Dorann Stephenson v. Harry Guda, M.D., 95-LW-3763

• Decision Date: 15 March 1995
• Docket Number: 95-LW-3763,532
• Parties: DORANN STEPHENSON, Plaintiff-Appellant v. HARRY GUDA, M.D., Defendant-Appellee Case
• Court: Ohio Court of Appeals

DORANN STEPHENSON, Plaintiff-Appellant v. HARRY GUDA, M.D., Defendant-Appellee

No. 532.

95-LW-3763 (4th)

Court of Appeals of Ohio, Fourth District Pike

March 15, 1995

COUNSEL FOR APPELLANT: Robert G. Palmer, McCarthy, Palmer, Volkema Boyd & Thomas, 140 East Town Street, Suite 1100, Columbus Ohio 43215-5125.

COUNSEL FOR APPELLEE: James D. Colner, Smith & Colner, 261 South Front Street, Columbus, Ohio 43215

DECISION

PER CURIAM

This is an appeal from a judgment entered by the Pike County Common Pleas Court dismissing a medical malpractice complaint filed by Dorann Stephenson, plaintiff below and appellant herein, against Harry Guda, M.D., defendant below and appellee herein, following a jury trial.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"IT IS PREJUDICIAL ERROR TO ADMIT AN EXPERT OPINION INTO EVIDENCE WHEN IT IS BASED ON THE OPINIONS OF OTHERS AND FACTS NOT IN EVIDENCE."

SECOND ASSIGNMENT OF ERROR:

"IT IS PREJUDICIAL ERROR TO GIVE AN INSTRUCTION ON DIFFERENT METHODS OF DIAGNOSIS IN THE ABSENCE OF EVIDENCE JUSTIFYING SUCH AN INSTRUCTION."

THIRD ASSIGNMENT OF ERROR:

"IT IS PREJUDICIAL ERROR TO BAR AN EXPERT FROM TESTIFYING AS TO THE FULL BASIS OF HIS OPINION."

FOURTH ASSIGNMENT OF ERROR:

"THE LOWER COURT ERRED IN NOT GRANTING A NEW TRIAL."

Appellant filed the instant medical malpractice complaint on October 9, 1992 against appellee and five other defendants who appellant voluntarily dismissed from this action.(fn1) Appellant alleged that appellee and the other defendants failed to exercise the care and skill ordinarily used by physicians or other medical providers engaged in the practice of medicine. In particular, appellant alleged that on or about November 21, 1990, appellee prescribed the drugs Lithium and Pamelor.(fn2) Appellant took the two drugs as prescribed until on or about April 19, 1991. Prior to April 14, 1991, appellant developed numbness and edema in her right leg which caused her to seek medical care in the emergency room of Pike Community Hospital that day and several weeks later. Between April 19, 1991 and June 1, 1991, appellant developed head shaking, jerking of the limbs, blurred vision and bladder and bowel dysfunction in addition to the numbness and edema. On June 1, 1991, appellant sought treatment for her symptoms at the Medical Center Hospital. Appellant alleges that as a direct result of the defendants' actions, she suffered severe hypothyroidism with resultant permanent cerebellar degeneration and cerebellar ataxia, causing continued pain, suffering, mental distress, loss of enjoyment of life, disability, loss of income, and impaired earning capacity.

We note that the complaint does not specifically mention appellant's April 16, 1991 visit to appellee. During the trial, however, the parties focused on the April 16, 1991 visit. At that visit appellee noted appellant was suffering from facial edema. At trial, appellant argued that appellee committed medical malpractice on April 16, 1991 either by failing to refer appellant to another physician concerning the edema or by failing to order a thyroid function test to determine if the lithium appellee prescribed for appellant was damaging her thyroid and causing the edema. Appellee contends that he did not commit medical malpractice when, instead of ordering a thyroid function test, he instructed appellant to stop taking Pamelor, the drug appellee had most recently prescribed for appellee.

The court tried the matter beginning on February 22, 1994. Appellant testified and presented six additional witnesses. Appellee testified and presented three additional witnesses. Appellant, however, did not cause all the testimony to be transcribed and transmitted to our court. Appellant ordered only the testimony of appellant, appellee, appellant's expert witness Dr. Phillip J. Resnick, and appellee's expert witness Dr. Howard H. Sokolov, to be transcribed and transmitted to our court.

Dr. Resnick testified that when appellant visited appellee on April 16, 1991, appellee either should have referred appellant to another physician or should have ordered thyroid tests to determine whether the lithium had affected appellant's thyroid and caused the facial edema. Dr. Resnick explained that appellant's thyroid condition could have been treated if detected promptly and thus the permanent neurological damage that appellant now suffers could have been avoided.

