Daniels v. Northcoast Anesthesia Providers, Inc.

• Decision Date: 31 May 2018
• Docket Number: No. 105125,105125
• Citation: 2018 Ohio 2132,113 N.E.3d 1153
• Parties: Victoria DANIELS, et al., Plaintiffs–Appellees v. NORTHCOAST ANESTHESIA PROVIDERS, INC., et al., Defendants–Appellants
• Court: Ohio Court of Appeals

113 N.E.3d 1153

2018 Ohio 2132

Victoria DANIELS, et al., Plaintiffs–Appellees

v.NORTHCOAST ANESTHESIA PROVIDERS, INC., et al., Defendants–Appellants

No. 105125

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

RELEASED AND JOURNALIZED: May 31, 2018

William A. Meadows, Reminger Co., L.P.A., 1400 Midland Building, 101 West Prospect Avenue, Cleveland, OH 44115, David H. Krause, Reminger Co., L.P.A., 200 Civic Center Drive, Suite 800, Columbus, OH 43215, Douglas G. Leak, Hanna, Campbell & Powell, L.L.P., 3737 Embassy Parkway, Suite 100, Akron, OH 44333, ATTORNEYS FOR APPELLANTS.

Christopher M. Mellino, Meghan C. Lewallen, Mellino Law Firm, L.L.C., 19704 Center Ridge Road, Rocky River, OH 44116, ATTORNEYS FOR APPELLEES.

BEFORE: Stewart, J., Keough, P.J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

MELODY J. STEWART, JUDGE

{¶ 1} As plaintiff-appellee Victoria Daniels was about to have surgery, the defendant-appellant-anesthesiologists Zoard Vasarhelyi, M.D. and Rostyslav Koziy, M.D., approved the placement of a transdermal patch on her to prevent postoperative nausea. Daniels appeared to have an allergic reaction to the patch and went into anaphylactic shock. She stopped breathing and experienced low blood oxygen for close to 30 minutes, causing her to suffer brain damage. Alleging that the active ingredient in the transdermal patch was part of the same family of drugs to which she had previously disclosed a serious allergic reaction, Daniels brought this medical malpractice action against both physicians and their employer, defendant-appellant Northcoast Anesthesia Providers, Inc., claiming that they violated the standard of care by failing to formulate an anesthesia plan to prevent her from being given drugs belonging to the same class of drugs to which she had an established allergy.¹ She also alleged that the physicians violated the standard of care in failing to give her adequate doses of a drug called "Epinephrine" to resuscitate her. A jury found in Daniels's favor and awarded damages. The court subsequently awarded her prejudgment interest on the damages award.

{¶ 2} The ten assignments of error on appeal contest various pretrial and trial rulings by the court, as well as an award of prejudgment interest. We conclude that the court abused its discretion by admitting Daniels's summary of the medical records evidence to go to the jury; that the court abused its discretion by not giving the "bad results" instruction to the jury; and that the court abused its discretion by allowing Daniels's demonstrative boards to be considered by the jury. We further find that the cumulative effect of these errors deprived Vasarhelyi and Koziy of a fair trial. The assignments of error relating to the limitation on closing argument and prejudgment interest are moot.

I. Hearsay

{¶ 3} The first assignment of error is that the court abused its discretion by admitting into evidence, and sending to the jury for its deliberations, a learned treatise in violation of Evid.R. 803(18).

{¶ 4} The basis of Daniels's claims against Vasarhelyi and Koziy was that prior to surgery, she disclosed an allergy to an asthma medication called Atrovent. She maintained that the antinausea patch placed on her prior to surgery contained a drug called Scopolamine and that Scopolamine and Atrovent belong to the same family of drugs known as "belladonna alkaloids." She maintained that the allergic reaction to Scopolamine could have been prevented had Vasarhelyi and Koziy cross-checked the drug using, among other resources, an online service called Lexi–Comp that provides drug information such as dosing, warnings, and precautions.

{¶ 5} Daniels's expert testified at trial that there were a variety of resources that doctors and nurses could consult about drugs, including Lexi–Comp. The expert identified plaintiff's exhibit No. 26 as a printout from Lexi–Comp titled "Belladonna Alkaloid Allergy." The printout contained a list of "associated drugs" including Scopolamine. According to Daniels's expert, the printout showed that Scopolomine "could potentially crossreact in that category." The expert said that the Lexi–Comp entry "instructs to avoid scopolamine, which was in the patch; it talks about Atrovent * * *." The expert then identified a second printout from Lexi–Comp, plaintiff's exhibit No. 26B, titled, "Reported Allergy: Patient Management Considerations." The expert testified that the printout stated: "In general, when a previous severe reaction has occurred, repeated exposure to the initial agent and related compounds should be avoided. * * * Per the manufacturer's labeling, use is normally contraindicated in patients with prior allergic reactions."

{¶ 6} "Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Statements in a "learned treatise" established as reliable authority are not excluded by the hearsay rule. See Evid.R. 803(18). However, Evid.R. 803(18) states that "[i]f admitted, the statements may be read into evidence but may not be received as exhibits."

{¶ 7} Daniels stated at trial that she laid a foundation for exhibit No. 26B as a learned treatise and told the court that the exhibit should not be allowed into evidence. Despite Daniels agreeing that exhibit No. 26B should be withdrawn, the court inexplicably submitted it to the jury. This was an error. With Daniels having conceded that the document was a learned treatise, the court violated Evid.R. 803(18). See Moretz v. Muakkassa , 137 Ohio St.3d 171, 2013-Ohio-4656, 998 N.E.2d 479, ¶ 56 (stating that materials subject to the learned treatise hearsay rule "shall not be admitted into evidence as an exhibit over the objection of a party.").

{¶ 8} Daniels sought the admission of exhibit No. 26 by arguing that it was admissible as a resource available to physicians, presumably under Evid.R. 803(17), which excepts from the hearsay rule "[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations."

{¶ 9} Lexi–Comp appears to be similar to the Physician's Desk Reference ("PDR")² in that it can be consulted to ascertain potential drug cross-reactivity. Several courts have refused to admit the PDR and similar materials into evidence under rules similar to Evid.R. 803(17). See, e.g., Aurora v. Kepley , 11th Dist. Portage No. 801, 1978 WL 216003, at *2 (Sep. 5, 1978) (PDR inadmissible as hearsay "due to the inexact and ever-changing nature of medicine"); Garvey v. O'Donoghue , 530 A.2d 1141 (D.C.1987) (PDR inadmissible under Fed.R.Evid. 803(17) because the publication contains not only factual statements, but also "directions, opinions, suggestions, and recommendations"); Kahanek v. Rogers , 12 S.W.3d 501, 504 (Tex. App. 1999) (PDR inadmissible under market reports exception because the publication "goes beyond objective information to items on which learned professionals could disagree in good faith"); In re Richardson–Merrell, Inc. Bendectin Prods. Liab. Litigation , 624 F.Supp. 1212, 1232 (S.D. Ohio 1985) (PDR did not fall within the commercial publications exception of Fed.R.Evid. 803(17) ), aff'd , 857 F.2d 290 (6th Cir. 1988). But see SK & F,Co. v. Premo Pharmaceutical, Laboratories, Inc. , 481 F.Supp. 1184, 1189 (D.N.J.1979) (taking judicial notice that the PDR falls within Fed.R.Evid. 803(17) as "a published compilation generally used and relied on by physicians and pharmacists").

{¶ 10} Despite these courts refusing to allow materials like the PDR into evidence under their equivalent of Evid.R. 803(17), we find that the prerequisites for admission were established in this case. Evid.R. 803(17) is patterned after Fed.R.Evid. 803(17). The predicate for admission under the federal rule of evidence is similar to other hearsay exceptions: necessity and reliability. United States v. Woods , 321 F.3d 361, 364 (3d Cir.2003), citing 5 Weinstein's Federal Evidence Section 803.19[1] (Matthew Bender 2002). With respect to "reliability," publications like Lexi–Comp "know that their work will be consulted; if it is inaccurate, the public or the trade will cease consulting their product." Id. In other words, the success of the service depends on its reputation for accuracy, thus ensuring its reliability for purposes of Evid.R. 803(17).³

{¶ 11} Daniels's expert testified without contradiction that physicians rely on materials like Lexi–Comp and the PDR. Exhibit No. 26 listed Scopolamine as an "associated" drug under the heading "belladonna alkaloid allergy." That factual assertion has not been challenged as false or misleading. In fact, it may have been largely cumulative given the number of witnesses who agreed that Scopolamine was contraindicated for patients who were hypersensitive to Atrovent or other belladonna alkaloids. While the court may not have expressly indicated that it was allowing exhibit No. 26 into evidence under Evid.R. 803(17), it did indicate that the exhibit was "an informational cite," a characterization consistent with it being a tabulation or list relied upon by medical professionals. The court did not err by allowing exhibit No. 26 into evidence.

II. Closing Argument

{¶ 12} The second assignment of error complains that the court erred by prohibiting Vasarhelyi and Koziy's counsel from referencing in closing argument a July 2004 emergency room treatment that predated the events leading to this case. This assigned error is rendered moot based on our decision to reverse and remand the case. See App.R. 12(A)(1)(c).

III. FDA Adverse Event Reporting System

{¶ 13} Vasarhelyi and Koziy filed a motion in limine to bar Daniels from using at trial a Food and Drug Administration ("FDA") adverse event report, identified at trial as plaintiff's exhibit No. 12. They maintained that the FDA report, which reported 471 cases of adverse events...