Rouse v. Riverside Methodist Hosp.

• Decision Date: 12 April 1983
• Citation: 459 N.E.2d 593,9 Ohio App.3d 206,9 OBR 355
• Parties: , 9 O.B.R. 355 ROUSE et al., Appellants, v. RIVERSIDE METHODIST HOSPITAL, et al, Appellees.
• Court: Ohio Court of Appeals

Page 206

9 Ohio App.3d 206

459 N.E.2d 593, 9 O.B.R. 355

ROUSE et al., Appellants, v. RIVERSIDE METHODIST HOSPITAL, et al, Appellees.

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

April 12, 1983.

Syllabus by the Court

1. A parent may recover from the wrongdoer the reasonable value of the care or attendance which he himself renders to his child as a result of a negligent injury to the child.

2. Later concealment of an act of negligence does not render malicious the act which constituted the negligence since malice deals with the manner in which the act is performed at the time it is performed.

3. Any doctor licensed to practice medicine is competent to testify on medical issues, including the relationship of medical expenses to a particular injury or cause, the fact that the doctor may have a different specialty bearing only upon the weight to be given the evidence, not its admissibility.

Franklin T. Gerlach, Portsmouth, for appellants.

Bricker & Eckler, Gerald L. Draper and Bruce G. Lynn, Columbus, for appellee Riverside Methodist Hosp.

Knepper, White, Arter & Hadden, Richard L. Miller and Charles R. Janes, Cleveland, for appellee Donna Fahey, executrix.

WHITESIDE, Presiding Judge.

Plaintiffs appeal from a judgment of the Franklin County Court of Common Pleas in favor of plaintiff Lisa Rouse upon a verdict for $250,000 compensatory damages as against defendant Riverside Methodist Hospital but otherwise in favor of defendants. In support of their appeal, plaintiffs have raised nine assignments of error, as follows:

"1. The trial court erred in prohibiting appellants from presenting any testimony to the jury on punitive damage issues plead in this complaint against Riverside Methodist Hospital on issue of the hospital's total failure to assure proper calibration of its Cobalt 60 unit, which failure was so inadequate as to manifest a flagrant indifference to the probability that overradition [sic ] or underradiation would expose its patients to unreasonable risk of harm, and further failing to determine causes of unusual patient reactions and autopsy reports of overradiation, and in failing to assure proper delivery of planned doses of radiation to its patients, and upon discovering overradiation its attempts to conceal facts from appellants by false information conveyed to physicians consulted by appellants causing emotional distress.

"2. The court erred in failing to grant a new trial upon newly discovered evidence of a mutual mistake of physical condition of Lisa Rouse.

"3. Verdict was against the weight of the evidence and verdict was contrary to law.

"4. The court erred in its instructions to the jury.

"5. The court erred in taking from jury the matter of compensation of Judy Rouse for extraordinary nursing services.

"6. It was error for the jury to fail to grant damages to plaintiff Judy Rouse and was against the weight of the evidence.

"7. Mutual mistake of fact of medical experts.

"8. The court erred in allowing Dr. Carl Bogardus, medical expert for Dr. Fahey, to testify as to appropriate method of treatment of the tumor that Lisa had and in failing to strike his testimony when Dr. Bogardus could not name any radiation therapist nor center that would use whole brain radiation on a child of Lisa's age with the type and location of tumor she had.

"9. The court erred in refusing proferred [sic ] testimony of Dr. Sayers as to life expectancy of Lisa if tumor was removed by surgical technique."

Plaintiff Lisa Rouse, at the age of nine, developed a brain tumor which was malignant. Surgery resulted in removal of only approximately eighty percent of the tumor mass, and radiation therapy was prescribed. Due to a miscalculation by the physicist who calibrated the radiation equipment, the radiation was considerably in excess of that which was prescribed. Defendant Dr. Fahey prescribed the radiation for the entire brain, rather than concentrating it at the site of the residual tumor. There was conflicting expert testimony as to whether, at the time in question, whole-brain radiation was appropriate medical therapy. There was also conflicting medical expert testimony as to the amount of radiation that would be appropriate and as to the effects of excess radiation.

In any event, allegedly, solely as the result of the radium overdose as well as the whole-brain radiation, plaintiff Lisa Rouse lost her hair, sustained stunted growth, impediment of speech and became a quadriplegic paralytic with loss of intellectual functions.

