Nichols v. Hanzel

• Decision Date: 26 April 1996
• Docket Number: No. 94CA2316,94CA2316
• Citation: 110 Ohio App.3d 591,674 N.E.2d 1237
• Parties: NICHOLS et al., Appellants, v. HANZEL et al., Appellees. *
• Court: Ohio Court of Appeals

Page 591

110 Ohio App.3d 591

674 N.E.2d 1237

NICHOLS et al., Appellants, v. HANZEL et al., Appellees. ^*

No. 94CA2316.

Court of Appeals of Ohio Fourth District, Scioto County.

Decided April 26, 1996.

Weisman, Goldberg & Weisman Co., L.P.A., and Benito C.R. Antognoli, Cleveland, for appellants.

Bannon, Howland & Dever and Robert E. Dever, Portsmouth, for appellees.

KLINE, Judge.

Plaintiffs-appellants William and Linda Nichols filed a complaint in the Scioto County Court of Common Pleas against defendants-appellees David B. Hanzel, M.D. and Don R. Gilman, D.O. alleging medical malpractice. ¹ After the conclusion of appellants' case, the trial court granted appellees' motion for a directed verdict. Appellants appeal from this judgment and assign the following errors:

"I. The lower court erred in refusing to allow James J. Nordlund, M.D. to testify with regards to the issue of the proximate cause of the injury suffered by the plaintiff-appellant, William Nichols.

"II. The lower court erred in granting the defendant-appellees' motion for directed verdict.

"III. The lower court erred in failing to state the basis upon which it granted the defendant-appellees' motion for directed verdict."

A review of the record reveals the following pertinent facts. Appellees own and operate separate medical practices at a location known as the Family Medi-Center. Although each physician maintains his own practice, it is common for each of them to see the other's patients when the other is not available.

In January 1990, appellant William Nichols went to see appellee Hanzel at the Family Medi-Center. Nichols complained about a groin muscle pulled by lifting a large piece of steel at work and a rash on his side and back. Nichols testified that the rash did not itch, was not raised or blistered, and that it did not bother him except for the fact that it was there. Hanzel diagnosed Nichols's rash as allergic dermatitis and gave Nichols topical cream to treat the rash. Nichols applied the cream, and the rash went away.

When Nichols finished using all of the topical cream, the rash returned. On July 17, 1990, Nichols returned to the Family Medi-Center for treatment of the rash. Because Hanzel was not available, appellee Gilman treated Nichols. The rash was now located on Nichols's stomach and back. Gilman diagnosed Nichols's rash as urticaria, which is a different disease from allergic dermatitis, but the doctors used the terms interchangeably. Gilman prescribed Medrol Dosepak, which is a systemic corticosteroid. Gilman did not discuss the side effects of corticosteroids with Nichols, but Nichols took the medication and the rash disappeared.

When the Medrol ran out, the rash returned over a greater area. Nichols again saw Gilman, who prescribed a course of Prednisone, another systemic corticosteroid, for the rash. Gilman did not advise Nichols of the side effects of Prednisone, nor did he discuss alternative treatments for the rash. On four subsequent occasions, appellee Hanzel renewed the Prednisone prescription for Nichols by phone without speaking to Nichols or requiring Nichols to come to the office. Hanzel testified that he deviated from his office policy of requiring patients to come into the office because Nichols worked out of town. Hanzel never advised Nichols of the side effects of Prednisone, discussed alternative treatments, or consulted with Gilman about Nichols's treatment.

Nichols returned to the Family Medi-Center on November 4, 1991 complaining of extreme pain in his legs when he walked. The treatment of Nichols's leg pain continued on November 11 and December 3, 1991. Hanzel eventually referred Nichols to the Cleveland Clinic for evaluation.

On February 21, 1992, Nichols went to the Cleveland Clinic for his leg pain, and Dr. Peter Brooks diagnosed Nichols with osteonecrosis of both hips, which is the death of bone tissue, also known as avascular necrosis or aseptic necrosis. Under Brooks's care, Nichols underwent total hip replacement of both his left and right hips. Nichols testified that Brooks advised him that the osteonecrosis of his hips was probably caused by the regimen of corticosteroids prescribed by appellees.

