Bruni v. Tatsumi

• Citation: 46 Ohio St.2d 127,346 N.E.2d 673,75 O.O.2d 184
• Decision Date: 05 May 1976
• Docket Number: No. 75-279,75-279
• Parties: , 75 O.O.2d 184 BRUNI et al., Appellants, v. TATSUMI et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 127

46 Ohio St.2d 127

346 N.E.2d 673, 75 O.O.2d 184

BRUNI et al., Appellants, v. TATSUMI et al., Appellees.

No. 75-279.

Supreme Court of Ohio.

May 5, 1976.

Syllabus by the Court

1. 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.

2. The standard of care for a physician or surgeon in the practice of a boardcertified medical or surgical specialty should be that of a reasonable specialist practicing medicine or surgery in that same specialty in the light of present day scientific knowledge in that specialty field; therefore, georgraphical considerations or circumstnces control neither the standard of the specialist's care nor the competence of the testimony of an expert in that specialty.

Plaintiffs, Dorothy Bruni and her husband, Joseph Bruni, residents of Canton, filed suit on December 20, 1971, in the Court of Common Pleas of Stark County, against Dr. Tetsuo Tatsumi and his associate, Dr. Francis C. Boyer, for alleged medical malpractice committed by both defendant doctors while Dorothy Bruni was a patient in Aultman General Hospital at Canton in October 1968 and thereafter.

In their compaint, plaintiffs allege negligence, assault and battery, lack of informed consent and medical abandonment proximately causing a stroke and praying for damages in the amount of $325,000.

At the conclusion of all the evidence, the trial court sustained a motion for a directed verdict in favor of both defendants. Judgment thereon was entered February 21, 1974. Plaintiffs thereupon appealed to the Court of Appeals which affirmed the judgment of the Court of Common Pleas.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

William B. Hewitt, Akron, for appellants.

Reminger & Reminger Co., L. P. A., and Richard T. Reminger, Cleveland, for appellees.

J. J. P. CORRIGAN, Justice.

Plaintiffs urge reversal on five bases, to which we will address ourselves as enumerated.

I.

Plaintiffs' proposition of law No. 1 reads:

'Where an expert medical witness testifies as to a recognized medical standard in one geographical community and extends this standard to any 'moderately large metropolitan area' in which the medical specialty is practiced throughout the country, the court may take judicial notice that the community in which the defendant practices his specialty is a 'moderately large metropolitan area', where such size and type of community is common knowledge to both the court and jury, and it is error to direct a verdict for the defendant on the failure of plaintiff to prove the size and type of such community in which the defendant practiced medicine.'

In August 1968, plaintiff experienced some difficulty with her right eye. It became red and painful, and she was admitted to Aultman General Hospital where Dr. Tatsumi a neurosurgeon, performed a series of arteriograms and a diagnosis was made of 'carotid artery cavernous sinus fistula.' This condition behind her right eye caused a leakage of blood. A surgical procedure was performed which involved the insertion of a selverstone clamp in her neck around plaintiff's right carotid artery. Complications later developed and plaintiff suffered a stroke. A craniotomy was later performed.

At the trial, as part of plaintiffs' case, a neurosurgeon, Dr. Wilbur George Bingham, Jr., from Columbus testified by deposition. He testified that certain surgical procedures used upon plaintiff by defendant, Dr. Tatsumi, were not accepted medical practice in Columbus. Then he was asked:

'Q. Would your opinion still hold true, Doctor, for any moderately large, or large metropolitan area in which neurosurgery is practiced throughout this country?

'A. I believe it would.'

Plaintiffs contend that this answer establishes the standard of care in the medical community where this patient was treated, Canton.

Earlier in his deposition, the witness, when asked his opinion about certain things done by one defendant in connection with the treatment of plaintiff and 'whether he is using accepted and good medical technique and procedure,' answered, 'Well, I do not have an opinion about anything that goes on in Canton. * * *'

Later in his deposition, when asked if his opinions as to standard of care and as to good medical practice would apply as well to the vicinity of Cleveland, Ohio, he replied, 'I do not know how they do cases like this in Cleveland. * * *' One of the expert witnesses testifying for defendant was a Cleveland neurosurgeon, Dr. William Trowbridge.

In evaluating the conduct of a physician and surgeon charged with malpractice, the test is whether the physician, in the performance of his service, either did some particular thing or things that physicians and surgeons, in that medical community, of ordinary skill, care and diligence would not have done under the same or similar circumstances, or failed or omitted to do some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would have done under the same or similar circumstances. He is required to exercise the average degree of skill, care and diligence exercised by members of the same medical specialty community in similar situations.

The issue as to whether the physician and surgeon has proceeded in the treatment of a patient with the requisite standard of care and skill must ordinarily be determined from the testimony of medical experts. 41 American Jurisprudence, Physicians & Surgeons, Section 129; 81 A.L.R.2d 590, 601. It should be noted that there is an exception to that rule in cases where the nature of the case is such that the lack of skill or care of the physician and surgeon is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it, and in such case expert testimony is not necessary. See Hubach v. Cole (1938), 133 Ohio St. 137, 12 N.E.2d 183, and, generally, Morgan v. Sheppard (1963), Ohio App., 188 N.E.2d 808, 91 Ohio Law Abst. 579. In this case, the record does not disclose any circumstances and events from which an inference might reasonably arise so that a lay person might understand and judge that the physician and surgeon was negligent.

As early as 1897, Circuit Judge William H. Taft (later Chief Justice of the United States Supreme Court) wrote as follows in interpreting the Ohio law on malpractice in the case of Ewing v. Goode (C.C.S.D.Ohio, 1897), 78 F. 442, 443-444:

'Before the plaintiff can recover, she must show by affirmative evidence-first, that defendant was unskillful or negligent: and, second, that his want of skill or care caused injury to the plaintiff. If either element is lacking in her proof, she has presented no case for the consideration of the jury.

'* * *

'* * * But when a case concerns the highly specialized art of treating an eye for cataract, or for the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury.'

The burden of proof borne by the plaintiff in a malpractice case has been stated by the United States Supreme Court, in Davis v. Virginian Ry. Co. (1960), 361 U.S. 354, 357, 80 S.Ct. 387, 4 L.Ed.2d 366 as follows:

'Proof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff. * * *'

Under Ohio law, as it has developed, in order to establish medical malpractice, it must be shown by a preponderance of the 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 result of such doing or failing to do some one or more of such particular things. Ault v. Hall (1928), 119 Ohio St. 422, 164 N.E. 518; Amstutz v. King (1921), 103 Ohio St. 674, 135 N.E. 973; Bowers v. Santee (1919), 99 Ohio St. 361, 124 N.E. 238; Hier v. Sites (1914), 91 Ohio St. 127, 130, 110 N.E. 252; Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 856; Pollack v. Dussourd (C.A.6, 1947), 158 F.2d 969.

Failure to establish the recognized standards of the medical community has been fatal to the presentation of a prima facie case of malpractice by the plaintiffs. See annotations, 141 A.L.R. 5 and 81 A.L.R.2d 597.

Proof of the recognized standards must necessarily be provided through expert testimony. This expert must be qualified to express an opinion concerning the specific standard of care that prevails in the medical community in which the alleged malpratice took place, according to the body of law that has developed in this area of evidence. Courts generally have adopted one of four rules governing the standard of care with which a medical witness from one locality must be familiar...