Opinion
Case No. 19CA7
06-03-2020
Michael Zweifel, Plaintiff-Appellant, v. Michael C. Myers, D.O., et al., Defendant-Appellees.
APPEARANCES: Patrick E. McFarland, Patrick E. McFarland, PLLC, Parkersburg, West Virginia, and David A. Sims, Law Offices of David A. Sims, PLLC, Vienna, West Virginia, for Appellant. James J. Brudny, Jr., Arnold Todaro Welch & Foliano Co., LPA, Columbus, Ohio, and John B. Welch, Arnold Todaro Welch & Foliano Co., LPA, Dayton, Ohio for Appellees Michael Myers, D.O., and Christopher Todd Marazon, D.O.
DECISION AND JUDGMENT ENTRY
APPEARANCES: Patrick E. McFarland, Patrick E. McFarland, PLLC, Parkersburg, West Virginia, and David A. Sims, Law Offices of David A. Sims, PLLC, Vienna, West Virginia, for Appellant. James J. Brudny, Jr., Arnold Todaro Welch & Foliano Co., LPA, Columbus, Ohio, and John B. Welch, Arnold Todaro Welch & Foliano Co., LPA, Dayton, Ohio for Appellees Michael Myers, D.O., and Christopher Todd Marazon, D.O. Smith, P.J.
{¶1} Michael Zweifel ("Appellant") appeals the June 7, 2019 final judgment entry of the Gallia County Court of Common Pleas which granted a directed verdict in favor of Christopher Todd Marazon, D.O. and Michael C. Myers, D.O., (collectively "Appellees"), on Appellant's medical malpractice action. Having reviewed the record, we find: (1) the trial court did not abuse its discretion by striking the opinion testimony of Dr. Seth Bernard and Dr. Lawrence Cooperstein, Appellant's expert witnesses; and (2) the trial court did not err as a matter of law by granting Appellees' Civil Rule 50 motion for a directed verdict. Accordingly, we overrule Appellant's assignments of error and affirm the judgment of the trial court.
Where necessary for clarity we will refer to the individual physician by name.
FACTS
{¶2} Because this appeal involves resolution of primarily legal issues, Appellees' brief begins with a dismissive tone as to the underlying facts in this case. While the underlying facts may not be pertinent to resolution of the appeal, we believe, unfortunately, that the underlying facts shall always be pertinent to Appellant and his wife, Janet Zweifel. However, a worse transgression in the appellate realm would be Appellant counsel's misrepresentation of facts in the Statement of the Case in Appellant's brief. Upon review, many of the "facts" referenced as part of the trial transcript are either contained in the allegations of Appellant's complaint or derived from Appellant's opening statement at pages 73-106 of the trial transcript. It is well recognized that evidence does not include the pleadings, see Ohio Jury Instructions, Vol. 1: Civil. 305.03 "Evidence excludes," [Rev. 3-19-11]. And it has long been held that the statements of counsel are not evidence. See RNG Properties, Ltd. V. Summit Cty. Bd. Of Revision, 140 Ohio St.3d 455, 2014-Ohio-4036, 19 N.E.3d 906, at fn.1.
{¶3} The trial transcript actually does reveal that on January 2, 2015, Appellant presented to his family physician, Dr. Marazon, with a chief complaint of right flank pain. During the remainder of 2015, Appellant continued to present to Dr. Marazon with similar and related complaints of right flank pain. Dr. Marazon eventually ordered x-rays and a urinalysis. These tests were reported with normal findings. In July, Dr. Marazon ordered a CT scan of the abdomen. Apparently in his order, Dr. Marazon indicated the reason for the CT scan was a history of abdominal pain. He did not communicate Appellant's complaint of right flank pain as part of the history. On July 17, 2015, Dr. Myers, a board-certified radiologist, read and interpreted the CT scan as having no abnormality. Dr. Marazon subsequently reviewed the results of the CT scan with Appellant as normal.
{¶4} Later in 2015, Dr. Marazon ordered a mesenteric angiogram. On December 21, 2015, Dr. Phillip Long performed the angiogram procedure and discovered a mass in Appellant's right kidney. Dr. Long recommended further testing to confirm renal cell carcinoma. On January 12, 2016, Appellant consulted with Dr. Benjamin Martin at Central Ohio Urology. Appellant was informed that the mass in his right kidney was likely renal cell carcinoma, in lay terms, kidney cancer.
According to the U.S. National Library of Medicine, a mesenteric angiogram is a test used to look at the blood vessels which supply blood to the small and large intestines. See https://medlineplus.gov/ency/article/003819.htm. Accessed March 18, 2020.
