Pesek, Appellant, et al. v. University Neurologists Association, Inc. et al.; Klein et al., Appellees, 87 Ohio St. 3d 495

Douglas, J. Appellant challenges the judgment of the court of appeals on two grounds. Appellant contends that the case should be reversed and remanded for a new trial because the trial court erred in its charge to the jury and because of the misconduct of appellees’ counsel during his closing argument. For the reasons that follow, we reverse the judgment of the court of appeals and remand the cause for a new trial.

I As part of their proposed jury instructions, appellees requested that the court charge the jury on a “school of thought.” Over appellant’s objection, the court instructed the jury as follows: “Although some doctors, especially of these defendant’s [sic] plight [sic, ‘might’] have used a different method of diagnosis or treatment or procedures from these [sic] used by the defendant this circumstance will not by itself without more prove that the defendant was negligent. The mere fact that the defendant used an alternative method of diagnosis or treatment is not by itself without more proof of things.

You are to decide whether the diagnosis or treatment or procedure used by a defendant was reasonably careful, cautio[u]s and prudent and in accordance with the standard of care required of a doctor in this field of practice.” The model for the trial court’s charge to the jury is found in 3 Ohio Jury Instructions (1996) 163-164,

Section 331.02, Paragraph 3, which provides: “DIFFERENT METHODS. Although some other (physician) (surgeon) (in the specialty) might have used a method of (diagnosis) (treatment) (procedure) different from that used by defendant, this circumstance will not by itself, without more, prove that defendant was negligent. The mere fact that the defendant used an alternative method of (diagnosis) (treatment) (procedure) is not by itself, without more, proof of his negligence.

You are to decide whether the (diagnosis) (treatment) (procedure) used by defendant was reasonably (careful) (cautious) (prudent) and in accordance with the standard of care required of a (physician) (surgeon) (specialist) in his field of practice.” This instruction informs the jury that alternative methods can be used and that the selection of one method over the other is not in and of itself negligence. See Clark v. Doe (1997), 119 Ohio App.3d 296, 302, 695 N.E.2d 276, 280.

The instruction is grounded “on the principle that juries, with their limited medical knowledge, should not be forced to decide which of two acceptable treatments should have been performed by a defendant physician.” Dailey, The Two Schools of Thought and Informed Consent Doctrines in Pennsylvania: A Model for Integration (1994), 98 Dickinson L.Rev. 713. This type of jury instruction, however, is not appropriate in all medical malpractice cases. It is well established that the trial court may not instruct the jury if there is no evidence to support an issue. Murphy v. Carrollton Mfg.

Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828, 832, citing Riley v. Cincinnati (1976), 46 Ohio St.2d 287, 75 O.O.2d 331, 348 N.E.2d 135. By its very terms, in medical malpractice cases, the “different methods” charge to the jury is appropriate only if there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition. Appellant contends that the trial court erred in giving the instruction on different methods or schools of thought because there was no evidence that an alternative method existed for the treatment of Caitlin’s condition.

Appellees disagree and point to testimony of appellant’s expert witness, Dr. Prensky. However, we find that the trial court erred in giving the instruction in question. The trial court’s instruction would have been appropriate had there been testimony that acceptable alternative methods existed for treatment of Caitlin’s condition. There were, however, no acceptable alternative methods of treatment. The only method of treating Caitlin’s medical problem was the administration of vitamin B-6.

The experts were unanimous that when a child has a seizure disorder caused by vitamin B-6 dependency, the only proper treatment is to give vitamin B-6. They disagreed only on whether appellees should have recognized the condition and administered vitamin B-6 in a timely manner. Appellees’ decision not to give Caitlin vitamin B-6, based upon Lanzieri’s misdiagnosis, cannot be considered an acceptable alternative method for treating the child. Thus, because the instruction “probably misled the jury in a matter substantially affecting the complaining party’s substantial rights,” Becker v. Lake Cty. Mem. Hosp.

W. (1990), 53 Ohio St.3d 202, 208, 560 N.E.2d 165, 171, a new trial is warranted. II Appellant also contends that the trial court abused its discretion in allowing appellees’ trial counsel to make inappropriate and prejudicial comments during his closing argument to the jury. Although our holding in

Section I disposes of this appeal, we will briefly discuss some of the inappropriate and prejudicial comments made by counsel for appellees. We do so to provide the trial court with guidance on remand and to inform the bench and bar that abusive comments directed at opposing counsel and an opposing party’s expert witness during closing argument should not be permitted by any court, and that such comments can indeed be grounds for a new trial. Appellant challenges the following comments made by appellees’ trial counsel during his closing argument: “MR. FARCHIONE: * * * This is a misrepresentation.

