COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59559 WENDY PHILLIPS, EXRX. : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION MEDNET/BEACHWOOD CLINIC, ET AL. : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT FEBRUARY 20, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas court Case No. 109894 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEES: R. Eric Kennedy John V. Jackson, II Marvin H. Schiff Ellen H. Hirshman Weisman, Goldberg, Weisman Steven J. Hupp & Kaufman Jacobson, Maynard, Tuschman 1600 Midland Building & Kalur Co., L.P.A. 101 Prospect Avenue, West 1001 Lakeside Avenue Cleveland, Ohio 44115 Suite 1600 Cleveland, Ohio 44114 - 1 - ANN McMANAMON, P.J.: Wendy Phillips, Executrix for the Estate of Henry Lewis, filed a medical malpractice action against Mednet/Beachwood Clinic, Mednet Immediate Care, The Euclid Clinic Foundation, Edward Carden, M.D., Kathleen Fagan, M.D., and Kent Knauer, M.D. Before trial, the executrix voluntarily dismissed Drs. Carden and Fagan. A jury subsequently returned a defense verdict. In a timely appeal, the executrix raises two assignments of error challenging the manifest weight of the evidence and the court's denial of her new trial motion. Upon a review of the record, we affirm. Fifty-three year-old Henry Lewis went to the Mednet/ Beachwood Immediate Care Center on Friday, July 5, 1989 for treatment of joint pain and a sore throat. Dr. Fagan examined Lewis and noted that his throat was red with exudate. She ordered diagnostic tests, prescribed medication for Lewis's complaints and recommended he make an appointment with Dr. Knauer, a specialist in internal medicine and clinical immunology. Later that afternoon, Mrs. Lewis telephoned the medical center and stated that the medication was not relieving her husband's pain. Dr. Fagan consulted with Dr. Knauer who recommended Lewis take 75 mg. Indodcin, an anti-inflammatory drug, for the joint pain. Mrs. Lewis phoned the center again the next day because the - 2 - medicines upset her husband's stomach. The drug Clinoril was prescribed in light of this new complaint. On Monday, July 8, 1985, Knauer examined Lewis who stated he had been experiencing joint pain for about one month and had lost eighteen pounds during that time. Lewis also told the physician that he had been coughing up blood. Upon further examination, Knauer concluded that Lewis "*** was not coughing in the medical sense out from his lung, more like a clearing sort of thing ***." (Tr. 33). Knauer testified Lewis's throat was bloody and that it appeared the blood might be coming from above the palate. Finally, Knauer heard rhonchi in Lewis's right lung which cleared after he took a couple of breaths. Knauer ordered x- rays of Lewis's sinuses and left wrist, and prescribed Medrol, a steroid, for his joint pain. The physician also reviewed the results of the diagnostic tests ordered by Dr. Fagan. For the most part, the results were normal except for some evidence of inflammation and rheumatoid arthritis. Dr. Knauer referred Lewis to Dr. Carden, an ear, nose and throat specialist, for evaluation of Lewis's throat. The following day, Dr. Carden examined Lewis and observed ulcers on his throat. Carden concluded Lewis had a viral stomatitis. While Lewis was waiting for his appointment with Carden, Dr. Knauer spoke with the patient who stated he was feeling better. On July 11, 1985, Lewis again saw Dr. Knauer. The physician testified Lewis had "no chest symptoms, no complaints of - 3 - shortness of breath or chest pain. He offered no complaint of any sort with the chest." (Tr. 59). Knauer also averred Lewis's bleeding had stopped and the ulcers were practically gone. At this time, Knauer referred Lewis to a rheumatologist. The next day, Mr. Lewis's daughter telephoned Knauer and described her father as "very anxious, worried and tense." (Tr. 60). She stated Dr. Carden had suggested Valium for her father so Knauer prescribed the drug. Mrs. Lewis phoned about one hour later and told Knauer her husband "was getting much worse, that he was feeling very bad." Knauer advised Mrs. Lewis to take her husband to the Beachwood Clinic/Immediate Care Center. Instead, Mrs. Lewis took her husband to Hillcrest Hospital where he died later that afternoon. The parties stipulated that Mr. Lewis died from "pulmonary capillaritis with hemorrhage caused by necrotizing vasculitis." Lewis specifically suffered from periarteritis nodosa, a rare subgroup of necrotizing vasculitis, which caused inflammation and the eventual destruction of the capillaries in his lungs. The first assignment of error contests the manifest weight of the evidence. The executrix's second assignment asserts the trial court erred by denying her new trial motion. Since this motion also challenges the weight of the evidence, we will address these arguments concurrently. - 4 - A judgment supported by some competent, credible evidence shall not be reversed as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. Further, the weight to be given the evidence and the assessment of witness credibility is within the purview of the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 81. An appellate court similarly affords the trial court broad discretion in ruling on new trial motions based upon challenges to the weight of the evidence and, absent an abuse of that discretion, the court's ruling will not be reversed. Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App. 3d 249, 253. In order to establish medical malpractice, a plaintiff must demonstrate that: "*** the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct result of such doing or failing to do some one or more of such particular things." Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127, paragraph one of the syllabus. Thus, the executrix was required to prove that Dr. Knauer's treatment of Lewis deviated from the requisite standard of care and that this deviation proximately caused Lewis's death. Id. The executrix, initially, challenges the jury's explicit finding, by way of interrogatory, that Dr. Knauer did not deviate "from acceptable standards of medical care in his treatment of - 5 - Mr. Lewis." It was the executrix's position at trial that Dr. Knauer breached the standard of care by failing to order a chest x-ray on July 8 when Mr. Lewis complained of coughing up blood. In Bruni, supra, the Supreme Court stated: "The issue as to whether the physician and surgeon has proceeded in the treatment of a patient with the requisite standard of care and skill must ordinarily be determined from the testimony of medical experts. 41 American Jurisprudence, Physicians and Surgeons, Section 129; 81 A.L.R. 2d 590, 601. It should be noted that there is an exception to that rule in cases where the nature of the case is such that the lack of skill or care of the physician and surgeon is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it, and in such case expert testimony is not necessary." (Citations omitted). Id. at 130. In this case, whether a chest x-ray was dictated by the acceptable standard of medical care was not within the common knowledge of the jury and expert testimony was required. Id. The record demonstrates that the experts for both the executrix and the defense testified that Dr. Knauer's failure to order a chest x-ray was a deviation from the standard of care when a patient complains of coughing up blood. The executrix's expert, Dr. David Sachs, a specialist in pulmonary diseases, told the jury it was mandatory for a physician to obtain an x-ray under the circumstances of this case. Sachs explained that, even if the blood were originating in an upper airway, it would be necessary to order a chest x-ray because a patient could aspirate blood and "it could go down the windpipe and lungs." (Tr. 67). On - 6 - cross-examination, Dr. Roland Moskowitz, the director of rheumatic diseases at University Hospitals, testified: "Q. Did he get standard care on the 8? "A. With respect to what? "Q. Wouldn't standard care be required that a chest X-ray be ordered? "A. Yes, I would have ordered a chest X-ray. "Q. Not only would you order it, but standard care required that it be ordered? "A. I think I would agree with that." (Tr. 49- 50). In light of the experts' testimony, the jury's finding on this issue is against the manifest weight of the evidence. The executrix next argues the evidence demonstrated that Dr. Knauer's failure to order the chest x-ray proximately caused Lewis's death. We note the record does not contain the interrogatory submitted to the jury on this issue although the parties appear to agree that the jury did not answer this interrogatory in light of their first finding. We also do not have before us the court's jury charge so we cannot determine whether the court instructed the jury not to deliberate on the proximate cause issue if they found no deviation from the standard of care. The record does include a general verdict form with a finding for the defense. Assuming, arguendo, the jury did not answer the proximate cause interrogatory, it was the executrix's duty to request such an answer and we will not assume the jury did not consider this issue in reaching its general - 7 - verdict. Cf. Berisford v. Sells (1975), 43 Ohio St. 2d 205; McCarthy v. Kasperak (1981), 3 Ohio App. 3d 206. The record demonstrates that the evidence on the proximate cause issue was in dispute. Dr. Sachs testified that Dr. Knauer's failure to order an x-ray proximately caused Lewis's death. Sachs opined that a chest x-ray would have led to a lung biopsy and a diagnosis of vasculitis. According to Sachs, steroid treatment could have begun as early as July 10 and Lewis would have lived. Defense expert Moskowitz challenged this opinion. Moskowitz posited that Lewis suffered from a rare disease which is extremely difficult to diagnose. He