The opinion
[Cite as Yurkowski v. Univ. of Cincinnati, 2017-Ohio-7681.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Sharon Yurkowski et al., :
Plaintiffs-Appellants, :
No. 16AP-718
v. : (Ct. of Cl. No. 2007-04311)
University of Cincinnati, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 19, 2017
On brief: Allen Law Firm, LLC, and Mitchell W. Allen, for
appellants.
On brief: Michael DeWine, Attorney General, and Anne
Berry Strait, for appellee. Argued: Anne Berry Strait.
APPEAL from the Court of Claims of Ohio
SADLER, J.
{¶ 1} Plaintiffs-appellants, Sharon Yurkowski, individually and as administratrix
of the estate of Peter J. Yurkowski, in addition to Daniel P. Yurkowski and Cara F.
Yurkowski, children of Peter and Sharon Yurkowski, appeal the September 12, 2016
decision of the Court of Claims of Ohio in favor of defendant-appellee, University of
Cincinnati, on appellants' claims for medical malpractice, wrongful death, and loss of
consortium. For the following reasons, we affirm the decision of the Court of Claims.
No. 16AP-718 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This is the third appeal addressed by this court. In Yurkowski v. Univ. of
Cincinnati, 10th Dist. No. 11AP-974, 2013-Ohio-242 ("Yurkowski I"), we discussed the
factual and initial procedural history as follows:
Peter struggled with mental health issues in his youth,
culminating in a suicide attempt at age 18. He recovered from
that episode and married Sharon in 1985. The couple
subsequently had two children, Daniel and Cara. Peter
received a doctorate in pharmacy and, in 1992, began working
as a clinical pharmacist at University Hospital ("UH") in
Cincinnati. In addition to his clinical duties at the hospital,
Peter traveled extensively throughout the country lecturing on
pharmacology-related topics. He also participated in various
community activities.
Peter's mental health issues resurfaced in September 2000,
when he became extremely anxious and began to suffer from
psychosomatic illnesses that prevented him from traveling.
Peter was admitted to the UH emergency room with
symptoms of severe anxiety and depression. Because he did
not want to be treated at the same hospital at which he was
employed, he was subsequently transferred to Christ Hospital
for inpatient treatment. He was released a few days later, but
was again treated at Christ Hospital in December 2000.
In January 2001, Peter had another psychiatric episode. Due
to a shortage of beds at Christ Hospital, he was admitted to
UH for [i]npatient treatment with Dr. James Curell. Dr.
Curell, an associate professor of clinical psychiatry at the
university and an attending psychiatrist on the inpatient adult
psychiatry unit at UH, knew Peter professionally and was
aware that he had been diagnosed at Christ Hospital with
major depression and panic disorder. Dr. Curell adjusted the
medications Peter had been prescribed at Christ Hospital and
urged him to curtail his lecturing and community activities in
order to relieve stress. Peter responded well to the
adjustments, and thereafter saw Dr. Curell only on an
outpatient basis for the next two and one-half years. Early in
this period, Dr. Curell diagnosed Peter with bipolar 2
disorder; however, he subsequently abandoned that diagnosis
and confirmed that Peter suffered from major depression and
panic disorder.
No. 16AP-718 3
In June 2004, Peter began a series of inpatient
hospitalizations and outpatient treatment due to his
worsening psychiatric state and multiple suicide attempts. In
total, Peter was admitted to UH for inpatient psychiatric
treatment ten times between June 2004 and February 2005.
Medical records from each admission include detailed
evaluations, diagnoses, progress notes, treatment plans, and
discharge summaries from Dr. Curell and his psychiatric
treatment team. Peter's treatment regimen included a
combination of various mood-stabilizing, anti-anxiety, and
anti-depressant medications, group and individual
psychotherapy sessions, and electroconvulsive therapy.
In early February 2005, Dr. Curell sought a second opinion
regarding Peter's treatment from psychiatrist Dr. Paul Keck,
an expert in bipolar disorders and related psycho-
pharmacology. After meeting with Peter and reviewing his
medical and psychiatric history, Dr. Keck concurred with Dr.
Curell's diagnosis of major depression and panic disorder and
agreed that Peter did not suffer from bipolar 2 disorder.
While Dr. Keck recommended adjustments to some of Peter's
medications, including the addition of lithium, he did not
recommend involuntary commitment to a mental health
facility. Peter was subsequently discharged from UH.
