Ellinger v. HoEllinger v. Ho
Rendered on February 18, 2010
Phillip L. Harmon, for appellants.
Arnold Todaro & Welch Co., LPA, Karen L. Clouse, Gregory B. Foliano and Patrick F. Smith, for appellees.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶1} Plaintiffs-appellants, Shelley R. Ellinger and Barbara Butterbaugh, appeal from a judgment in favor of defendants-appellees, George T. Ho and Urological Associates, Inc. For the following reasons, we affirm.
{¶2} In late 2004, Pearl Ernest Butterbaugh began experiencing difficulty urinating. His primary physician referred him to Dr. Robert Lewis, a urologist. While performing a cystoscopy to view the inside of Butterbaugh‘s urethra and bladder, Lewis discovered “a large, abnormal-appearing ball of tissue” that obstructed the urethra.
{¶3} Lewis believed that if Butterbaugh‘s cancer had not spread, the only procedure that could cure him was a radical cystoprostatectomy—surgery to remove the bladder, prostate, and seminal vesicles. However, that surgery would be exceptionally difficult because Butterbaugh previously had received radiation therapy to his pelvis and abdomen to treat testicular cancer. Radiation causes bands of scar tissue to form, which adhere organs and tissues to other internal surfaces. The adhesions and other side effects of radiation would complicate the surgery. Consequently, Lewis referred Butterbaugh to Ho, a urologist with more experience treating urinary tract malignancies.
{¶4} Ho received the results from the CAT and bone scans, which showed no signs that the cancer had metastasized to another part of Butterbaugh‘s body. He then performed a cystoscopy and a transurethral resection of Butterbaugh‘s bladder to determine the extent, exact location, and origin of the cancer. During that surgery, Ho observed a polypoid growth emanating from the neck of the bladder and protruding into the prostatic urethra, the urinary canal that begins at the neck of the bladder and runs through the prostate. Ho removed tissue samples from the neck of the bladder and the polypoid growth. Pathological testing of those tissue samples indicated that Butterbaugh‘s cancer had invaded the muscle wall of the bladder, but not the prostate. At
{¶5} Physicians assign a stage to cancer based upon the extent of the cancer. The standardized staging system used for bladder cancer includes five stages: Ta, T1, T2, T3, and T4. As the stage increases, the progression of the cancer advances. In stage T3, cancer cells have proliferated throughout the bladder. In stage T4, cancer cells have proliferated to a structure adjacent to the bladder, such as the prostate.
{¶6} There are two types of stages: the clinical stage and the pathologic stage. Physicians arrive at a clinical stage based on all available information obtained prior to surgery to remove the cancer. In the case at bar, Ho premised his clinical staging of Butterbaugh‘s tumor on the results from the CAT and bone scans, the cystoscopies, and the transurethral resections. Pathologists determine the pathologic staging using information gained through examination of the cancer on a microscopic level. Pathologic staging is more accurate than clinical staging because a pathologist can achieve a closer and more thorough examination of the cancerous tumor after its removal from the body.
{¶7} Physicians also evaluate the grade of a patient‘s cancer, labeling cancer cells well differentiated, moderately differentiated, or poorly differentiated. A poorly differentiated bladder cancer cell no longer looks like a normal bladder cell. Poorly differentiated cancers are typically more aggressive and have a high propensity to spread.
{¶8} Given Butterbaugh‘s diagnosis, Ho told Butterbaugh that he had a very aggressive cancer with a very poor prognosis. Although the CAT and bone scans had not shown the spread of cancer beyond the pelvic region, Ho explained that there were
My question to [Butterbaugh] [was]: Are you willing to tolerate that kind of price for a potentially relatively small chance at a cure? * * *
Mr. Butterbaugh, unequivocally said, “If I have any chance of a cure, I want the cure.”
(Tr. 1215.)
{¶9} Butterbaugh and his family (his wife, Barbara Butterbaugh, and daughter, Ellinger) аsked whether chemotherapy would be appropriate to treat Butterbaugh‘s cancer. At trial, Ho testified that he told them that Butterbaugh did not qualify for chemotherapy because he had poor renal function. Also, Ho explained that a three-month course of chemotherapy, which would weaken Butterbaugh, could prevent him from undergoing surgery. In contrast to Ho‘s recollection of this conversation, both Ellinger and Barbara Butterbaugh only recalled Ho saying that chemotherapy was not an option.