The first assignment of error pertains to the issue of punitive damages. The trial court removed the issue of punitive damages from consideration of the jury, finding that punitive damages could not be awarded under the circumstances of this case.

In 1976, defendant hospital discovered that the output of the radiation therapy unit was much higher than the calculations being made by its physicist, Joel Axt, who has not been joined as a party to this case. Due to this calibration error, plaintiff Lisa Rouse received approximately eighteen percent more radiation than prescribed. As soon as the error was discovered, defendant hospital notified the public of the error. There is no doubt of defendant hospital's responsibility for this error, and the jury awarded the compensatory damages of $250,000 to plaintiff Lisa Rouse predicated thereon.

Plaintiffs contend that, because of the great danger posed by overradiation, the conduct of negligent calibration is of such a nature as to be intentional, reckless, wanton, willful and gross and egregious as to safety of patients as to permit an inference of actual malice and the award of punitive damages. We disagree. Plaintiffs rely upon the third paragraph of the syllabus in Leichtamer v. American Motors Corp. (1981), 67 Ohio St.2d 456, 424 N.E.2d 568 , which states:

"Punitive damages may be awarded where a manufacturer's testing and examination procedures for a product are so inadequate as to manifest a flagrant indifference to the probability that the product might expose consumers to unreasonable risks of harm."

In Leichtamer, however, the manufacturer was aware of the defects in its product and the limitations upon its safe use but continued to advertise the product, a Jeep CJ-7 four-wheel drive motor vehicle, as being capable of performance which the manufacturer either knew the vehicle could not do or failed to test to ascertain the safety, even though the Jeeps were extremely dangerous.

Here, it is not a matter of failing to make tests but, rather, an error in a mathematical calculation, which resulted in excessive radiation.

There is a lack of specificity in plaintiffs' contentions in that they have not set forth any express ruling by the trial court which forms the basis of this assignment of error. However, plaintiffs appear to contend that an award of punitive damages should be predicated upon: (1) alleged negligence of defendant hospital in the hiring of the physicist; (2) conduct by the physicist so gross as to give rise to punitive damages; and (3) alleged fraud on the part of defendant hospital in reporting to plaintiff Lisa Rouse's mother and physician that she had received less than ten percent excess radiation, when actually she had received sixteen percent excess radiation. None of these is sufficient to constitute a basis for the award of punitive damages. As the Supreme Court stated in Detling v. Chockley (1982), 70 Ohio St.2d 134 [24 O.O.3d 239], at pages 137-139, 436 N.E.2d 208:

"Actual malice is required for a question of punitive damages to be submitted to a jury. * * *

" * * *

"An act of mere negligence does not, of itself, demonstrate the degree of intention and deliberation necessary to raise a question of punitive damages. * * * ' * * * There must be circumstances of aggravation or outrage, such as spite or "malice," or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton. Lacking this element, there is general agreement that mere negligence is not enough, even though it is so extreme in degree as to be characterized as "gross" * * *.' Prosser on Torts (4 Ed.), at pages 9-10.

" * * * While reckless disregard is recognized as a basis for punitive damages * * * appellant overlooks the conceptual requirement of intention or deliberation implicit within the Ohio definition of malice. * * * "

As in Detling, "[t]he record in the case sub judice reveals no surrounding circumstances which demonstrate the requisite intention or deliberation sufficient to raise a jury question of malice." Id. at 139, 436 N.E.2d 208. Nor have plaintiffs specified any evidence which is demonstrated to have been excluded by the trial court erroneously and which would have tended to prove the requisite intention or deliberation necessary to raise a question of malice.

As to the employment of the physicist, there is no suggestion that defendant hospital knew he was not qualified when he was employed. As to the second contention, no evidence was offered which would have tended to prove that the physicist knew that his method of calibrating was so erroneous that it would expose patients to excess radiation. In other words, there is no indication here that the physicist, much less defendant hospital, knew that it was even possible that the calibrations were inaccurate until they were eventually discovered and corrected. Likewise, there is no evidence that defendant hospital authorized or participated in or ratified any act of the physicist, although it is responsible for his negligence on the doctrine of respondeat superior.

As to the third contention, there was no evidence of fraud. Rather, there was evidence of a further mistake on the part of defendant hospital, which in good faith gave certain information concerning the amount of overradiation, not realizing at the time the extent of the...