One day after his discharge, Peter obtained a bottle of lithium
from the UH pharmacy and ingested a significant quantity of
the drug. Following medical treatment related to the
overdose, Peter was transferred to the UH inpatient
psychiatric unit. In mid-February 2005, Peter reported to Dr.
Curell that his wife was planning to divorce him, and that he
would not be permitted to return to the marital home upon
his release from UH.
Peter remained in the inpatient psychiatric unit until
March 22, 2005. During this period, Peter often expressed
suicidal thoughts, and Dr. Curell contemplated transferring
him to Summit Behavioral Health ("Summit"), a state
psychiatric hospital, for long-term inpatient psychiatric
treatment. However, in late February 2005, Peter began to
improve, and Dr. Curell authorized him to leave UH for one
day in order to secure a place to live upon his release. Upon
his return to UH, Peter reported that he had located an
apartment.
No. 16AP-718 4
On March 1, 2005, Peter was served with divorce papers, and
by March 4, 2005, had "decompensated" to the point where
Dr. Curell believed Peter to be "acutely dangerous" to himself.
(Tr. 155.) Dr. Curell ordered that Peter be placed in restraints
and adjusted his medication in the hope of preventing another
psychiatric episode. At this point, Dr. Curell was convinced
Peter should be transferred to Summit; his progress notes in
early-to-mid March indicate that transfer was imminent.
However, by March 18, 2005, Peter exhibited significant
improvement. According to Dr. Curell, Peter denied suicidal
ideation, completed paperwork related to his divorce,
discussed returning to work, and requested that he be
discharged to his apartment rather than to Summit. At this
point, Dr. Curell, although "still suspicious" and "worried
because of [Peter's] up-and-down pattern," concluded that
Peter would not benefit from long-term inpatient treatment at
Summit. (Tr. 161.) Indeed, Dr. Curell believed that involuntary
commitment would be so devastating to Peter's self-esteem
that he would never recover.
Dr. Curell candidly discussed with Peter his reservations
about discharging him from inpatient treatment. He
ultimately concluded that Peter's best chance at recovery was
to return to employment and begin living independently. Dr.
Curell discharged Peter on March 22, 2005, with the proviso
that Peter contact him immediately upon experiencing anxiety
or suicidal ideation. Dr. Curell's progress notes from that day
indicate that Peter was engaged with the staff, had no anxiety
issues or suicidal ideation, and was planning to return to work
the next week.
Peter attended outpatient treatment sessions with Dr. Curell
on March 25, April 4 and 13, 2005. Dr. Curell's progress notes
from those sessions indicate that, although Peter was sad
about his impending divorce and remained "at risk," he had
no depressive episodes or acute suicidal thoughts, had a
bright and hopeful affect, had returned to work and moved
into his apartment, and was taking his medications as
prescribed. (Tr. 179.)
Sharon and the children remained in close contact with Peter
following his discharge. According to Sharon, Peter was sad
about living apart from the family, but was not anxious or
agitated and did not exhibit any suicidal behavior. On April 17,
2005, Sharon and Peter celebrated their daughter's birthday
together and made plans to attend an event later in the week.
No. 16AP-718 5
The next day, Peter committed suicide by ingesting a lethal
overdose of olanzapine, a prescription medication, and
diphenhydramine, an over-the-counter antihistamine.
Following Peter's death, appellants filed an action in the
Warren County Court of Common Pleas against several
defendants, including Dr. Curell. Dr. Curell asserted he was
entitled to personal immunity pursuant to R.C. 9.86 and
2743.02. Consequently, appellants filed an action in the Court
of Claims against Dr. Curell, University Psychiatric Services,
University Hospital, Inc., The Health Alliance of Greater
Cincinnati, and University of Cincinnati Physicians, Inc.
Appellants subsequently filed an amended complaint for
medical malpractice, wrongful death, and loss of consortium,
naming only appellee as defendant. The Court of Claims
matter was stayed pending an immunity determination.
Id. at ¶ 2-13.
{¶ 3} An evidentiary hearing was held on the issue of immunity in October 2007.
The Court of Claims determined that "based upon the totality of the evidence presented,
the court finds that Dr. [James H.] Curell acted within the scope of his employment with
[appellee] at all times relevant hereto." (Oct. 28, 2008 Immunity Decision at 6.) Thus, by
decision dated October 2008, the Court of Claims ultimately found that Dr. Curell was
entitled to statutory immunity. The judgment entry states that "[p]ursuant to Civ.R.
54(B), this court makes the express determination that there is no just cause for delay."
(Oct. 28, 2008 Immunity Jgmt. Entry at 1.) Appellants did not appeal that decision.