{¶10} On February 7, 2005, Ho performed the radical cystoprostatectomy. After surgery, Ho sent Butterbaugh‘s bladder, seminal vesicles, and prostate to the pathology lab for testing. Dr. David Bryant, a pathologist, microscopically examined segments of the organs and determined that the cancerous tumor had originated in the neck of the
{¶11} While Butterbaugh was recovering from surgery, Ho told Butterbaugh and his family that “whatever cancer was present appeared to have been successfully removed.” (Tr. 1024.) For the next five months, Ho continued to monitor Butterbaugh for recurrence of cancer. In July 2005, an MRI showed a large, soft-tissue mass located in front of the base of Butterbaugh‘s spine. The MRI also showed that multiple lymph nodes near the area of the mass were enlarged and causing the displacement of the inferior vena cava, a major blood vessel that carries blood from the lower half of the body to the heart.
{¶12} At that time, Dr. E. Bradley Pewitt, a urologist in Ho‘s practice group, was treating Butterbaugh because Ho was out of town. Concerned that the mass signaled the return of Butterbaugh‘s cancer, Pewitt consulted with a colorectal surgeon and asked whether he could biopsy the mass to ascertain whether it was cancerous. In the colorectal surgeon‘s opinion, the location of the mass made a biopsy unsafe. Pewitt also consulted with Dr. Ralph Roach, a medical oncologist, and requеsted that Roach evaluate Butterbaugh to determine whether he was a candidate for chemotherapy. Roach concluded that Butterbaugh‘s performance status, or general well-being, was poor—he suffered from renal and abdominal wall infection, he had severe renal insufficiency, he was anemic, and he had a history of diabetes and high blood pressure. Given Butterbaugh‘s condition, Roach ruled him out as a candidate for chemotherapy.
{¶13} Over the next three months, Butterbaugh‘s health continued to deteriorate. The mass discovered in July 2005 began expanding, a sign that it was most likely
{¶14} Butterbaugh died on October 6, 2005. As stated on Butterbaugh‘s death certificate, the immediate cause of his death was malignant arrhythmia, an irregular heart rhythm. The arrhythmia was a consequence of hyperkalemia, an elevated level of potassium. The accumulation of potassium was a result of renal failure, which oсcurred because the cancerous mass compressed and obstructed the inferior vena cava.
{¶15} On April 17, 2006, Barbara Butterbaugh and Ellinger, acting individually and as executrix of Butterbaugh‘s estate, filed a survivorship and wrongful death action against Ho and his practice group. The complaint alleged that Ho committed medical malpractice in his care and treatment of Butterbaugh, and that Ho did not obtain Butterbaugh‘s informed consent before operating on him on February 7, 2005.
{¶16} A jury trial commenced on July 28, 2008. In large part, plaintiffs attempted to prove that Butterbaugh would have benefited from neoadjuvant (pre-operative) chemotherapy, and that Ho breached the standard of care when he failed to inform Butterbaugh about neoadjuvant chemotherapy and/or incorporate neoadjuvant chemotherapy into his treatment plan.
{¶17} Plaintiffs first presented the testimony of Roach, the medical oncologist who evaluated Butterbaugh in July 2005. Roach testified that, after reviewing Butterbaugh‘s medical records, he had concluded that Butterbaugh would have been a candidate for neoadjuvant chemotherapy prior to the February 7, 2005 surgery. Moreover, Roach opined that neoadjuvant chemotherapy would have improved Butterbaugh‘s outlook for survival. Roach based his opinion on a study conducted by the Southwest Oncology
{¶18} Dr. Dudley Danoff, plaintiffs’ second expert witness, testified that Ho deviated from the standard of care when: (1) he failed to fully inform Butterbaugh of the therapeutic and potentially curative option of neoadjuvant chemotherapy, (2) he failed to fully inform Butterbaugh that the “surgery only” treatment plan carried a significantly greater risk of complications and death than a treatment plan that included both neoadjuvant chemotherapy and surgery, and (3) he executed the “surgery only” treatment plan rather than the optimal treatment plan of neoadjuvant chemotherapy followed by surgery. In Danoff‘s opinion, neoadjuvant chemotherapy might have reduced the size of the cancerous tumor, making surgery to remove the tumor easier. Danoff also opined that Butterbaugh probably would have survived “many, many, many months more, if not years” if his treatment had included neoadjuvant chemotherapy. (Tr. 613.)
