This case is a textbook example how privileged interests get favored treatment by the Ohio Supreme Court. In previous posts I have explained that the large contributors to Supreme Court campaigns are the corporate community, the insurance industry and the medical industry, and that they seem to get favored treatment by the Ohio Supreme Court. This case is a prime example.

Mr. Moretz underwent surgery in 2005 by Dr. Williams, a general surgeon, for a cyst near or on the spine. The agreement was that Dr. Williams would start the surgery and if complications arose that Dr. Muakkassa, a neurosurgeon, would take over. Complications arose and Dr. Muakkassa did not scrub in and complete the operation. Mr. Moretz permanently lost bowel, bladder and sexual function as a result.

The jury returned a verdict against Dr. Muakkassa and he appealed. The Summit County Court of Appeals affirmed the verdict and two Supreme Court justices would have affirmed. Therefore 6 judges were for affirming, but 5 Supreme Court justices told Mr. Moretz, “tough luck.”

The dissent by Justice Pfeifer captures my sentiments about this case.

Most farms look pretty good when viewed from afar. The rows of crops appear evenly spaced and the barn well painted. The view from the ground is very different. Due to weather, the crops may be uneven or sparse and the paint on the barn may be peeling. But, even with these imperfections, the farms are productive. Unfortunately, the majority opinion in this case gets so caught up in the imperfect ground view that it overlooks the larger realities. Viewed from the proper perspective, the verdict in this case is both justified and reasonable. Moreover, by focusing on the motes, the majority opinion has attacked the trial court and the court of appeals in a way that is unwarranted and just plain demeaning.


In criminal cases, we routinely overlook errors that are not outcome-determinative, even errors that are constitutional in nature. ** Civ.R. 61 embodies this concept in the civil context. It states that reviewing courts must disregard errors and defects that do “not affect the substantial rights of the parties.” It also provides that verdicts will not be vacated unless refusal to vacate would be “inconsistent with substantial justice.” This rule and our consistent practice through the years reflect the reality that there is “ ‘no such thing as an error-free, perfect trial, and the Constitution does not guarantee such a trial.’”

This is so true. In criminal cases “errors” such as found in this case are overlooked almost every week.


Larry Moretz has a permanent loss of bowel, bladder, and sexual function. His condition is inarguably the result of the surgery he underwent. Whether Dr. Muakkassa was negligent was an issue for the jury to determine. It had ample evidence before it that he had not been negligent and ample evidence that he had been negligent. It concluded that he had been negligent.

I find this case appalling. One of the errors found was the admission into evidence of a medical illustration taken from a medical textbook. There was no objection to the use, that is the showing of the illustration to the jury, but there was an objection to the illustration being admitted into evidence, so the jury would have it in the jury room. It is beyond me why an illustration used to train and educate doctors harmed Dr. Muakkassa.

Why is this appalling? One will find literally hundreds if not thousands of opinions from appellate courts and the Supreme Court that the admission or exclusion of evidence is discretionary with the trial court, and a judgment will not be overturned for an abuse of discretion. But now we have one rule for criminals and normal civil cases, and another rule for one of the favored industries.

Medical care in Ohio has to be answerable to someone. Apparently to sue a doctor, the trial has to be perfect. The medical care can be terrible. When one is admitted to a hospital, one is no longer a judge – one is a patient. Good luck with that.