R.T. v. Knobeloch

• Decision Date: 24 April 2018
• Docket Number: No. 16AP–809,16AP–809
• Citation: 111 N.E.3d 588,2018 Ohio 1596
• Parties: R.T. et al., Plaintiffs–Appellees, v. William KNOBELOCH, M.D. et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

111 N.E.3d 588

2018 Ohio 1596

R.T. et al., Plaintiffs–Appellees,

v.William KNOBELOCH, M.D. et al., Defendants–Appellants.

No. 16AP–809

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

Rendered on April 24, 2018

On brief: Hale Westfall, LLP, and Allan L. Hale ; Burg Simpson Eldredge Hersh & Jardine PC, Calvin S. Tregre and Janet G. Abaray, Cincinnati, for appellees. Argued: Peter J. Krumholz.

On brief: Arnold Todaro & Welch, Grier D. Schaffer and Gregory B. Foliano, Columbus, for appellants. Argued: Grier D. Schaffer.

DECISION

TYACK, J.

{¶ 1} William Knobeloch, M.D., American Health Network, Inc., American Health Network of Ohio Care Organization, LLC, and American Health Network of Ohio Professional Corp. ("appellants"), are appealing the jury verdict of the Franklin County Court of Common Pleas awarding damages to appellee, S.T., a minor, by and through her mother and next friend, R.T. For the following reasons, we affirm the judgment of the Franklin County Court of Common Pleas.

I. FACTS AND CASE HISTORY

{¶ 2} This case arises from the treatment of then six year old S.T. by Dr. Knobeloch, a pediatrician, in the summer of 2012. S.T. was presenting significant behavioral issues in kindergarten which led to a consultation with Dr. Knobeloch. On June 4, 2012, Dr. Knobeloch referred S.T. for counseling with Karen Cowie, LSW.

{¶ 3} On July 31, 2012, S.T. and her mother met with Dr. Knobeloch for a behavioral consultation. Dr. Knobeloch gave a diagnosis of anxiety and panic disorder

but did not rule out pediatric bipolar disorder. S.T. was prescribed 10 mg of Prozac. While the Prozac did seem to make some improvement in S.T.'s behavior, new behavior problems arose.

{¶ 4} On August 21, 2012, R.T. and Dr. Knobeloch discussed S.T.'s behavior. Dr. Knobeloch spoke with Ms. Cowie who indicated it was her impression that there were instances of mania being exhibited. Dr. Knobeloch, with this new information, now determined a different diagnosis of bipolar disorder

though there was a question of whether Dr. Knobeloch told R.T. this new diagnosis. Dr. Knobeloch instructed R.T. to immediately stop giving the Prozac to S.T. and begin administering Lamictal with a one-time daily dose of 25 mg. Lamictal is an anti-epileptic drug that has been used off-label to treat pediatric bipolar disorder.

{¶ 5} On September 4, 2012, Dr. Knobeloch increased the dosage of Lamictal

to 50 mg per day after his nurse spoke to R.T. about S.T.'s behavior. On September 5, 2012, S.T. was seen by Dr. Knobeloch's partner, Brad Pfau, M.D. S.T. had what Dr. Pfau called bug bites and some sort of eye infection that blurred her vision and produced swollen dry eyes. S.T. was prescribed antibiotics as treatment. R.T. expressed her concern that the problems with S.T.'s eyes were related to the Lamictal.

{¶ 6} On September 7, 2012, S.T. was seen by Dr. Knobeloch. S.T. had redness and swelling around her eyes with a greenish discharge, had oral ulcers

, and was covered in a target rash, which appeared as little bullseyes. R.T. also stated that S.T. had developed a high fever. Dr. Knobeloch diagnosed S.T. with Stevens–Johnson Syndrome ("SJS"), a serious rash that develops painful sores and in which the skin sloughs off. SJS exhibits a targeted rash and the involvement of two mucus membranes, the eyes and mouth in this case. S.T. was taken directly to Nationwide Children's Hospital where she remained from September 7, to October 1, 2012. S.T. had to be placed in a medically induced coma to combat the pain of her skin sloughing off.

{¶ 7} On May 6, 2014, appellees filed suit against Dr. Knobeloch, American Health Network, Inc., and CVS pharmacy, claiming among others, medical malpractice, negligence, and a lack of informed consent. The claims centered on Dr. Knobeloch's improper prescription of Lamictal

which allegedly proximately caused SJS.

{¶ 8} On August 15, 2016, a jury trial began and, over two weeks later, the jury returned a verdict. It found that Dr. Knobeloch had been negligent and there was a lack of informed consent while finding no liability as to CVS. The total verdict was $1,578,539.51. A remittitur reduced the verdict to $1,028,539.51.

{¶ 9} On October 31, 2016, the verdict was journalized creating a final appealable order. Appellants timely appealed.