{¶5} On March 1, 2016, Appellant had surgery to remove the mass in his kidney. Surgery began as robotical but because the mass was not well defined, the surgery had to be converted to an open procedure. The entire kidney had to be removed. Then in October 2016, Appellant was diagnosed with renal cell carcinoma in both lungs. He began a lengthy course of chemotherapy treatment.
{¶6} On June 12, 2017, Appellant filed a complaint for damages alleging that Dr. Marazon breached the standard of care for family practice physicians by failing to properly diagnose and treat Appellant. Appellant also alleged that Dr. Myers breached the standard of care for radiologists by failing to properly review and document the results of Appellant's July 2015 CT scan. Counsel for the doctors filed a joint and timely answer. The parties engaged in a lengthy discovery process and eventually proceeded to a jury trial on May 20 and 21, 2019.
{¶7} Appellant, his wife, and several other friends and family members testified at trial. Appellant was 78 years old at the time of trial. He testified as to his education in metallurgy and welding technologies; his background in the United States Navy and service during the Vietnam War; his work experience as a structural engineer working for Bechtel Corporation, working all over the United States building power plants; and his family. Appellant's first wife passed away. Janet Zweifel is his second spouse of 16 years at the time of trial. Together, the Zweifel's had 6 children, 18 grandchildren, and 9 great-grandchildren. Appellant also testified as to his medical treatment, his kidney and lung surgeries, the residual effects he will always suffer, and his astronomical medical bills.
{¶8} Appellant also called Drs. Bernard and Cooperstein as expert witnesses. Dr. Bernard testified as to the applicable standard of care for family medicine practitioners. Dr. Cooperstein testified as to the applicable standard of care for radiologists. Both doctors testified that Appellees failed to meet the applicable standard of care.
{¶9} Appellant also called Dr. Long, who diagnosed the kidney cancer, and Dr. Martin, who performed the procedure in which he ultimately removed Appellant's right kidney. After presenting his witnesses, Appellant proffered Exhibits 1, 2, 3, and 4. As to Exhibits 1-3, medical bills, Appellees objected and the trial court reserved ruling on their admissibility. The trial court admitted Exhibit 4 without objection, the July 2015 CT scan of Appellant's abdomen.
{¶10} Following the presentation of Plaintiff's case-in-chief, Defendants moved for a directed verdict under Civil Rule 50. On May 28, 2019, the Court rendered its decision in writing and granted Appellees' motion, directing a verdict in favor of Appellees. Specifically, the Court ordered stricken the testimony of Plaintiff's experts Drs. Bernard and Cooperstein as to their opinions, pursuant to Ohio Evid. Rule 703. Secondly, the Court found that Appellant had failed to present competent medical expert testimony and meet his burden of proof with respect to proximate causation.
{¶11} This timely appeal followed. Where pertinent, additional facts are set forth below.
ASSIGNMENT OF ERROR ONE
"I. THE OHIO RULES OF EVIDENCE PERMITTED DRS. BERNARD AND COOPERSTEIN TO RENDER THEIR OPINIONS AND THEIR TESTIMONY SHOULD NOT HAVE BEEN STRICKEN BY THE TRIAL COURT."
{¶12} A successful medical malpractice action requires a plaintiff to present expert testimony that establishes each of the following elements by a preponderance of the evidence: (1) the applicable standard of care; (2) a breach of that standard of care; and (3) that the breach was a proximate cause of the injuries alleged. See Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), paragraph one of the syllabus ("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, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things.") See also Oyer v. Adler, 2015-Ohio-1722, 33 N.E.3d 71, (4th Dist.), at ¶ 17. Failure to establish any of these elements is fatal to a medical malpractice claim. Bruni, 46 Ohio St.2d 127, 130-31, 346 N.E.2d 673; Robertson v. Mt. Carmel E. Hosp., 10th Dist. Franklin No. 01AP931, 2014-Ohio-2043, at ¶ 22. Expert testimony is generally required to prove the elements of medical malpractice whenever those elements are beyond the common knowledge and understanding of the jury. Campbell v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin No. 04AP96, 2004-Ohio-6072, at ¶ 10, citing Clark v. Doe, 119 Ohio App.3d 296, 307, 695 N.E.2d 276 (1st Dist. 1997); Robertson, supra, at ¶ 23. " 'Experts have the knowledge, training and experience to enlighten the jury concerning the facts and their opinion regarding the facts.' " Jarvis v. Hasan, 10th Dist. Franklin No. 14AP578, 2015-Ohio-1779, at ¶ 30, quoting Ramage v. Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97, 102, 1992-Ohio-109, 592 N.E. 2d 828, citing McKay Machine Co. v. Rodman, 11 Ohio St. 2d 77, 228 N.E. 2d 304, (1967); at 30.
