Miller v. Paulson

• Decision Date: 20 September 1994
• Docket Number: No. 93APE09-1285,93APE09-1285
• Citation: Miller v. Paulson, 97 Ohio App.3d 217, 646 N.E.2d 521 (Ohio App. 1994)
• Parties: MILLER, Appellant, v. PAULSON, Appellee.
• Court: Ohio Court of Appeals

Page 217

97 Ohio App.3d 217

646 N.E.2d 521

MILLER, Appellant, v.PAULSON, Appellee.

No. 93APE09-1285.

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

Decided Sept. 20, 1994.

Wolske & Blue, Walter J. Wolske, Jr., Michael S. Miller and Gerald S. Leeseberg, Columbus, for appellant.

Lane, Alton & Horst, Jack R. Alton and Theodore M. Munsell, Columbus, for appellee.

PEGGY L. BRYANT, Judge.

Plaintiff-appellant, Mary Kay Miller, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion of defendant-appellee, George W. Paulson, M.D., for judgment notwithstanding the verdict, and conditionally granting his motion for a new trial.

During the spring of 1979, plaintiff began experiencing dizzy spells and difficulty in closing her right eye.On November 9, 1979, plaintiff consulted defendant, a neurologist, regarding her symptoms.Following a neurological examination and CAT scan, defendant tentatively diagnosed plaintiff's condition as Bell's palsy.

Defendant examined plaintiff again on January 11, 1980, but found nothing which caused him to change his diagnosis.Plaintiff's symptoms continued to worsen, and on February 13, 1980, defendant admitted plaintiff to Riverside Methodist Hospital for a series of tests.All test results were normal and defendant discharged plaintiff from the hospital on February 18, 1980, "somewhat uncertain as to what [was] going on."(Letter from defendant to plaintiff's ophthalmologist, February 19, 1980.)Plaintiff's next appointment with defendant in April 1980 again failed to bring about any change in defendant's diagnosis or treatment of plaintiff.

Over the next year, plaintiff continued to experience intermittent dizzy spells, developed a twitch in the right corner of her mouth and lost all ability to close her right eye.On March 30, 1981, defendant again examined plaintiff.Following the examination, defendant wrote to plaintiff explaining that although her condition was "a bit more than a routine Bell's Palsy,"he did not think that any further tests were indicated at that time.

In early November 1981, plaintiff had her final scheduled appointment with defendant.Following the appointment, defendant wrote to plaintiff as follows:

" * * * I see nothing to make me think of a tumor or MS but I do think you could have some scar tissue forming around the facial nerve and I wonder, if in fact, surgical exploration of this area might not be desirable eventually."

Defendant did not pursue exploratory surgery and never referred plaintiff to a surgeon.

Plaintiff was examined by Dr. William Hunt, a neurosurgeon, on April 13, 1983.Following the examination, Dr. Hunt wrote to defendant, stating that "[t]he nature of onset and progression suggests a benign tumor."

On May 17, 1983, Dr. Mark May, a neurosurgeon practicing at the Eye and Ear Hospital of Pittsburgh, operated on plaintiff and removed a "tumor * * * from [plaintiff's] facial nerve."(Dr. May's postoperative report.)Dr. May, however, did not perform a nerve graft in an attempt to restore some function to plaintiff's right facial muscles; rather, following the surgery to remove the "tumor," Dr. May referred plaintiff to Dr. Daniel Baker, a plastic surgeon, who performed a series of operations intended to alleviate some of the disfiguring effects of plaintiff's facial paralysis.

On May 11, 1990, plaintiff brought a medical malpractice action against defendant in the Franklin County Court of Common Pleas, alleging that she had entered into a physician-patient relationship with defendant in 1979 which continued until May of 1983, that during the relationship defendant negligently had failed to diagnose the presence of a tumor on her seventh facial nerve, and that defendant's negligence had proximately caused her to suffer permanent paralysis of the right side of her face.

Beginning on April 5, 1993, a jury trial was held.On April 15, 1993, the jury returned a verdict for plaintiff in the amount of $800,000; the trial court journalized the verdict on April 29, 1993.On May 12, 1993, defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial.The trial court granted defendant's motion for judgment notwithstanding the verdict and conditionally granted defendant's motion for a new trial.

Plaintiff appeals, assigning the following errors:

"I.The trial court erred to the substantial prejudice of plaintiff-appellant in granting the motion of defendant-appellee for judgment notwithstanding the verdict on the basis of proximate cause, i.e., on the basis that the plaintiff-appellant failed to disprove that a subsequent treating physician did not negligently fail to remedy the harm which resulted from the negligence of the defendant-appellee.

