A recent appellate court decision has affirmed a lower court’s ruling in a lawsuit alleging medical malpractice and wrongful death after an outpatient surgical procedure resulted in a patient’s death. The case centered on whether there was sufficient expert testimony to prove that alleged negligence by healthcare providers caused the patient’s fatal cardiac arrest.
The complaint was filed by Melanie Meshel Thompson, both individually and as representative of the Estate of Barry Allison (formerly known as Meshel), in Mahoning County, Ohio, on December 29, 2022. The named defendants were Mercy Health doing business as St. Elizabeth Hospital and Dr. Eugene Potesta Jr., along with several unnamed hospital employees.
According to the filing, Thompson alleged that her brother underwent an outpatient surgical procedure at St. Elizabeth Hospital in Boardman in November 2019. Dr. Potesta performed the procedure. After being discharged from the hospital later that day, Allison died from cardiac arrest. Thompson argued that her brother was a high-risk patient who should not have been sent home after surgery and claimed this failure constituted a breach of standard care leading to his pain, mental anguish, and eventual death.
Thompson’s complaint included claims for medical malpractice against all defendants, negligence against the hospital and its John Doe employees, loss of consortium against all defendants, and wrongful death. She sought compensatory and punitive damages, costs, and prejudgment interest.
The case progressed through various pretrial motions. Dr. Potesta moved to dismiss for lack of an affidavit of merit; Thompson later filed such an affidavit from Dr. Barry Lloyd Wenig. Both Dr. Potesta and Mercy Health moved for summary judgment on grounds including insufficient evidence linking their actions to Allison’s death with reasonable medical probability; these motions were overruled by the trial court.
Ahead of trial, Dr. Potesta filed two motions in limine: one to exclude testimony from an economics expert regarding lost value of life (arguing it was inadmissible), and another seeking to limit certain testimony by Dr. Wenig as allegedly untimely disclosed beyond his expert report. The trial court granted the first motion preliminarily—excluding opinions about lost value of life—and partially granted the second motion but allowed Dr. Wenig to testify consistent with his stated conclusions about standard of care violations related to anesthesia use and discharge decisions.
At trial in April 2025, after Thompson presented her case—including testimony from Dr. Wenig—the defense moved for directed verdicts arguing that Thompson failed to establish proximate cause between any alleged breach of care and Allison’s death through qualified expert testimony as required under Ohio law for such claims.
The trial judge agreed with this assessment after reviewing relevant portions of Dr. Wenig’s testimony: while he opined that general anesthesia should not have been used on a high-risk patient like Allison or that overnight observation would have been preferable, he could not state with reasonable medical certainty what specifically caused Allison’s death beyond what was listed on the death certificate (cardiac event). On cross-examination, Dr. Wenig further acknowledged uncertainty about whether anything could have prevented Allison’s death given his complex health history.
As stated in the opinion: “Dr. Wenig does not provide any opinion as to whether Dr. Potesta’s alleged breach of the standard of care was the proximate cause of Mr. Allison’s death… Plaintiff failed to establish a requisite element of a prima facie case.”
Following this reasoning—and construing evidence most strongly in favor of Thompson—the court found no substantial evidence supported proximate causation required for medical malpractice or wrongful death claims under Ohio law: “Failure to establish proximate causation is fatal to plaintiff’s claims.” Accordingly, directed verdicts were entered for both Mercy Health/St Elizabeth Hospital and Dr. Potesta.
Thompson subsequently moved for a mistrial citing procedural irregularities affecting her ability to present full expert testimony due to travel disruptions affecting her witness schedule; she also argued counsel had mistakenly believed prior qualification sufficed under evidentiary rules governing experts’ credentials at trial (Evid.R 601). The trial court denied this motion stating there were no irregularities justifying mistrial: “the fact that Mr Squire was hurried… because Dr Wenig had to return… was not an irregularity that would justify sustaining a motion for mistrial.”
On appeal before Judges Carol Ann Robb, Mark A Hanni (dissenting), and Katelyn Dickey at Ohio’s Seventh Appellate District Court (Case No 25 MA 0029), Thompson raised four assignments of error relating primarily to evidentiary rulings on motions in limine excluding expert opinions; denial of her mistrial request; exclusion or limitation on causation evidence; and granting directed verdicts against her claims.
The majority opinion overruled each assignment: it found preliminary rulings on excluded evidence did not become final since no proffered testimony was offered at trial nor preserved for appeal; found no abuse or error in denying mistrial based on scheduling issues; concluded there was insufficient material evidence supporting causation necessary for jury consideration; reiterated that without expert proof connecting breach-of-care allegations directly to cause-of-death more likely than not—as required—judgment must be entered for defendants.
Judge Hanni dissented arguing sufficient material evidence existed allowing reasonable minds differing conclusions regarding causation based on Dr Wenig’s overall testimony about unnecessary procedures performed under general anesthesia without overnight observation given known risks—but this view did not carry.
Attorneys involved included Percy Squire (for plaintiff-appellant); Marshall D Buck and Thomas J Wilson (for Mercy Health/St Elizabeth Hospital); Emily K Anglewicz, Stephen W Funk, Megan M Millich (for Eugene Potesta Jr MD). The case ID is 25 MA 0029.
Source: 2026Ohio1183_Thompson_v_Mercy_Health_Opinion_Ohio_Court_of_Appeals.pdf
