Moskovitz v. Mt. Sinai Med. Ctr.

• Decision Date: 27 July 1994
• Docket Number: No. 93-278,93-278
• Citation: 69 Ohio St.3d 638,635 N.E.2d 331
• Parties: , 35 A.L.R.5th 841 MOSKOVITZ, Exr., et al., Appellants, v. MT. SINAI MEDICAL CENTER et al.; Figgie et al., Appellees.
• Court: Ohio Supreme Court

Page 638

69 Ohio St.3d 638

635 N.E.2d 331, 35 A.L.R.5th 841

MOSKOVITZ, Exr., et al., Appellants, v. MT. SINAI MEDICAL CENTER et al.; Figgie et al., Appellees.

No. 93-278.

Supreme Court of Ohio.

Submitted March 2, 1994.

Decided July 27, 1994.

SYLLABUS BY THE COURT

1. In a case involving medical malpractice where liability is determined and compensatory damages are awarded, punitive damages pled in connection with the claim for malpractice may be awarded upon a showing of "actual malice" as that term is defined in the syllabus of Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174. An intentional alteration, falsification or destruction of medical records by a doctor, to avoid liability for his or her medical negligence, is sufficient to show actual malice, and punitive damages may be awarded whether or not the act of altering, falsifying or destroying records directly causes compensable harm.

2. In prejudgment interest determinations pursuant to R.C. 1343.03(C), the phrase "failed to make a good faith effort to settle" does not mean the same as "bad faith." (Kalain v. Smith [1986], 25 Ohio St.3d 157, 25 OBR 201, 495 N.E.2d 572, followed; Villella v. Waikem Motors, Inc. [1989], 45 Ohio St.3d 36, 543 N.E.2d 464, modified.)

3. In an R.C. 1343.03(C) proceeding for prejudgment interest, neither the attorney-client privilege nor the so-called work product exception precludes discovery of the contents of an insurer's claims file. The only privileged matters contained in the file are those that go directly to the theory of defense of the underlying case in which the decision or verdict has been rendered.

4. An order compelling or denying discovery in an R.C. 1343.03(C) proceeding for prejudgment interest does not meet the definition of "final order" set forth in R.C. 2505.02. Such an order does not determine the action or prevent a judgment, nor is it rendered in a special proceeding. Thus, an appeal from such an order must await final judgment in the prejudgment interest proceeding. (Bell v. Mt. Sinai Med. Ctr. [1993], 67 Ohio St.3d 60, 616 N.E.2d 181, modified.)

This is a case involving medical malpractice and the death of an elderly woman, Mrs. Margaret Moskovitz. The facts giving rise to this appeal involve the conduct of Dr. Harry E. Figgie III, appellee, who failed to timely diagnose and treat a malignant tumor on Moskovitz's left leg and altered certain records to conceal the fact that malpractice had occurred.

In 1978, Moskovitz was treated by Edward H. Gabelman, M.D., for a tumor on her left leg. The tumor was removed and found to be benign. In 1984, Gabelman completely and successfully removed a second mass from Moskovitz's left leg. This mass was found to be a low-grade malignant dermatofibrosarcoma protuberans. Gabelman performed the 1984 surgery at Mt. Sinai Medical Center ("Mt. Sinai").

In 1985, Moskovitz was referred to Dr. Figgie, an orthopedic surgeon, for treatment of a degenerative arthritic condition in her knees. Figgie was employed by University Orthopaedic Associates, Inc. ("University Orthopaedic"), and specialized in prosthetic joint replacements and degenerative diseases. In October 1985, Figgie performed surgery upon Moskovitz at University Hospitals of Cleveland ("University Hospitals"), replacing Moskovitz's knee joints with artificial knee joints. In May 1986, Moskovitz underwent additional knee surgery performed by Dr. Figgie. Between May and August 1986, Moskovitz visited Figgie's office on a number of occasions due to complications arising from the knee surgeries.

On October 2, 1986, Moskovitz visited Dr. Figgie's office, complaining of a lump on her leg. Figgie examined Moskovitz and detected "a small calcified lesion along the tendoAchilles." Figgie did not recommend a biopsy of the lesion and reassured Moskovitz that nothing was wrong. Figgie was aware that tumors had been removed from Moskovitz's left leg in 1978 and 1984.

On November 3, 1986, Moskovitz was admitted to University Hospitals for a right knee revision. Prior to surgery, Moskovitz was examined by Rick Magas, a registered nurse. Magas's written report of the examination, signed by Dr. Figgie, noted the existence of a firm nodule measuring one centimeter by one centimeter on Moskovitz's left Achilles tendon. Figgie performed the right knee revision on November 5, 1986. Following surgery, Moskovitz was examined on Figgie's behalf by Dr. G. Balourdas, a resident physician at University Hospitals. A discharge summary prepared by Balourdas (and signed by Figgie) noted the existence of a "[l]eft Achilles tendon mass, X 1 cm. nodule." The report indicated that the mass had been present for some time.

