Peffer v. Cleveland Clinic Found.
| Decision Date | 03 February 2011 |
| Docket Number | No. 94356,94356 |
| Citation | 2011 Ohio 450 |
| Parties | JASON PEFFER, ET AL. PLAINTIFFS-APPELLANTS v. CLEVELAND CLINIC FOUNDATION, ET AL. DEFENDANTS-APPELLEES |
| Court | Ohio Court of Appeals |
ATTORNEYS FOR APPELLANTS
Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Michael F. Becker
Becker Law Firm Co., L.P.A.
ATTORNEYS FOR APPELLEES
John V. Jackson
Brian Dodez
Christina J. Marshall
Sutter, O'Connell & Farchione Co., L.P.A.
For K.V. Gopalakrishna, M.D., et al.
Joseph A. Farchione
Ryan J. Melewski
Sutter, O'Connell & Farchione Co., L.P.A.
{¶ 1} Appellants, Jason Peffer and his mother, Lynne Baker, appeal from a jury verdict in favor of appellees, Dr. K.V. Gopalakrishna ("Dr. Gopal"); Dr. Gopal's employer, I.D. Consultants, Inc.; and the Cleveland Clinic Foundation ("the Clinic"), in a medical malpractice action. After a thorough review of the record and apposite law, we affirm.
{¶ 2} In July 1997, Jason Peffer was an 11-month-old child with a history of ear infections who had been suffering from diarrhea, high fever, irritability, and crying. Dr. George Seikel, Jason's pediatrician, recommended he be admitted to Fairview General Hospital ("Fairview"). On July 23, 1997, Dr. Gopal, an infectious disease specialist at Fairview, was called for consultation. A spinal tap and computerized tomography ("CT") scan were ordered. The CT scan images were interpreted by staff radiologist Dr. Fachtna Carey on July 23. Dr. Carey's report, which was received by Dr. Gopal on July 24, stated:
{¶ 3} "Unenhanced and enhanced images of the brain demonstrate no acute bleed, midline shift or hydrocephalus, though the right lateral ventricle is slightly larger than the left. There is prominent enhancement in the region of the vein of Galen and straight sinus, which is probably within normal limits. No discrete abscess is seen and aeration of the visualized paranasal sinuses and mastoid regions is within normal limits.
{¶ 4} "There is suggestion of subtle hypodensity over the medial aspect of the temporal lobes, particularly on the left; this is of uncertain significance, but I cannot exclude medial temporal lobe inflammatory process, especially on the left. If clinically indicated, follow-up MRI may be helpful.
{¶ 5} "Impression: No discrete, focal abnormality identified.
{¶ 6}
{¶ 7} Dr. Seikel received these results on July 23 and noted in Jason's chart, "CT head normal." Dr. Gopal testified that he reviewed the CT study with another radiologist; he did not order a magnetic resonance imaging ("MRI") study. Dr. Gopal believed Jason was suffering from viral meningitis and prescribed a course of treatment for that condition. He testified that the symptoms Jason manifested did not fit the traditional presentation of encephalopathy.1
{¶ 8} On July 24, Jason was transferred to the Clinic by ambulance. Once there, Dr. Camille Sabella, a pediatric infectious disease specialist, oversaw Jason's care. Dr. Sabella received the CT scan images taken of Jason at Fairview and had them independently reviewed by a staff radiologist or neuroradiologist at the Clinic. Jason's medical chart documents this informal consultation and notes, "CT head reviewed with neuroradiology — normal[,]" but does not name the consulting doctor. No official analysis was done of the CT study at the Clinic.
{¶ 9} Jason's condition was improving at the Clinic, but on July 28, an electroencephalography ("EEG") test was performed and showed irregular activity in the left hemisphere of Jason's brain. An MRI was ordered, which showed an abnormality in the left temporal lobe. Jason was diagnosed with herpes simplex encephalitis ("HSE"), 2 and treatment began for this disease on July 30, 1997. As a result of HSE, Jason suffered significant damage to his brain. He has numerous physical and psychological impairments that require 24-hour care. He must reside in a structured environment or risk injury to himself and others.