{¶ 4} Thereafter, the common pleas court action was dismissed, and the stay was
vacated in the Court of Claims. The Court of Claims bifurcated the issues of liability and
damages and held a liability trial in January and April 2011. On October 6, 2011, the
Court of Claims issued a decision, finding in favor of appellee. The Court of Claims came
to its decision by applying the "professional judgment rule" to appellants' claim that Dr.
Curell should not have discharged Peter from the psychiatric unit at University Hospital
("UH") on March 22, 2005, and determining that appellants failed to prove any failure of
care proximately caused his suicide. (Oct. 6, 2011 Decision at 4.)
{¶ 5} Appellants appealed, and in Yurkowski I, we determined that there was
competent, credible evidence which, if believed, would support the Court of Claims'
No. 16AP-718 6
finding that Dr. Curell did not breach the accepted standard of care in his treatment of
Peter. However, we found that the Court of Claims should have applied the ordinary
malpractice standard set forth in Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976), to Dr.
Curell's discharge decision, instead of the professional judgment rule, and remanded the
matter to the Court of Claims for further proceedings on that matter.
{¶ 6} As stated in Yurkowski v. Univ. of Cincinnati, 10th Dist. No. 13AP-1049,
2015-Ohio-1511, ¶ 3 ("Yurkowski II"):
On remand, the case was assigned to a different judge from
the one who conducted the trial and entered the judgment
that we reviewed in Yurkowski I. On June 3, 2013, the trial
court filed an entry stating that "the sole issue to be
determined by the court on remand is 'whether Dr. Curell's
decision to release Peter from [University Hospital] on
March 22, 2005 fell below the applicable standard of care,' "
and requiring that the parties file a summary of the evidence
regarding the issue on remand. (June 6, 2013 Entry, 8,
quoting Yurkowski I at ¶ 31.) After reviewing the parties'
arguments, the trial court, on August 26, 2013, determined
that it was unnecessary to hold a new trial or evidentiary
hearing to comply with this court's decision. On November 15,
2013, the trial court issued a decision and judgment entry in
favor of appellee, finding that appellants failed to prove by a
preponderance of the evidence that appellee's actions fell
below the standard of care and failed to prove that any alleged
failure was the proximate cause of Peter's death.
{¶ 7} Appellants again appealed, asserting that it was against the manifest weight
of the evidence for the Court of Claims to find that Dr. Curell did not breach the standard
of care in his treatment of Peter or his decision to discharge Peter. In Yurkowski II,
regarding Dr. Curell's treatment of Peter, we found that the issue was outside the scope of
the Court of Claims' review on remand and that considering Yurkowski I resolved that
matter, the law of the case doctrine precluded our review of such issue. Regarding the
decision to discharge Peter without considering the merits of the argument, we found that
the Court of Claims erred by entering judgment based on a review of the transcript of
expert testimony from the prior trial where the parties did not stipulate to the same.
Therefore, we remanded the matter for the Court of Claims to conduct an evidentiary
hearing "limited only to the determination of the issue of our previous remand:
No. 16AP-718 7
'[W]hether Dr. Curell's decision to release Peter from UH on March 22, 2005 fell below
the applicable standard of care.' " Yurkowski II at ¶ 18, quoting Yurkowski I at ¶ 31.
{¶ 8} In accordance with our directive, the Court of Claims held an evidentiary
hearing on May 11-12, 2016. At the hearing, appellants filed a motion for an immunity
decision, motion to add defendants, and jury demand as to the additional defendants.
The Court of Claims denied the motions because immunity had already been determined
and due to the limited scope of remand. Appellee then presented the testimony of Dr.
Curell and Dr. Mark A. Schechter, and appellants presented the testimony of Dr. Robert P.
Granacher and Sharon Yurkowski.
{¶ 9} Dr. Curell recounted Peter's medical history and treatments and his opinion
of Peter's condition. Dr. Curell believed Peter had major depression with severe anxiety
and panic attacks and described Peter's tendency to become suicidal in the midst of
suffering from a panic attack. After being in inpatient care for over one month, Dr. Curell
changed Peter's medication on March 14; the change in medication helped to stabilize
Peter, and he improved. Dr. Curell reviewed progress notes documenting those
improvements, which included no further panic attacks, more focus on dealing with work
and his divorce, and denials of suicidality. Although another physician noted that Peter
downplayed the severity of his symptoms to an alarming degree, Dr. Curell believed Peter
did feel okay once his panic attack resolved, so at the time of discharge he was legitimately
not panicking or suicidal. Dr. Curell noted that he did not take Peter's statements about
getting better at face value, was skeptical given his history, and deliberately did not
release him right away after improvement began. Dr. Curell testified that "[e]very
moment I was with [Peter] I was assessing his risk for suicide." (Tr. Vol. 7 at 1420.) Dr.
