Duren v. Suburban Community Hosp., 55142

• Citation: 24 OBR 450,24 Ohio Misc.2d 25,495 N.E.2d 51
• Decision Date: 05 September 1985
• Docket Number: No. 55142,55142
• Parties: , 24 O.B.R. 450 DUREN, Admx., v. SUBURBAN COMMUNITY HOSPITAL. *
• Court: Court of Common Pleas of Ohio

Page 25

24 Ohio Misc.2d 25

495 N.E.2d 51, 24 O.B.R. 450

DUREN, Admx., v. SUBURBAN COMMUNITY HOSPITAL. ^*

No. 55142.

Court of Common Pleas of Ohio Cuyahoga County.

Sept. 5, 1985.

Syllabus by the Court

1. R.C. 2307.43, the limitation on medical malpractice damages, violates the protection of both the Ohio and federal Constitutions beyond a reasonable doubt.

2. For a jury verdict to have been given under the influence of passion or prejudice, it must appear that the jury's assessment of damages was so disproportionate as to shock reasonable sensibilities.

3. The law of proximate cause in a wrongful death malpractice case obligates the plaintiff to prove at least fifty-one percent probability of survival if it were not for the negligence of the defendant.

4. Where the trial court is of the opinion that the verdict is excessive but not due to the effect of passion or prejudice, it may, with the consent of the plaintiff, remit a portion of the verdict and, as an alternative to a new trial, enter judgment in the lesser amount.

5. The amount of a jury verdict is essentially irrelevant to whether a party did or did not make a good faith effort to settle for purposes of an award of prejudgment interest pursuant to R.C. 1343.03(C).

6. To decide whether an expense will be liable as a cost under Civ.R. 54(D), the court should first determine whether the expense was a taxable litigating expense and then determine whether the litigating expense should be taxed as a cost in the particular case at bar.

Charles I. Kampinski and Robert L. White, Cleveland, for plaintiff.

Marshall I. Nurenberg, Cleveland, for defendant Lissauer.

Patrick J. Murphy and Dale E. Markworth, Cleveland, for defendant Suburban Community Hosp.

McMONAGLE, Judge.

This medical malpractice case resulted in a plaintiff's verdict against the defendant hospital in the amount of $2,500,000 for wrongful death, $1,000,000 for pain and suffering on the survival action and $2,554 in funeral expenses.

The defendant now has moved for a new trial and/or remittitur on the following grounds:

1. The judgment entered on the survivorship claim is contrary to R.C. 2307.43. (Civ.R. 59[A].)

2. The judgments entered on both the survivorship claim and the wrongful death claim are excessive, appearing to have been given under the influence of passion or prejudice. (Civ.R. 59[A].)

3. The judgments entered on both the survivorship claim and the wrongful death claim are excessive and the amount of same is not supported by the weight of the evidence. (Civ.R. 59[A].)

4. The judgment entered for plaintiff on the wrongful death claim is not supported by the weight of the evidence in that plaintiff did not prove that with proper medical treatment, the decedent probably would have survived. Further, the trial court erred in failing to instruct the jury that plaintiff had the burden of proving that with proper medical treatment, decedent probably would have survived. (Civ.R. 59[A].)

5. The trial court erred in failing to instruct the jury on the issue of comparative negligence insofar as it relates to the negligence of the decedent in not following proper medical advice and such negligence contributing to both his conscious pain and suffering and death. (Civ.R. 59[A].)

The plaintiff has asked the court to award prejudgment interest pursuant to R.C. 1343.03(C) and to tax certain expenses as costs.

All post-trial motions have been fully briefed, evidence has been taken and arguments have been presented.

I Facts

The plaintiff's decedent-husband on the date of his death was a forty-seven-year-old father of two who was employed by the city of Cleveland as a mechanic, earning approximately $25,000 per year. His wife, the plaintiff-administratrix herein, because of a birth defect, was uniquely dependent upon her husband to assist her in her daily routine, i.e., drive, shop, clean house, etc. The decedent was a large man who at the time of his death weighed two hundred ninety-four pounds, and had previous health problems, including diabetes and pancreatitis (an extremely painful inflammation of the pancreas).

On February 17, 1982, Mr. Duren became ill with complaints of stomach pain, nausea and vomiting. In the early afternoon of that day, he was admitted to the defendant Suburban Community Hospital. The admitting physician, who was originally named as a defendant but in whose favor the jury later found, ordered that a number of tests be done immediately ("stat" test), including blood tests, calcium tests and an electrocardiogram. The results of the calcium tests were not available until after Mr. Duren's death, and the EKG was not done.