testified that capillaritis is usually not seen with vasculitis and that its presence indicated Lewis had a more serious form of the disease which would have been very difficult to control. Moskowitz told the jury that the blood on Lewis's throat on July 8 could have originated in the mouth and that it was "unlikely" Lewis's lung had a "massive amount of abnormality." (Tr. 25). The expert further stated that, even assuming an x-ray revealed abnormalities, it would have taken "three to four days" for a definitive diagnosis "if one was lucky and pushed all the right buttons in your decision making ***." (Tr. 36). Moskowitz opined that even if a diagnosis had been made by Wednesday, July 10, Lewis would not have survived. (Tr. 38). In light of Moskowitz's testimony, we find substantial, credible evidence to support the jury's verdict. This same evidence supports the trial court's - 8 - denial of the executrix's new trial motion. Accordingly, we overruled the first and second assignments of error and the judgment of the trial court is affirmed. Judgment affirmed. - 9 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., CONCURS; HARPER, J., DISSENTS (SEE DISSENT ATTACHED TO JOURNAL ENTRY AND OPINION). PRESIDING JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59559 : WENDY PHILLIPS, EXRX. : CONCURRING : : AND Plaintiff-Appellant : : DISSENTING -vs- : : OPINION MEDNET/BEACHWOOD CLINIC, ET AL. : : : Defendant-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 20, 1992 HARPER, J., CONCURRING IN PART AND DISSENTING IN PART: I concur with the majority in its appropriate finding that the jury's verdict that Dr. Knauer did not deviate from the standard of care owed to Mr. Lewis was against the manifest weight of the evidence. However, I respectfully dissent from the final disposition of this case because, in my opinion, it is inconsistent with our finding. The four stages that must be proved and the order of proof in any negligence action before recovery can be had is elementary tort law. The first required proof is the duty that is owed to the injured party. The second required proof is the deviation or breach of that duty. The third required proof is - 2 - the proximate cause or sometimes cause in fact of the injury. The fourth required proof is damages. Tort law has not changed from these four requirements since common law. It is equally elementary that no one recovers in a tort negligence action when there is no duty owed or when there is duty owed but no breach of that duty occurred. It, therefore, follows that neither the jury nor a court acting as a fact finder can proceed to decide proximate cause where no duty or violation of duty is found. It equally follows that where duty and breach is found no recovery can be had unless a party proved proximate cause. Finally where the fact finder finds duty, breach and proximate cause, no recovery can be had without proof of damages. The burden of proof is strictly followed in the order stated supra. The majority in the within case has by conjecture changed the strict order of proof required in a negligence action by holding that the jury could have deliberated on the issue of proximate cause when they found no deviation from the standard of care. The following interrogatory was put forth to the jury, to which they answered in the negative. "Has the plaintiff proven by a preponderance of the evidence that Kent A. Knauer, M.D. deviated from acceptable standards of medical care in his treatment of Mr. Lewis. "Answer: No." To intimate that the jury could have deliberated on the issue of proximate cause when they found no breach of duty is pure conjecture and does not comport with the order of - 3 - deliberation in tort law negligence. It is inconceivable to expect a jury that did not find breach of duty to have deliberated on the issue of proximate cause. The majority might as well have concluded that the jury could have deliberated on the issue of damages, even when it did not find a breach of duty and proximate cause. The law of negligence does not permit a jump from no duty to proximate cause or a jump from no proximate cause to damages, because the law recognizes that an exercise of one without the other is baseless. Appellant no doubt was less than diligent in securing all the portions of the record necessary to make her case before this court on the proximate cause issue. I, however, believe that we have sufficient evidence in the record to find that the issue of proximate cause was not properly addressed. Our role, after all, is not to rubber stamp wrong decisions. Our ultimate goal is to do justice, and having found that the jury's verdict was against the manifest weight of the evidence, this case should have been remanded for a new trial on the issue of proximate cause and damages. The majority's failure to so remand compels me to respectfully dissent from the final disposition of the case sub judice. .