A deliberate — and there are a lot of deliberate misrepresentations in this case and we’re going to go through any number of them. “ * * * They sought out Dr. Peterson first. They used this testimony as a club to get a settlement with Dr. Lanzieri and the radiologists because this is what Dr. Peterson had to say. ‘What Mr. Corrigan did following that settlement should raise feelings of disgust in you. Disgust that the legal system would allow this to happen and disgust at Mr. Corrigan as an attorney. “MR. CORRIGAN: Objection, your Honor. “THE COURT: Overruled. a ^ * * “MR.

FARCIONE: I find that very sad that he [Corrigan] would be in this courtroom in this case asking for 18 million dollars in damages and he would stand behind your back over here and laugh, folks. Actually I’m not too surprised because it fits in with everything that’s been going on with this case. The half-truths, the untruths, the threatening of witnesses, the suppression of evidence. It fits Mr. Corrigan’s personality.” Appellant also points to comments made by counsel for appellees regarding appellant’s expert witness, Dr. Prensky: “MR. FARCHIONE: After they get the settlement with Dr. Lanzieri what happens?

Well, we can’t put this case on with Dr. Peterson so let’s threaten him with a lawsuit if he comes into Ohio so he can’t come in live. Let’s go out and find a second-class expert. Someone who failed the boards, bought his way into pediatric neurology and received 40 percent of his income from testifying. Let’s find someone like that to screw over these good doctors. And then let’s read Dr. Peterson’s depo, those little portions that help us.’ ii “ * * * Now, what does that say about his role here?

He’s trying to earn that 40 percent to keep his standard of living up higher because he has a reputation to maintain a typical presentation of B-6 dependency.” Appellant contends that these comments and others were “so prejudicial as to influence the jury beyond the bounds of normal argument.” Appellant, however, did not object at trial to most of the above and other complained-of comments made by appellees’ counsel. Nevertheless, appellant contends that the trial court should have intervened sua sponte to admonish counsel and correct the prejudicial effect of the misconduct. We agree.

We acknowledge that counsel should be afforded great latitude in closing argument, State v. Champion (1924), 109 Ohio St. 281, 289, 142 N.E. 141, 143, and that the determination of whether the bounds of permissible argument have been exceeded is, in the first instance, a discretionary function to be performed by the trial court, Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph three of the syllabus. Therefore, the trial court’s determination will not be reversed absent an abuse of discretion. Id.

However, “[w]here gross and abusive conduct occurs, the trial court is bound, sua sponte, to correct the prejudicial effect of counsel’s misconduct.” (Emphasis sic.) Snyder v. Stanford (1968), 15 Ohio St.2d 31, 37, 44 O.O.2d 18, 21, 238 N.E.2d 563, 568. See, also, Jones v. Macedonia-Northfield Banking Co. (1937), 132 Ohio St. 341, 351, 8 O.O. 108, 112-113, 7 N.E.2d 544, 549: “It may be said unhesitatingly that these records present a case in which objection or exception to the argument of counsel for plaintiff was not necessary to raise the question of misconduct of plaintiffs counsel.

The judge who presides over a cause is not a mere umpire; he may not sit by and allow the grossest injustice to be perpetrated without interference. It is his duty in the executive control of the trial to see that counsel do not create an atmosphere which is surcharged with passion or prejudice and in which the fair and impartial administration of justice cannot be accomplished.

It was the duty of the trial court to stop argument and require counsel to proceed in an orderly and lawyer-like manner.” (Citation omitted.) Counsel for appellees made various assertions and drew many inferences that were simply not warranted by the evidence. To attack counsel for appellant and appellant’s expert witness was inexcusable, unprincipled, and clearly outside the scope of final argument. Appellees’ counsel could have zealously represented his clients without resorting to these abusive tactics.

Instead, counsel for appellees transcended the bounds of acceptable closing argument, creating an atmosphere “surcharged with passion or prejudice.” Id., 132 Ohio St. at 351, 8 O.O. at 113, 7 N.E.2d at 549. Accordingly, we conclude that regardless of the fact that counsel for appellant did not object to each contested comment, the conduct of appellees’ counsel during his closing argument constituted reversible misconduct.

In reaching our conclusion that a new trial is warranted, we are guided by the principle that if “there is room for doubt, whether the verdict was rendered upon the evidence, or may have been influenced by improper remarks of counsel, that doubt should be resolved in favor of the defeated party.” Warder, Bushnell & Glessner Co. v. Jacobs (1898), 58 Ohio St. 77, 85, 50 N.E. 97, 99.

