Hyams v. Cleveland Clinic Found

• Decision Date: 30 August 2012
• Docket Number: No. 97439.,97439.
• Citation: 976 N.E.2d 297
• Parties: Jared HYAMS, et al., Plaintiffs–Appellees v. CLEVELAND CLINIC FOUNDATION, et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

976 N.E.2d 297

Jared HYAMS, et al., Plaintiffs–Appellees

v.CLEVELAND CLINIC FOUNDATION, et al., Defendants–Appellants.

No. 97439.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Aug. 30, 2012.

Anna M. Carulas, Ingrid Kinkopf–Zajac, Douglas G. Leak, Roetzel & Andress, LPA, Cleveland, OH, for appellants.

Christopher M. Mellino, Thomas D. Robenalt, Allen C. Tittle, Mellino Robenalt LLC, Rocky River, OH, for appellees.

BEFORE: BOYLE, P.J., COONEY, J., and KILBANE, J.

MARY J. BOYLE, P.J.

{¶ 1} Defendants-appellants, the Cleveland Clinic Foundation and Barbara Wechsler (collectively “the Clinic”), appeal a jury verdict for plaintiffs-appellees, Jared Hyams and his parents, Douglas and Linda Hyams (collectively “the Hyamses”), on their medical malpractice action. The gravamen of their appeal is that the Hyamses' expert witness, Dr. Robert Granacher, was not competent to testify at trial, and therefore the trial court should have granted a directed verdict in their favor. They further challenge several evidentiary rulings. Finding no merit to the appeal, we affirm.

Procedural History and Facts

{¶ 2} In April of 2005, Linda and Douglas Hyams took their son, Jared, who was nine years old at the time, to the Cleveland Clinic after Jared had developed an unexplained limp and unsteady gait. Jared was evaluated by pediatric neurologist Neil Friedman, who thought that Jared presented with signs of a “conversion disorder.” A conversion disorder is “a neuropsychiatric condition and that the symptom or deficit cannot after appropriate investigation be fully explained by a general medical condition.” Swaiman, Ashwal, and Ferriero, Swaiman's Pediatric Neurology: Principles and Practice (4th Ed. 2007). It is a psychological condition that is believed to be caused by some traumatic experience or other difficulty in the person's life.

{¶ 3} Following outpatient physical therapy, Dr. Friedman ultimately referred Jared to the day hospital program at the Cleveland Clinic Children's Hospital for Rehabilitation (“day hospital”) for treatment of conversion disorder and inability to walk. At the day hospital, Dr. Wechsler, a pediatric rehabilitation specialist, oversaw Jared's treatment.

{¶ 4} Jared's day hospital program included physical and occupational therapy daily, multiple counseling sessions with a clinical social worker or psychologist, and attendance at school and social interaction programs. According to Dr. Wechsler's discharge summary, any efforts to “normalize [Jared's] left foot posture” were abandoned, however, when “the factitious nature of Jared's ambulatory problems became apparent.” The day hospital staff was committed to enforcing a consistent behavioral plan, such that, according to Dr. Wechsler, “Jared is beginning to recognize that his behaviors have consequences.” Jared's behavior plan at the day hospital included certain reinforcement measures, such as “[i]f he falls during walking he owes 5 sit ups per fall; [i]f he touches the wall/chair/person while walking he owes 5 push ups.”

{¶ 5} Jared was in the day hospital program from May 3, 2005 until May 31, 2005. Upon his discharge, staff members of the day hospital program visited Jared's school for his school re-entry meeting. Their recommendations focused on the belief that Jared “is seeking attention by manipulating the adults around him and falling into the sick role and enjoying the attention he is receiving from this.” Consequently, the school re-entry recommendations included, among others, the following:

Jared should be treated as any other child and should receive the natural consequences of any other child for being tardy to class or uncooperative to perform his work. His gait is currently atypical and no focus should be placed on how he is walking in the school environment. He should not be assisted during walking with any hand holding. * * * It is important to treat him as a healthy young boy and not allow him to manipulate adults.

{¶ 6} The Hyamses were also instructed to follow the same behavior plan used at the day hospital for Jared, focusing on the importance of not rewarding Jared with attention or help when he failed to walk properly. Likewise, the Hyamses were instructed to specifically withhold privileges from Jared, such as eating at the table with the family, if he did not walk properly.

