Davis v. Immediate Medical Services, Inc.

• Citation: 684 N.E.2d 292,80 Ohio St.3d 10
• Decision Date: 08 October 1997
• Docket Number: No. 96-203,96-203
• Parties: DAVIS, Admr., Appellee and Cross-Appellant, v. IMMEDIATE MEDICAL SERVICES, INC., et al., Cross-Appellees; EM Care of Alliance, Inc., et al., Appellants.
• Court: United States State Supreme Court of Ohio

Page 10

80 Ohio St.3d 10

684 N.E.2d 292

DAVIS, Admr., Appellee and Cross-Appellant, v. IMMEDIATE MEDICAL SERVICES, INC., et al., Cross-Appellees; EM Care of Alliance, Inc., et al., Appellants.

No. 96-203.

Supreme Court of Ohio.

Submitted May 7, 1997.

Decided Oct. 8, 1997.

SYLLABUS BY THE COURT

1. A plaintiff has the right to have a motion for default judgment heard and decided before trial.

2. In an action for medical malpractice, an expert witness having the same malpractice insurer as another defendant is subject to inquiry concerning bias if the witness testifies favorably for that defendant. (Ede v. Atrium S. OB-GYN, Inc. [1994], 71 Ohio St.3d 124, 642 N.E.2d 365, construed and followed.)

3. Where an expert has a financial incentive to be biased, the jury may determine whether that bias exists and how that bias affects all defendants who are contesting similar issues and who benefit from the expert's testimony, regardless of commonality of insurance. (Ede v. Atrium S. OB-GYN, Inc. [1994], 71 Ohio St.3d 124, 642 N.E.2d 365, construed and followed.)

This case involves medical malpractice and wrongful death claims brought by Evelyn Davis, the plaintiff-appellee and cross-appellant, as administrator of the estate of her husband, Albert Davis. Mr. Davis died on April 25, 1991 due to an infection resulting from a ruptured appendix. In the days prior to his death, Mr. Davis and his wife visited several health care providers for treatment. Her complaint alleged that their negligence culminated in the death of her husband.

Mr. Davis began experiencing pain in his right lower abdomen on April 7, 1991. Concerned about her husband, Mrs. Davis consulted a medical book at home. After reading the book, Mrs. Davis felt that her husband's symptoms were indicative of appendicitis. Because of their suspicions and Mr. Davis's pain, the couple went to Immediate Medical Services, Inc. ("IMS"), defendant and cross-appellee. At this emergency care facility, Mr. Davis was examined by Dr. Barbara Guarnieri, defendant and cross-appellee, who took a history and performed a number of tests. Dr. Guarnieri was employed by Alliance Immediate Care, Inc. ("AIC"), defendant-appellant, which apparently had a contractual relationship with IMS.

The Davises told Dr. Guarnieri of their suspicion of appendicitis. After examining Mr. Davis and concluding that the tests did not indicate appendicitis, Dr. Guarnieri diagnosed a urinary tract infection, a condition that Mr. Davis had said he had suffered from a few years earlier. Dr. Guarnieri prescribed antibiotics and told Mr. Davis that he should consult his own physician if he did not feel better in a couple of days.

Although he took the medication prescribed by Dr. Guarnieri, Mr. Davis's illness continued after his initial visit. Two days later, Mr. and Mrs. Davis went to the emergency room at defendant Alliance Community Hospital. While there, Mr. Davis was treated by Dr. Geno Serri. Dr. Serri was employed by EM Care of Alliance, Inc. ("EM Care"), appellant, which had a contractual relationship with the hospital. Mr. Davis told Dr. Serri that he was experiencing lower abdominal pain which had not subsided, and again expressed his concern that it was appendicitis. Dr. Serri examined Mr. Davis and ordered additional tests, eventually diagnosing abdominal pain with an uncertain cause. He told Mr. Davis to complete the course of antibiotics, and also gave him a prescription for pain medication. Dr. Serri also contacted Mr. Davis's family physician, Dr. William Eichner, and told the couple to schedule a follow-up appointment with him.

On April 15, 1991, Mr. and Mrs. Davis visited defendant Dr. William Eichner, Mr. Davis's family doctor, at a scheduled appointment. Mr. Davis told the doctor that he felt better that day but had experienced some cramping over the weekend. Dr. Eichner eventually concluded that Mr. Davis had a urinary tract infection with resolved symptoms of gastroenteritis. Dr. Eichner prescribed medication for stomach discomfort and scheduled Mr. Davis for a follow-up visit for April 30, 1991.

Eight days later, on April 23, 1991, Mr. Davis returned to the emergency room at Alliance Community Hospital with severe pain and breathing difficulties. Dr. Serri again examined Mr. Davis; however, Mrs. Davis requested that Dr. Serri contact Dr. Duane C. Kuentz, her physician.