A. STANDARD OF REVIEW
{¶13} Appellant asserts that the trial court erred by striking the opinion testimony given by both Dr. Bernard and Dr. Cooperstein. A trial court has broad discretion in the admission or exclusion of evidence, and so long as the court exercises its discretion in line with the rules of procedure and evidence, we will not reverse its judgment absent a clear showing of an abuse of discretion with attendant material prejudice to defendant. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991); State v. Hymore, 9 Ohio St.2d 122, 224 N.E.2d 126 (1967); Aldridge v. Garner, 159 Ohio App. 3d 688, 2005-Ohio-829, 825 N.E. 2d 201, (4th Dist.) A finding that a trial court abused its discretion implies that the court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying the abuse-of-discretion standard, we may not substitute our judgment for the trial court's judgment. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301(1993).
{¶14} Ohio Evid.R. 601, the general rule of competency of witnesses, provides that every person is competent to be a witness except:
(D) A person giving expert testimony on the issue of liability in any medical claim, as defined in R.C. 2305.113, asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless:
(1) The person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state;
(2) The person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school * * *.
B. LEGAL ANALYSIS
{¶15} The trial court ordered both Dr. Bernard's opinion testimony and Dr. Cooperstein's opinion testimony, both of which included opinions on the standard of care, stricken based on Ohio Evid.R. 703. Evid.R. 703, bases of opinion testimony by experts, provides that "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing." (Emphasis added.) The trial court found that the testimonies of both doctors were not based upon facts or data perceived by the doctors or admitted into evidence at trial.
{¶16} Evid.R. 703 is satisfied " '[w]here an expert bases his opinion, in whole or in major part, on facts or data perceived by him.' " Jarvis v. Hasan, 10th Dist. Franklin No. 14AP-578, 2015-Ohio-1779, at ¶ 31, quoting State v. Solomon, 59 Ohio St.3d 124, 570 N.E.2d 1118 (1991), paragraph one of the syllabus. Solomon required the Supreme Court of Ohio to revisit its earlier decisions in State v. Chapin, 67 Ohio St.2d 437, 424 N.E.2d 317 (1981) and State v. Jones, 9 Ohio St.3d 123, 459 N.E.2d 526 (1984) and to consider whether the opinion of an expert witness must be based on the expert's own personal knowledge or on facts admitted in evidence and may not be based on hospital records and/or opinions of other experts.
{¶17} Solomon had been indicted on four counts of kidnapping. Solomon eventually entered not guilty to each count and moved the court for an order requesting examinations to determine appellee's competency to stand trial. Several doctors performed psychiatric evaluations but the trial court disallowed two of the doctors' testimony concerning appellee's sanity because one had reviewed police reports and hospital records and another had reviewed the reports of the other doctors.
{¶18} The Supreme Court of Ohio observed in Solomon as follows:
The basis of opinion testimony by experts is provided for in Evid.R. 703. The rule states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." (Emphasis added.)
Appellant contends that the testimony of the two doctors was properly stricken because they, in part, based their opinions on reports not in evidence. It is appellant's contention that Evid.R. 703 bars the doctors' testimony. In support of its position, appellant cites us to State v. Chapin, 67 Ohio St.2d 437, 424 N.E.2d 317 (1981), and State v. Jones (1984), 9 Ohio St.3d 123, 459 N.E.2d 526. Upon the facts of the case at bar, we do not agree with appellant.
In Chapin, there is no indication that the psychiatrists called to testify ever personally examined the defendant. Their testimony was based on reports and records not in evidence and not prepared by the witnesses. Those facts differ from the facts
now before us. Both of the doctors herein, whose testimony was disallowed, had examined appellee and, thus, had based their opinions on facts or data perceived by them.Soloman at 126.
Likewise is Jones inapposite. While the court in Jones held that a medical opinion based upon reports not in evidence was not admissible, the court did not meet or discuss the issue as to whether such testimony is admissible where the doctors have personally examined the defendant and have arrived at their opinions based, in whole or in major part, on their perceptions gained from their direct personal examinations of the defendant.
Accordingly, we find that where an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid.R. 703 has been satisfied. (Emphasis added.) It is important to note that Evid.R. 703 is written in the disjunctive. Opinions may be based on perceptions or facts or data admitted in evidence.
