Nakoff v. Fairview Gen. Hosp., 94-1626

• Decision Date: 06 March 1996
• Docket Number: No. 94-1626,94-1626
• Citation: 662 N.E.2d 1,75 Ohio St.3d 254
• Parties: NAKOFF, Appellant, v. FAIRVIEW GENERAL HOSPITAL; Essig et al., Appellees.
• Court: Ohio Supreme Court

Page 254

75 Ohio St.3d 254

662 N.E.2d 1

NAKOFF, Appellant, v. FAIRVIEW GENERAL HOSPITAL; Essig et al., Appellees.

No. 94-1626.

Supreme Court of Ohio.

Submitted Nov. 14, 1995.

Decided March 6, 1996.

SYLLABUS BY THE COURT

A trial court has broad discretion when imposing discovery sanctions. A reviewing court shall review these rulings only for an abuse of discretion.

Around 11:00 p.m., on August 22, 1988, appellant Randy Nakoff, then age twenty-six, lost control of his motorcycle and landed in a sewage ditch. An ambulance transported him to nearby Fairview General Hospital.

At the time of his admission, Nakoff was diagnosed with a comminuted fracture of his right tibia and fibula with a ten-centimeter laceration. ¹ When the emergency room doctor assessed the circulation to Nakoff's right lower leg and foot, he found an intermittent, weak pulse, detectable with a Doppler instrument. Because of this assessment, at 12:14 a.m., the doctor telephoned appellee Dr. George W. Essig, the orthopedic surgeon on call that night. Dr. Essig immediately ordered that antibiotics be administered to Nakoff.

Upon his arrival at the hospital shortly thereafter, Dr. Essig noted that Nakoff's foot was cool. Although he could feel no pulse by touch, he was able to detect a pulse using a Doppler instrument after repositioning the foot. Dr. Essig recognized that there was a potential vascular problem and alerted Dr. Constantine Papas, a vascular surgeon, appellee, that his services might be later needed.

At 3:15 a.m., Dr. Essig took Nakoff to surgery. Initially, Dr. Essig debrided and irrigated the wound. Then he applied a Hoffman external fixator to realign the bones. When he tightened the fixator, he lost the pulse in Nakoff's foot and the foot became cold. At that point, around 7:00 a.m., Dr. Essig called in Dr. Papas.

When Dr. Papas arrived in surgery, around 7:30 a.m., he was unable to detect pulses either by touch or Doppler. Dr. Papas performed an arteriogram, which failed to show that blood was flowing below the fracture site and showed an acute kink in the posterior tibial artery. Dr. Essig loosened the fixator and returned Nakoff's foot to the valgus position (not properly aligned, but rotated out). Nakoff's pulse returned and his foot regained color and warmth. An arteriogram after the valgus position was restored showed the kink no longer acute and blood flowing through the posterior tibial artery past the fracture. Dr. Papas concluded that Nakoff had adequate circulation.

On August 25, 1988, Nakoff's foot once again became cool, and no pulses were detected. Dr. Papas was called in, and he took Nakoff back to surgery. Dr. Papas performed another arteriogram, and another doctor made some adjustment in the fixator. Nakoff's blood flow returned.

Nakoff remained at Fairview General Hospital until August 29, 1988, at which time Dr. Essig, without consultation with Dr. Papas, transferred Nakoff to Cleveland Metropolitan General Hospital (now known as MetroHealth).

The admission records at MetroHealth noted that Nakoff's foot was warm with a strong Dopplerable pulse. Two days after his admission, Dr. Mary Matejczyk, an orthopedic surgeon, took Nakoff to surgery to realign his bones. When she tried to do this, the blood flow to the foot stopped. Dr. Matejczyk called in Dr. Jeffrey Alexander, a vascular surgeon, for consultation. Dr. Alexander performed a bypass graft of the posterior tibial artery. That graft later developed a clot, so on September 3, 1988, Dr. Alexander performed an anterior tibial bypass. However, Nakoff developed severe ischemia (loss of blood flow), and an amputation became necessary. One week later, Nakoff's right leg was amputated below the knee.

On August 24, 1989, Nakoff ² filed a malpractice action against Drs. Essig and Papas. ³ Nakoff contended that their negligence proximately caused the amputation of his right foot and leg below the knee. At trial, Nakoff maintained that Drs. Essig and Papas had been negligent in failing to appreciate the seriousness of the inadequate blood supply to his foot and in failing to revascularize it in a timely manner.

The jury returned a $2,500,000 verdict in favor of Nakoff and against Drs. Essig and Papas. In a split decision, the court of appeals reversed the judgment based on the verdict and remanded the case for a new trial. The appellate court found that the trial court had improperly excluded the testimony of Dr. Matejczyk as a treating physician, erroneously refused to allow appellees to cross-examine Nakoff's expert with medical literature, improperly refused to submit to the jury an interrogatory on proximate causation, and improperly permitted the testimony of Nakoff's prosthetist.