{¶20} Although the SWOG study suggested that patients with advanced bladder cancer could benefit from neoadjuvant chemotherapy, Droller criticized the study itself. Droller pointed out that the study selected only those patients with a high performance status, who because of their better overall function could cope better with chemotherapy. Also, SWOG terminated the study prematurely, leading to difficulty in assessing the results. Finally, Droller noted that Butterbaugh could not receive the same full dose of
{¶21} Pewitt seconded Droller‘s opinion that Ho did not breach the standard of care in rejecting neoadjuvant chemotherapy as a treatment option for Butterbaugh. Pewitt explained that the urological community is still debating the appropriateness of treating advanced bladder cancer with neoadjuvant chemotherapy; it has not yet become the standard of care. Moreover, in Pewitt‘s opinion, Butterbaugh‘s health precluded him from undergoing neoadjuvant chemotherapy. Citing Butterbaugh‘s compromised kidney function and immune system, Pewitt stated that he did not have the reserves to tolerate chemotherapy.
{¶22} Ho also characterized neoadjuvant chemotherapy as an investigational approach to treating advanced bladder cancer. Additionally, Ho opined that, given the state of Butterbaugh‘s health and the aggressiveness of his cancer, the risks inherent in administering neoadjuvant chemotherapy outweighed any potential benefit Butterbaugh might derive from that treatment.
{¶23} As an additional matter, plaintiffs sought to prove that Ho committed medical malpractice when he erroneously staged Butterbaugh‘s cancer at the T3 level during the clinical stage. Danoff, plaintiffs’ expert witness, testified that Ho deviated from the standard of care when he failed to adequately stage, diagnose, and/or evaluate the extent of the spread of Butterbaugh‘s cancer. Danoff opined that because Butterbaugh‘s bladder cancer had invaded the prostatic urethra, it had spread into an adjacent organ.
{¶24} Droller, defendants’ expert witness, agreed with Danoff on this point. Droller conceded that, because Ho knew prior to the February 7, 2005 surgery that Butterbaugh‘s cancer involved the prostate, Ho wrongly staged the cancer at level T3. Droller also admitted that the error in staging violated the standard of care. However, Droller emphasized that Ho‘s error did not harm Butterbaugh because treatment for both T3 and T4 stage bladder cancers is the same—radical cystoprostatectomy.
{¶25} Ho contended that both Danoff and Droller were wrong. When Ho performed the cystoscopy and transurethral resection of Butterbaugh‘s bladder, he observed polypoid growths protruding from the bladder neck into the prostatic urethra. Ho removed those growths and forwarded them to the pathology lab for analysis. The pathology results showed that the cancerous tumor had grown down the prostatic urethra, but it had not penetrated prostate tissue. Because the tumor had not invaded the prostate, Ho staged it as a T3—not T4—tumor.
{¶26} After an eight-day trial, the jury returned a verdict in defendants’ favor. In response to a jury interrogatory, the jury indicated that it found that Ho had not breached the standard of care in his care and treatment of Butterbaugh.
{¶27} Plaintiffs filed three post-verdict motions: a motion to amend the complaint to conform to the evidence, a motion for judgment notwithstanding the verdict, and a motion for a new trial. The trial court denied all three motions. Plaintiffs then moved for reconsideration of thе trial court‘s denial of their motions for judgment notwithstanding the verdict and new trial. The trial court also denied that motion. On November 12, 2008, the
- The trial court prejudicially erred and abused its discretion when it [o]verruled Plaintiff‘s Motion for Ruling to Exclude All Opinion Testimony of Defendants’ Expert Witness (Dr. Droller) On Cause of Death and On Chemotherapy.