II. ASSIGNMENTS OF ERROR

{¶ 10} Appellants bring seven assignments of error for our consideration:

I. The trial court gave two improper jury instructions and failed to give a third instruction, which is prejudicial error.

II. The court's repeated, leading, invasive interrogation of, and instructions to four of Plaintiffs' experts violated Evid.R. 614(B) and destroyed Defendants' right to receive a fair, impartial trial.

III. The improper exclusion of liability expert, David Franz, M.D., denied Defendants a fair trial, prejudiced the defense before the jury and prohibited presentation of new, material evidence as represented in opening statement.

IV. The court committed prejudicial error by submitting the unsupported informed consent claim to the jury and by overruling Defendants' repeated motions for directed verdict.

V. The jury had no competent evidence to find that Dr. Knobeloch's negligence caused harm by "doubling the patient's dose of Lamictal

without seeing the patient."

VI. The court erred by admitting prejudicial, scientifically unreliable, misleading testimony that the dosage of Lamictal proximately caused this patient's SJS and by denying our repeated motions for a directed verdict.

VII. The court erred by admitting testimony of Drs. Kaye and Arrendondo, as their legal competency was never established pursuant to Evid.R. 601(D).

III. THE TRIAL COURT DID NOT ERR IN GIVING THE JURY INSTRUCTIONS

{¶ 11} We will address the assignments of error in logical groupings. In the first assignment of error, appellants argue the trial court improperly gave jury instructions on the lack of informed consent and instructions on the Federal Drug Administration's ("FDA") "Black Box" warning. Appellants also argue the trial court erred in failing to give a failure to mitigate damages instruction to the jury.

{¶ 12} A trial court has discretion in deciding whether to give or refuse a particular instruction, and an appellate court will not disturb that decision absent an abuse of discretion. Clark v. Grant Med. Ctr. , 2015-Ohio-4958, 47 N.E.3d 526, ¶ 50. Requested instructions should be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co. , 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991).

{¶ 13} "However, when a jury instruction contains an incorrect statement of the law, a reviewing court applies a mixed de novo and abuse of discretion standard of review." State v. Teitelbaum , 2016-Ohio-3524, 67 N.E.3d 85, ¶ 127, citing State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 21, citing Kokitka v. Ford Motor Co. , 73 Ohio St.3d 89, 93, 652 N.E.2d 671 (1995). Thus, "[i]n examining errors in a jury instruction, a reviewing court must consider the jury charge as a whole and ‘must determine whether the jury charge probably misled the jury in a matter materially affecting the complaining party's substantial rights.’ " Kokitka at 93, 652 N.E.2d 671, quoting Becker v. Lake Cty. Mem. Hosp. W. , 53 Ohio St.3d 202, 208, 560 N.E.2d 165 (1990). However, in reviewing "the instructions as a whole, and, if taken in their entirety, the instructions fairly and correctly state the law applicable to the evidence presented at trial, reversible error will not be found merely on the possibility that the jury may have been misled." State v. Shepard , 10th Dist. No. 07AP-223, 2007-Ohio-5405, 2007 WL 2917581, ¶ 7, citing Wozniak v. Wozniak , 90 Ohio App.3d 400, 410, 629 N.E.2d 500 (9th Dist.1993). "In reviewing a record to ascertain the presence of sufficient evidence to support the giving of a special instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction." Feterle v. Huettner , 28 Ohio St.2d 54, 275 N.E.2d 340 (1971), syllabus.

A. DISCLOSURE IS REQUIRED TO GIVE INFORMED CONSENT

{¶ 14} Appellees argue that, because appellants offered their own jury instruction as to informed consent, they cannot now complain that the trial court should not have given one under the invited-error doctrine. Under the invited-error doctrine, "[a] party will not be permitted to take advantage of an error which he himself invited or induced." Hal Artz Lincoln–Mercury, Inc. v. Ford Motor Co. , Lincoln–Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986). While appellants did offer a proposed instruction as to informed consent that was reviewed by the trial court, it is not in the record. Without the language of the proposed instruction, we cannot determine whether appellants invited or induced the error they now complain of.

{¶ 15} The doctrine of informed consent emerged in the context of the tort of battery. The theory was that failure to obtain informed consent violates the right that every competent human has, a right to determine what is to be done to their body. Bedel v. Univ. of Cincinnati Hosp. , 107 Ohio App.3d 420, 427, 669 N.E.2d 9 (10th Dist.1995). The doctrine of informed consent has never required that the physician, prior to administering the treatment, fully inform the patient of all potential risks. Id. , citing O'Brien v. Angley , 63 Ohio St.2d 159, 407 N.E.2d 490 (1980).

The tort of lack of informed consent is established when:

(a) The physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any;

(b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and

(c) a reasonable person in the

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