Curell discussed that Peter had turned passivity into action, seemed more bright and
hopeful, and had a plan. Getting back to work was important to Peter, and, in
consultation with Peter's boss, the stress of his job was reduced considerably, and there
was hope that an opening for a position in his preferred line of work would arise that
summer.
{¶ 10} Dr. Curell acknowledged that discharging Peter to the apartment was risky
and thought it was fairly predictable that Peter would have a panic attack at some point in
the future. Dr. Curell agreed he had told Peter repeatedly that he was putting his own
No. 16AP-718 8
neck on the line by discharging him. As a part of his decision to discharge Peter, Dr.
Curell considered the fact that Peter would be released to an apartment alone and noted
that although Peter would not have the support of family, he would correspondingly not
have the stress of family, which had contributed to prior panic attacks. The key issue to
Dr. Curell was whether he could trust Peter to contact him or someone else to protect
himself. Ultimately, Dr. Curell believed, based on treating him for over four years, that
Peter would do so. He noted that Peter could have committed suicide while out on a pass
from inpatient care but, instead, got an apartment, took care of business, and came back
to the hospital. He also noted that Peter was in terrible shape in 2001 but, on the right
medication and with support, he did stabilize for a few years.
{¶ 11} In Dr. Curell's opinion, at the point of discharge, Peter had stabilized
enough where he no longer fit the criteria for a transfer to Summit Behavioral Health
("Summit"). Dr. Curell testified that he would have transferred Peter to Summit if he
believed Peter was at imminent risk but thought sending him to Summit presented its
own risk to Peter's health and could have even made him worse. For example,
transferring Peter to Summit could have affected Peter's chances of recovering his
marriage and his job prospects, which were very important to Peter. For Peter's severe
"type A," obsessive compulsive personality with severe anxiety, going to a mental hospital
would be a failure that—combined with losing his job and income, divorce from his wife,
and estrangement from his children—would leave him "a broken man." (Tr. Vol. 7 at
1434.) In Dr. Curell's judgment, Peter was not at imminent risk of suicide on March 22,
2005 and Peter's best opportunity to recover was to try to stay working, reestablish
himself in the community, stay in touch with his wife, have a relationship with his
children, and hopefully build back his life. Although in retrospect Dr. Curell questioned
his decision to discharge Peter from the hospital in light of Peter's suicide several weeks
later, Dr. Curell did not believe his decision fell below the standard of care based on the
circumstances and options at the time of discharge.
{¶ 12} Dr. Schechter teaches suicide risk assessment at Harvard Medical School
and is the chair of the Department of Psychiatry at a medical center who, in his daily
practice, treats patients in inpatient settings and makes decisions about discharging
patients from inpatient care. Dr. Schechter testified that in determining whether to
No. 16AP-718 9
discharge a patient from inpatient care, the physician must weigh the risk factors against
the mitigating or beneficial factors, including comparing the risks and benefits of
alternatives. What is important to that patient—what gives his life meaning and
something to live for—is a part of that decision, and Dr. Schechter noted that taking away
some of the things a patient lives for ultimately may make the risk of suicide worse.
{¶ 13} According to Dr. Schechter, Peter would always carry a significantly higher
risk of suicide than that of the general population but that was not a reason to keep him as
an inpatient indefinitely. Dr. Schechter explained that inpatient care corresponds to
imminent risk and is appropriate to treat a patient's acute condition to the point they no
longer require 24/7 monitoring and can begin to take some responsibility for themselves.
He noted that most work with chronically suicidal patients occurs in an outpatient setting.
Addressing Peter's case, Dr. Schechter believed Dr. Curell was aware of the issues of risk
versus the issues of the importance of working to Peter and his desire to get his life back,
saw and documented Peter's clinical improvement, and kept him in the hospital beyond
the first day he felt better to ensure stability. He testified that the lack of a written risk
assessment is not equivalent to failing to conduct that risk assessment and believed that
based on the records, Dr. Curell was assessing Peter each time he saw him. Regardless,
the failure to document a risk assessment had no casual connection to Peter committing
suicide. In Dr. Schechter's opinion, on March 22, 2005, Peter no longer met the criteria
for inpatient hospitalization and outpatient treatment was an appropriate next step;
likewise, Dr. Curell's determination that Peter was no longer at imminent risk of suicide
was a "very reasonable assessment." (Tr. Vol. 8 at 1635.) Considering Peter's case, Dr.
