Striff v. Luke Med. Practitioners Inc
| Decision Date | 20 December 2010 |
| Docket Number | CASE NO. 1-10-15 |
| Citation | 2010 Ohio 6261 |
| Parties | CAROLE E. STRIFF, ADMR., INDIVIDUALLY AND AS ADMR. OF THE ESTATE OF JEFFREY A. STRIFF, DECEASED, PLAINTIFF-APPELLANT, v. LUKE MEDICAL PRACTITIONERS, INC., ET AL., DEFENDANTS-APPELLEES. |
| Court | Ohio Court of Appeals |
Appeal from Allen County Common Pleas Court Trial Court No. CV2008-0189.
Judgment Affirmed.
APPEARANCES:
Robert W. Kerpsack for Appellant.
James F. Nooney for Appellees, Luke Medical Practitioners, Inc., Jay M. Martin, M.D. and Melisa C. Bodkin, C.N.P.
Michael P. Murphy for Appellees, Pandora Family Physicians, Inc., and Steven K. McCullough, D.O.
Donald J. Moracz for Appellees, Horstman & Klir, M.D., Inc.
{¶1} Plaintiff-Appellant, Carole E. Striff ("Appellant"), individually and as Administrator of the Estate of Jeffrey Striff, deceased ("Mr. Striff or "the decedent"), appeals the judgment of the Allen County Court of Common Pleas in favor of Defendants-Appellees. Appellant claims that there were numerous irregularities and errors pertaining to the jury trial in which Appellant was seeking compensatory damages for the wrongful death of her husband, caused by the alleged medical malpractice of Defendants-Appellees: Steven K. McCullough, D.O ("Dr. McCullough"), Wesley A. Klir, M.D., Inc. ("Dr. Klir"), Jay M. Martin, M.D. ("Dr. Martin"), Melisa C. Bodkin, C.N.P. ("Nurse Bodkin"), and their employers. For the reasons set forth below, the judgment is affirmed.
{¶2} Mr. Striff received medical treatment from Appellees beginning in early 2003 through December 2006. In February 2007, Mr. Striff, age 43, had a fatal heart attack. The autopsy showed that he suffered from coronary artery disease. Appellant claims that Appellees failed to appropriately diagnose and/or follow-up on Mr. Sniffs cardiac condition, especially in light of his family history of cardiac disease. Mr. Sniffs identical twin brother had several heart attacks and was diagnosed with heart disease when he was in his early thirties. Mr. Sniffs mother was also diagnosed with heart disease at an early age and had by-pass surgery.
{¶3} Appellees deny any wrong-doing and contend that they followed the appropriate standard of care for the treatment they provided Mr. Striff. They maintain that Mr. Striff was completely responsible for his medical condition due to his life-style choices and, more importantly, his failure to follow through with the recommendations and follow-up treatments ordered by Appellees. Mr. Striff was overweight, smoked a pack of cigarettes a day, and drank several alcoholic beverages every day. Mr. Striff also failed to obtain a lipid profile to measure his cholesterol and did not see a cardiologist, as he was instructed to do on many occasions.
and Pandora Family Physicians, Inc.
{¶4} In February 2003, Mr. Striff visited Dr. McCullough for the first time with complaints of fatigue, upper chest heaviness, and a racing heart, after being seen in the emergency room the previous day. Dr. McCullough ordered a cardiac work-up, including: (1) EKG; (2) stress test; (3) echocardiogram; (4) a fasting lipid profile to check cholesterol levels; (5) referral to a cardiologist, Dr. Kingsley; and (6) a follow-up appointment the next month. Dr. McCullough completed a consultation letter to the cardiologist and an appointment was scheduled for Mr. Striff with Dr. Kinglsey on April 8, 2003. The results of the EKG, stress test, and echocardiogram were within normal ranges and were negative for myocardial infarction or cardiac disease. Mr. Striff did not have hislipid profiles done and he did not show up for his appointment with the cardiologist or for his follow-up appointment with Dr. McCullough.
{¶5} Mr. Striff next saw Dr. McCullough in December 2003 to have a lesion removed from his face. He visited Dr. McCullough four more times in July, August, and September 2004 with complaints of muscle spasms and upper and lower back pain. Mr. Striff had no cardiac complaints at any of these visits, and Mr. Striff never saw a cardiologist or obtained a lipid profile as directed by Dr. McCullough, who continued to remind him to do so. September 7, 2004 was the last time Dr. McCullough treated Mr. Striff.
