Williams v. Grant

• Decision Date: 03 August 1979
• Citation: 65 Ohio App.2d 225,417 N.E.2d 586
• Parties: , 19 O.O.3d 168 WILLIAMS, Admx. et al., Appellants, v. GRANT et al., Appellees. *
• Court: Ohio Court of Appeals

Page 225

65 Ohio App.2d 225

417 N.E.2d 586, 19 O.O.3d 168

WILLIAMS, Admx. et al., Appellants, v. GRANT et al., Appellees. ^*

Court of Appeals of Ohio, Sixth District, Erie County.

Aug. 3, 1979.

Syllabus by the Court

In an action for wrongful death, based upon alleged medical malpractice, neither R.C. 2125.01 (action for wrongful death) nor Ohio case law recognizes any recovery for the loss of any chance of survival.

Murray & Murray Co., L.P.A., and Patrick Murray, Sandusky, for appellants.

Flynn, Py & Kruse Co., L.P.A., and Raymond N. Watts, Sandusky, for appellees.

POTTER, Presiding Judge.

The legal proceeding resulting in this appeal was initiated by the filing of a complaint and subsequently an amended complaint in the Court of Common Pleas of Erie County, wherein Ruth Williams, individually and as administratrix of the estate of James Williams, deceased, and the United States, Veterans Administration, were plaintiffs. John F. Grant and John F. Grant, M.D., Inc., were defendants (hereinafter defendant refers to Dr. Grant and defendants refers to Dr. Grant and the corporation).

The first count of the complaint was by the administratrix for the wrongful death of James Williams to recover the pecuniary loss suffered by Ruth Williams, wife of the deceased, and her three nieces. The second count was for medical and hospital expenses and for the funeral bill and burial expense sustained by Ruth Williams, individually. The third count, by the United States, was for medical and hospital care and treatment furnished to James Williams.

The thrust of the action was alleged medical malpractice resulting in the untimely death of James Williams. Plaintiffs alleged that defendant negligently removed a malignant melanoma from the left chest wall of the decedent by electrodesiccation on October 8, 1973. Plaintiffs alleged that the improper and negligent removal by defendant prevented a timely diagnosis of malignant melanoma by a pathologist, which, in any event, was made impossible by the method of removal and was not ordered. Plaintiffs also asserted that on June 10, 1974, when James Williams again presented himself to defendant with a swelling or enlargement of the lymph nodes under the left armpit, defendant was allegedly negligent in the treatment prescribed by him.

The lesion previously referred to was "a mole" approximately one centimeter by two centimeters. A malignant melanoma is a skin cancer first noticeable as a pigmented spot on the skin and is darker than a normal spot on the skin. A hemangioma is a benign skin lesion, containing many capillary blood vessels. Generally, a hemangioma will blanch upon pressure. A melanoma should not blanch because of the pigment. Defendant claimed that he removed a hemangioma by electric cautery and that this was a normal and accepted practice. Plaintiffs claimed that the lesion was a malignant melanoma and should have been removed by a wide incision and sent to a pathologist for examination and that timely and appropriate treatment should have followed.

James Williams was treated in June 1974 by defendant with antibiotics and then admitted to Providence Hospital in Sandusky, Ohio on July 10, 1974. He voluntarily removed himself on July 12, 1974. Also on July 12, 1974, he entered the Veterans Administration Hospital in Cleveland, Ohio. A biopsy performed on July 16 of the lymph nodes under James Williams' left armpit disclosed malignant melanoma. He was subsequently operated upon on July 25, 1974, in the area of the mass and the original lesion. Slides prepared of tissue taken from the site of the original lesion showed no cancer cells. Williams died on September 5, 1974. The clinical diagnosis of the cause of death was widespread malignant melanoma. There was no autopsy performed.

This case was well tried by competent counsel from July 13 until July 19, 1978, to a jury. Several expert witnesses were presented and the evidence was conflicting. Plaintiffs introduced evidence generally as above outlined; whereas the defendant, Dr. John F. Grant, asserted that on October 8, 1973, he removed a superficial hemangioma and that his procedures on June 10, 1974, and thereafter, were proper and in accordance with medical practice in 1973 and 1974. Other defense experts and testimony supported the 1973 procedure and also supported a conclusion that the melanoma had either spread to the lymph nodes and other parts of the body prior to the electrodesiccation of October 8, 1973, or that there was another primary site. The defense witnesses testified that, in any event, Williams' death would have occurred approximately when it did, and that in 1973 chemotherapy had not been perfected as a successful cure of melanoma.

The jury returned a verdict for the defendants. From the judgment on the verdict and the overruling of a motion for a new trial, Ruth Williams, individually and as administratrix, filed her appeal. She has assigned the following assignments of error:

"I. The verdict is against the weight of the evidence.

"II. The trial court erred in that portion of the charge which instructed the jury that the plaintiffs had to prove a probability of survival in order to recover any damages.

"III. The trial court erred in permitting defendant's doctors to testify as to possibilities not probabilities.

"IV. The trial court erred in making remarks designed to discredit plaintiffs' medical expert, Dr. Robert Ailes.

"V. The trial court erred in not permitting plaintiffs' medical experts to testify as to the ultimate issues in the case."

We have carefully examined the record in this case and find that the plaintiffs had a fair trial, that there were no prejudicial errors and that the verdict was not against the weight of the evidence. Therefore, we find all assignments of error not well taken.

As to the first assignment of error relative to the weight of the evidence, we have already outlined the conflict in the evidence as to the nature of the lesion, treatment and the probability of survival. The first assignment of error relative to manifest weight also has to be considered with the second assignment of error which goes to the issue of the proximate cause of James Williams' death. Plaintiffs claim that the following charge relative to proximate cause was error:

"In an action for wrongful death, as a result of alleged medical practice, the Plaintiffs must show by a preponderance of the evidence that the decedent's death was caused by doing * * * something that a physician of ordinary skill, care and diligence would not have done, or by the failure to do something that such a physician or surgeon would have done under like or similar circumstances. And that with proper diagnosis and treatment, that the decedent would probably have survived. In other words, the Plaintiffs must prove by the greater weight of the evidence, not only that the Defendant's diagnosis and treatment fell below the standard of a reasonable careful physician or surgeon, but also that such diagnosis and treatment if you find it to be negligent, was probably the proximate cause of the ... of James Williams' death."

Plaintiffs assert that they established a prima facie case of survival with prompt diagnosis and treatment, that the burden should have shifted to the defendants to prove that cancer cells had probably spread to other areas at the time the lesion was removed and, furthermore, that they should have had a jury instruction that there was a shortening of the decedent's life span by defendant's allegedly negligent treatment.

We have already noted the conflict of evidence relative to the type of lesion and as to treatment. A conflict also existed as to the chances of survival within the state of the art in 1973. Furthermore, we are confronted with R.C. 2125.01 which gives a right to recover damages, "(w)hen the death of a person is caused by wrongful act, neglect, or default * * *." Following, as we do, the mandate of the Ohio Supreme Court, we must necessarily consider the case of Cooper v. Sisters of Charity (1971), 27 Ohio St.2d 242, 272 N.E.2d 97. The syllabus of that case is as follows:

"In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiff's evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of the patient's survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery, the patient probably would have survived."

As defendants assert, neither the statute nor the case law recognizes any recovery for the loss of any chance...