Schechter opined that Dr. Curell's decision to discharge Peter met the standard of care.
{¶ 14} Dr. Granacher is a former chair of the administrative board, quality
systems, and credentialing systems of a hospital who also worked in the hospital's
inpatient unit until the unit's closure in 2002 and who currently practices part-time,
predominantly in a mental health clinic. Dr. Granacher testified that based on his
experience and education, Dr. Curell's decision to discharge Peter on March 22, 2005 fell
below the standard of care. In his opinion, no record evidence shows a proper risk
assessment was conducted. A proper risk assessment to Dr. Granacher involves building
a database of information on the patient and comparing short-term and long-term risk
No. 16AP-718 10
factors against "protective factors." (Tr. Vol. 8 at 1499.) He noted that a highly suicidal
patient cannot be relied on to truthfully report their own risk and, therefore, the database
must include information from family, friends, employers, etc.
{¶ 15} According to Dr. Granacher, a proper risk assessment would have showed
that Peter was not competent to manage his own health and should not have been
discharged into an isolated apartment. He cites Peter's marriage, employment, and status
as a highly educated professional as protective factors. However, he believed those
protective factors were drastically outweighed by risk factors such as his access to drugs as
a pharmacist, his history of suicide attempts, the increasing frequency and lethality of
suicide attempts, his diagnosis of panic disorder and Dr. Granacher's diagnosis of bipolar
disorder, the impending divorce, incompetence to manage his own health and safety, and
the fact that he would be discharged alone with instructions to call if he needs help and
with enough mediation to kill himself.
{¶ 16} The Court of Claims found the testimony of Dr. Curell and Dr. Schechter to
be more persuasive than Dr. Granacher and determined that appellants failed to prove by
a preponderance of the evidence that Dr. Curell's release of Peter on March 22, 2005 fell
below the standard of care. In addition, the Court of Claims found that, even assuming
Dr. Curell breached his duty, appellants failed to establish proximate cause by a
preponderance of the evidence. As a result, the Court of Claims rendered judgment in
favor of appellees. Appellants filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
{¶ 17} Appellants present three assignments of error:
[1.] THE TRIAL COURT ERRED IN FAILING TO REVISE
ITS PRIOR IMMUNITY DECISION OR HAVE A NEW
HEARING ON THE IMMUNITY ISSUE IN LIGHT OF THE
REMAND.
[2.] THE TRIAL COURT'S FINDING THAT DR. CURELL'S
DECISION TO DISCHARGE PETER YURKOWSKI ON
MARCH 22, 2005 DID NOT FALL BELOW THE STANDARD
OF CARE IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
[3.] THE TRIAL COURT ERRED IN DECIDING THAT
PLAINTIFFS FAILED TO PROVE PROXIMATE CAUSE.
No. 16AP-718 11
III. DISCUSSION
A. First Assignment of Error
{¶ 18} Under the first assignment of error, appellants assert that the Court of
Claims erred in failing to revise its prior immunity decision or have a new hearing on
immunity. Due to the procedural history of this case, appellants are precluded from
raising issues of immunity in this appeal.
{¶ 19} Both failing to file an appeal and failing to present arguments in previous
appeals may invoke the doctrines of res judicata and waiver when an appellant attempts
to raise new arguments in subsequent appeals. State v. Gray, 10th Dist. No. 06AP-10,
2006-Ohio-4595, ¶ 14 (internal citations omitted) ("Where an argument could have been
raised on an initial appeal, res judicata dictates that it is inappropriate to consider that
same argument on a second appeal following remand."); State v. Cunningham, 10th Dist.
No. 14AP-251, 2014-Ohio-3702, ¶ 12 (res judicata barred arguments where appellant
failed to appeal from previous relevant judgment entries and failed to present the
arguments in previous appeals); Cugini & Capoccia Builders, Inc. v. Ciminello's, Inc.,
10th Dist. No. 06AP-210, 2006-Ohio-5787, ¶ 36 (noting that an appellant waives an issue
by not raising it in his initial appeal).
{¶ 20} Here, in their March 2008 brief on immunity, appellants raised Dr. Curell's
decision to discharge Peter as an issue. They emphasized medical records from the
discharge date, March 22, 2005, in an attempt to show Dr. Curell was acting outside the
scope of his employment with appellee at the time of the decision to discharge Peter. The
Court of Claims acknowledged this argument and ultimately determined that "Dr. Curell
acted within the scope of his employment with [appellee] at all times relevant hereto."