Appellant also maintains that during closing argument counsel for appellees disregarded a previous ruling by the trial court with respect to a motion by appellant to exclude the settlement amount reached between appellant and Lanzieri and University Radiologists. Appellant claims that the comments of appellees’ counsel regarding the settlement amounted to reversible misconduct. We disagree.

Prior to trial, appellant moved to “keep the settlement figure and the number out of the opening statement, and out of closing arguments and away from the jury.” Counsel for appellant then agreed that the jury could be informed that a settlement had been entered into with Lanzieri and University Radiologists but that the dollar figure reached in the settlement would not be disclosed to the jury. At the beginning of trial, the trial court cautioned the jury that “Dr. Lanzieri and University Radiologists are defendants. Settlement agreements were reached between the plaintiffs and those two defendants.

You may not speculate about reasons for the settlement, nor the amount of the settlement.” According to appellant, counsel for appellees “proceeded to lead the jury to speculate on the reasons for the settlement and the settlement amount in direct and flagrant violation of the courts [sic] wishes.” In support, appellant points to various comments made by appellees’ counsel during his closing argument.

However, we agree with the court of appeals that the comments made by counsel for appellees during his closing argument regarding the settlement were not “so egregious and prejudicial that the trial court abused its discretion by failing to admonish counsel and take curative action.” Appellant had agreed that a disclosure of the settlement was proper, and the jury was not specifically apprised of the dollar amount of the settlement. As a final note, in keeping with this court’s efforts at promoting professionalism, we make the following general observations. We recognize the circumstances of heat of argument.

We understand and accept zeal for a client. Having all been there, we know that the line between forceful advocacy and unacceptable conduct is sometimes obscure. However, none of these factors palliates misconduct when the fair administration of justice is a casualty. Given our renewed focus on the continuing need for decorum and respect for clients, each other, courts, and all other persons, if we err we should err on the side of professionalism.

For the foregoing reasons, we reverse the judgment of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion. Judgment reversed and cause remanded. Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., concurs in part and dissents in part. Cook and Lundberg Stratton, JJ., dissent. . Appellees’ proposed jury instruction number seven, entitled “School of Thought,” stated: “Although some other physician might have used a method or course of treatment different from that used by Dr. Klein and Dr.

Horwitz, this circumstance will not by itself prove negligence. You are to decide whether the treatment used by Dr. Klein and/or Dr. Horwitz was reasonable and in accordance with the standard of care.” . When questioned by counsel for the defense on cross-examination, Dr. Prensky testified as follows: “Q Now, you’ve heard of the concept of school of thought, correct? “A Well, I’ve heard of that concept. “Q Right.

That’s where two physicians can look at the same patient and the same clinical scenario yet determine there are two different routes to take in the treatment of that particular patient, correct? “A I wouldn’t call that school of thought but that certainly can happen. “Q That can happen and it has happened to you, has it not, in your practice. “A Sure. “Q And if two physicians disagree on how to treat a physician [siq patient] that doesn’t necessarily mean that one of the two is below standard of care, correct? “A Not necessarily. “Q All right.

And you would agree that there are really are [sic] no topics in medication, especially pediatric neurology where you would get across the board agreement by every pediatric neurologist, correct? “A Absolutely. “Q All right. And that applies to all conditions, including the rare condition of Pyridoxine dependency, correct? “A All conditions. “Q All right. And it would not shock you in this ease if a pediatric neurologist would not have used vitamin B-6 on the 9th, 10th, 11th, or 12th [of March 1991], correct? “A It would not shock me.

It would be wrong. “Q The bottom line is, doctor, that while most pediatric neurologists in your opinion would have used B-6 you would at least concede that there is a minority school of thought that would not, correct? “A I think a minority would not have in anything as we’ve discussed.” . “MR. FARCHIONE: And it is because the diagnosis of agenesis of the corpus callosum was wrong that Dr. Lanzieri is not standing in front of you right now * * * and he [Lanzieri] has settled out of this case. II * * # “ * * * The plaintiffs in this case have settled with the culprit. They’ve settled with Dr. Lanzieri. And Mr.

Corrigan and these parents would not have settled for anything less than this child’s financial security for the rest of her life. * * * “ * * * The individual who is at fault in this case, the individual'who caused the harm in this case has settled out of this case and is not here. Now we’re here simply to role [sic] the dice.”