- The trial court prejudicially erred and abused its discretion when it [e]xcluded admissible evidence that Dr. Ho deviated from the universal medical standard of care to be truthful.
- The trial court prejudicially erred and abused its discretion when it [r]efused to use the jury instructions or jury interrogatories proposed by Plaintiffs.
- The trial court prejudicially erred and abused its discretion when it [r]efused to require the jury to resume deliberations to answer a jury interrogatory on the issue of informed consent after the jury rendered its verdict on medical negligence but before it had been released from service.
- The trial court prejudicially erred and abused its discretion when it [о]verruled Plaintiff‘s Motion For [sic] Motion to Amend Complaint to Conform to the Evidence, Motion for Judgment Notwithstanding the Verdict, Motion for a New Trial, and Motion for Reconsideration.
- The trial court erred as a matter of law when it [p]ermitted counsel for the defense to cite various learned treatises despite the fact that counsel [did not] disclose[ ] any intention to rely upon any learned treatises before trial.
- The jury‘s verdict was contrary to the manifest weight of the evidence because [t]he verdict in favor of Defendants-Appellees finding no medical negligence was contrary to the “physical facts rule” on the issue of negligent staging of the tumor before and after surgery.
- The jury‘s verdict was contrary to the manifest weight of the evidence because [t]he verdict in favor of Defendants-Appellees finding no medical negligence was unfounded given the undisputed fact that the defense offered no expert testimony to rebut Plaintiff‘s expert testimony that Dr. Ho
violated the standard of care to advise a patient of all potentially therapеutic treatment options including, in this case, chemotherapy.
{¶28} By plaintiffs’ first assignment of error, they argue that the trial court erred in allowing Droller, defendants’ expert witness, to testify regarding the use of chemotherapy for the treatment of advanced bladder cancer and the appropriateness of that treatment for Butterbaugh. Preliminarily, we note that plaintiffs’ first assignment of error also challenges the trial court‘s decision to admit Droller‘s testimony regarding the cause of Butterbaugh‘s death. Plaintiffs, however, fail to support that challenge with any argument. An appellant must demonstrate each assigned error through an argument supported by citations to legal authority and facts in the record.
{¶29} In the only argument supрorting their first assignment of error, plaintiffs contend that Droller was unqualified to provide an expert opinion regarding chemotherapy because he admitted that he did not prescribe systemic chemotherapy. We disagree.
{¶30} Pursuant to
{¶31} Here, Droller testified that he is a board-certified urologist, and that he has been practicing medicine for 39 years. He received his undergraduate and medical degrees from Harvard University. After completing residencies in both surgery and urology, Droller joined the faculty of Johns Hopkins University. While serving on the faculty of Johns Hopkins, Droller conducted research in the field of urologic oncology. He left Johns Hopkins to assume the chairmanship of Mount Sinai School of Medicine. Droller participated in the peer review of the SWOG study prior to its publication in the New England Journal of Medicine.
{¶32} Droller explained that he does not prescribe systemic chemotherapy because he does “not feel qualified to manage the assessment of side effects [and] complications associated with systemic treatment.” (Tr. 787.) Although Droller refrains
{¶33} By plaintiffs’ second assignment of error, they argue that the trial court erred in excluding from evidence a portion of a medical record wherein Pewitt recounted a conversatiоn with a nurse in which she repeated what she overheard Ho telling Butterbaugh. Because plaintiffs did not proffer the excluded portion of the medical record into evidence, they waived this alleged error.
{¶34} Pursuant to
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
* * *
(2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. * * *
Thus, absent a proffer or questioning that makes the substance of the excluded evidence apparent, a party cannot argue before an appellate court that the trial court erred in the exclusion of evidence. State v. Gilmore (1986), 28 Ohio St.3d 190, 191-92 (modifying State v. Hipkins (1982), 69 Ohio St.2d 80). In other words, if the complaining party does not proffer the excluded evidence or the substance of that evidence is not apparent from the questioning of the witness, then appellate courts deem any error arising from the exclusion of the evidence waived. Hilliard v. First Indus., L.P., 165 Ohio App.3d 335, 2005-Ohio-6469, ¶41.