(Immunity Decision at 6.) Appellants did not attempt to appeal from the immunity
decision and did not assert immunity as error in their two subsequent appeals to this
court. During the May 11-12 remand for a rehearing on the specific issue of whether the
decision to discharge breached the standard of care, appellants moved to revisit the
immunity decision. The Court of Claims denied the motion because that issue had been
previously determined and due to the limited scope of remand.
{¶ 21} Appellants now assert that our prior decisions required the Court of Claims
to revise its decision on immunity or at least hold a hearing on the issue. According to
No. 16AP-718 12
appellants, the Court of Claims based its immunity decision on a 298-day period of
treatment, but the prior decisions of this court, which narrowed in on Dr. Curell's decision
to discharge Peter, essentially changed the time frame from which to review immunity.
Appellants propose that after our decisions, "the Trial Court was to consider essentially a
28 day period of time in which 27 days were covered by out-patient treatment unrelated
to any in-patient treatment and with only a few hours of 1 day, the day Dr. Curell made
the discharge decision, actually being in-patient." (Appellants' Brief at 7.)
{¶ 22} Because appellants did not challenge the immunity decision in any prior
appeal, they are barred from now asserting immunity as a basis for appeal under the
doctrines of res judicata and waiver. Appellants' specific argument related to the time
frame from which to form the immunity decision is likewise precluded from review. In
our view, appellants present our prior decisions as a basis to argue an issue which they
could have, but did not, previously challenge on appeal. The Court of Claims' immunity
decision considered Dr. Curell's decision to discharge Peter and appellants' related
arguments. (Immunity Decision at 6.) Appellants were in a position to argue that the
decision to discharge Peter demanded a more narrow time frame for purposes of
immunity, but they did not raise that issue in an appeal.
{¶ 23} Notwithstanding waiver or res judicata, appellants' argument is not well-
taken. Nothing in our two previous decisions set a "shorter time-frame" for purposes of
the immunity or even confined the analysis of breach of the standard of care to a specific
period. (Appellants' Brief at 13.) Moreover, generally, "when an appellate court remands
a case for a limited purpose, 'the trial court [is] obliged to accept all issues previously
adjudicated as finally settled.' " Cugini at ¶ 32, quoting Blackwell v. Internatl. Union,
U.A.W., 21 Ohio App.3d 110, 112 (8th Dist.1984). Appellants provide no authority
requiring a trial court to revisit a prior decision on immunity, unchallenged in previous
appeals, in a hearing on remand expressly limited to another specific purpose. See App.R.
16(A)(7).
{¶ 24} Accordingly, appellants' first assignment of error is overruled.
B. Second Assignment of Error
{¶ 25} Under the second assignment of error, appellants contend that the Court of
Claims' finding that Dr. Curell's decision to discharge Peter on March 22, 2005 did not fall
No. 16AP-718 13
below the standard of care is against the manifest weight of the evidence. For the
following reasons, we disagree.
{¶ 26} In Nelson v. Univ. of Cincinnati, 10th Dist. No. 16AP-224, 2017-Ohio-514,
we recently set out the standard of review to be applied in a civil case in assessing whether
a trial court's judgment is against the weight of evidence as follows:
" 'Weight of the evidence concerns "the inclination of the
greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other. * * *
Weight is not a question of mathematics, but depends on its
effect in inducing belief." ' " (Emphasis omitted.) Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12, 972
N.E.2d 517, quoting State v. Thompkins, 78 Ohio St.3d 380,
387, 1997 Ohio 52, 678 N.E.2d 541 (1997), quoting Black's
Law Dictionary 1594 (6th Ed.1990).
" 'Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be
reversed by a reviewing court as being against the manifest
weight of the evidence.' " Rosenshine v. Med. College Hosps.,
2012-Ohio-2864, ¶ 9, 974 N.E.2d 692, quoting C.E. Morris
Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d
578 (1978). "Under the civil [manifest-weight-of-the-
evidence] standard, examining the evidence underlying the
trial judge's decision is a prerequisite to determining whether
the trial court's judgment is supported by some competent,
credible evidence." State v. Wilson, 113 Ohio St.3d 382, 2007-
Ohio-2202, ¶ 40, 865 N.E.2d 1264. See also Eastley at ¶ 15
("The phrase 'some competent, credible evidence' * * *
presupposes evidentiary weighing by an appellate court to
determine whether the evidence is competent and credible.").