{¶19} In Solomon, the doctors' whose testimonies were excluded had personally examined the defendant. The Solomon court found that the court of appeals was correct in ruling that the excluded testimony regarding appellee's sanity should have been admitted by the trial court. Thus, the "in major part" exception language, which has not been written into the rule as of July 1, 2007, became part of the case law.
{¶20} In Lambert v Goodyear, 78 Ohio App.3d 15, 606 N.E.2d 983 (4th Dist. 1992), this court first recognized Solomon's "in major part" exception to Evid.R. 703. Lambert injured his lower back during his employment with Goodyear. Lambert eventually prevailed in a workers' compensation claim for a lumbar strain suffered as a result of the incident. In 1990 at a jury trial, Lambert attempted to prove an additional claim involving his back injury.
{¶21} Lambert testified about his medical visits to Drs. Ward and Brown, both orthopedic surgeons. He also testified he underwent CT scans. Lambert attempted to present by deposition the expert opinion testimony of both doctors. Counsel for Goodyear objected based on Evid.R. 703, asserting that both doctors' expert opinions were based in part on inadmissible CT scan reports prepared by other doctors. Defense counsel noted that neither Dr. Ward nor Dr. Brown had reviewed the actual CT scans. The trial court sustained the objection. The trial court eventually granted the defense's motion for a directed verdict based upon the absence of expert medical testimony establishing a causal relationship between Lambert's accident and the conditions alleged in his complaint.
{¶22} On appeal, Lambert asserted the trial court erred by refusing to permit the expert opinion testimony of Drs. Ward and Brown. Looking to the Solomon decision, we reasoned that Drs. Ward and Brown based their expert opinions in whole or in major part on direct personal examinations of appellant and on the CT scan reports by Drs. Johnson and Casanova. The examinations were "facts or data" perceived by Drs. Ward and Brown. Also, the CT scan reports were properly admissible in evidence. Thus, the court should have admitted the expert opinions of Drs. Ward and Brown. We sustained Lambert's assignment of error.
Judge Harsha concurred in part and dissented in part.
{¶23} In Stephenson v. Guda, 4th Dist. Pickaway No. 532, 1995 WL 117616 (Mar. 15, 1995), a medical malpractice action, Stephenson asserted that the trial court erred by admitting Dr. Sokolov's expert opinion into evidence. Dr. Sokolov apparently performed a records review on behalf of the defendant physician. In particular, Stephenson asserted that Dr. Sokolov's expert opinion was based upon Dr. Guda's discovery deposition, which Stephenson claimed was not admitted into evidence.
{¶24} Again, looking to the Solomon decision's "in major part" exception, we found that Dr. Sokolov's opinion was based, in major part, on facts or data perceived by him or admitted into evidence. We noted that Dr. Sokolov had reviewed reports admitted into evidence, read appellee's deposition, and assumed [Dr. Guda's] deposition would be consistent with his trial testimony. Our review of the record revealed no material inconsistencies between Dr. Guda's deposition testimony and his trial testimony. We also found that Dr. Guda's trial testimony did not lack any critical information included in his deposition testimony, and differed in only minor, insignificant details. Thus, we found no Evid.R. 703 error.
{¶25} This case requires us to consider whether the trial court abused its discretion in striking the opinion testimony of Appellant's expert witnesses. Therefore, we must determine whether or not the experts in this case relied "in major part," on perceptions or facts admitted into evidence.
1. Dr. Bernard's opinion testimony.
{¶26} At trial, Dr. Seth Bernard was qualified as an expert witness by the trial court. The transcript demonstrates Dr. Bernard testified that he had reviewed Appellant's medical records from January 2, 2015 to December 21, 2015. Dr. Bernard testified the standard of care requires a family practice doctor to investigate and properly diagnose medical conditions. He opined that the medical workup that Dr. Marazon ordered was not complete based on Appellant's complaints of flank pain documented throughout the record. Dr. Bernard opined that the standard of care required Dr. Marazon to order an ultrasound on the initial date he presented with right flank pain. Dr. Bernard opined the ultrasound Dr. Marazon ordered on a later date was not sufficient to meet the standard of care because it did not include the kidneys. He also testified that an earlier CT scan should have been ordered "at some point and time" [sic] due to the "symptoms that [Appellant] was exhibiting." Dr. Bernard testified that his opinions were given to a reasonable degree of medical probability.