Moskovitz continued to see Dr. Figgie through November 1987. On November 10, 1987, Figgie finally removed the mass that had been growing on Moskovitz's left leg. ¹ On November 13, 1987, the tumor was found to be an epithelioid sarcoma, a rare form of malignant soft-tissue cancer. A bone scan revealed that the cancer had metastasized to Moskovitz's shoulder and right femur.

Immediately following the diagnosis of cancer, Moskovitz's care was transferred to Figgie's partner at University Orthopaedic, Dr. John T. Makley, an orthopedic surgeon specializing in oncology. At that time, Makley received Figgie's original office chart, which contained seven pages of notes documenting Moskovitz's course of treatment from 1985 through November 1987. Makley thereafter referred Moskovitz to radiation therapy at University Hospitals. Apparently, in November 1987, without Figgie's knowledge, Makley sent a copy of page seven of Figgie's office notes to the radiation department at University Hospitals.

In December 1987, Figgie or someone on his behalf requested that Dr. Makley return Figgie's office chart pertaining to the care of Moskovitz. In December 1987, Makley was Moskovitz's primary treating physician and Figgie was no longer directly involved in Moskovitz's care and treatment. On December 14, 1987, Makley's secretary forwarded the chart to Figgie's office. Figgie's secretary then sent a copy of the chart to Dr. Zev Ashenberg, Moskovitz's psychologist. The copy was received by Ashenberg sometime between December 14 and 18, 1987. In January 1988, Makley's secretary requested that Figgie's office return the chart to Makley. At this time, it was discovered that the original chart had mysteriously vanished, never to be seen again.

In February 1988, Makley amputated Moskovitz's left leg. In May 1988, while obtaining a prosthesis for her leg, Moskovitz accidentally fell and broke her right hip due to the cancer having spread to her hip bone. Moskovitz was taken to Hillcrest Hospital and was treated for her injuries. Thereafter, Moskovitz underwent chemotherapy at Hillcrest Hospital.

On October 21, 1988, Moskovitz filed a complaint for discovery in the Court of Common Pleas of Cuyahoga County, seeking to ascertain information relative to a potential claim for medical malpractice. On November 4, 1988, Moskovitz and her husband, Aaron Moskovitz, filed an amended complaint against, inter alia, Figgie, Makley, University Orthopaedic, University Hospitals, Gabelman and Mt. Sinai. The amended complaint set forth allegations of medical malpractice against Figgie and others for failing to timely diagnose and treat Moskovitz's cancer before the cancer had metastasized. The amended complaint further alleged that Makley committed medical malpractice by unnecessarily removing Moskovitz's left leg after the cancer had already spread. In addition, Moskovitz and her husband set forth claims of negligent hiring against University Hospitals and Mt. Sinai.

On December 5, 1988, Moskovitz died as a result of the cancer. Prior to her death, Moskovitz's testimony was preserved by way of videotaped deposition.

Makley was deposed on January 30, 1989. At his deposition, Makley produced a copy of page seven of Figgie's office chart. (That copy was identical to the copy ultimately recovered by plaintiff's counsel from the radiation department records at University Hospitals.) The copy produced by Makley contained a typewritten entry dated September 21, 1987, which states: "Mrs. Moskovitz comes in today for her evaluation on the radiographs reviewed with Dr. York. He was not impressed that this [the mass on Moskovitz's left leg] was anything other than a benign problem, perhaps a fibroma. We [Figgie and York] will therefore elect to continue to observe." However, the photostatic copy revealed that a line had been drawn through the sentence "We will therefore elect to continue to observe." The copy further revealed that beneath the entry, Figgie had interlineated a handwritten notation: "As she does not want excisional Bx [biopsy] we will observe." The September 21, 1987 entry was followed by a typewritten entry dated September 24, 1987, which states: "I [Figgie] reviewed the x-rays with Dr. York. I discussed the clinical findings with him. We [Figgie and York] felt this to be benign most likely a fibroma. He [York] said that we could observe and I concur." At some point, Figgie had also added to the September 24, 1987 entry a handwritten notation, "see above," referring to the September 21 handwritten notation that Moskovitz did not want an excisional biopsy.

Figgie was deposed on March 2, 1989. At his deposition, Figgie produced records, including a copy of page seven of his office chart. As his original chart had been lost in December 1987 or January 1988, Figgie had had this copy made from the copy of the chart that had been sent to Ashenberg in December 1987. The September 21, 1987 entry in the records produced by Figgie did not contain the statement "We will therefore elect to continue to observe." Apparently, that sentence had been deleted (whited-out) on the original office chart from which Ashenberg's copy (and, in turn, Figgie's copy) had been made, in a way that left no indication on the copy that the sentence had been removed...