Accordingly, a reviewing court must weigh the evidence
presented in the trial court.
However, in weighing the evidence, we are mindful of the
presumption in favor of the finder of fact. Id. at ¶ 21; Seasons
Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 10 Ohio B.
408, 461 N.E.2d 1273 (1984) (noting that a reviewing court
gives deference to the finder of fact because "the [finder of
fact] is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered
testimony"). " ' "If the evidence is susceptible of more than
one construction, the reviewing court is bound to give it that
No. 16AP-718 14
interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and
judgment." ' " Eastley at ¶ 21, quoting Seasons Coal at 80, fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 603, at 191-92 (1978). "Thus, in reviewing a judgment
under the manifest-weight standard, a court of appeals weighs
the evidence and all reasonable inferences, considers the
credibility of witnesses, and determines whether in resolving
conflicts in the evidence, the finder of fact clearly lost its way."
Sparre v. Ohio Dept. of Transp., 2013-Ohio-4153, ¶ 10, 998
N.E.2d 883, citing Eastley at ¶ 20.
Id. at ¶ 28-30. Yurkowski I at ¶ 41; Tobin v. Univ. Hosp. E., 10th Dist. No. 15AP-153,
2015-Ohio-3903, ¶ 12-13, appeal not accepted, 145 Ohio St.3d 1411, 2016-Ohio-899. As
we stated in Yurkowski II at ¶ 15, in a medical malpractice case, whether the defendant
has employed the requisite care must be determined from the testimony of experts, and it
is the duty of the trier of fact to weigh and resolve conflicting medical testimony from
expert witnesses. "[A] determination of credibility is implicit within the analysis of
whether a defendant has breached the standard of care in a medical malpractice case." Id.
{¶ 27} "In order to establish medical malpractice, it must be shown by a
preponderance of evidence that the injury complained of was caused by the doing of some
particular thing or things that a physician or surgeon of ordinary skill, care and diligence
would not have done under like or similar conditions or circumstances, or by the failure or
omission to do some particular thing or things that such a physician or surgeon would
have done under like or similar conditions and circumstances." Bruni at paragraph one of
the syllabus. Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-
5140, ¶ 20. A psychiatrist, as a medical specialist, is held to the standard of care "of a
reasonable specialist practicing medicine or surgery in that same specialty in the light of
present day scientific knowledge in that specialty field." Bruni at paragraph two of the
syllabus.
{¶ 28} In support of their assignment of error, appellants first point to Dr.
Granacher's opinion that Dr. Curell did not conduct a proper suicide risk assessment, as
evidenced by a lack of documentation of such a risk assessment and no other evidence
that the assessment was performed. However, because this issue was previously decided,
the law of the case doctrine applies. The law of the case doctrine provides that "the
No. 16AP-718 15
decision of a reviewing court in a case remains the law of that case on the legal questions
involved for all subsequent proceedings in the case at both the trial and reviewing levels."
(Internal citations omitted.) Yurkowski II at ¶ 6 (precluding review of appellants'
reassertion of arguments regarding the Court of Claims' determination on Dr. Curell's
psychopharmacology treatment plan under the law of the case doctrine). In Yurkowski I
at ¶ 42, 52, 58, we determined that Dr. Curell did not breach the applicable standard of
care by failing to perform and document a suicide risk assessment prior to discharging
Peter. As such, pursuant to the law of the case doctrine, this issue is precluded from
review. Yurkowski II at ¶ 9.
{¶ 29} Second, appellants argue that Dr. Curell breached his duty of care in failing
to accurately weigh protective versus risk factors in making his decision to discharge
Peter. Appellants point to Peter's employment as a pharmacist, his history of suicide
attempts showed increasing frequency and escalating lethality, the diagnosis of panic
disorder and differential diagnosis of bipolar disorder, his impending divorce and
discharge alone with instructions to call if he needed help and without sufficiently
integrating his wife, Sharon, his incompetence to manage his own health, safety, and
welfare as exhibited by his Global Assessment of Functioning score of 35, and Dr. Curell's
decision to release Peter with enough medicine to kill himself. Appellants add that Dr.
Curell admits he knew the risk but released him anyway and admits that he might not
have made the right decision. Instead of releasing Peter, appellants contend that the
prudent course of action would be to have sent him to a state mental hospital if
discharging him to Sharon's home was not possible. Appellants further believe that the
Court of Claims ignored facts, mischaracterized Dr. Granacher's credentials, and did not
properly determine whether the testimony was supported by the record, but instead
simply accepted flat denials of the breach of the standard of care.
