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holding that failure to timely advise trial court of possible error, by objection or otherwise, results in a waiver of the issue for purposes of appeal
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No. 99AP-1007 (REGULAR CALENDAR).
Rendered on May 2, 2000.
Appeal from the Franklin County Court of Common Pleas, 98CV-4104, Judge Yarbrough.
McCarthy, Palmer, Volkema Thomas, Michael S. Miller; and Jerry L. Maloon, for appellant.
James P. Triona, for appellee Ishrat J. Butt, M.D.
T. Jeffery Beausay, for appellee Roy E. Manning, M.D.
OPINION
On May 28, 1998, Anthony W. Limle, individually and as executor of the estate of Joy E. Limle (hereinafter "the decedent"), filed a complaint against Laboratory Corporation of America ("LabCorp"), Ishrat J. Butt, M.D., Celes M. Bryant, C.T., and Roy E. Manning, M.D. Mr. Limle set forth claims for relief of wrongful death, medical malpractice and professional negligence. In essence, the complaint averred that the decedent's death was caused by the defendants' negligence. Specifically, it was alleged that Dr. Butt, a pathologist and employee-agent of LabCorp, and Celes Bryant, a cytotechnologist and employee of LabCorp, failed to detect early signs of a malignancy on the decedent's Pap smear. Dr. Manning, the decedent's gynecologist, allegedly treated and evaluated the decedent in a manner below acceptable standards of care, including failing to sufficiently perform certain cervical biopsies.
On March 15, 1999, Mr. Limle filed a motion of voluntary partial dismissal pursuant to Civ.R. 41(A)(1)(a), dismissing LabCorp and Celes Bryant without prejudice. A jury trial was held on the claims against Drs. Butt and Manning. The jury returned verdicts in favor of both Dr. Butt and Dr. Manning. A judgment entry was journalized on August 3, 1999. Mr. Limle (hereinafter "appellant") has appealed to this court, assigning the following errors for our consideration:
1. The Trial Court Erred To The Substantial Prejudice Of The Plaintiff-Appellant In Instructing The Jury To Disregard The Testimony Of The Plaintiff-Appellant's Expert Witness On The Issue Of Proximate Ca[u]se[.]
2. The Trial Court Erred To The Substantial Prejudice Of The Plaintiff-Appellant In Submitting An Interrogatory Which Required The Jury To Find That The Defendant-Appellee Dr. Butt Was Negligent Not Only In Her Interpretation Of Plaintiff-Appellant's Decedent, Joy Limle's, October 1993 PAP Smear, But Also In The Recommendations She Made For Additional Evaluation[.]
In his first assignment of error, appellant contends the trial court erred in striking and instructing the jury to disregard the testimony of his expert, Richard J. Stock, M.D., with regard to the decedent's survivability had negligence not occurred. At trial, Dr. Stock, a specialist in obstetrical, gynecological and neonatal pathology, testified as to his opinion on several key issues, including whether or not Drs. Butt and Manning (hereinafter collectively referred to as "appellees") were negligent, and the chances the decedent would have lived had negligence not occurred.
As to the issue of survivability, during appellant's case Dr. Stock testified that had the decedent been diagnosed properly in October/November 1993, her probability of survival would have been eighty to ninety percent. (Tr. 217, 234.) Dr. Stock also testified that had the decedent been properly diagnosed in October 1994, her chance of survival would have been slightly higher than fifty percent. On cross-examination, the following exchange occurred:
Q. * * * I can go back to the deposition if I had to, but I understood you stated, for you to be able to give the type of opinion you need to give here in this court, you had to go back and look at a few articles on this type of cancer, correct?
A. Yes, that's what I said. Id. at 280-281.
After appellant had rested and after three defense witnesses had testified, counsel for Dr. Butt moved to strike all of Dr. Stock's testimony with regard to survivability. Defense counsel's basis for the motion was that Dr. Stock had "admitted" his opinions on such were based on a review of several medical articles not in evidence. Id. at 437. Defense counsel argued the medical articles should have been admitted into evidence so that they would be subject to cross-examination. Id. at 440. The trial court agreed and instructed the jury to disregard Dr. Stock's testimony as to whether or not the decedent would have survived had she been diagnosed sooner. Id. at 567. For the reasons that follow, we find the trial court erred in so instructing the jury.