"II.The trial court erred to the substantial prejudice of plaintiff-appellant in conditionally granting the motion of defendant-appellee for a new trial on the basis that the jury's finding that Mary Kay Miller had a tumor which the defendant-appellee negligently failed to diagnosis [sic ] was against the manifest weight of the evidence.

"III.In the event that this court reverses the judgment not withstanding [sic ] the verdict, but affirms the new trial on the basis that the jury's finding that Mary Kay Miller had a tumor which the defendant-appellee negligently failed to diagnosis [sic ] was against the manifest weight of the evidence, it should remand this case for a new trial only on the issue of whether Mary Kay Miller had a tumor, and not, for example, the issue of the amount of Mary Kay Miller's damages.

"IV.The trial court erred to the substantial prejudice of the plaintiff-appellant in excluding the testimony of Dr. Cox.

"V.The trial court erred to the substantial prejudice of plaintiff-appellant in refusing to admit into evidence Dr. May's letter dated May 2, 1983, to Dr. Charles."¹

In her first assignment of error, plaintiff challenges the trial court's conclusion that she presented no material evidence on the issue of proximate cause and asserts that the trial court thus improperly granted judgment notwithstanding the verdict for defendant.In addressing this issue, we note that defendant does not appeal the verdict concerning the standard of care or his breach of that standard.Thus, for purposes of this appeal, defendant's negligence is established.The issue to be resolved surrounds only proximate cause.

In considering a motion for judgment notwithstanding the verdict under Civ.R. 50(B), a trial court"must assume the truth of the plaintiffs' evidence as shown by the record, grant such evidence its most favorable interpretation, and consider as established every material fact which the evidence tends to prove."McComis v. Baker(1974), 40 Ohio App.2d 332, 335, 69 O.O.2d 304, 305, 319 N.E.2d 391, 393." 'Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination' " in ruling upon such a motion.Nickell v. Gonzalez(1985), 17 Ohio St.3d 136, 137, 17 OBR 281, 282, 477 N.E.2d 1145, 1147.Further, proximate cause ordinarily is a question of fact to be determined by the jury; thus, a reviewing court should not set aside the verdict unless it is against the manifest weight of the evidence.Poske v. Mergl(1959), 169 Ohio St. 70, 8 O.O.2d 36, 157 N.E.2d 344.A verdict is not against the manifest weight of the evidence if it is supported by competent, credible evidence.See, e.g., C.E. Morris Co. v. Foley Constr. Co.(1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578.

In granting defendant's motion for judgment notwithstanding the verdict, the trial court framed the causation issue as "whether the delay in diagnosis of the tumor somehow prevented Dr. May from performing the nerve graft."²Finding that the record contained no evidence indicating why Dr. May did not perform a nerve graft in 1983, the trial court concluded that plaintiff had failed to present sufficient evidence to send the issue of proximate cause to the jury.

In a medical malpractice action premised on a failure to properly diagnose or treat a medical condition which results in a patient's death, the proper standard of proof on the issue of causation is whether with proper diagnosis and treatment the patient probably would have survived."Probably" is defined as "more likely than not" or a greater than fifty percent chance.Cooper v. Sisters of Charity of Cincinnati, Inc.(1971), 27 Ohio St.2d 242, 253-254, 56 O.O.2d 146, 152, 272 N.E.2d 97, 104-105;Taylor v. C. Lawrence Decker, M.D., Inc.(1986), 33 Ohio App.3d 118, 120, 514 N.E.2d 754, 756.The same standard of proof applies to malpractice cases, such as the present case, which allege that a failure to diagnose or treat a medical condition caused a permanent or irreversible injury other than death.Schwimmer v. Bowsher (Feb. 25, 1993), Franklin App.No. 92AP-1140, unreported, 1993 WL 51173;see, also, Shapiro v. Burkons(1978), 62 Ohio App.2d 73, 16 O.O.3d 175, 404 N.E.2d 778.

Further, plaintiff was not required to present evidence fixing the precise time of the last chance to successfully diagnose and treat her condition.Instead, she was required to prove simply that the time of last chance had passed, i.e., that the opportunity to achieve the results obtainable at the time of defendant's negligence no longer existed.In cases involving death, the evidence is clear that the time of last chance has passed, as the injured party has died.Cooper, supra;Wells v. Miami Valley Hosp.(1993), 90 Ohio App.3d 840, 631 N.E.2d 642.However, in a failure-to-diagnose case involving a nonfatal injury, such as the instant case, a plaintiff must show through expert testimony that the last chance to treat the condition with the same possibility and degree of success as was probable at the time of the alleged malpractice has passed at the time of trial.Stated differently, given the evidence in this case, plainti...