LOUIS MANCHISE, Individually and as the Executor of the Estate of Lynn Manchise, Plaintiff-Appellant, vs. STEPHEN IONNA, M.D., and THE GREATER CINCINNATI DIGESTIVE HEALTH NETWORK, INC., Defendants-Appellees, and DANIEL LANKIN, M.D., QUALIFIED EMERGENCY SPECIALISTS, INC., and CATHOLIC HEALTHCARE PARTNERS, INC., d.b.a. MERCY HOSPITAL ANDERSON, Defendants.
APPEAL NO. C-120874
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
August 23, 2013
2013-Ohio-3612
TRIAL NO. A-0907021
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 23, 2013
Cook, Portune & Logothetis, LLC, David M. Cook, Motley Rice, LLC, and Donald A. Migliori, for Plaintiff-Appellant,
Reminger Co., LPA, Rick L. Weil and Michael M. Mahon, for Defendants-Appellees.
Please note: this case has been removed from the accelerated cаlendar.
{¶1} After Lynn Manchise died from a bowel obstruction, her husband, Louis Manchise, instituted an action for medical malpractice against two of her treating physicians and various health care providers. Mr. Manchisе settled with most of the defendants prior to trial, and the matter proceeded to a jury trial against Dr. Stephen Ionna and his medical group. The jury returned an award of damages, and also answered interrogatories that apportioned liability 35 percent to Dr. Ionna and 65 percent to Daniel Lankin, a doctor with whom Mr. Manchise had settled prior to trial. Based upon the jury’s apportionment, the trial court reduced the judgmеnt against Dr. Ionna to 35 percent of the jury’s total award.
{¶2} In this appeal, Mr. Manchise argues that the trial court erred by submitting the interrogatories that allowed the jury to apportion a share of the fault to Dr. Lankin. The intеrrogatories were improper, he contends, because Dr. Ionna had not expressly pled the defense of contributory fault. We disagree. We conclude that under the facts before us, Dr. Ionna did not waive thе defense and it was not error for the court to submit the interrogatories.
I.
{¶3} Around midnight on July 23, 2008, Ms. Manchise went to the emergency room at Mercy Hospital Anderson with severe abdominal pain and distention. Ms. Manchise was examinеd by Dr. Lankin, who diagnosed her with constipation without having performed any diagnostic tests. She was treated with enemas with little result. But after five hours her pain dissipated, and Dr. Lankin discharged her with instructions to follow up with her treating physiсian.
{¶5} The following morning, Mr. Manchise found Ms. Manchise unconscious on her bedroom floor. Efforts to revive her were unsuccessful. An autopsy performed by Dr. Gretel Stephens determined that her cause of a death was a bowel obstruction. According to Dr. Stephens, crystalline fluid was found in Ms. Manchise’s lungs, which indicated that she had vomited and inhaled the electrolyte solution that Dr. Ionna had prescribed.
II.
{¶6} Mr. Manchise sued Dr. Ionna and his employer, Dr. Lankin and his employer, and the hospital, alleging medical malpractice. Mr. Manchise settled with Dr. Lankin two days befоre the start of trial. The matter proceeded to trial against Dr. Ionna and his group.
{¶7} During the trial, Mr. Manchise presented evidence that the electrolyte solution should not be prescribed if there was a possibility of a bowel obstruction. Due to the constellation of symptoms with which Ms. Manchise presented at the emergency room and which were reported in the medical records provided to Dr. Ionna, Dr. Mitchell Capрell, a gastroentronologist, testified that Dr. Ionna had deviated from the standard of care for a gastroentronologist when he prescribed the liquid without first having ruled out a bowel obstruction.
{¶9} At the conclusion of the evidence, the trial court instructed the jury and provided interrogatories inquiring about Dr. Lankin’s contributory fault. The jury returned a verdict in favor of Mr. Manchise, awarding $111,523.37 in damages. The jury also found, according to the interrogatories, that Dr. Lankin was 65 percent responsible for Ms. Manchise’s death, and that Dr. Ionna was 35 percent responsible. Using those percentages, the trial court entered judgment apportioning the damages so that Dr. Ionna was liable for $39,033.18 in damages. See
{¶10} Mr. Manсhise filed a motion for judgment notwithstanding the verdict, additur or, in the alternative, a new trial. The basis for Mr. Manchise’s motion was that the jury’s finding of $111,523.37 was well below the $1,126,701 that had been testified about by his economic expert. Mr. Manchise аlso asserted that the jury had not understood that its damage award would be apportioned based on its answers to the interrogatories. The trial court overruled the motion, and Mr. Manchise now appeals.
III.
{¶11} In the first аssignment of error, Mr. Manchise asserts that the trial court erred when it provided interrogatories to determine Dr. Lankin’s share of the damages because Dr. Ionna had not pled Dr. Lankin’s contributory fault prior to trial.
{¶12} We are limited to a review for plain error because Mr. Manchise failed to adequately raise at trial the issue he raises now. See Goldfuss v. Davidson, 79 Ohio St.3d 116, 121-122, 679 N.E.2d 1099 (1997). At trial, Mr. Manchise’s only
{¶13}
it is an affirmative defense for each party to the tort action from whom the plaintiff seeks recovery * * * that a specific percentage of the tortiоus conduct that proximately caused the injury * * * to person or the wrongful death is attributable to one or more persons from whom the plaintiff does not seek recovery[.] Any party to the tort action from whom the plaintiff seeks recovery * * * may raise an affirmative defense under this division at any time before the trial of the action.
(Emphasis added.)
{¶14} Under the plain terms of
{¶15} It was not until two days before trial that Dr. Lankin was dismissed from the action. We find nothing in the Civil Rules to require that a defendant seek leave to file an amended answer to assert a defense of contributory fault when a co-defendant is dismissed on the eve of trial. But regardless, it is clear that the issue was tried with the consent of the parties.
{¶16}
{¶17} The first assignment of error is overruled.
{¶18} Mr. Manchise asserts in his second assignment of error that the trial court erred in submitting interrogatories about Dr. Lankin’s contributory fault because Dr. Ionna did not present expert testimony on the issue of Dr. Lаnkin’s negligence. But as Dr. Ionna points out, expert testimony on Dr. Lankin’s negligence was presented during the cross-examination of Dr. Cappell.
{¶19} Dr. Cappell was called by Mr. Manchise as an expert in gastroentronоlogy. He testified that he was board certified in gastroentronology and internal medicine. During cross-examination, he agreed that as a gastroentronologist, he would have expected that an emergency рhysician would have ordered x-rays, in light of Ms. Manchise’s symptoms in the emergency room. He went on to testify that even though Dr. Lankin may not have met the standard of care, that fact did not excuse Dr. Ionna’s negligence. He was later asked, “If an x-ray had been ordered during the five hours that [Ms. Manchise] was in the emergency room, would the x-rays have revealed enough for a physician to either admit or * * * consider a consult from another specialist?” Dr. Cappell answered, “Yes.”
{¶20} When Mr. Manchise objected to Dr. Cappell’s testimony as to the standard of care for an emergency room physician, the trial court overruled the objection, сoncluding that “[h]e testified as to what was relied on as far as the emergency room records, I think he’s certainly competent to testify as to what an emergency room physician would do with these symptoms or signs notеd.”
{¶21} A witness’s qualification to testify as an expert is left to the trial court’s discretion. Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 157, 383 N.E.2d 564 (1978). “[A] witness need not practice in the same specialty as that of the defendant-physician; rather, it is the scope of the witness’s knowlеdge and not the
Judgment affirmed.
HENDON, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.