As a threshold matter, we note that appellees arguably waived any alleged error by failing to timely object to Dr. Stock's survivability testimony. As indicated above, defense counsel did not object to this testimony at the time it was elicited. Indeed, the objection was made much later. The failure to timely advise a trial court of possible error, by objection or otherwise, results in a waiver of the issue for purposes of appeal. Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 121. In State v. Johnson (1989), 46 Ohio St.3d 96, 102, the Supreme Court found untimely an objection that was not made contemporaneous with the alleged improper comments. Here, appellees should have objected at the time Dr. Stock engaged in the alleged improper testimony, and such failure arguably precludes appellees from raising the issue on appeal. However, even assuming appellees have not waived the issue, we find the trial court otherwise erred in striking this testimony.
As indicated above, the basis for Dr. Butt's objection was that Dr. Stock had relied upon medical articles to form his opinion as to the decedent's survivability and that such articles should have been admitted into evidence by appellant. However, textbooks and other learned treatises are considered hearsay in Ohio, may not be used as substantive evidence, may not be admitted into evidence to prove the truth of the matter asserted, and are specifically limited to impeachment purposes only. Freshwater v. Scheidt (1999), 86 Ohio St.3d 260, 267, citing Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 110. Hence, contrary to defense counsel's assertion at trial, appellant could not have admitted the articles, and the trial court erred in granting the motion based on such failure.
Appellees further contend that the trial court properly struck Dr. Stock's opinions as to survivability because such was based solely on the articles and, as such, was improper. First, Dr. Stock's opinion as to the decedent's chances of surviving had she been diagnosed sooner was not based solely on the articles. The excerpt quoted above cannot be taken out of context, and Dr. Stock clearly based his opinion testimony on the facts of the underlying case as well.
Further, no party disputes that Dr. Stock was an expert. An expert is a witness who may testify at trial because of special, scientific, or technical knowledge which will assist the trier of fact. State v. Minor (1988), 47 Ohio App.3d 22, 24. As such, an expert necessarily brings to each case knowledge of facts and data which are not in evidence. Id. To the extent an expert applies to the facts in evidence a scientific principle, theory, calculation, measurement or table, such need not be in evidence if the predicate facts are in evidence. Id.
In Steinfurth v. Armstrong World Indus. (1986), 27 Ohio Misc.2d 21, 22, the Cuyahoga County Court of Common Pleas put it aptly when it stated that experts have always been permitted to testify regarding the information which forms the basis of their opinions and that such may include review of applicable treatises, formal classes, discussions with colleagues, reading of books of science and information gained from other experts in the field. These "science items" are perceived by the expert witness and, therefore, the testimony complies with Evid.R. 703. Id.
We note that Dr. Stock never quoted from nor indicated the titles of such articles. Rather, he merely gave his opinion as to the decedent's survivability had negligence not occurred. (Tr. 217, 234-235.) Only upon cross-examination was Dr. Stock questioned about the articles. At this time, pursuant to Evid.R. 706, defense counsel could have cross-examined Dr. Stock, for impeachment purposes, using actual statements from the articles. See Freshwater at syllabus.
Evid.R. 706 states, in pertinent part: "Statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art are admissible for impeachment if the publication is either of the following: (A) Relied upon by an expert witness in reaching an opinion[.] * * * If admitted for impeachment, the statements may be read into evidence but may not be received as exhibits."
As a final matter, we reject Dr. Manning's assertion that any error was essentially harmless as another expert gave similar survivability testimony. This court has reviewed the testimony of defense expert, Jeffrey G. Bell, M.D. Dr. Bell's testimony as to survivability was similar to Dr. Stock's in some respects. However, it was not so similar such that the erroneous striking of Dr. Stock's testimony could be considered non-prejudicial.
For all of the foregoing reasons, the trial court erred in striking the testimony of Dr. Stock as to survivability and in instructing the jury to disregard the same. Accordingly, appellant's first assignment of error is sustained.
In his second assignment of error, appellant contends the trial court erred in submitting a certain interrogatory to the jury. Appellant contends the interrogatory was not based upon the evidence. Interrogatory No. 3 addressed the alleged negligence of Dr. Butt and stated:
Did you find by the preponderance of the evidence that Defendant Ishrat Butt, M.D. was negligent in her interpretation of the October, 1993, pap smear of Plaintiff's decedent, Joy Limle, and the recommendations she provided for additional evaluation?