{¶35} Moreover, beyond the dictates of
{¶36} In the case at bar, plaintiffs failed to proffer an unexpurgated version of the medical record at issue. Accordingly, we conclude that plaintiffs waived any error arising
{¶37} By plaintiffs’ third assignment of error, they argue that the trial court erred when it refused to give the jury instructions and interrogatories they proposed. We disagree.
{¶38} In the case at bar, plaintiffs requested that the trial court instruct the jury that:
To prove the common law tort of lack of informed consent, the plaintiffs must prove by the greater weight of the evidence that:
(A) Prior to surgery on February 7, 2005, the defendant, Dr. Ho, failed to disclose to and discuss with Mr. Butterbaugh the material risk of death by metastatic spread of bladder cancer inherently and potentially involved with any decision by Mr. Butterbaugh not to be treated with neoadjuvant, adjuvant, or perioperative chemotherapy before or after surgery; and,
(B) the material risk of death by metastatic spread of bladder cancer that should have been disclosed by the defendant Dr. Ho actually occurred and was a direct cause of injury and death to Mr. Butterbaugh; and,
(C) a reasonable person in Mr. Butterbaugh‘s position would have decided to be treated with neoadjuvant, adjuvant, or perioperаtive chemotherapy before or after surgery on February 7, 2005 if the material risk of death by metastatic spread of bladder cancer had been disclosed to him prior to surgery on February 7, 2005.
(Emphasis sic.)
{¶39} The trial court recognized that it needed to give the jury an instruction on the tort of lack of informed consent. However, the trial court balked at giving plaintiffs’ instruction because it integrated plaintiffs’ theory of their case into the elements of the tort.
{¶40} Generally, a trial court should give a requested jury instruction if it is a correct statement of the law applicable to the facts of the case and reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. Whether a jury instruction correctly states the law is a question of law that an appellate court reviews de novo. Myer v. Chieffo, 180 Ohio App.3d 78, 2008-Ohio-6603, ¶29.
{¶41} The doctrine of informed consent arose from the belief that every person has a right to determine what shall be done with his or her body. Wheeler v. Wise (1999), 133 Ohio App.3d 564, 572. To preserve that right, whenever a physician proposеs to perform a treatment upon a patient, the physician must inform the patient about the material risks and dangers associated with the proposed treatment. Id. Ohio law permits recovery for a physician‘s failure to obtain informed consent when a plaintiff proves that:
(a) [t]he physician fail[ed] 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[d] and [were] the proximate cause of the injury to the patient; and
(c) a reasonable person in the position of the patient would have decided against the therapy had the material risks and dangers inherent and incidental to treatment had been disclosed to him or her prior to the therapy.
Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, 139.
{¶43} Plaintiffs next argue that the trial court erred in failing to submit to the jury the proposed interrogatory that corresponded with their jury instruction on lack of informed consent. Again, we disagree.
{¶44} Plaintiffs’ requested jury interrogatory asked:
Did Plaintiffs prove by the greater weight of the evidence that:
(A) Prior to surgery on February 7, 2005, the defendant, Dr. Ho, failed to disclose to and discuss with Mr. Butterbaugh the material risk of death by metastatic spread of bladder cancer inherently and potentially involved with any decision by Mr. Butterbaugh not to be treated with neoadjuvant, adjuvant, or perioperative chemotherapy before or after surgery; and,
(B) the material risk of death by metastatic spread of bladder cancer that should have been disclosed by the defendant Dr. Ho actually occurred and was a direct cause of injury and death to Mr. Butterbaugh; and,
(C) a reasonable person in Mr. Butterbaugh‘s position would have decided to be treated with neoadjuvant, adjuvant, or perioperative chemotherapy before or after surgery on February 7, 2005 if the material risk of death by metastatic spread of bladder cancer had been disclosed to him prior to surgery on February 7, 2005?
(Emphasis sic.)
The trial court did not give this, or any other, interrogatory to the jury to test the jury‘s verdiсt on the lack of informed consent claim.
