Maguire's drug use on the issue
of negligence. Specifically, plaintiff argued the evidence should have been
admitted as character evidence of habit under Fed.
R. Evid. 406. Maguire's character was not at issue, said the appeals
court, and to establish a claim of malpractice plaintiff had to show Maguire's
treatment fell below the applicable standard of care, which she failed to do.
The appeals court held the trial court had not erred in refusing to admit the
evidence of Maguire's drug use.
Plaintiff's final argument was that the trial court erred in refusing
to give the jury an adverse inference instruction based on the loss of photographs
of plaintiff taken before surgery that were under the control of Maguire and
University Hospital. The adverse inference instruction was not appropriate in
this case, the appeals court determined, because there was no evidence the photographs
were in Maguire's or University Hospital's control and there was no evidence
of misconduct when the photographs were turned over to the University of Cincinnati
Medical School upon request before the suit was filed. Accordingly, the appeals
court affirmed the trial court's judgment.
Schwaller v. Maguire, No. C-020555, 2003 WL 22976339 (Ohio
Ct. App. Dec. 19, 2003).