McDermott v. Tweel

• Decision Date: 27 February 2003
• Docket Number: No. 02AP-784.,02AP-784.
• Citation: McDermott v. Tweel, 151 Ohio App.3d 763, 786 N.E.2d 67, 2003 Ohio 885 (Ohio App. 2003)
• Parties: McDERMOTT, Exr., Appellant and Cross-Appellee, v. TWEEL, Appellee and Cross-Appellant; VerMeulen, Appellee.
• Court: Ohio Court of Appeals

Page 67

786 N.E.2d 67

151 Ohio App.3d 763

2003 Ohio 885

McDERMOTT, Exr., Appellant and Cross-Appellee, v.TWEEL, Appellee and Cross-Appellant; VerMeulen, Appellee.

No. 02AP-784.

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

Decided February 27, 2003.

COPYRIGHT MATERIAL OMITTED

Jack E. McCormick, Columbus, Leigh-Ann M. Sims and Nicole D. McCormick, for appellant.

Hanna, Campbell & Powell and James M. Lyons, Painesville, for appelleeCharles Tweel, M.D.

Reminger & Reminger and Elisabeth Gentile, Columbus, for appelleeVictor VerMeulen, M.D.

JOHN W. McCORMAC, Judge.

{¶ 1}Plaintiff-appellant, Ruth A. McDermott, as the executor of the estate of her late husband, Joseph R. McDermott("decedent"), appeals from awards of summary judgment granted by the Franklin County Court of Common Pleas in favor of defendants-appellees, Charles Tweel, M.D., and Victor VerMeulen, M.D.Dr. Tweel cross-appeals from the trial court's denial of his motion for partial summary judgment.

{¶ 2} In October 1996, decedent presented to his long-time family physician, Dr. Tweel, complaining of a sore throat and hoarseness.Dr. Tweel observed that decedent had some inflammation of his right vocal chord and prescribed an antihistamine.Decedent saw Dr. Tweel again for hoarseness in May, July, and August 1997.Following the August visit, Dr. Tweel referred decedent to Dr. VerMeulen, an otorhinolaryngolgist, or "ENT."

{¶ 3} Dr. VerMeulen first saw decedent in August 1997, and immediately diagnosed stage one cancer of the larynx.On Dr. VerMeulen's recommendation, decedent underwent a series of radiation treatments for his cancer from August 13, 1997, through November 7, 1997.Thereafter, decedent saw Dr. VerMeulen for post-radiation followup visits in November 1997 and January 1998.At both of these visits, Dr. VerMeulen indicated that the radiation therapy had been successful and that decedent was cancer-free.Dr. VerMeulen did not see decedent again until March 1999, when decedent presented with continuing hoarseness and a weak voice.As a result of this visit, it was discovered that decedent's cancer had recurred.In July 1999, decedent underwent a complete laryngectomy, followed up by radiation treatment.By this time, however, decedent's cancer had become aggressive and the treatment proved unsuccessful.Ultimately, the cancer caused decedent's death on November 15, 1999.

{¶ 4} On December 3, 1999, plaintiff filed a complaint containing wrongfuldeath and survivorship claims in the Franklin County Court of Common Pleas.Plaintiffs complaint alleged that Dr. Tweel had committed medical malpractice by failing to refer decedent to an ENT when he first complained of hoarseness in October 1996.On February 29, 2000, plaintiff's cocounsel interviewed Dr. VerMeulen at his office regarding decedent's treatment by Dr. Tweel.On October 5, 2000, plaintiff filed an amended complaint adding Dr. VerMeulen as a defendant and alleging that Dr. VerMeulen committed malpractice by failing to provide decedent with proper followup care after his first series of radiation treatments.

{¶ 5} On June 26, 2001, plaintiff filed a motion requesting leave to file a second amended complaint adding Lori R. Davis, an employee of Dr. VerMeulen's office, as a party and adding a claim for fraud, alleging that certain medical and billing records provided by Dr. VerMeulen during discovery had been altered.The trial court denied plaintiff's motion for leave to amend on September 21, 2001.

{¶ 6} On July 23, 2001, Dr. Tweel filed a motion in limine seeking to exclude the testimony of plaintiff's counsel regarding their February 29, 2000 interview of Dr. VerMeulen.On August 13, 2001, Dr. Tweel filed a motion for partial summary judgment arguing that plaintiff's survivorship claim against him was time-barred for having been filed outside the applicable statute of limitations.On August 14, 2001, plaintiff filed a memorandum contra Dr. Tweel's motion for partial summary judgment in which he argued that Dr. Tweel's statute of limitations argument was "wholly frivolous" and requested that the trial court impose sanctions against Dr. Tweel, pursuant to R.C. 2323.51andCiv.R. 11, in the amount of $300,000.On November 15, 2001, the trial court issued a decision granting Dr. Tweel's motions in limine and for partial summary judgment and denying plaintiff's request for sanctions.