{¶ 30} In Yurkowski I, in determining that the Court of Claims' decision that Dr.
Curell's treatment plan did not breach the standard of care, we specifically addressed
several sub-issues in addition to the suicide risk assessment, including failing to provide
an oversight plan for management of Peter's medications including prescribing lethal
doses of medication, "misdiagnosing" Peter as not being bipolar, failing to maintain
appropriate boundaries, failing to develop an appropriate psychopharmacology plan,
No. 16AP-718 16
failing to sufficiently integrate Sharon, failing to coordinate with a therapist to assist with
outpatient treatment, and failing to provide a proper psychopharmacology plan1 and
suicide risk prevention plan after his discharge including the decision to prescribe
multiple doses of medicine and permitting Peter to return to work at the pharmacy from
which he previously obtained a lethal quantity of drugs. Yurkowski I at ¶ 43-51.
{¶ 31} Therefore, to the extent that appellants reassert matters which fall within
the scope of Dr. Curell's treatment of Peter, pursuant to the law of the case doctrine, those
issues are precluded from review. Yurkowski II at ¶ 9. We will instead proceed to address
these issues only as they relate to Dr. Curell's decision to discharge.
{¶ 32} To that issue, the parties agree that both experts stated that the standard of
care for discharging a patient such as Peter is to conduct a suicide risk assessment and to
weigh protective versus risk factors. Appellants agree that based on the scope of remand,
resolution of this issue "essentially comes do[wn] to the testimony of the expert witnesses
and admissions of [Dr. Curell]." (Appellants' Brief at 14.) Contrary to appellants'
argument, we believe both experts explained the basis for their opinions extensively and
both opinions were supported by competent and credible record evidence. Furthermore,
we find no indication that the Court of Claims erred in its determination of credibility,
which is within its core competence as trier of fact, or in its consideration and weighing of
the evidence. Stanley at ¶ 50 (noting the trial court has no duty to comment on certain
evidence). On thorough review of the record, we conclude that the Court of Claims'
finding that Dr. Curell's decision to discharge Peter on March 22, 2005 did not fall below
the standard of care is not against the manifest weight of the evidence.
{¶ 33} Accordingly, appellants' second assignment of error is overruled.
C. Third Assignment of Error
{¶ 34} Under the third assignment of error, appellants assert that the Court of
Claims erred in deciding that they failed to prove proximate cause. Specifically,
appellants argue that contrary to the Court of Claims' decision, the testimony of Dr.
Granacher established the proximate cause element of medical malpractice.
1 In Yurkowski II at ¶ 9, we previously precluded review of appellants' reassertion of arguments regarding
the Court of Claims' determination onm Dr. Curell's psychopharmacology treatment plan under the law of
the case doctrine.
No. 16AP-718 17
{¶ 35} In order to establish medical malpractice, a plaintiff must show: (1) the
standard of care recognized by the medical community, (2) the failure of the defendant to
meet the requisite standard of care, and (3) a direct causal connection between the
medically negligent act and the injury sustained. Stanley at ¶ 19, citing Bruni at 130.
Thus, where the plaintiff fails to demonstrate that the defendant breached the requisite
standard of care, the medical malpractice claim fails regardless of proximate cause.
Stanley at ¶ 19, citing Bruni at 130; Morgan v. Ohio State Univ. College of Dentistry, 10th
Dist. No. 13AP-287, 2014-Ohio-1846, ¶ 38, 40-47, 87 (finding where one element of
professional negligence is established, the remaining assignments of error on other
elements of professional negligence are moot); Ernes v. N.E. Ohio Eye Surgeons, Inc.,
11th Dist. No. 2005-P-0043, 2006-Ohio-1456, ¶ 18 (without a breach of the standard of
care, it is elemental negligence law that the issue of proximate cause is moot).
{¶ 36} Because we have already decided that the Court of Claims' determination
that Dr. Curell's decision to discharge Peter on March 22, 2005 did not fall below the
standard of care was not against the manifest weight of the evidence, we find appellants'
third assignment of error to be moot. Morgan; Ernes.
{¶ 37} Accordingly, appellants' third assignment of error is rendered moot.
IV. CONCLUSION
{¶ 38} Having overruled appellants' first and second assignments of error and
rendering appellants' third assignment of error moot, we affirm the judgment of the Court
of Claims of Ohio.
Judgment affirmed.
KLATT and BRUNNER, JJ., concur.
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