In March 2019, James Calloway met with Dr. Brarens, a podiatrist, to discuss pain that he was having in his foot and ankle. In April 2019, James decided to have foot surgery, which was scheduled for May 30, 2019.
On May 29, 2019, James met with Dr. Peter McKenna, a plastic surgeon at CIPS, to discuss having a liposuction procedure while he was off of work for the ankle surgery. James informed Dr. McKenna that his ankle surgery was scheduled for the next day and that his ankle would be nonweightbearing for eight weeks. Dr. McKenna evaluated James for his risk of deep vein thrombosis (“DVT”) and pulmonary embolism (“PE”) by using a self-evaluation worksheet. Dr. McKenna concluded that James had a moderate risk for DVT, but his calculation did not include the fact that James would be in a plaster cast at the time of the liposuction procedure. Dr. McKenna did not share his specific assessment of his DVT risk with James, but did provide him with a pamphlet that mentioned DVT as a possible risk. The liposuction procedure was scheduled for June 20, 2019.
On May 30, 2019, James had ankle surgery and was instructed not to put any weight on that leg for eight weeks. He was also instructed to take aspirin as an anticoagulant to reduce his chances of DVT during this time of limited mobility. A plaster cast was placed on his leg on June 5, and he utilized a scooter to get around. On June 10, Dr. McKenna’s office instructed James to stop taking aspirin in preparation for the upcoming liposuction procedure.
On June 20, 2019, James had a successful liposuction surgery. James had follow-up appointments with Dr. McKenna on June 24 and Dr. Brarens on June 26, which both went well. James had also scheduled a three-part Cool-Sculpting
procedure with Dr. McKenna. The first appointment was set for July 1, and that also went well.
On July 8, James began to experience congestion. He went to his primary care physician’s office on July 11 and met with the nurse practitioner, who instructed him to go to the emergency room immediately. After a delay of several
hours, James eventually went to Bethesda North Hospital and was informed that he had developed blood clots and needed surgery. On July 12, James had surgery to remove the blood clots, which was initially successful until later complications arose. Unfortunately, James passed away on July 14. Following his death, the coroner’s office
determined his cause of death as complications from a DVT/PE blood clot.
The Estate sued Dr. McKenna and CIPS for medical malpractice and failure to obtain informed consent. During a two-week jury trial, the trial court and counsel for both parties discussed jury instructions and interrogatories multiple times. Eventually, all parties came to an agreement as to what would be read and presented to the jury at the conclusion of the trial. The trial court drafted the interrogatories and the conclusion section of the jury instructions, while the Estate drafted the instructions for the failure-to-obtain-informed-consent section of the instructions.
The jury returned a verdict in favor of Dr. McKenna and CIPS. Ultimately, the jury found that Dr. McKenna was negligent by not adequately explaining to James his correct risk level and that he failed to obtain informed consent from James. However, the jury also found that the lack of informed consent was not the proximate cause of James’s death, that Dr. McKenna was not negligent for not postponing the liposuction surgery until James had completely recovered from the
ankle surgery, and that James himself was negligent, although his negligence was not the proximate cause of his death. The jury also assigned zero percent fault to both Dr. McKenna and James. Following the verdict, the Estate filed a motion requesting that a judgment be entered for the Estate and a damages trial be scheduled, which the trial court denied.
In its Opinion entered on September 6, 2023, the Court of Appeals First Appellate District of Ohio held: “The jury had the opportunity to weigh the evidence presented to them by each party and consider the credibility of each witness. In Interrogatory No. 4, the jury found that the Estate proved that Dr. McKenna failed to obtain informed consent by not explaining to James his correct risk level. However, in Interrogatory No. 5, the jury also found that although Dr. McKenna failed to give a correct risk level, that was not the proximate cause of James’s death. The jury also found in Interrogatory No. 6, “that James Calloway was negligent.” Likewise, the jury assigned both Dr. McKenna and James zero percent fault. Given this volume of evidence, there was ample support for the jury’s determination that Dr. McKenna did not engage in medical negligence and that his failure to adequately advise James of the risks of surgery did not proximately cause his death. Therefore, the jury’s verdict in favor of Dr. McKenna and CIPS was not against the manifest weight of the evidence.”
Source Calloway v. McKenna, 2023-Ohio-3130.
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