Kurzner v. Sanders, C-920150

• Decision Date: 14 July 1993
• Docket Number: No. C-920150,C-920150
• Citation: 627 N.E.2d 564,89 Ohio App.3d 674
• Parties: KURZNER, Appellant, v. SANDERS et al., Appellees. *
• Court: Ohio Court of Appeals

Page 674

89 Ohio App.3d 674

627 N.E.2d 564

KURZNER, Appellant, v. SANDERS et al., Appellees. ^*

No. C-920150.

Court of Appeals of Ohio, First District, Hamilton County.

Decided July 14, 1993.

Vorys, Sater, Seymour & Pease, Alan T. Radnor and Carl D. Smallwood, Columbus, for appellant.

Lindhorst & Dreidame and Michael F. Lyon, Cincinnati, for appellees.

BETTMAN, Judge.

On May 17, 1989, Dennis Kurzner, plaintiff-appellant, commenced this action for medical malpractice against Dr. Lester W. Sanders III and Lester W. Sanders III, M.D., Inc., defendants-appellees. ¹ A number of other defendants were named in the suit but were later dismissed by plaintiff.

At the conclusion of the trial, the jury returned a verdict in favor of the defendant. Special interrogatories were submitted to the jury which supported the general verdict. Judgment was entered in favor of defendant and plaintiff appeals.

In this appeal, plaintiff asserts four assignments of error. For the reasons that follow, we reverse the judgment of the trial court and remand the case for a new trial.

This medical malpractice case arose out of the alleged failure by Dr. Sanders, a board-certified ophthalmologist, to diagnose and treat properly a fungal infection in the plaintiff's left eye. The plaintiff alleged that this incorrect diagnosis was compounded by Dr. Sanders's use of a topical steroid medication, which masked and in fact worsened the misdiagnosed underlying condition. Ultimately, as a result of this negligent care and treatment by Dr. Sanders, as alleged by Dennis Kurzner, Kurzner permanently lost the sight in his left eye.

Kurzner originally sought treatment from Dr. Sanders for mild irritation and watering in his left eye. Upon examining Kurzner's eye under a slit lamp, Dr. Sanders diagnosed a viral infection and stromal irritation and prescribed steroid medication. Kurzner's symptoms worsened over time. He returned several times to Dr. Sanders, who did no additional testing and changed neither his diagnosis nor his treatment, except to increase the dosage of the steroid medication. Finally, after nearly two weeks, with his eyesight beginning to blur and with increasing pain in the left eye, Kurzner saw a different ophthalmologist, who sent him immediately to University Hospital. There he was examined by Dr. James Sanitato, who took a culture and a corneal scraping, diagnosed a fungal infection, discontinued the steroid medication, and began treatment with an antifungal medication. Even with this treatment, Kurzner required several eye surgeries, which did not save the sight in his left eye. Plaintiff claimed that the delay in proper diagnosis and treatment caused his loss.

Dr. Sanders contended that the original diagnosis of herpetic disease and stromal inflammation was correct, that no testing other than slit-lamp evaluation was necessary, and that the proper medications were timely begun. Dr. Sanders testified that, as time went on, the patient's eye was improving, he was appropriately followed, but he went on to develop a new and different problem known as a Wessley ring, which was an indication of an immune response, and that increasing the use of steroid medication was appropriate for this condition. When Dr. Sanders saw Dennis Kurzner for the last time on June 4, he saw no evidence of the kind of lesions known as satellite lesions, which are highly suggestive of fungal infections. Dr. Sanders testified that a photograph of Kurzner's eye, taken by Dr. James Sanitato on June 6, when a fungal infection was confirmed after corneal scraping and culture, was entirely different clinically from anything Dr. Sanders had seen in any of his examinations of Kurzner.

Kurzner and his experts contended that the failure of Dr. Sanders to properly test, diagnose and treat a fungal infection in his eye was the proximate cause of his permanent loss of sight. Dr. Sanders and his expert contended that Kurzner's loss of sight was an unfortunate but known consequence of Kurzner's stormy course with the fungal infection, but that this only began after he was no longer being treated by Dr. Sanders.

The case was submitted to the jury, along with special interrogatories. The jury found Dr. Sanders not negligent and a general verdict was entered for the doctor and his professional corporation.

In his first assignment of error, plaintiff argues that the trial court erred in submitting the issue of clinical judgment to the jury. We agree.