{¶ 7} On November 13, 2001, Dr. VerMeulen filed a motion seeking a continuance of the trial, then scheduled for December 3, 2001, on the grounds that complications with his lead counsel's pregnancy would make it impossible for her to participate in a December trial.On November 16, 2001, plaintiff filed a motion requesting that the trial court reconsider its decision granting Dr. Tweel summary judgment on plaintiff's survivorship claim.By an entry dated November 21, 2001, the trial court granted Dr. VerMeulen's request for a continuance and rescheduled the trial for March 25, 2002.On March 19, 2002, the trial court issued a decision granting plaintiff's motion to reconsider its grant of partial summary judgment for Dr. Tweel.

{¶ 8} When the parties appeared for trial on March 25, 2002, they were referred to a visiting judge, as the original trial judge was engaged in matters related to his criminal docket.However, when plaintiff informed the visiting judge that he thought that the trial would last two weeks, the visiting judge informed the parties that he would be unable to try the case, as he was scheduled to sit for only one week.Thereafter, plaintiff's counsel left the courthouse.According to an April 10, 2002 entry prepared by the trial court, since the case now reverted back to the original judge, counsel for the defense appeared before him late in the afternoon of March 25, 2002, to seek directions regarding how to proceed given the visiting judge's inability to try the case.The trial court's entry indicates that defense counsel was told that the court would reschedule the trial for July 1, 2002, although it would be willing to move the trial date again if July 1, 2002, was unacceptable to plaintiff.In addition, the trial court extended the cutoff date for all motions to May 3, 2002.

{¶ 9} On April 24, 2002, plaintiff filed a motion for partial summary judgment on the issue of liability pertaining to her claims against Dr. Tweel.On April 26, and May 3, 2002, respectively, Drs. Tweel and VerMeulen moved for summary judgment on plaintiff's claims against them.On June 28, 2002, the trial court issued a decision denying plaintiff's motion for partial summary judgment but granting Drs. Tweel's and VerMeulen's motions for summary judgment.The trial court subsequently filed a judgment entry granting final judgment to Drs. Tweel and VerMeulen, and dismissing plaintiff's complaint for the reasons set forth in its June 28, 2002 decision.Plaintiff appeals from the trial court's decision and entry assigning the following errors:

{¶ 10} "1.The lower court's ex parte meeting with the defendant-appellees attorneys on March 25, 2002 was improper, causing prejudice to the plaintiff-appellant.

{¶ 11} "2.The lower court's ruling of September 20, 2001, overruling plaintiff's motion to amend its pleadings instanter was an abuse of discretion.

{¶ 12} "3.The lower court's decision entry sustaining the defendant-appellee's motion to exclude evidence rendered November 15, 2001, is contrary to law.

{¶ 13} "4.The lower court's granting of the defendant-appellee VerMeulen's motion for a continuance on November 16, 2001, was an abuse of discretion and prejudicial to the plaintiff-appellant.

{¶ 14} "5.The lower court's sustaining the defendant-appelleeCharles Tweel's motion for summary judgment on June 28, 2002, was contrary to law.

{¶ 15} "6.The lower court's ruling of June 28, 2002, sustaining defendant-appellee VerMeulen's motion for summary judgment was contrary to law.

{¶ 16} "7.The lower court's overruling of the plaintiff-appellant's motion for partial summary judgment against defendant-appellee Tweel was contrary to law.

{¶ 17}"8.The lower court's overruling of sanctions against the defendant-appellee Tweel's attorney was an abuse of discretion."

{¶ 18} Dr. Tweel cross-appeals from the trial court's decision and entry assigning the following error:

{¶ 19}"Whether the trial court's March 19, 2002 judgment overruling appellee Tweel's partial motion for summary judgment on the basis of the statute of limitations, which had previously been granted, was contrary to law."

{¶ 20} In her first assignment of error, plaintiff contends that the trial court's meeting with defense counsel on the afternoon of March 25, 2002, after the visiting judge informed counsel for all parties that he would not be able to try the case, was an improper and prejudicial ex parte communication in violation of Canon 3(B) of the Ohio Code of Judicial Conduct.Canon3(B) provides:

{¶ 21} "(7) A judge shall not initiate, receive, permit, or consider communications made to the judge outside the presence of the parties or their representatives concerning a pending or impending proceeding except:

{¶ 22}"(a)Where circumstances require, ex parte communications for scheduling, administrative purposes, or emergencies that do not address substantive matters or issues on the merits are permitted if the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication."(Emphasis added.)

{¶ 23} In the present case, the trial court's entry of April 10, 2002, plainly states that the only matters discussed during the ex parte meeting between it and defense counsel related to the scheduling of a new trial date and a cutoff date for the filing of motions.Further, the trial court explicitly indicated that it was willing to reschedule the trial date to accommodate plaintiff's schedule if necessary.Plaintiff does not suggest that substantive...