Both Dr. Bernard and Dr. Cooperstein were questioned extensively regarding their education, training, and professional work experience. Dr. Cooperstein also testified regarding his publication of scholarly articles within the field of radiology. --------
{¶27} Appellant advances the position that Dr. Bernard's testimony complies with the dictates of Evid.R. 703 because: (1) his opinion was based upon Appellant's medical records which Dr. Bernard reviewed; and (2) although not admitted into evidence, Appellant's medical records of treatment with Dr. Marazon were before the jury by virtue of counsel's extensive cross-examination of Dr. Marazon. Appellant argues at page 13 of his brief that "Appellant's counsel cross-examined Appellee Marazon for over 100 pages of testimony—including each office visit that Mr. Zweifel had during the time period of January 2, 2015 through July 2016, and asked him specific questions of what was documented in the patient's record...."
{¶28} Appellee disputes the trial court erred in striking Dr. Bernard's testimony. Appellee argues that because Dr. Bernard was a non-treating physician, under Evid.R. 703 he could only offer an opinion based upon evidence admitted at trial. Appellee further disputes Appellant's claim that Dr. Marazon testified about the contents of the medical records on cross-examination in great detail.
{¶29} Based upon our review of the trial transcript, we agree with Appellees. We cannot say that the contents of the medical records—which were not offered into evidence at trial— were discussed in great detail given Dr. Bernard's opinions: (1) that Dr. Marazon's medical workup was not complete based on the complaints of flank pain "documented throughout the record"; (2) that the ultrasound "ordered on a later date" was not sufficient; and (3) that a CT scan should have been ordered "at some point and time" [sic] and "due to the symptoms [Appellant] was exhibiting." Dr. Bernard's vague opinions that Appellant failed to meet the standard of care for various reasons necessitated some chronology on which to base the opinions. Dr. Bernard did not provide this chronology in his testimony. Nor did Dr. Marazon's testimony substantiate the supposed dates when Dr. Bernard opined that Dr. Marazon failed to meet the standard of care.
{¶30} Dr. Marazon testified he is a family practice physician employed by Holzer Health Systems. Appellant became his patient in 2010 or 2011. In preparation for trial, Dr. Marazon testified he had reviewed Appellant's medical records from January 2, 2015 to February or March of 2018.
{¶31} Dr. Marazon testified in the diagnosis of renal cell carcinoma, the indications are flank pain, hematuria, and abdominal mass. Based on Appellant's complaint of flank pain on January 2, 2015, Dr. Marazon ordered blood work and a urinalysis. No other tests were indicated. Dr. Marazon diagnosed Appellant as having a lower urinary tract infection. He opined Appellant's symptoms matched his blood work. Dr. Marazon testified the standard of care would be his actions in discovering the history, doing a physical exam, ordering appropriate lab work if needed, reaching a diagnosis, and having a plan. Dr. Marazon opined that the cancer was diagnosed at the first opportunity available and that he met the standard of care for a family practitioner.
{¶32} Dr. Marazon testified he met the standard of care although he did not communicate to the radiologist in July that flank pain was indicated. Appellant had various symptoms. Dr. Marazon explained that if he had put "right flank pain" in the order, Dr. Myers might have "missed something somewhere else." Dr. Marazon testified it was his obligation to review Dr. Myers' report. It was the radiologist's job to review the scan. Dr. Marazon testified he acted as a reasonably prudent physician when he relied upon Dr. Myers' reading of the test.
{¶33} Based upon our review of the trial transcript, we cannot say that Dr. Bernard based his opinions, "in major part," on facts or data perceived by him or by facts admitted into evidence at trial. First, Dr. Bernard did not treat or examine Appellant. We disagree that his review of Appellant's medical records suffices as his "own perception," although we might have if Dr. Bernard had personally examined Appellant. See paragraph 22 above, citing Lambert, supra.
{¶34} Moreover, we cannot find that Dr. Marazon's testimony at trial effectively ensured that the trier of fact was aware of the facts upon which Dr. Bernard's opinion rested. The purpose of Evid.R. 703 is " 'to ensure that the trier of the facts is aware of the facts upon which the opinion rests, so that in the event the trier of the facts rejects these facts as not having been established by the evidence, it will then be warranted in rejecting the opinion also.' " Jarvis, supra, at ¶ 31, quoting Mayhorn v. Pavey, 8 Ohio App.3d 189, 191, 456 N.E. 2d 1222, (10th Dist.1982). Our review of the trial transcript demonstrates that most of Dr. Marazon's cross-examination testimony concentrated largely on the January 2, 2015 office visit and the July 2015 CT scan.
