Merit Decision. Some Medical Malpractice Fundamentals. Branch v. Cleveland Clinic Foundation.

On November 21, 2012, the Supreme Court handed down a merit decision in Branch v. Cleveland Clinic Found., 2012-Ohio-5345. The case was argued June 20, 2012. In a 6-1 decision written by Justice McGee Brown, the Court reinstated a jury verdict in favor of the Clinic, reversing the court of appeals on a number of rulings. Justice Pfeifer dissented. (I’ve been writing that a lot lately!) Read the oral argument preview of this case here and the analysis of the argument here.

Case Background

Margaret Branch suffered a stroke during brain surgery performed at the Cleveland Clinic. Branch claimed this happened because the surgeon pierced the ventricle wall during the procedure; the Clinic disputed this. After a two week trial, the jury returned a unanimous defense verdict. The Eighth District Court of Appeals reversed, in a split decision.

The Court of Appeals found the trial court had abused its discretion in three instances.

  • In allowing the defense to use a computer re-creation of the surgery plan as demonstrative evidence, which was only given to Branch’s counsel a few minutes before the testimony of the defense expert who used it.
  • In refusing to let Branch’s lawyer make an adverse inference argument to the jury about the Clinic’s failure to retain the pre-surgical computerized image of the surgery.
  • In giving the “different methods” jury instruction in this case.

The high court found that the trial court had not abused its discretion in any of the three challenged rulings, reversed the court of appeals, and reinstated the verdict in favor of the Clinic.

Demonstrative Evidence

Before the surgery, a three dimensional mapping of Branch’s brain was created to help the surgeon direct the probe that would be inserted into her brain. That electronic image was not retained, but all the surgeon’s notes detailing the procedure were retained. At trial, to illustrate this point, the Clinic produced a three-dimensional computer simulation of the brain-mapping using data from the surgeon’s notes. Branch argued that the simulation was prejudicial and that she had not been given adequate notice of its use. The trial court permitted its use. The Court of Appeals reversed, on the ground that this late introduction prejudiced Branch from effectively cross examining the defense expert.

In overruling the appeals court on this point, the Supreme Court started with the oldest of saws: a trial court is in the best position to rule on evidence and won’t be reversed absent an abuse of discretion. In case there is any trial lawyer who doesn’t know, this means a ruling that is unreasonable, arbitrary or unconscionable. The Court found this was none of the above. Branch’s lawyer had access to the same set of surgeon’s notes as the Clinic had, and beyond that, the high court deferred to the trial court on its ruling.

Adverse Inference

During trial, Branch’s lawyer repeatedly argued that the failure to save the electronic image of the surgery plan was very suspicious under the circumstances. But during closing argument, the trial judge stopped Branch’s lawyer when he began to compare the clinic’s action to BP’s destruction of safety plans after the 2010 Gulf of Mexico oil spill. Branch argued this prevented her from seeking an adverse inference instruction in the case. The court of appeals agreed.

When actually examining the record, the Supreme Court found that the trial court had not stopped Branch from arguing for an adverse inference. The order not to avoid any reference to the BP oil spill occurred just minutes before the end of Branch’s final argument, and up until then, Branch’s lawyer referred to the missing records repeatedly. The high court found the trial court well within its discretion in setting the boundaries of a closing argument.

Different Methods Jury Instruction

At trial, the judge gave the jury what sounds like the standard jury instruction that alternative methods could be used in treatment, and the use of one rather than another did not necessarily constitute negligence. The court of appeals reversed because it found that the issue in the case was not whether the clinic had employed one of several methods, but whether the method chosen was performed in accordance with the standard of care.

In 2000, in Pesek v. Univ. Neurologists Assoc. Inc.,the Court held that the different methods instruction is only appropriate if there is evidence in the case that more than one method of diagnosis or treatment is acceptable for the condition at issue. But in examining the record in this case, the Court found that Branch had raised “a number of questions about whether the clinic adopted the correct medical approach in her surgery despite the existence of alternative methods,” so that the instruction was proper.


The Court reversed the Court of Appeals en toto and reinstated the jury verdict for the Clinic.

Justice Pfeifer’s Dissent

Justice Pfeifer would dismiss the case as improvidently allowed. Here’s the essence of his dissent:

“Undoubtedly, this case is a matter of great personal interest for the Branches and a matter of great corporate interest for the Cleveland Clinic Foundation, but it does not meet this court’s jurisdictional requirement of a case “of public or great general interest.”

Case Syllabus


Concluding Observations

I’m totally with Justice Pfeifer on this one. This case is error correction, pure and simple, and never should have been accepted. No new law is involved. There is no syllabus. I thought the same thing after argument. Here’s what I wrote then:

“The Court never should have accepted this case. It looks like error correction, pure and simple. As Justice McGee Brown asked in the key exchange of the day, what law could the Court possibly write in this case? That demonstrative evidence is different from trial evidence? Every trial lawyer and trial judge on earth already know that.

“This looks like a split decision, probably in favor of the Clinic on the ground that this was just demonstrative evidence and the jury was told how to evaluate it. I can’t imagine a syllabus. “

Throughout the oral argument, Justice McGee Brown expressed her skepticism about this case. I wonder why she changed her mind.