Cervelli v. Kleinman

• Decision Date: 27 January 1983
• Citation: 456 N.E.2d 1322,8 OBR 320,8 Ohio App.3d 247
• Parties: , 8 O.B.R. 320 CERVELLI et al., Appellants, v. KLEINMAN, Appellee.
• Court: Ohio Court of Appeals

Page 247

8 Ohio App.3d 247

456 N.E.2d 1322, 8 O.B.R. 320

CERVELLI et al., Appellants, v. KLEINMAN, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 27, 1983.

Syllabus by the Court

In an action for medical malpractice alleging injuries sustained from an unattended fall from an examining table in the doctor's office, a decision in defendant's favor is against the manifest weight of the evidence where the evidence does not support the court's findings as to lack of knowledge of the defendant-doctor as to the plaintiff-patient's weakened condition and the lack of foreseeability of the patient being "at risk" in falling from the table.

Richard J. Marco, Medina, for appellants.

Robert C. Buck, Jr., Cleveland, for appellee.

PRYATEL, Chief Justice.

This appeal is taken by plaintiffs-appellants, Frank and Annette Cervelli, from an unfavorable finding in their medical malpractice suit filed against defendant-appellee, Dr. Gary D. Kleinman, a practicing physician with offices in Maple Heights, Ohio.

In their complaint, plaintiffs alleged that on October 8, 1979, Frank Cervelli ("plaintiff"), upon defendant's instructions, had fasted for twelve hours before coming to defendant's office for a physical exam. He was left unattended as a result of which he sustained a fall from the examination table when he lost consciousness, and broke one of his vertebrae. The complaint attributed the damage from this fall to "the negligence of defendant in leaving plaintiff unattended when he (defendant) knew of plaintiff's age (68), physical condition and complaints" and to defendant's failure "to diagnose and treat the injuries received * * *." Plaintiff's wife, Annette, also made a claim for loss of her husband's services during the period when he was disabled from the injury attributed to his fall.

In his answer, defendant admitted that plaintiff came to his office for treatment and that this office call was after plaintiff's wife "had earlier informed defendant's office that plaintiff had become ill and was suffering from nausea and diarrhea." However, defendant denied any negligence in his conduct toward plaintiff.

The case was referred to arbitration. The arbitrators (with one dissent) found for plaintiffs in the amount of $15,000 for Frank and $1,500 for Annette.

Defendant appealed this award to the court of common pleas where a trial de novo was held to the court. The court found in favor of defendant on August 25, 1981.

At trial the following evidence was presented:

Annette Cervelli testified that on October 8, 1979, Frank had an appointment for a complete physical with defendant. Frank was told to fast from 10:00 p.m. on October 7 to 1:30 p.m. on October 8 (the time of his appointment), and to take Glucola around noontime. After Frank took the Glucola at home at 11:45 a.m., the following occurred:

"A. Well, it was around noontime and he got very nauseous and he got diarrhea * * *.

" * * *

"Q. What did you do then?

"A. I got on the phone and talked to the girl, and told her my husband got deathly sick from this Glucola."

(On cross-examination, Annette testified that the doctor's office asked her if she wanted to use her husband's appointment for her own physical--scheduled for a few days later--but that she declined because "he was sick" and she wanted to bring him in that day as originally scheduled.)

While in the outside waiting room, Annette learned that her husband who was left unattended, "had fallen on the floor." Later that day, Frank, who had been complaining of pain in his neck, blacked out at the dinner table. He was admitted to Marymount Hospital, where he remained five or six days. The diagnosis was a broken vertebra.

Frank Cervelli testified that he suffers from aplastic anemia, and that he and Annette became patients of defendant's shortly before the incident in question. Following Frank's illness after taking the Glucola under defendant's instructions, which was reported to defendant's office by his wife, he arrived for his appointment. Defendant's medical assistant, Christine Malone, "came out" to call him into the examining room. Frank testified that:

"A. She took me in a room there and she said, I want to weigh you.

"Q. Then what happened?

"A. I was kind of woozy, I can't remember everything.