Appellants filed this malpractice suit, alleging that appellees failed to meet the appropriate standard of care in their treatment of Nichols and that the deviation from the appropriate standard of care was a direct and proximate cause of the osteonecrosis suffered by Nichols. Appellants alleged that appellees were jointly, severally, and/or concurrently liable for the permanent injuries to Nichols's hips.

At trial, appellants presented three expert witnesses to establish that appellees' negligent care of Nichols proximately caused Nichols's osteonecrosis. Dr. James J. Nordlund testified about the proper standard of care, and Drs. Hyman M. Stockfish and Peter Brooks testified about the proximate cause of Nichols's osteonecrosis. The relevant portions of each doctor's testimony will be reviewed with the appropriate assignment of error.

At the close of appellants' case, appellees moved for a directed verdict, arguing only that appellants failed to prove that appellees' treatment of Nichols proximately caused his osteonecrosis. After considering the motion and asking appellants' counsel several questions about how they would reconcile certain statements of the witnesses regarding causation, the trial court announced that the motion was granted. On October 20, 1994, the court filed a judgment entry stating that "[t]his Court having heard the arguments of counsel finds said motion to be well taken and the same is hereby sustained in its entirety." The trial court did not explain the basis for its judgment.

In their first assignment of error, appellants challenge the trial court's refusal to allow Dr. James J. Nordlund to testify about proximate cause. Appellees objected to the questions appellants asked Nordlund pertaining to the cause of Nichols's osteonecrosis on the basis of failure to qualify Nordlund as an expert in osteonecrosis or orthopedics, which involves the care and treatment of the bone and skeletal system. The trial court sustained appellees' objections to the following questions: whether Nordlund must consider the side effects of osteonecrosis in his practice as it related to the use of corticosteroids, whether Nordlund had ever treated patients who had taken corticosteroids and subsequently contracted osteonecrosis, and whether, in his teaching at the University of Cincinnati Medical School and the Yale Medical School, he taught the connection between osteonecrosis and the use of corticosteroids. After the objections to these questions were sustained, there was a bench conference at which the trial judge stated the following:

"Now, let the record show that if you want to attempt to establish [Dr. Nordlund's] medical history as an expert in some other field, you are free to endeavor to do that. We are not denying you that right.

" * * *

"But until such time as you qualify him as an expert, the--I'm not allowing him to answer the questions concerning something outside of his field."

Appellants then asked Nordlund whether he dealt with the issue of the side effects of corticosteroids in his practice of internal medicine. Appellees objected, and the court sustained the objection. Appellants did not ask Nordlund any further questions regarding causation.

Evid.R. 104(A) provides that "[p]reliminary questions concerning the qualification of a person to be a witness * * * shall be determined by the court * * *." The trial court is therefore vested with broad discretion in its determination of the competency of an expert witness, and the court's ruling on this matter will not be reversed absent an abuse of that discretion. Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 157, 10 O.O.3d 332, 333, 383 N.E.2d 564, 565, citing Ohio Turnpike Comm. v. Ellis (1955), 164 Ohio St. 377, 58 O.O. 179, 131 N.E.2d 397, paragraph eight of the syllabus. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482-483, 450 N.E.2d 1140, 1142, citing State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 172-173, 404 N.E.2d 144, 148. When applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301, 1308-1309.

Evid.R. 702 provides that a witness may testify as an expert if the following three conditions are met: (1) he or she is qualified as an expert by virtue of specialized knowledge, skill, experience, training or education regarding the subject matter of the testimony; (2) the testimony relates to matters beyond the knowledge or experience of lay persons or dispels a common misconception among lay persons; and (3) the testimony is based upon reliable scientific, technical, or other specialized information. The qualification of an expert depends upon the expert's possession of special knowledge that he or she has acquired either by study of recognized authorities on the subject or by practical experience that he or she can impart to the jury and that will assist the jury in understanding a pertinent matter. State Auto Mut. Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151, 160, 65 O.O.2d 374, 379, 304 N.E.2d 891, 897. Furthermore, it must appear that the expert has an opinion of his or her own or is able to form one upon the matter in question. Id.

The expert witness is not required to be the best witness on the subject, but his or her testimony must assist the trier of fact in the search for the truth. Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d at 159, 10 O.O.3d at 334, 383 N.E.2d at 566-567. Furthermore, the expert witness does not have to specialize in the...