The cause is now before the court upon the allowance of a discretionary appeal.

Don C. Iler Co., L.P.A., Don C. Iler and Nancy C. Iler, Cleveland, for appellant.

Jacobson, Maynard, Tuschman & Kalur Co., L.P.A., and Janis L. Small, Cleveland, for appellees George W. Essig and George W. Essig, M.D., Inc.

Jacobson, Maynard, Tuschman & Kalur Co., L.P.A., John A. Simon and John S. Polito, Cleveland, for appellees Constantine A. Papas and C.A. Papas, M.D., Inc.

FRANCIS E. SWEENEY, Sr., Justice.

In this case, we are asked to review several determinations made by the trial court which were reversed by the court of appeals. In passing upon the assigned errors, however, we could not help but notice that this case presents a glaring example of the lack of professionalism increasingly exhibited by some lawyers. We, therefore, take this opportunity to warn the practicing bar that we will not tolerate such behavior. While both plaintiff and defense counsel have an ethical obligation to zealously represent their clients, they must do so within the bounds of the law. Appellees' law firm failed to do this. The discovery rules adopted by this court were cavalierly ignored. Appellees' complaints about lack of a fair trial fall on deaf ears. If they were denied a fair trial, it was because of their own attorneys' actions. They must now live with the consequences.

The discovery rules give the trial court great latitude in crafting sanctions to fit discovery abuses. A reviewing court's responsibility is merely to review these rulings for an abuse of discretion. " 'The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations.' " State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 361, 473 N.E.2d 264, 313, quoting Spalding v. Spalding (1959), 355 Mich. 382, 384-385, 94 N.W.2d 810, 811-812. In order to have an abuse of that choice, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Id. Applying this stringent review, we can discern no abuse of discretion here. With this decision in mind, we now separately address each proposition of law raised by appellant Nakoff.

I. EXCLUSION OF DR. MATEJCZYK'S DEPOSITION TESTIMONY

Dr. Matejczyk was originally named as a party defendant. In this role, Nakoff took her deposition on November 7, 1990. In May 1991, Dr. Matejczyk was dismissed from the lawsuit. In August 1991, appellee Dr. Essig sent a letter to Nakoff listing Dr. Matejczyk as a potential expert witness.

In response to this letter, Nakoff asked several times for a new deposition date to depose Dr. Matejczyk to determine her opinions as an expert. His requests went unanswered. Additionally, in violation of Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County, General Division, an expert report from Dr. Matejczyk was not turned over to Nakoff.

On December 18, 1991, Nakoff moved to compel appellees to provide deposition dates for Dr. Matejczyk or to bar her from being called as an expert witness. On January 7, 1992, Nakoff filed a motion to exclude the trial testimony of Dr. Matejczyk because of the defense's failure to comply with Loc.R. 21.1. This motion was granted by Judge Carl Character.

Just prior to trial, the case was transferred from Judge Character to a visiting retired judge, Judge George McMonagle. Also, prior to trial, the parties agreed that Dr. Matejczyk could testify as a treating physician only. Despite this agreement, appellee Dr. Essig asked the court to reconsider Judge Character's earlier ruling excluding Dr. Matejczyk's trial testimony. The court stood by the original ruling and did not allow any of the doctor's deposition to be read. Dr. Essig then proffered Exhibit F, selected portions of Dr. Matejczyk's November 7, 1990 deposition that contained both fact testimony and opinion testimony.

The court of appeals held that the exclusion of Dr. Matejczyk's deposition testimony was reversible error under Civ.R. 32(A)(3)(e). The court further reasoned that her testimony was crucial as to the condition of Nakoff's foot at the time of his transfer to MetroHealth and should not have been excluded.

As found by the court of appeals, Civ.R. 32(A)(3)(e) permits the use at trial of the deposition of an attending physician. However, the use of such a deposition at trial presumes that no discovery abuses have occurred--which was not the case here.

Prior to trial, Dr. Essig ⁴ identified Dr. Matejczyk as a possible expert witness. Civ.R. 26(B)(4)(b) provides that any party may discover from an opposing party or his expert the relevant facts known or opinions held by the expert that are relevant to the issue. Loc.R. 21.1 says that an expert report must be given to the opposing side. Dr. Essig ignored both discovery rules. In light of these discovery abuses, Nakoff asked the court to impose a sanction, i.e., the exclusion of Dr. Matejczyk's trial testimony. Pursuant to Loc.R. 21.1, the trial court was within its discretion in imposing the sanction. See Paugh & Farmer, Inc. v....