Dr. Kuentz arrived at the hospital at approximately 3:30 p.m. and determined that Mr. Davis was suffering from multiple abdominal abscesses, which may have resulted from a ruptured appendix. At 5:00 p.m., Dr. Kuentz contacted a general surgeon, Dr. William Fiegenschuh, to consult about possible surgery. Dr. Fiegenschuh arrived at the hospital around 9:00 p.m. that evening but determined that Mr. Davis needed to be stabilized before surgery could occur on the following day.

Dr. Fiegenschuh eventually performed an exploratory laparotomy around 1:00 p.m. the following day. Dr. Fiegenschuh discovered and drained the abscesses. He also removed the appendix, which had ruptured. Despite surviving the surgery, Mr. Davis could not withstand the infection that had resulted from the burst appendix, and died the next day, April 25, 1991.

A complaint was filed on October 9, 1992 against IMS, Dr. Barbara Guarnieri, EM Care, Dr. Eichner, and Alliance Community Hospital, alleging negligent medical care. ¹ An amended complaint was filed on April 23, 1993, adding AIC (Dr. Guarnieri's employer) and Dr. Fiegenschuh as parties. ²

The jury eventually returned verdicts in favor of all the above defendants except for Dr. Eichner, who was found liable in the amount of $643,000.

The court of appeals affirmed the judgment in part and reversed it in part. A new trial was ordered against defendant EM Care on the basis that the trial court should have allowed plaintiff to cross-examine an expert witness on the issue of possible bias. The appellate court also held that it was error to deny plaintiff's pretrial default motion against AIC. The remainder of the judgment was affirmed.

The cause is now before this court pursuant to the allowance of a discretionary appeal and cross-appeal.

Tzangas, Plakas & Mannos, Lee E. Plakas and Christopher M. Huryn, Canton, for appellee and cross-appellant, Evelyn Davis.

Buckingham, Doolittle & Burroughs, Gary A. Banas, Marlene C. Gebauer and Christopher S. Humphrey, Canton, for appellant Alliance Immediate Care, Inc., and cross-appellee, Barbara Guarnieri, M.D. Jacobsen, Maynard, Tuschman & Kalur, Janis L. Small, Akron, R. Mark Jones, Cleveland and William A. Davis, Columbus, for appellant EM Care of Alliance, Inc.

Jacobsen, Maynard, Tuschman & Kalur, John A. Simon and John S. Polito, Cleveland, for cross-appellee Immediate Medical Services, Inc.

FRANCIS E. SWEENEY, Sr., Justice.

In this case, we are asked to determine whether a default judgment can be entered against a defendant who was ultimately found not negligent at trial. We also look at the applicability of Civ.R. 6(B)(2) with respect to the propriety of default judgment. In addition, we examine the admissibility of evidence of bias stemming from commonality of insurance between the witness and a malpractice defendant. For the following reasons, we affirm in part and reverse and remand in part. Specifically, we affirm the court of appeals' judgment ordering the entry of a default judgment against AIC and a new trial against EM Care. We reverse the court of appeals' judgment to the extent that it denied a new trial against Dr. Guarnieri and IMS.

I Appeal of AIC of Default Judgment

Three days before trial, Mrs. Davis filed a motion for default judgment against AIC, due to AIC's failure to answer her amended complaint. On the morning of trial, Gary Banas, the attorney representing AIC and Dr. Guarnieri, argued against the motion. Banas claimed surprise that AIC was a party, since he had not known of the amended complaint and had not received a copy until two days before trial, although the amended complaint had been properly served upon AIC's statutory agent thirteen months before. At trial, Banas argued excusable neglect under Civ.R. 60(B), the rule for relief from judgment. Despite this irregularity, the judge denied the motion for default and permitted Banas to file an answer instanter.

The answer filed by Banas was miscaptioned "Answer of Defendant Immediate Medical Care, Inc.," a corporation which had never been a party to the lawsuit. The plaintiff brought the error to the court's attention at the close of the defendants' evidence. Banas responded that he had been confused from the beginning of the case about the names of the litigants in this action and asked that he be allowed to correct the mistake. The trial court stated that it would look at the pleadings and make a ruling. The court never directly ruled on the issue. However, the court denied plaintiff's motion for default judgment, in effect, when it submitted verdict forms to the jury naming AIC as a defendant. On appeal, the plaintiff argued that the trial court abused its discretion in failing to grant default judgment against AIC. The court of appeals agreed, and we concur with this finding.

Default judgment may be awarded when a defendant fails to make an appearance by filing an answer or otherwise defending an action. Civ.R. 55(A). Civ.R. 6(B)(2) allows for an extension of time to file a late pleading within the trial court's discretion "upon motion made after the expiration of the specified period * * * where the failure to act was the result of excusable neglect." A ruling by the trial court on such a motion will be upheld absent an abuse of discretion. Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 271, 533 N.E.2d 325, 331.

In determining whether neglect is excusable or inexcusable, all the surrounding facts and circumstances must be taken into consideration. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122, syllabus. Neglect under ...