{¶35} Appellant argued in the opening statement:
Dr. Marazon made a mistake when he was evaluating [Appellant's] condition as early as January 2, 2015. * * * January 2, 2015 all the way through December 21 he had right flank pain and he told the doctor and it's in the chart that Mr. Zweifel had right flank pain on every visit. * * * Now it's going to be up to you to interpret the testimony and to determine whether or not Dr. Marazon is telling you the truth about what he was told by Michael Zweifel because there's a dispute in the evidence about what Mr. Zweifel said and what Dr. Marazon said.
{¶36} Appellant's argument as to Dr. Marazon's alleged medical malpractice by failing to diagnose and treat his kidney cancer hinged on evidence of "right flank pain on every visit." As indicated above at paragraph 2, the facts listed in Appellant's brief regarding the specific dates of Appellant's office visits to Dr. Marazon, the specific complaints Appellant verbalized, and the specific orders or actions taken by Dr. Marazon— information which would have been contained in the medical records— were not introduced into evidence at the trial. Those key facts are gleaned from reading the complaint or reading the opening statement, not from reading the evidentiary portions of the trial transcript.
{¶37} We have also reviewed Appellant's own testimony, given at the end of trial, to see if through it the underlying pertinent facts were admitted into evidence. Similarly, Appellant's counsel focused on his testimony regarding the January 2, 2015 visit to Dr. Marazon and his later treatment with other doctors who diagnosed and removed his right kidney. Nowhere in Dr. Marazon's testimony or Appellant's testimony are the facts which Dr. Bernard would have utilized to base his opinion testimony.
{¶38} For the foregoing reasons, we find no merit to Appellant's argument herein. Based on our review, we cannot find that Dr. Bernard relied "in major part," on perceptions or facts properly admitted into evidence. As such, the trial court did not err in excluding Dr. Bernard's opinion testimony.
2. Dr. Cooperstein's opinion testimony.
{¶39} At trial, the court qualified Dr. Cooperstein as an expert in the field of radiology. However, the trial court later ordered Dr. Cooperstein's opinion testimony stricken based on Evid.R. 703. The trial court, as with Dr. Bernard, found that Dr. Cooperstein's testimony was not based upon facts or data perceived by him or admitted into evidence at trial.
{¶40} Appellant advances the position that Dr. Cooperstein's testimony is admissible because although Dr. Myers' report was not admitted into evidence, the CT scan report was part of Appellant's medical record. The CT scan itself was admitted into evidence and made part of the trial record. However, Appellee points out again that Dr. Cooperstein was not a treating physician. More importantly, Appellee emphasizes that Appellant did not offer Dr. Myers' CT scan report or a majority of the medical records into evidence at trial. Without the report admitted into evidence, Dr. Cooperstein could not testify that Dr. Myers deviated from the standard of care when he reported the CT scan as normal.
{¶41} Dr. Cooperstein testified that radiologists have a duty to practice medicine within the standard of care. The standard of care is what a reasonably prudent physician would do under the same or similar circumstances. The standard of care requires a careful examination of imaging studies. If something is suspicious, the standard of care requires the radiologist to alert the ordering physician that there is a problem.
{¶42} Dr. Cooperstein testified that Dr. Myers did not meet the standard of care. Dr. Cooperstein reviewed Appellant's CT scan from July 2015. He testified that on July 17, 2015, Dr. Myers had six images from which to see a problem with Appellant's right kidney. He testified the images clearly showed an abnormality with the right kidney, however, Dr. Myers' report does not mention any abnormality of the right kidney. The standard of care required Dr. Myers to see an abnormality such as existed on the slides. In Dr. Cooperstein's opinion, Dr. Myers breached the standard of care because he did not find the mass on Appellant's right kidney. Dr. Cooperstein's opinions were given to a reasonable degree of medical probability.
{¶43} Based upon our review of the trial transcript, we find the trial court did not err in striking Dr. Cooperstein's opinion testimony. Dr. Cooperstein testified that the history Dr. Myers was given for the July 2015 CT scan was a history of abdominal pain. Dr. Cooperstein further testified that the "report from Dr. Myers," did not mention any abnormality of the right kidney. Regarding records on which Dr. Cooperstein based his opinions, Appellant's counsel questioned as follows:
Q: All right. And I asked you to review uh, some records in this case did I not? (Emphasis added.)There is no further elaboration whatsoever in this record as to which records Dr. Cooperstein reviewed in preparation for his opinion testimony.
A: Uh, you did.
{¶44} In Willis v. Martin, 4th Dist. Scioto No. 06CA3053, 2006-Ohio- 4846, Willis sued Martin for personal injuries after an automobile accident. At trial, Willis asserted that the trial court erred in permitting the defense expert's testimony because the expert, Dr. Jenkins, reviewed documents not in evidence to help him form his expert opinion. Furthermore, Dr. Jenkins was not a treating physician nor had he performed a physical examination. However, we found no plain error occurred by permitting Dr. Jenkins to testify despite the fact that he reviewed documents not admitted into evidence. Upon review, we found the record contained ample evidence regarding the speed and impact of the accident, and that the treating chiropractor's medical records had been admitted into evidence.
{¶45} In this case, Dr. Cooperstein did not complete a physical examination of Appellant. He was not a treating physician. He relied on "some records" which were unidentified as to whom they concerned, who prepared them, content, and date or dates of the records. While the CT scan Dr. Myers reviewed was admitted into evidence, it is doubtful that it alone, without the CT scan report, was helpful to the jurors. As we observed above at paragraph 33, the purpose of Evid.R. 703 is to ensure that the trier of fact is aware of the facts upon which the expert has based his or her opinion. See Jarvis, supra, at ¶ 31.
{¶46} Based on our review of the trial transcript, we cannot say the trial court abused its discretion in striking Dr. Cooperstein's opinion testimony. We cannot find Dr. Cooperstein, in forming his opinions, relied in major part on facts admitted into evidence. As such, we find no merit to Appellant's argument.
{¶47} Based on the foregoing, we find no merit to Appellant's first assignment of error. As such, it is hereby overruled.
ASSIGNMENT OF ERROR TWO
"II. THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT THE PLAINTIFF HAD FAILED TO MEET ITS BURDEN IN ESTABLISHING PROXIMATE CAUSE."
STANDARD OF REVIEW
{¶48} In Greene v. Marchyn, 4th Dist. Scioto No. 99CA2662, 2000 WL 1468791 (Sept. 27, 2000), at *23, this court reviewed the appropriate standard for granting a directed verdict. In Ramage v. Central Ohio Emergency Serv., Inc., 64 Ohio St.3d 97 at 109, 592 N.E.2d at 838, the Supreme Court of Ohio stated:
The strict standard for granting a directed verdict is found in Civ.R. 50(A)(4): "When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue,
reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion * * *."
{¶49} A motion for directed verdict presents a question of law. Greene, supra. A court shall not grant a directed verdict when the record contains sufficient evidence going to all the essential elements of the case. Greene, supra, citing, Wagner v. Roche Laboratories, 77 Ohio St.3d 116, 671 N.E .2d 252 (1996). In ruling upon the motion, the trial court may not weigh the evidence. Id. Rather, the evidence must be construed most strongly in favor of the nonmoving party. When substantial evidence supporting the nonmovant's case exists, upon which reasonable minds might reach different conclusions, the trial court must deny the motion. Greene, supra, citing Wells v. Miami Valley Hospital, 90 Ohio App.3d 840, 631 N.E.2d 642 (2nd Dist. 1993).
LEGAL ANALYSIS
1. Was the trial court's ruling as to the element of proximate cause correct?
{¶50} A directed verdict is appropriate in a medical malpractice action when the plaintiff fails to present competent expert testimony based upon a reasonable medical probability that the negligent acts of a physician were the direct and proximate cause of the patient's injury. Greene, supra. See generally Ramage, paragraph four of the syllabus. At trial, Appellant's theory of the case was that Dr. Marazon failed to order diagnostic testing sooner than July 2015, which arguably would have shown a kidney mass requiring follow-up testing to either rule out or confirm the presence of renal cell carcinoma. As to Dr. Myers, Appellant has asserted that Dr. Myers misinterpreted the abdominal CT scan performed on July 15, 2015, failing to both notice and report an obvious abnormality in his right kidney. Appellant sought to introduce opinion testimony from his experts to support his argument that both doctors' practice of medicine fell beneath the standard of care.
{¶51} The trial court granted Appellees' motion to strike the testimony of both Dr. Bernard and Dr. Cooperstein. In doing so, the trial court observed that both doctors had rendered opinions on the standard of care but that neither doctor rendered an opinion as to proximate cause. Our comprehensive review of the trial transcript demonstrates the trial court was correct, and that there were no proximate cause opinions provided in the testimony. As such, we cannot find the trial court erred as a matter of law when there is no sufficient evidence going to the essential element of proximate cause.
2. Did Appellant actively pursue a loss of chance theory in the trial court?
{¶52} The loss of chance doctrine provides an exception to the general rule regarding proximate cause. Duck v. Cantoni, 4th Dist. Washington No. 11CA20, 2012-Ohio-351, at ¶ 20; Roberts v. Ohio Permanente Medical Group, Inc., 76 Ohio St.3d 483, 485, 668 N.E.2d 480 (1996). The Ohio Supreme Court adopted the loss of chance doctrine in Roberts, a wrongful death case. In Roberts, supra at 485, the Supreme Court of Ohio held:
In order to maintain an action for the loss of a less-than-even chance of recovery or survival, the plaintiff must present expert medical testimony showing that the health care provider's negligent act or omission increased the risk of harm to the plaintiff. It then becomes a jury question as to whether the defendant's negligence was a cause of the plaintiff's injury or death.Id. See Roberts, at paragraph one of the syllabus (emphasis added). Under the language set forth in paragraph one of the syllabus, the doctrine applies when a plaintiff has a " 'less-than-even chance of recovery or survival.' " Cantoni, supra, at ¶ 21, quoting Roberts, supra. "The syllabus language leaves no wiggle room for plaintiffs who have an even chance of survival." Cantoni, supra.
{¶53} After Appellees made the arguments in support of the motion for a directed verdict, arguing that Appellant had not provided expert testimony on proximate cause, Appellant responded: "And so, Your Honor, they want to defeat my cause on proximate cause when it's not a proximate cause case. It's a loss of even chance case. And, and, and they clearly increased the risk of harm and we know that that is true." In his brief, Appellant argues that the trial court clearly erred in not considering what "Appellant had been arguing from the beginning of the case, the negligence of the two physicians providing care and reading his scans created a situation that made the harm suffered by Appellant worse than it should have been."
{¶54} Appellees assert, however, that Appellant did not raise the theory of loss of chance to the jury and that he should not be permitted to raise the theory for the first time on appeal. Appellees point out that on the second day of trial, after Appellant had presented his case-in-chief and while the trial court was addressing the issue of Appellant's proposed exhibits outside the hearing of the jury, Appellant informed the court and opposing counsel:
And the defense has been framing this case as a sheer proximate cause case, but it's really a loss of less than even
chance of recovery case. And, um, if I can approach the Court and we've submitted a proposed jury instructions [sic] on this, but here's just a small bench brief.Appellee does acknowledge that Appellant mentioned loss of chance in his jury instructions filed on January 3, 2019.
{¶55} We agree with Appellee. Our comprehensive review demonstrates that Appellant did not specifically raise the loss of chance theory during the trial court proceedings and specifically to the jury. It appears loss of chance was raised in earnest at the end of Appellant's case as the parties were discussing Appellant's proposed exhibits. And, it appears loss of chance was argued specifically only after Appellees had argued the motion for directed verdict emphasizing the lack of expert testimony on proximate cause.
{¶56} A party may not raise any new issues or legal theories for the first time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975), Wheatley v. Marietta, 2016-Ohio-949, 48 N.E.3d 587 (4th Dist.), at ¶ 94. Thus, "a litigant who fails to raise an argument before the trial court forfeits the right to raise that issue on appeal." Garvey v. Vermilion, 9th Dist. Lorain No. 10CA009873, 2012-Ohio-1258, at ¶ 33, quoting Stefano & Assoc., Inc. v. Global Lending Group, Inc., 9th Dist. Summit No. 23799, 2008-Ohio-177, at ¶ 18, citing State v. Byrd, 32 Ohio St.3d 79, 87, 512 N.E.2d 611 (1987).
{¶57} We observe that appellate courts have discretion to recognize a forfeited error as plain error. However, "[t]he plain error doctrine should never be applied to reverse a civil judgment * * * to allow litigation of issues which could easily have been raised and determined in the initial trial." Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 679 N.E.2d 1099 (1997). Appellees have pointed out and our review has verified that: (1) Appellant did not plead loss of chance in his Complaint; (2) neither Dr. Bernard nor Dr. Cooperstein expressed an opinion on loss of chance at their depositions; (3) Appellant's attorney did not mention loss of chance in his opening statement to the jury; and (4) Appellant's experts did not offer any testimony to support the loss of chance claim at trial. At most, appellant filed the jury instruction and the bench brief after he had presented his case.
{¶58} We agree with Appellees. Appellant did not actively pursue the loss of chance theory in the trial court proceedings. Consequently, we find the argument is forfeited and we decline to consider Appellant's loss of chance argument for the first time on appeal.
{¶59} For the foregoing reasons, we find no merit to Appellant's arguments raised under the second assignment of error. We find the trial court did not err as a matter of law when it granted Appellees' motion for a directed verdict. As such, the second assignment of error is also hereby overruled. Having overruled both assignments of error, we hereby affirm the decision of the trial court.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. and Hess, J. concur in Judgment and Opinion.
For the Court,
/s/_________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.