The issue of clinical judgment was submitted to the jury in two ways. It formed a part of the court's general charge as follows:

"An error in judgment alone would not constitute negligence as long as [the doctor] exerted a reasonable standard of care and prudence as an ophthalmologist in a reasonable management of plaintiff Dennis Kurzner's condition. He is not liable for what is commonly called an honest error or mistake in judgment unless there is negligence or a departure from the standard of care."

Clinical judgment was also the subject of the first interrogatory submitted to the jury, which read, "Did you find by the preponderance of the evidence that defendant Lester W. Sanders III, M.D. was exercising clinical judgment relative to the use of steroids in the care and treatment of plaintiff, Dennis Kurzner?" The jury answered yes to this question. We hold that this interrogatory, along with the challenged portion of the jury instruction, had no place in this trial.

In presenting the issue for review, plaintiff argues that where the evidence fails to show that there is more than one appropriate standard of treatment for the condition he had, it is error to submit the issue of clinical judgment to the jury and to allow the jury to find for the defendant on that basis alone. However, that is not the basis on which we find error in the jury instruction.

Additionally, contrary to plaintiff's position, we believe the court's charge on different methods, different schools of thought and bad result essentially followed Ohio Jury Instructions and was proper.

Before we get to a complete analysis of why we hold both the instruction given on mistake in judgment and the attendant interrogatory to be error, we will dispose of the discussion in plaintiff's brief about the "professional judgment" rule. To prove a malpractice case, it is by now axiomatic that the plaintiff must put on expert testimony to show that the doctor who the plaintiff believes committed malpractice fell below the standard of care of like practitioners under the same or similar circumstances. This test was set forth in the landmark case in Ohio of Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673, and it is still the test today. The "professional judgment" rule is something entirely different. We agree with the defendant that it is wholly inapposite to our analysis of the instant case. The "professional judgment" rule arose in the context of a psychiatric malpractice case discussing predictability of future violent behavior. Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 529 N.E.2d 449. The "professional judgment" rule does not displace the manner of proving malpractice as set forth in Bruni, supra, and is only to be applied in those rare situations where the standard of care cannot be determined. Jenks v. West Carrollton (1989), 58 Ohio App.3d 33, 567 N.E.2d 1338. In this case of alleged ophthalmologic malpractice, the standard of care can clearly be established, and the "professional judgment" rule simply does not apply.

We do not believe the trial court charged on the "professional judgment" rule at all. Rather we believe the court impermissibly discussed the issue of judgment in a different manner.

In his brief, the defendant makes the interesting remark that the concept of "clinical judgment" is one that Ohio law recognizes and allows to be charged on in medical malpractice cases. He cites no authority for this assertion, which we believe to be entirely erroneous. In both cases cited by the defendant in his discussion about clinical judgment, the courts specifically disapproved the use of the word "judgment" in a jury instruction. See Chupka v. Rigsby (1991), 75 Ohio App.3d 795, 600 N.E.2d 832; Yeager v. Riverside Methodist Hosp. (1985), 24 Ohio App.3d 54, 55, 24 OBR 107, 108, 493 N.E.2d 559, 561. Yeager in particular states that what is wrong with the word "judgment" in an instruction is that it interposes subjectivity into standards which are supposed to be objective. Indeed, the dissenting judge in Yeager noted, "[b]ecause the word 'judgment' connotes subjectivity, trial courts should entertain its use in charges of this nature with great reluctance and skepticism." Yeager, supra, at 58, 24 OBR at 112, 493 N.E.2d at 564. In both cases, however, these courts found the instructions to be harmless and nonprejudicial because the totality of the charge, which must be examined fully to determine properly whether an error within the charge is prejudicial or harmless, did discuss the objective and appropriate standard of care.

We certainly agree that the law requires us to look at the totality of the jury charge in determining whether a portion of it is harmless or prejudicial. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 24 O.O.3d 316, 436 N.E.2d 1001; State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772, paragraph four of the syllabus.

However, in doing so in this case we find the jury instruction on "honest error or mistake in judgment" to be prejudicially erroneous. As stated by the Supreme Court in Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 560 N.E.2d 165, "a reviewing court must determine whether the jury charge probably misled the jury in a matter materially affecting the complaining party's substantial rights." Id. at 208, 560 N.E.2d at 171. This jury instruction was wrong because it changed the standard of care from an objective...