Appellant contends it was wrong to require both a finding of negligence in Dr. Butt's interpretation and in Dr. Butt's recommendations. Appellant's basis for such contention is that his claim against Dr. Butt was, and the evidence supported a finding, that had Dr. Butt correctly reported the presence of high-grade squamous intraepithelial lesion ("HGSIL") rather than low-grade squamous intraepithelial lesion ("LGSIL") from the 1993 Pap smear, Dr. Manning would have taken additional measures that probably would have resulted in a timely diagnosis of decedent's cancer, and such failure proximately caused decedent's death. Appellant further asserts he did not allege, and the jury was not required to find, that Dr. Butt was also negligent in her recommendations to Dr. Manning for follow-up. Therefore, appellant argues the interrogatory should not have been submitted as it required the jury find both in order to find Dr. Butt negligent.
A trial court retains limited discretion to reject proposed interrogatories which are ambiguous, confusing, redundant, or otherwise legally objectionable. Ziegler v. Wendel Poultry Serv., Inc. (1993), 67 Ohio St.3d 10, 15, overruled on other grounds in Fidelholtz v. Peller (1998), 81 Ohio St.3d 197, syllabus. Proper jury interrogatories must address determinative issues and must be based upon the evidence presented. Ziegler at 15, citing Ramage, supra, at paragraph three of the syllabus.
Dr. Butt asserts the interrogatory conformed directly to the evidence. Specifically, Dr. Butt points to the testimony of her expert, Susan Selvaggi, M.D., that Dr. Butt met the standard of care in interpreting the 1993 Pap smear as containing LGSIL. However, this court has reviewed the transcript and finds that Dr. Selvaggi's testimony, read as a whole and in context, could be taken as indicating Dr. Butt met the standard of care, not because she properly interpreted the 1993 Pap smear, but because Dr. Butt's follow-up recommendations were proper. Dr. Selvaggi's pertinent testimony is as follows:
Q. What was your interpretation of that 1993 Pap smear of Joy Limle?
A. * * * There were numerous low-grade cells in the background, and also in one of the slides there were balls of cells, which, in my opinion, represent a high-grade squamous intraepithelial lesion.
* * *
Q. Now, after you reached your conclusions and interpretations as to those two slides, did you then have an opportunity to review Dr. Butt's interpretation and recommendation involving those '93 Pap smears, that '93 Pap smear?
A. Yes, I did.
Q. Her interpretation is different from yours, isn't it?
A. Yes.
Q. She interpreted this as low grade?
A. Yes, she did.
Q. Now, Doctor, based upon you education, which we'll get to in a few minutes, trained and Board-certified anatomic pathologist with specialty in cytopathology, do you have an opinion to a reasonable probability whether Dr. Butt's interpretation and recommendation met the standard of care in 1993?
A. In my opinion, it met the standard of care.
Q. Now, how is it that she can call this abnormal Pap smear a low-grade squamous intraepithelial lesion, if you, in addition, also see high-grade squamous intraepithelial lesions, that you can say she met the standard of care?
A. In my opinion, it's a matter of degree. For example, some people may report them as low-grade, and sometimes you see a few high-grade cells. I think the important thing that Dr. Butt did was the following. She just didn't stop. In addition to giving her diagnosis, she gave a recommendation that a colposcopy be done on this patient, which we know is actually looking at the cervix, and then biopsying any area that was found to be abnormal by the gynecologist. [Emphasis added.] [Tr. 348-351.]
There was evidence to support appellant's claim that had Dr. Butt correctly interpreted the 1993 Pap smear and reported such to Dr. Manning, even if Dr. Butt's recommendations remained the same, Dr. Manning would have taken more aggressive measures to diagnose and treat the decedent. Id. at 113-114, 505-507, 514-515, 526-528. Further, there was evidence that Dr. Butt fell below the standard of care in failing to properly interpret the 1993 Pap smear. Interrogatory No. 1 stated that if six or more of the jury answered "No" to the interrogatory, then the jury shall enter a verdict in favor of Dr. Butt. The interrogatory was faulty because it required the jury find Dr. Butt negligent both in her interpretation and recommendations. Because the evidence was such that Dr. Butt could have been found negligent solely because of her interpretation of the 1993 Pap smear, the interrogatory should not have been submitted.
Accordingly, appellant's second assignment of error is sustained.
Having sustained both of appellant's assignments of error, the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to such court for further proceedings consistent with law.
___________________________ JUDGE TYACK
BOWMAN, P.J., and KLINE, J., concur.
KLINE, J., of the Fourth Appellate District, sitting by assignment in the Tenth Appellate District.