{¶ 10} Appellants filed suit on March 19, 2003, alleging that the delay in diagnosis and treatment resulted in significantly more neural impairment than otherwise would have occurred if Jason had been properly diagnosed on July 23, or July 24, 1997. A trial commenced on June 6, 2007, which resulted in a finding for appellees. This court reversed that determination and ordered a new trial based on improper jury instructions in Peffer v. Cleveland Clinic Found., 177 Ohio App.3d 403, 2008-Ohio-3688, 894 N.E.2d 1273 ('Peffer I'). A second trial commenced on November 13, 2009 and resulted in a finding in favor of appellees. Appellants now appeal claiming six errors.3
{¶ 11} Appellants first argue that the trial judge abused her discretion by allowing the defense to introduce, directly and indirectly, hearsay opinions about the "normal" interpretation of the CT scan.4
{¶ 12} It is well established that pursuant to Evid.R. 104, the introduction of evidence at trial falls within the sound discretion of the trial court. State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026; State v. Sibert (1994), 98 Ohio App.3d 412, 648 N.E.2d 861. This assignment of error involves the trial court's decision to limit or exclude evidence. The standard for such a determination is well defined in Ohio. "The admission or exclusion of evidence rests within the sound discretion of the trial court." State v. Jacks (1989), 63 Ohio App.3d 200, 207, 578 N.E.2d 512. Therefore, "[a]n appellate court which reviews the trial court's admission or exclusion of evidence must limit its review to whether the lower court abused its discretion." State v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543 N.E.2d 1233. A trial court abuses its discretion when it acts in an unreasonable, arbitrary, or unconscionable manner. A reviewing court should not substitute its judgment for that of the trial court. See, generally, State v. Jenkins (1984), 15 Ohio St.3d 164, 473 N.E.2d 264; Finnerty, supra, at 107-108.
{¶ 13} An abuse of discretion implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 14} Appellants claim that Dr. Gopal's testimony regarding the consultation with an unknown radiologist at Fairview was admitted in error. Jason's medical chart from Fairview includes an entry by Dr. Seikel noting that the CT study was normal. The records from the Clinic also include an entry authored by Dr. Sabella documenting a consultation with an unnamed neuroradiologist that resulted in the conclusion that the CT study taken at Fairview was normal.
{¶ 15} The general hearsay rule found in Evid.R. 801(C) defines hearsay as 'a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted."
{¶ 16} The testimony introduced by Dr. Gopal does not amount to hearsay. Dr. Gopal was called by appellants in their case-in-chief as if on cross-examination when he was questioned about Dr. Carey's report and the CT scan results. Dr. Gopal stated, Tr. 565.
{¶ 17} Appellants' counsel followed up a few questions later asking, Tr. 566. Dr. Gopal answered affirmatively. He never testified on cross-examination what the other doctor told him. Later in the trial, on direct examination, Dr. Gopal did attempt to state that this other radiologist corroborated his findings, but appellants objected and the trial court sustained the objection.
{¶ 18} This line of questioning was used to explain the actions Dr. Gopal took and why he did not order a follow-up MRI. It was not offered for the truth of the matter asserted. See State v. Price (1992), 80 Ohio App.3d 108, 110, 608 N.E.2d 1088; State v. Smith, Cuyahoga App. No. 91715, 2010-Ohio-1655, ¶32. Dr. Gopal's trial testimony did not include hearsay regarding an unknown physician's interpretation of the CT images.
{¶ 19} In regard to the unknown neuroradiologist at the Clinic, appellants could not present a claim against the Clinic but for the actions of this unknown person. Their entire case rested on an unnamed neuroradiologist reading the CT scan images as normal and this allegedly falling below the applicable standard of care.
{¶ 20} The entire theory of this claim requires appellees to discuss and explain this alleged failure. This invites the introduction of hearsay testimony, which appellants did in opening statements, direct and cross-examination of witnesses, and closing statements. This invited error should not be the basis for overruling the determination of the jury in this case.
{¶ 21} "The 'invited error doctrine' prohibits a party from raising an error on appeal which she herself invited or induced the trial court to make." Gray v. Cuyahoga Cty. Dept. of Children & Family Svcs. (Apr. 20, 2000), Cuyahoga App. Nos. 75984 and 75985, citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359, 1994-Ohio-302, 626 N.E.2d 950; Ctr. Ridge Ganley, Inc. v. Stinn (1987), 31 Ohio St.3d 310, 313, 511 N.E.2d 106.
{¶ 22} Appellants argue that the trial court...
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