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Court of Appeals Reverses Trial Court’s Denial of Defendant Physician’s Motion For Summary Judgment on Punitive Damages and Fraud Claim in Malpractice Lawsuit

By Donald H. Switzer, Esq.

The 8th District Court of Appeals in Cuyahoga County recently reversed a trial court's denial of the defendant physician's motion for summary judgment on the plaintiff's punitive damage and fraud claim in a medical malpractice action involving an operating room fire. In Lauren Wargo v. Susan White Anesthesia, Inc., et al., 2011-Ohio-6271, the plaintiff claims that she suffered significant burn injuries to her face as a result of a fire occurring during removal of several moles. The cautery used by the surgeon ignited oxygen as a result of the failure of the anesthesia personnel to turn off the oxygen supply. In addition to the medical malpractice claims, the plaintiff also claims that the surgeon fraudulently concealed the cause of the fire and the extent of the plaintiff's injuries and sought punitive damages.

Despite the fact that the surgeon noted the fire in his operative report, noted that the oxygen was turned off after the fire, consulted with another plastic surgeon and an ophthalmologist, both of whom examined the plaintiff in the operating room, the plaintiff was aware of the burn injury she suffered in the operating room, the surgeon advised her that the cautery had caught fire and the plaintiff advised physicians at the burn unit at MetroHealth Medical Center the following morning that exposure to oxygen had caused the cautery to ignite, the trial court failed to grant the surgeon's motion for summary judgment on the fraudulent concealment and punitive damage claim. Despite the lack of any evidence to support those claims, the trial court permitted the jury to hear plaintiff's attorney's arguments and cross-examination on those claims and denied the surgeon's motion for directed verdict and subsequent post-trial motions on this issue. The jury returned a verdict of $871,359.00 in compensatory damages and $425,000.00 in punitive damages.

The Court of Appeals entered final judgment in favor of the surgeon on the fraudulent concealment and punitive damage claims and remanded the case for a new trial on the malpractice claims. The Court of Appeals noted the lack of any evidence to support the plaintiff's claims and that by permitting these issues to go to the jury, the malpractice claim was prejudicially tainted by the focus on the surgeon's alleged fraudulent concealment. The Court of Appeals also noted that the plaintiff's position that the surgeon physician should have immediately accepted blame for the cause of the fire are matters resolved as part of the underlying medical malpractice claim and not evidence of any fraudulent concealment.