{¶45} Pursuant to
{¶46} Plaintiffs drafted their interrogatory with the intent that the jury‘s answer would reveal its resolution of the lack of informed consent claim. However, the factual matters the jury would have had to decide to answer the interrogatory would not have actually determined defendants’ liаbility for lack of informed consent. As we explained above, under the law of informed consent, Ho could not be liable for his failure to inform Butterbaugh regarding the risks of not undergoing a treatment that Ho did not propose. Accordingly, the requested jury interrogatory did not test an ultimate and determinative issue, and thus, the trial court did not err in rejecting it.
{¶47} In sum, we conclude that the trial court did not err in declining to give the requested jury instruction and interrogatory regarding lack of informed consent. Therefore, we overrule plaintiffs’ third assignment of error.
{¶48} By plaintiffs’ fourth assignment of error, they argue that the trial court erred in refusing to order the jury to resume deliberations to answer a jury interrogatory on the lack of informed consent claim after the jury rendered its verdict. We disagree.
{¶49} Immediately before closing arguments, the trial court and the parties reviewed each side‘s proposed jury instructions and plaintiffs’ requested jury interrogatories. After a lengthy discussion, the trial court rejected both plaintiffs’ and defendants’ proposed jury instructions and told the parties that it would draft instructions based on thе Ohio Jury Instructions during the lunch break. In the course of revising plaintiffs’ jury interrogatories to mirror the more generic jury instructions, the trial court omitted a jury interrogatory on the lack of informed consent claim. When court
{¶50} After the jury returned with a verdict for defendants, plaintiffs’ counsel asked, “[w]as there a verdict or interrogatory rendered on the informed consent?” (Tr. Vol. IX, at 4.) The trial court replied that the jury had answered the interrogatories that the parties had approved, and it dismissed the jury.
{¶51} On appeal, plaintiffs now argue that, in response to their counsel‘s question, the trial court should have given the jury an interrogatory on the lack of informed consent claim and ordered the jury back into deliberations to answer that interrogatory. In support of their argument, plaintiffs rely solely upon
{¶52} Moreover, if plaintiffs had wanted a jury interrogatory regarding their lack of informed consent claim, then they had to raise their objection to the absence of such an interrogatory when the trial court gave them the opportunity. By failing to object at that point, plaintiffs waived any error associated with the lack of a jury interrogatory on informed consent. Schmidt v. Koval, 7th Dist. No. 00-C.A.-239, 2002-Ohio-1558, ¶38; Bardonaro v. Gen. Motors Corp. (Aug. 4, 2000), 2d Dist. No. 18063; Yackel v. Kay (1994), 95 Ohio App.3d 472, 481. Accordingly, we overrule plaintiffs’ fourth assignment of error.
{¶53} By plaintiffs’ fifth assignment of error, they argue that the trial court erred in denying their motion for a judgment notwithstanding the verdict, motion for a new trial, and motion to amend the complaint to conform to the evidence adduced at trial. We will first review the trial court‘s ruling on plaintiffs’ motion for judgment notwithstanding the verdict.
{¶54} The standard for a motion for judgment notwithstanding the verdict pursuant to
{¶55} Here, plaintiffs argue that they are entitled to a judgment notwithstanding the verdict because the evidence demonstrates that Ho committed medical negligence when he wrongly staged Butterbaugh‘s bladder cancer at the clinical stage. We disagree.
{¶56} In order to establish medical negligence, a plaintiff must prove four elements: (1) a duty running from the defendant to the plaintiff, (2) a breach of that duty by the defendant, (3) damages suffered by the plaintiff, and (4) a proximate cause relationship between the breach of duty and the damages. Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc., 108 Ohio St.3d 494, 2006-Ohio-942, ¶17. We conclude that plaintiffs failed to prove that the evidence adduced at trial required reasonable minds to decide these four elements in their favor.
{¶57} First, although both Danoff and Droller testified that Ho violated the standard of care when he failed to stage Butterbaugh‘s cancer at the T4 level, Ho disagreed. According to Ho, Butterbaugh suffered from T3 bladdеr cancer. Ho explained that, while the cancerous tumor had protruded into the prostatic urethra, it had not invaded the prostate. Multiple witnesses testified that bladder cancer advances to the T4 stage only when it invades an adjacent organ, like the prostate. Therefore, construing the evidence in defendants’ favor, reasonable minds could disagree on whether Ho deviated from the standard of care in his staging of Butterbaugh‘s bladder cancer.