{¶ 7} Jared's condition however continued to deteriorate. Finally, while being seen by a psychiatrist unaffiliated with the Cleveland Clinic, a dystonia gene panel was ordered and taken in April 2006. Through this blood test, it was discovered that Jared does not have a conversion disorder, but instead, a rare genetic disorder—dystonia. According to the Dystonia Foundation, dystonia is defined as a movement disorder that causes muscles to contract and spasm involuntarily. The dystonia is what caused Jared's inability to walk and his steady physical deterioration.

{¶ 8} The Hyamses subsequently filed the underlying medical malpractice suit against the Clinic, Dr. Friedman, and Dr. Wechsler, alleging that Dr. Friedman was negligent by failing to properly diagnose the dystonia and that, assuming Jared even had a conversion disorder, Dr. Wechsler's treatment plan was a “substandard treatment plan.” They alleged that the treatment plan “psychologically traumatized, humiliated, and isolated Jared.” According to the Hyamses' medical expert, Dr. Granacher, the behavioral plan for Jared was punitive and not acceptable for a nine-year-old boy. Dr. Granacher further testified that the treatment plan caused “significant psychological injuries” to Jared. Conversely, the Clinic's expert testified that Jared's treatment plan was a reasonable and acceptable approach to the treatment of a conversion disorder. The Clinic's expert maintained that it was not a punitive plan and that Jared did not suffer emotional or psychological injuries as a result of the plan.

{¶ 9} The case proceeded to trial where the jury ultimately found that Dr. Friedman was not negligent but that Dr. Wechsler was negligent in the following two areas: (1) “negligent in creation and implementation of the behavior plan at the day hospital and into the Hyams[es'] household”; and (2) “negligent in the creation and implementation of the behavior plan into the school reentry recommendation.” The jury then awarded Jared $590,000 in past and future non-economic loss, the mother $200,000 in damages, and the father $100,000 in damages. The trial court subsequently reduced the total award to the statutory cap of $500,000.

{¶ 10} The Clinic appeals, raising the following five assignments of error:

“[I.] The trial court abused its discretion in failing to strike the trial testimony of plaintiffs-appellees' expert Robert Granacher, M.D.

“[II.] The trial court erred in failing to grant defendants-appellants' motion for a directed verdict.

“[III.] The trial court abused its discretion in allowing plaintiffs-appellees to play misleading bits and pieces of videotaped depositions.

“[IV.] The trial court abused its discretion in allowing plaintiffs-appellees to play a videotape of Jared Hyams.

“[V.] The trial court abused its discretion in excluding relevant evidence pertaining to an extramarital affair.”

Competency to Testify and Render an Opinion

{¶ 11} In their first assignment of error, the Clinic argues that the trial court abused its discretion in failing to strike the testimony of Dr. Granacher because he was neither competent to testify under Evid.R. 601(D) nor qualified under Evid.R. 702(A). The Clinic further argues that the trial court should have at least stricken that portion of Dr. Granacher's testimony relating to causation because it was based merely on speculation. We disagree.

A. Evid.R. 601(D) and Waiver

{¶ 12} The Clinic contends that the Hyamses failed to establish that Dr. Granacher was qualified as an expert witness pursuant to the competency requirements of Evid.R. 601(D). The rule provides that “[e]very person is competent to be a witness except:

* * * A person giving expert testimony on the issue of liability in any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless the person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state, and unless the person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school.

(Emphasis added.) Evid.R. 601(D).

{¶ 13} The purpose of Evid.R. 601(D) is to discourage testimony regarding the proper standard of care by a “professional witness” or a physician who is sequestered in the laboratory and has no firsthand knowledge of the duty of care of patients. Joyce–Couch v. DeSilva, 77 Ohio App.3d 278, 292, 602 N.E.2d 286 (12th Dist.1991). The rule seeks to prevent “nonclinicians from testifying about the quality of clinical care.” Id., quoting Price v. Cleveland Clinic Found., 33 Ohio App.3d 301, 304, 515 N.E.2d 931 (8th Dist.1986). But Evid.R. 601(D) should not be “applied so narrowly that the right of redress in a medical claim collapses under an undue burden.” Crosswhite v. Desai, 64 Ohio App.3d 170, 177, 580 N.E.2d 1119 (2d Dist.1989).

{¶ 14} In reviewing the trial court's decision to deny the Clinic's motion to strike, we afford deference to the trial court's decision and may not reverse the decision unless we find that the trial court abused its discretion. Ruple v. Midwest Equip. Co., 8th Dist. No. 95726, 2011-Ohio-2923, 2011 WL 2436521, ¶ 5. “As such, in order to have an abuse of discretion, ‘the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment...