Lambert v. Shearer

• Citation: 84 Ohio App.3d 266,616 N.E.2d 965
• Decision Date: 15 December 1992
• Docket Number: No. 91AP-1391,91AP-1391
• Parties: LAMBERT, ADMR., Appellee, v. SHEARER, Appellant; Beechwold Medical Center et al., Appellees.
• Court: United States Court of Appeals (Ohio)

Page 266

84 Ohio App.3d 266

616 N.E.2d 965

LAMBERT, ADMR., Appellee, v. SHEARER, Appellant;

Beechwold Medical Center et al., Appellees.

No. 91AP-1391.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Dec. 15, 1992.

Wolske & Blue and Gerald S. Leeseberg and Michael S. Miller, Columbus, for appellee Nancy Lambert.

Isaac, Brant, Ledman & Becker, Charles E. Brant and Donald L. Anspaugh, Columbus, for appellant.

PETREE, Judge.

Defendant, Earnest Shearer, D.O., appeals from the Franklin County Court of Common Pleas, where a jury assessed $2.4 million in damages against him in this In 1988, Wayne Lambert's continued flu and cough symptoms prevented him from running his family restaurant in Urbana, Ohio, and he therefore sought medical attention. At the time, he had no personal physician and rarely went to any doctor because he had been a healthy forty-eight-year-old man. Since he ran the restaurant himself, he always tried to take care of himself, but he never could end his lifelong habit of smoking up to three packs of cigarettes per day.

medical malpractice action. Since we find that the trial court committed various prejudicial errors, we must reverse.

Lambert's illness prompted him to call Dr. Karl Lee, an Urbana osteopath and former restaurant patron. When Lambert visited Dr. Lee, he presented with symptoms of fever, nausea, diarrhea, and coughing. At this first visit, the doctor examined him, prescribed some antibiotics, and had a chest X-ray done on January 21, 1988. But Lambert's condition worsened. He saw Dr. Lee again and the doctor ordered another chest X-ray, which was done on February 1, 1988. Dr. Lee habitually read his own X-rays instead of waiting for a radiologist to do so. He originally diagnosed Legionnaire's disease but later changed this to acute pneumonia. Since Lambert's condition and his lung congestion did not improve under Dr. Lee's care, he decided to seek a second opinion.

At the suggestion of family friend Mable Ray, Lambert paid a visit to defendant, who treated Mable's deceased husband George at the Beechwold Medical Clinic in Columbus, Ohio. Defendant is an osteopath who uses "homeopathic," or natural healing methods, in his practice. ¹ His homeopathic treatments include manipulative therapy, much like that employed by an ordinary chiropractor. Further, they include the use of various nutritional supplements in lieu of prescription drugs. They also include a host of what are popularly called "alternative" or nontraditional medical methods. ²

When he first met defendant, Lambert was awed by the doctor's appearance and manner. Defendant is an elderly, distinguished-looking gentleman. The doctor then gave Lambert an extensive and exhausting tour through the clinic, which is located in a converted house. The clinic is not listed in the yellow pages of the telephone book, as defendant does not advertise. Lambert, who had little Lambert was so impressed that he continued coming to defendant for weekly medical care from February 1988 through November 1988. Despite defendant's assertions during trial that he only does treatments and not diagnoses, he admitted that he diagnosed Lambert's ailments on numerous occasions. Indeed, the barebones medical records he kept show this. For instance, he told Lambert that he had amoebic dysentery, a parasitic bowel disease. He also diagnosed him as having influenza and pneumonia. Then, on March 12, 1988, he diagnosed something called "paratyphoid" fever. Defendant likewise noted on his charts that Lambert had "cabin fever." On April 14, 1988, he said Lambert's problem was "occlusive peripheral arterial disease," or, in other words, hardening of the arteries. On June 23, 1988, defendant made a diagnosis of emphysema.

experience with medical facilities, felt that some of the clinic's equipment looked old and homemade. But he nevertheless trusted defendant because he appeared to be an experienced, "impressive" man. Several other doctors practiced with him at the clinic. Defendant never said to Lambert that he limited his practice to supplemental treatments.

In addition, defendant plainly performed diagnostic procedures. For instance, defendant gave Lambert an AIDS test because he claimed that Lambert came in and intimated that he had AIDS. He also checked Lambert's "heart circulation" on some electrical device called a "Heartometer." Aside from ordering a urinalysis, he further had a staff chiropractor examine Lambert's blood under a "dark field" microscope to examine its "condition." Defendant admitted that the dark field microscope is used to diagnose acute syphilis and that he once informed Lambert that he suffered from gonorrhea. Defendant said that tests from England showed a mild strain of gonorrhea that Lambert somehow "inherited" from his grandparents.

For some reason, defendant sent samples of Lambert's blood to England where a Dr. Upton supposedly examined it. Defendant had met this Dr. Upton on one occasion thirty years ago while studying in England for several weeks. Defendant said that now Dr. Upton is an elderly, nonpracticing homeopath whom he occasionally asks to do some sort of homeopathic tests that can not be done in the United States. Defendant says he gets the desired results from England. He claimed that some of the diagnoses made in this case were not actually his, but were really Dr. Upton's conclusions. Needless to say, he did not produce Dr. Upton as a witness at trial.

During the nine months of this type of diagnosis and care, Wayne Lambert's cough and lung problems got progressively worse. Consequently, Lambert became progressively dissatisfied and eventually left defendant's care in November 1988. On that very day, defendant saw a medical doctor, who immediately diagnosed him as having advanced lung cancer.

Because Lambert had gone for months without a diagnosis of cancer, he had to have one lung surgically removed. But even this treatment came too late. The cancer had spread and he became terminally ill. His posthumous video deposition testimony revealed a thin man, occasionally gasping for air and repeatedly grabbing his chest because of the pain.

Lambert lived like this for two years after his surgery. He became weaker and weaker as his cancer-riddled lung struggled to breathe. Eventually, Lambert ended up in the hospital and essentially smothered to death because of the cancerous lung. He was survived by his wife, Nancy Lambert, and his adult-aged children.

The instant wrongful death and survivorship suit was commenced and tried before a jury. ³ The plaintiff's case consisted of questioning defendant about his misdiagnosis, Lambert's posthumous video testimony, expert testimony from a radiologist and an oncologist, and testimony from Lambert's wife, who related to the jury the damages suffered on account of defendant's malpractice. Defendant did not present any medical expert in defense of his actions.

The trial court directed a verdict in plaintiff's favor on all issues except damages. The jury then awarded $2.4 million on a general verdict form. Defendant timely appealed. ⁴

I. Punitive Damages

Defendant's first and second assignments of error contend that plaintiff improperly influenced the jury's assessment of damages by arguing an unpleaded claim for punitive damages and that the trial judge should have cautioned the jury about awarding such damages.

Punitive damages need not be specially pleaded or claimed. Brookridge Party Ctr., Inc. v. Fisher Foods, Inc. (1983), 12 Ohio App.3d 130, 12 OBR 451, 468 N.E.2d 63. See, generally, Ghiardi & Kircher, Punitive Damages: Law and Practice (1992) 16, Section 9.02. If a jury's award of punitive damages does not exceed the amount of a plaintiff's general demand under Civ.R. 54(C), then such damages are recoverable so long as the evidence presented, in accordance with plaintiff's claims, warrants their allowance. Id., 12 Ohio App.3d at 131, 12 OBR at 452, 468 N.E.2d at 65; Steinbeck v. Philip Stenger Sons (1975), 46 Ohio App.2d 22, 75 O.O.2d 25, 345 N.E.2d 633. See, also, Mers v. Dispatch Printing Co. (1988), 39 Ohio App.3d 99, 529 N.E.2d 958, and Cincinnati Art Galleries v. Fatzie Here, plaintiff's complaint did not mention punitive damages, but instead requested compensatory damages based on defendant's "professional negligence." Plaintiff later filed her "Statement of Damages," specifying general and special damages of $3 million. Just before trial, plaintiff sent a letter to defense counsel indicating an intent to claim punitive damages. Before any proceedings began, however, defense counsel informed the court that plaintiff had failed to amend the complaint to bring punitive damages into issue. The court noted the objection and asked plaintiff's counsel if he was willing to take the risk and go ahead and present the unpleaded issue. Plaintiff's counsel agreed to take that risk. ⁶

                1990), 70 Ohio App.3d 696, 591 N.E.2d 1336.   Of course, plaintiff must claim facts from which the essential element of "actual malice" 5 may be inferred.  Columbus Finance Co. v. Howard (1975), 42 Ohio St.2d 178, 183, 71 O.O.2d 174, 176, 327 N.E.2d 654, 658;  Convention Ctr. Inn, Ltd. v. Dow Chem.  Co. (1984), 19 Ohio Misc.2d 15, 19 OBR 422, 484 N.E.2d 764.   Cf. Studier v. Taliak (1991), 74 Ohio App.3d 512, 599 N.E.2d 718
                

Thereafter, during voir dire, plaintiff's counsel repeatedly questioned potential jurors about their willingness to award punitive damages. Further, during opening statements, plaintiff's counsel referred to the necessity of punitive damages herein. Defense counsel objected, refusing to consent to trying the issue. Believing it was unnecessary, plaintiff never filed a motion to amend to allege facts supporting an award of punitive damages. The trial court ultimately did not instruct the jury on the issue of punitive damages.

We conclude that the trial court erred in allowing plaintiff to make statements concerning punitive damages...