On cross-examination, Dr. Resnick noted that his sole criticism of appellant relates to the April 16, 1991 office visit. Dr. Resnick further noted that the care and treatment appellant gave to appellee on dates other than April 16, 1991 was "absolutely" within the reasonably prudent physician standard of cared.

Dr. Resnick admitted that appellant's action in taking appellee off the Pamelor drug in order to rule out the Pamelor as the cause of appellant's facial edema was part of the process of doing a differential diagnosis. Dr. Resnick noted that the Physician's Desk Reference includes facial edema as a allergic reaction to Pamelor. Dr. Resnick further noted that on April 16, 1991, appellee had a history of drug allergies, including allergies to codeine, cortisone, and iodine. According to Dr. Resnick, if appellant had ordered a thyroid function test on April 16, 1991, the results of that test would not have been available for a couple of days.

Appellant testified about the edema and other problems she has experienced. She further testified that she quit taking the lithium on April 19, 1991 pursuant to appellee's instructions. On cross-examination, appellant testified that she has a history of drug allergies. She knew that appellee visited her home on April 19, 1991 when she failed to call him between noon and 12:30 p.m. as planned. She also knew that appellee had left instructions with his nurse to tell appellee that she should stop taking the lithium that day if her condition had not improved.

Appellee's expert witness Dr. Sokolov testified that appellee did not fall below the standard of care when treating appellant. He noted that appellee "took an appropriate step in considering the alternatives and choosing that she might be allergic" to the Pamelor.

Appellee testified that he stopped the Pamelor in response to appellant's facial edema. When appellant did not call him between noon and 12:30 p.m. on April 19, 1991 as planned, appellee went to appellant's home to try to find her. Before he left for vacation, appellee instructed his nurse that if appellant called and her condition had not improved, she should stop taking the lithium. Appellee testified that if appellant had called him as instructed on April 19, 1991, he would have stopped the lithium and ordered the complete battery of tests necessary for patients who take lithium.

The trial court gave the jury many standard instructions including the following:

"Now although, some other psychiatrist's might have used a method of diagnosis different from that used by the Defendant in this case, this circumstance will not by itself, without more proof that the Defendant, Doctor Guda, was negligent. The fact that the defendant used an alternative method of diagnosis is not by itself without more proof of his negligence. You are to decide whether the method of diagnosis used by Defendant was reasonably careful and in accordance with the standard of care required of a specialist in his field of practice." (sic)We note that the record transmitted on appeal does not include any objection to the above jury instruction.(fn3)

On February 25, 1994, the jury found in favor of appellee. The trial court entered judgment dismissing the complaint on March 7, 1994. On March 21, 1994, appellant filed a motion for judgment notwithstanding the verdict, or in the alternative, a new trial. On April 4, 1994, the trial court denied the motion.

Appellant filed a timely notice of appeal.

I

In her first assignment of error, appellant asserts that the trial court erred by admitting Dr. Sokolov's expert opinion into evidence. In particular, appellant contends that Dr Sokolov's expert opinion was based upon appellee's deposition, which deposition appellant claims was not admitted into evidence.

Appellee posed the following hypothetical question to Dr. Sokolov:

"Q. Now Doctor Sokolov, based upon your review of the records, and including your review of the deposition testimony of Doctor Guda and asking you to assume that his testimony here at trial will be consistent with the testimony that he gave in his discovery deposition, have you formulated any opinions within a reasonable degree of medical certainty, as to the care and treatment ... as to whether the care and treatment provided by Doctor Guda to the plaintiff, met the applicable standards of care owed by a reasonably prudent psychiatrist?

A. Yes, I ..."

The hypothetical question asked Dr. Sokolov to base his opinion on various records including appellee's deposition. The hypothetical question also asked Dr. Sokolov to assume that appellee's trial testimony would be consistent with his deposition testimony. Appellant interrupted Dr. Sokolov's answer with the following objection:

"MR. PALMER: Your Honor, I have an objection to make. I don't think it's proper for an expert witness to present any opinion, based upon a deposition that's not going to be in evidence."

After the trial court overruled the objection, appellee emphasized that the hypothetical question asked Dr. Sokolov to assume that appellee's trial testimony would be consistent with his deposition testimony.

Appellant argues that Dr. Sokolov's reliance on appellee's deposition violated Evid.R. 703. Evid.R. 703 provides as follows: The facts or data in the particular case upon which an expert bases an opinion or...