"Q. Tell the Court in your own words exactly what happened while you were with the young lady.

"A. I think she weighed me, then she said, I got to take your lung test or some kind of a test. She told me to blow into something. Every time I blowed [sic ], I was getting dizzy. So I tried about three times and I told her, I can't do anything, I am too dizzy.

"Q. You informed her that you were dizzy, you did tell her that you were dizzy?

"A. Yes.

"Q. Were you able to successfully complete that test?

"A. I don't know. I blow [sic ] in three times and whether I completed it or not, I don't know.

" * * *

"Q. Okay. What is the next thing that you remember?

"A. The only thing I remember, next thing is when she set [sic ] me up, set me up [on the examining table] and says, well, I am finished with you and I am going to get Dr. Kleinman. * * *

" * * *

"Q. What is the next thing you remember?

"A. The next thing I remember, when I opened my eyes up, I am laying [sic ] on the floor there and I see six pairs of legs around me. That's all I remember."

Called by plaintiffs as on cross-examination, Dr. Kleinman acknowledged the records of his office submitted into evidence. He had prescribed the Glucola as a test for diabetes. He stated that nausea and vomiting are an "accepted" reaction to Glucola in patients with hyperglycemia, although "quite rare." He also admitted the "increased incident" of syncope (fainting) in patients who are older, who have been fasting for twelve or thirteen hours, and who have ingested Glucola and reported nausea and diarrhea.

Finally, plaintiffs submitted the deposition of an expert witness, Dr. Thompson on the faculty of University Hospitals of Case Western Reserve University and Director of Clinical Pharmacology, who in response to the hypothetical question posed by plaintiffs' counsel, stated as follows:

"Again, Doctor, then assuming the facts stated in the foregoing question to be true and in your response have you an opinion based on reasonable certainty from a medical standpoint or from a medical point of view as to whether or not the course of conduct pursued by the physician in this case was such a course that would be followed by a skillful and careful physician engaged in the practice of medicine in this community, that is the Cleveland, Ohio area in October of '79.?

"MR. CLEARY: Objection.

"A. I have an opinion.

"Q. What is that opinion, Doctor?

"MR. CLEARY: Show a continuing objection.

"A. The opinion is: That it was not a course of medical care that was appropriate."

For the defense, Christine Malone, defendant's medical assistant, testified that she examined and tested the patient and took a lengthy history from him, and that he displayed no unusual symptoms, nor did he make any complaint of dizziness to her.

After completing the preliminary tests, Malone testified that she left the room while Frank was on the examining table. No more that "3 or 4" minutes later, the doctor came in and found Frank on the floor. Dr. Kleinman resumed the stand for the defense, denying any negligence in leaving plaintiff alone on the examining table when the fall and resulting injury occurred.

On appeal, plaintiffs assign two errors. * * * ¹

Assignment of Error No. II

"The trial court erred in rendering a decision that is against the manifest weight of the evidence."

Under this assignment of error, appellants argue that the judgment below is against the manifest weight of the evidence. We agree.

In medical malpractice cases, the plaintiff must prove his case by the preponderance of the evidence, in accord with the following principle in Bruni v. Tatsumi (1967), 46 Ohio St.2d 127, at 131, 346 N.E.2d 673 :

"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. Stites (1914), 91 Ohio St. 127, 130, 110 N.E. 252; Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 865; 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."

In such case, plaintiff has the burden of establishing the degree of care owing him by the hospital. See Johnson v. Grant Hospital (1972), 32 Ohio St.2d 169, 291 N.E.2d 440 [61 O.O.2d 413]; Burks v. Christ Hospital (1969), 19 Ohio St.2d 128, 249 N.E.2d 829 .

In the instant case, the court made the following findings in support of its conclusion that the risk of injury to plaintiff was not "foreseeable" when he fell from the examining table in the doctor's office:

"The court finds that there has been no medical malpractice committed by the defendant. The standard of care imposed upon a medical doctor has been enunciated in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 346 N.E.2d 673 . The court stated that:

" 'In order to establish medical...