{¶59} In sum, reasonable minds could find against plaintiffs on multiple elements of their mеdical negligence claim. Thus, the trial court did not err in denying plaintiffs a judgment notwithstanding the verdict.
{¶60} We next turn to plaintiffs’ argument that the trial court erred in denying their motion for a new trial. Plaintiffs challenge the trial court‘s ruling on two grounds: (1)
{¶61} Pursuant to
{¶62} Here, the trial court rejected plaintiffs’ argument that the weight of the evidence militated for a judgment in their favor on their claim that Ho actеd negligently when he staged Butterbaugh‘s bladder cancer at the T3 level. The trial court determined that the evidence proved that Ho met the standard of care in his care and treatment of Butterbaugh. On appeal, plaintiffs fail to explain why this ruling constitutes an abuse of discretion. Our review of the record reveals that it contains competent, credible evidence that Ho properly staged Butterbaugh‘s bladder cancer. Accordingly, we conclude that the trial court did not abuse its discretion in refusing to grant plaintiffs a new trial based on
{¶63} Pursuant to
{¶64} Here, plaintiffs argue that the trial court erred in denying them a new trial because “the verdict was inconsistent with the non-existent jury interrogatory on the tort claim of lack of informed consent.” (Appellants’ brief, at 29.) This argument is nonsensical. A nonexistent answer to an unasked interrogatory cannot possibly contradict the general verdict. Interpreting plaintiffs’ argument broadly, we presume that they contend that the trial court departed from the due, orderly, and established mode of proceeding in its handling of plaintiffs’ counsel‘s belated realization that an interrogatory on informed consent did not go to the jury. However, as we concluded with respect to plaintiffs’ fourth assignment of error, the trial court‘s management of the situation did not constitute error. Accordingly, we conclude that the trial court did not abuse its discretion in refusing to grant plaintiffs a new trial based on
{¶65} Finally, we turn to plaintiffs’ contention that the trial court erred in denying their motion to amend the complaint to conform to the evidence adduced at trial. Pursuant to
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after judgment.
An appellate court reviews a trial court‘s ruling on a
{¶66} Here, plaintiffs sought amendment to specifically plead additional theories underlying their claims for medical negligence and lack of informed consent. Plaintiffs claimed that they introduced the evidence necessary to support each theory at trial. The trial court denied plaintiffs’ motion, finding that amendment would prejudice defendants because it would allow plaintiffs to argue on appeal that the jury instructions and interrogatories did not correspоnd with the amended complaint. Because plaintiffs wanted to clarify their theories of the case, not add claims, we are uncertain how amendment would have given plaintiffs grounds on which to appeal the jury instructions and interrogatories. The trial court ensured that content of the jury instructions and interrogatories turned upon the law relating to the claims asserted, not the theories plaintiffs advanced to support their claims.
{¶67} Nevertheless, we find plaintiffs’ assertion of error unavailing. Where a party fails to demonstrate that prejudice arose from the denial of a motion to amend the pleadings to conform to the evidence, an appellate court will not disturb the trial court‘s decision. Cole v. Cole, 11th Dist. No. 2006-A-0079, 2007-Ohio-6929, ¶18; Margala v. Berzo, 11th Dist. No. 2003-T-0155, 2005-Ohio-2265, ¶15. See also Theobald v. Univ. of Cincinnati, 160 Ohio App.3d 342, 2005-Ohio-1510, ¶17 (“A reviewing court will not disturb a judgment unless the error contained within is materially prejudicial to the complaining party.“). Here, plaintiffs do not state how the trial court‘s denial of their motion to amend prejudiced them, and we cannot identify any prejudice either. Therefore, we conclude
{¶68} In sum, we find no basis on which to the reverse the trial court‘s rulings on plaintiffs’ motion for a judgment notwithstanding the verdict, motion for a new trial, or motion to amend the complaint to conform to the evidence. Accordingly, we overrule plaintiffs’ fifth assignment of error.