The admitting physician also had ordered urine fractionals four times a day to be performed to determine the sugar level in the urine and thereafter left orders that the hospital employees were to administer specified doses of insulin depending upon the urine glucose level. Only one sugar-level test was performed and that was at 9:00 p.m. on the date of the decedent's admission, and this indicated the decedent's sugar level was at the highest level able to be recorded on the testing device that was being used. The evidence, including the testimony and the hospital charts, indicated that no insulin was administered and that the decedent's vital signs were rapidly deteriorating to a point where at 10:00 p.m., the hospital charts indicated that the decedent's pulse was 144 and his temperature was 102? F., an extremely elevated and abnormal status which would require the R.N. on duty to notify a physician, but none was called.

At the change of shift at midnight, the same R.N. on duty failed to notify the R.N. on the following shift of Mr. Duren's critical condition. During the early morning hours of February 18, 1982, Mr. Duren was virtually ignored by the hospital, even though he was in obvious pain. No vitals were taken. No tests were given. No medication was dispensed until approximately 5:00 a.m. when Mr. Duren was thrashing about in his bed and accidentally removed his I.V. At that time, the house doctor, who was physically close by, was called but he did not appear at Mr. Duren's bedside until approximately two hours later when, for all practical purposes, the decedent was within minutes of death.

He was pronounced dead at 7:17 a.m. The only contact with the admitting physician was subsequent to Mr. Duren's death, to inform him of Mr. Duren's demise.

The medical records introduced into evidence showed that the 6:00 a.m. entries were pure fabrication and further, the testimony demonstrated that the R.N. on duty after midnight did not write the notes even though she signed them. An internal investigation of the circumstances surrounding Mr. Duren's death was conducted by the defendant hospital, but no definite conclusions were reached.

There was no autopsy, but the Certificate of Death said death was caused by (a) cardio-respiratory arrest; (b) acute pancreatitis; and (c) Type IV hyperlipidemia.

The decedent's administratrix filed suit on February 14, 1983. Pursuant to the compulsory arbitration scheme provided in R.C. 2711.21, the plaintiff was awarded $420,000 against the defendant hospital solely. A dissenting arbitrator found damages of $1,250,000 also against the hospital only. Both the plaintiff and defendant hospital filed notices of non-acceptance of the arbitration award and a jury trial resulted in the aforementioned verdicts.

II Constitutionality of R.C. 2307.43

Defendant contends that the survivorship jury verdict of $1,000,000 is contrary to R.C. 2307.43, which reads:

"In no event shall an amount recovered for general damages in any medical claim, as defined in division (D) of section 2305.11 of the Revised Code, not involving death exceed the sum of two hundred thousand dollars."

Plaintiff claims that the above section is inapplicable because this case involves a death, and further that this code provision, if applicable, is violative of certain provisions of both the Ohio and federal Constitutions.

R.C. 2307.43, by its unambiguous terms, does not apply to the jury's verdict on the plaintiff's wrongful death claim. This section does, however, apply to the survivorship action.

Courts located in Ohio are divided as to the constitutionality of this section. Case authority declaring this legislation unconstitutional are: Graley v. Satayatham (C.P.1976), 343 N.E.2d 832, 74 O.O.2d 316; Simon v. St. Elizabeth Medical Center (C.P.1976), 355 N.E.2d 903, 3 O.O.3d 164; Nervo v. Pritchard (June 10, 1977), Stark App. No. CA-6560, unreported. Cases upholding the constitutionality of the act are: Keeton v. Mansfield Obstetrics & Gynecology Assoc., Inc. (N.D. Ohio 1981), Civil No. 80-1573A, unreported; and Dowdy v. Lee (Dec. 27, 1983), Stark App. No. CA-6249, unreported.

Courts throughout the country are likewise split as to the constitutionality of a limitation on medical malpractice damages. The following cases have not approved damage limitations: Wright v. Central DuPage Hospital Assn. (1976), 63 Ill.2d 313, 347 N.E.2d 736; Carson v. Maurer (1980), 120 N.H. 925, 424 A.2d 825; Arneson v. Olson (N.D.1978), 270 N.W.2d 125; Baptist Hospital of Southeast Texas v. Baber (Tex.App.1984), 672 S.W.2d 296; Jones v. State Bd. of Medicine (1976), 97 Idaho 859, 555 P.2d 399, certiorari denied (1977), 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223. The following cases have held that limitations of medical malpractice damages is constitutional: Fein v. Permanente Medical Group (1985), 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665; Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374, 404 N.E.2d 585; Prendergast v. Nelson (1977), 199 Neb. 97, 256 N.W.2d 657.

The California Supreme Court case, Fein, supra, is easily distinguishable. California Civ. Code Section 3333.2 provides as follows:

"(a) In any [medical malpractice] action * * * the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain,...