Longbottom v. Clermont

• Decision Date: 14 May 2012
• Docket Number: CA2011–01–006.,Nos. CA2011–01–005,s. CA2011–01–005
• Citation: Longbottom v. Clermont, 971 N.E.2d 379, 2012 -Ohio- 2148 (Ohio App. 2012)
• Parties: Kristi LONGBOTTOM, et al., Individually and as Natural Guardians of Kyle Jacob Smith, Appellees/Cross–Appellants, v. MERCY HOSPITAL CLERMONT, et al., Appellants/Cross–Appellees.
• Court: Ohio Court of Appeals

971 N.E.2d 379

2012 -Ohio- 2148

Kristi LONGBOTTOM, et al., Individually and as Natural Guardians of Kyle Jacob Smith, Appellees/Cross–Appellants,

v.MERCY HOSPITAL CLERMONT, et al., Appellants/Cross–Appellees.

Nos. CA2011–01–005, CA2011–01–006.

Court of Appeals of Ohio, Twelfth District, Clermont County.

May 14, 2012.

The Lawrence Firm, P.S.C., Richard D. Lawrence, Jennifer L. Lawrence, Covington, for appellees/cross-appellants.

Reminger Co., L.P.A., Michael Romanello, Melvin J. Davis, Columbus, OH, for appellants/cross-appellees, Gary S. Huber, D.O. and Qualified Emergency Specialists, Inc.

Lindhorst & Dreidame Co., L.P.A., Michael F. Lyon, Bradley D. McPeek, Cincinnati, OH, for appellants/cross-appellees, Gary S. Huber, D.O. and Qualified Emergency Specialists, Inc.

HENDRICKSON, P.J.

{¶ 1} Appellants/cross-appellees, Gary Steven Huber, D.O. and Qualified Emergency Specialists, Inc., appeal from a judgment of the Clermont County Court of Common Pleas awarding $2,743,673.66 in damages and prejudgment interest to appellees/cross-appellants, Kyle Jacob Smith and his parents, Kristi Longbottom and Jesse Smith, on their claims for medical malpractice and loss of consortium. Dr. Huber and QESI argue the trial court erred by, among other things, overruling their motion for judgment notwithstanding the verdict or, alternatively, for a new trial, because Kyle and his parents presented no evidence to establish a causal link between Dr. Huber's alleged negligence and Kyle's injuries. Kyle and his parents argue on cross-appeal that the trial court erred by refusing to award them prejudgment interest for the period in which they voluntarily dismissed their action under Civ.R. 41(A) and then refiled it less than one year later, and by refusing to instruct the jury on the emotional distress claim brought by Kyle's parents.

{¶ 2} For the reasons that follow, we overrule all of Dr. Huber and QESI's assignments of error, as well as Kyle and his parents' second cross-assignment of error regarding the emotional distress claim of Kyle's parents. However, we sustain Kyle and his parents' first cross-assignment of error, because the trial court erred in refusing to grant them prejudgment interest from the date they voluntarily dismissed their malpractice action to the date they re-filed it less than one year later. Therefore, we remand this cause to the trial court for the limited purpose of awarding prejudgment interest to Kyle and his parents for that period.

{¶ 3} On March 22, 2002, Kyle Smith, who was then nine years old, was playing a game with two other children at the home of a family friend. The children were holding hands and spinning around to see who would fall first. Kyle fell and hit the left side of his head against a coffee table. Jesse Smith was in the next room and heard Kyle hit the coffee table so hard that he could hear the glass in the table rattle. Smith took Kyle home and told Longbottom what had happened. After Kyle vomited and began to experience jaw pain, his parents took him to the emergency room at Mercy Hospital Clermont.

{¶ 4} While they were waiting to see a physician, an emergency room nurse, Diane Kruse, R.N., gave Kyle's parents a pamphlet on head injury that stated any head injury should be considered serious, irrespective of whether the person was rendered unconscious thereby, and that it was most important that the injured person be watched closely for the first 24 hours following the injury. The pamphlet stated that a responsible person must stay in the room with the patient and watch for a list of symptoms, including whether the patient is mentally confused, cannot be awakened from sleep, is unusually drowsy or vomits persistently, or the patient's pupils are of unequal size. The pamphlet further stated that if the patient cannot be awakened, then the person watching the patient was to call 911 and have the patient returned to the emergency room. Nurse Kruse later testified that it was her usual practice to explain the pamphlet to the parents of a child who suffered a head injury but to defer to the physician the final determination as to whether the instructions in the pamphlet were indicated for any given patient.

{¶ 5} Kyle was seen by Dr. Huber, who performed a neurological exam on Kyle and found the results to be normal. He sutured the wound on Kyle's ear, gave him some medicine to prevent infection, and discharged him. He chose not to order a CT scan for Kyle because he did not believe one was necessary. Kyle's parents later testified that Dr. Huber told them that they did not need to worry about the instructions in the head injury pamphlet because Kyle's head injury was “not typical” and that they should just let him “sleep it off.” Dr. Huber disputed this, testifying that his standard practice was to tell the parents of patients like Kyle to follow the instructions in the head injury pamphlet and that he had done so on this occasion.

{¶ 6} Kyle and his parents returned home from the emergency room sometime around midnight. Kyle threw up just a little bit, gagged a few times, and had the dry heaves. Longbottom made a bed for Kyle on the couch so that she could sleep next to him. Kyle went to sleep around 12:20 a.m. Longbottom heard Kyle talking in his sleep at about 2:00 a.m. and then fell asleep herself around 2:00 a.m. or 2:30 a.m. Around 5:00 a.m., Longbottom awoke and noticed that Kyle had vomited, and that he was choking and gasping for air. Longbottom screamed for Smith, who called 911. Just before the police and ambulance arrived, Smith told the 911 dispatcher that when he and Longbottom had asked Dr. Huber at the emergency room if they should wake Kyle every two hours, Dr. Huber told them “no, it won't be a problem.”

{¶ 7} Kyle was air-cared to Cincinnati Children's Hospital. Upon his arrival, he was found to be near death. A CT scan of his head revealed a massive epidural hematoma causing a midline shift of his brain and brain herniation. Dr. Kerry Crone performed emergency surgery on Kyle to remove the hematoma. Dr. Crone told Kyle's parents that he was not sure if Kyle would live. After spending several days in the hospital's ICU, Kyle survived. He then spent several weeks in the hospital relearning such tasks as swallowing, eating, communicating and walking. As a result of the incident, Kyle sustained permanent injury to his brain and now walks with an altered gait.

{¶ 8} In 2003, Kyle and his parents filed a medical malpractice complaint against Dr. Huber and his employer, QESI, and Mercy Hospital. In 2007, Kyle and his parents voluntarily dismissed their action but refiled it less than one year later in 2008. Prior to trial, Kyle and his parents settled their claims against Mercy Hospital.

{¶ 9} The matter was tried to a jury over nine days in 2010. Kyle and his parents argued that Dr. Huber was negligent in failing to order a CT scan for Kyle when his parents brought him to the emergency room at Mercy Hospital and that this failure proximately caused Kyle's injuries. Both sides presented expert testimony in support of their respective positions on this issue. Another issue raised at trial was whether Dr. Huber advised Kyle's parents to follow the instructions in the head injury pamphlet, with Kyle's parents and Dr. Huber providing conflicting testimony on the matter as set forth above. Dr. Huber acknowledged during his testimony that if he actually did tell Kyle's parents that they did not need to follow the instructions in the head injury pamphlet—an assertion that Dr. Huber denied—then such advice would have fallen below the standard of care.

{¶ 10} The jury returned a verdict in favor of Kyle and his parents for $2,412,899 after finding that Dr. Huber had been negligent in the care and treatment of Kyle and that Dr. Huber's negligence directly and proximately caused Kyle's injuries. In response to an interrogatory asking them to state in what respects Dr. Huber was negligent, the jury answered, “Based on the evidence, we believe, Dr. Gary S. Huber did not instruct the parents about the possibility of significant head injury or how to observe and monitor Kyle for such injuries.” QESI was found liable to Kyle and his parents under a theory of respondeat superior.

{¶ 11} The trial court overruled Dr. Huber and QESI's motion for judgment notwithstanding the verdict or, alternatively, for a new trial. The trial court reduced the jury's award to Kyle and his parents by the $500,000 they received from their settlement with Mercy Hospital and awarded them prejudgment interest of $830,774.66, giving them with a total award of $2,743,673.66.

{¶ 12} Dr. Huber and QESI now appeal, assigning the following as error:

{¶ 13} Assignment of Error No. 1:

{¶ 14} THE TRIAL COURT ERRED IN DENYING DR. HUBER'S MOTION FOR JNOV, OR IN THE ALTERNATIVE, FOR A NEW TRIAL, BECAUSE THERE WAS NO EVIDENCE TO ESTABLISH A CAUSAL LINK BETWEEN DR. HUBER'S ALLEGED NEGLIGENCE AND KYLE SMITH'S INJURIES.

{¶ 15} Assignment of Error No. 2:

{¶ 16} THE TRIAL COURT ERRED BY GRANTING APPELLEES' MOTION FOR PREJUDGMENT INTEREST.

{¶ 17} Assignment of Error No. 3:

{¶ 18} THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO APPLY THE CURRENT VERSION OF THE PREJUDGMENT INTEREST STATUTE THAT WAS EFFECTIVE AT THE TIME THE JURY RENDERED ITS VERDICT.

{¶ 19} Kyle and his parents cross-appeal, assigning the following as error:

{¶ 20} Cross-assignment of Error No 1:

{¶ 21} THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO GRANT PREJUDGMENT INTEREST DURING THE TIME PERIOD THAT THE CASE WAS DISMISSED PURSUANT TO CIVIL RULE 41(A).

{¶ 22} Cross-assignment of Error No. 2:

{¶ 23} THE TRIAL COURT ERRED IN FAILING TO GIVE A JURY INSTRUCTION AND INTERROGATORY ON THE EMOTIONAL DISTRESS CLAIMS OF KYLE SMITH'S PARENTS.

{¶ 24} In their first assignment of error, Dr. Huber and QESI argue the trial court erred in overruling their motion for JNOV or, alternatively, for a new trial, because there was no evidence to...