{¶69} By plaintiffs’ sixth assignment of error, they argue that the trial court erred in allowing defense counsel to use various learned treatises to question witnesses, even though defense counsel had not disclosed an intention to rely upon those learned treatises prior to trial. We disagree.
{¶70} Initially, we note that a large portion of the argument supporting this assignment of error focuses on plaintiffs’ contention that the trial court erred in precluding Danoff, their expert witness, from referring to scholarly articles that he relied on to reach his expert opinion. Plaintiffs, however, failed to assign any error regarding the exclusion of this evidence. Pursuant to
{¶72} Next, plaintiffs argue that the trial court erred in allowing questioning about the articles, textbooks, and guidelines because the trial court did not first ascertain that they were reliable as required in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, and Kumho Tire Co., Ltd. v. Carmichael (1999), 526 U.S. 137, 119 S.Ct. 1167. In both Daubert and Kumho Tire, the United States Supreme Court held that, under
{¶73} Plaintiffs misunderstand the import of Daubert and Kumho Tire. Courts apply the standard articulated in those cases to determine whether to admit an expert‘s opinion testimony, not whether to allow questioning about articles, textbooks, and/or guidelines on the subject of the expert‘s opinion. Nothing in Daubert and Kumho Tire addresses the admissibility of medical literature. Accordingly, as plaintiffs have not asserted any basis for finding error, we overrule plaintiffs’ sixth assignment of error.
{¶74} By plaintiffs’ seventh assignment of error, they argue that, after discounting the testimony that contravenes the physical facts rule, the judgment is contrary to the manifest weight of the evidence. We find this argument unavailing.
{¶75} According to the physical facts rule, neither a court nor jury can give probative value to any testimony positively contradicted by the physical facts. McDonald v. Ford Motor Co. (1975), 42 Ohio St.2d 8, 12. In other words, ” ‘the testimony of a witness which is opposed to the laws of nature, or which is clearly in conflict with principles established by the laws of science, is of no probative value and a jury is not permitted to rest its verdict thereon.’ ” Id., quoting Connor v. Jones (1945), 115 Ind.App. 660, 670.
{¶77} Notably, Ho and Bryant staged Butterbaugh‘s cancer at different times, using different information. Ho diagnosed Butterbaugh at the clinical stage, while Bryant diagnosed him at the pathologic stage. According to Ho, based on the information available at the clinical stage, he properly evaluated Butterbaugh‘s cancer as a T3 bladder cancer. Although post-surgery pathological testing showed that the cancer had invaded the prostate, Ho did not know that when he conducted the clinical staging. Thus, the post-surgery results of pathological testing do not contradict Ho‘s testimony that, given what he knew prior to surgery, the correct clinical stage diagnosis was T3 bladder cancer. Accordingly, we conclude that the physical facts rule does not require us to disregard Ho‘s testimony, and we overrule plaintiffs’ seventh assignment of error.
{¶78} By plaintiffs’ eighth assignment of error, they argue that the manifest weight of the evidence does not support the judgment on the medical negligence claim. Plaintiffs assert that Ho breached the standard of care because he failed to advise Butterbaugh of all potentially therapeutic treatment options, including chemotherapy. We disagree.
{¶80} In the case at bar, plaintiffs assert that the evidence demonstrates that Ho failed to advise Butterbaugh аbout chemotherapy, and this omission violated the standard of care. Contrary to plaintiffs’ contention, Ho testified that he did speak with Butterbaugh about chemotherapy. Ho explained to Butterbaugh why chemotherapy would not benefit him. Both Pewitt and Droller concurred with Ho‘s opinion that neoadjuvant chemotherapy was not appropriate for Butterbaugh due to his poor condition and medical history. Moreover, Droller also testified that nothing Ho did in the treatment of Butterbaugh fell below the standard of care. Given this testimony, we conclude that competent, credible evidence supports the judgment on the medical negligence claim. Accordingly, we overrule plaintiffs’ eighth assignment of error.
Judgment affirmed.
FRENCH and McGRATH, JJ., concur.