{¶6} Nurse Bodkin was a Certified Nurse Practitioner at Luke Medical Center who saw Mr. Striff on one occasion, on May 22, 2006, when he came to the center as a new patient. Mr. Striff complained of having panic attacks, leg cramps, and left shoulder/neck/arm pain as well as back pain. Mr. Striff wanted to try some medication for anxiety and panic attacks, supposedly due to new VFW public speaking responsibilities. In the paperwork he completed at Luke Medical Center, he represented his cardiovascular history to be negative for high blood pressure, heart disease, heart murmur, angina, chest pain, and rheumatic fever, although he did acknowledge that he had a family history of heart disease.
{¶7} Nurse Bodkin wanted to do an EKG but testified that Mr. Striff did not want one because he believed his pain was all in his neck and shoulder due to a previous work injury. X-rays were done which showed a disc problem which could have been the cause of the left shoulder and arm pain. In any case, Nurse Bodkin ordered complete blood work testing, including a lipid profile to check his cholesterol, and encouraged him to obtain further screenings to evaluate his risk for possible cardiovascular disease due to his family history. She ordered a copy of his medical records in order to review them with him at his follow-up appointment in June. Mr. Striff never had the blood work done, never came back for the follow-up appointment, and never saw Nurse Bodkin again.
{¶8} Mrs. Striff, however, called the clinic on behalf of her husband on June 20, 2006, to request a refill on one of the prescriptions issued by Nurse Bodkin. Nurse Bodkin was not there at the time so Dr. Martin, her "collaborating physician," initialed his approval of the refill on the telephone message request.
{¶9} On August 22, 2006, Mr. Striff presented to Dr. Klir for a DOT physical for the renewal of his commercial driver's license ("CDL"). Mr. Striff drove a truck for BP delivering propane to customers. He had no cardiac complaints or symptoms at this time and he represented that his health history was negative, except for back pain. Dr. Klir examined Mr. Striff and found that he metall the requirements necessary to qualify him for certification for his CDL. Dr. Klir's assessment notes from the visit stated: "follow-up for CAD [coronary artery disease], check cholesterol, tobacco abuse-advised cessation, and DOT physical."
{¶10} Mr. Striff again saw Dr. Klir on September 15, 2006, experiencing flu-like symptoms. He was diagnosed with sinusitis, placed on antibiotics, and again advised to get his lipid testing done and to stop smoking. Mr. Striff saw Dr. Klir one more time, on December 18, 2006, complaining of a mole on the buttock and probable hemorrhoids.
{¶11} On February 7, 2007, Mr. Striff collapsed and died of a massive heart attack while making a fuel delivery in the cold. On February 4, 2008, Appellant filed a complaint seeking compensatory damages for the wrongful death of her husband, proximately caused by the alleged medical malpractice of Appellees.
{¶12} Extensive discovery was conducted, experts were deposed, and numerous motions in limine were filed and ruled upon. Dr. Martin filed a motion for summary judgment, which was granted on October 28, 2009. A five-day jury trial was held with the remaining defendants November 17-23, 2009.
{¶13} During the proceedings, Appellant moved for a new trial based upon the allotment of peremptory challenges; she moved for a mistrial after openingstatements and again after a juror was dismissed due to illness; and she moved for a directed verdict on the issue of contributory negligence. The trial court denied all of the above motions.
{¶14} On November 23, 2009, the jury returned unanimous verdicts in favor of all Appellees and found the decedent to be 100% negligent. The trial court entered judgment in favor of Appellees on November 30, 2009.
{¶15} Appellant then filed a motion for a new trial, which was denied on December 31, 2009. Appellant now brings this appeal, raising the following eleven assignments of error for our review.
The trial court erred to the prejudice of [Appellant] in granting summary judgment on the issue of liability in favor of Appellee [Dr. Martin].
Second Assignment of Error
The trial court committed reversible error in providing six peremptory challenges to each side, thereby precluding Appellant's intelligent use of her peremptory challenges.
Third Assignment of Error
The trial court committed reversible error in denying Appellant's motion for a mistrial following the opening statement of [Dr. Klir].
Fourth Assignment of Error
The trial court committed reversible error in excluding evidence of the lipid profile results of the decedent's identical twin brother.
Fifth Assignment of Error
The trial court committed reversible error in excluding evidence of Dr. Harris' opinions not expressly disclosed during his discovery deposition.
Sixth Assignment of Error
The trial court committed reversible error in admitting evidence of the Decedent's collateral workers' compensation claim.
Seventh Assignment of Error
The trial court committed reversible error in admitting the expert testimony of cardiologist Steven Yakubov, M.D., that Appellees met the requisite standard of care.
Eighth Assignment of Error
The trial court committed reversible error discharging Juror #1 and in denying Appellant's motion for a mistrial.
Ninth Assignment of Error
The trial court committed reversible error in denying Appellant's motions for directed verdict on the issue of the decedent's contributory...
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