COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59920 : ANN TEAGUE : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : ST. LUKE'S HOSPITAL : : Defendant-Appellee : : DATE OF ANNOUNCEMENT MARCH 26, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 145988 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: NANCY C. ILER IRENE C. KEYSE-WALKER DON C. ILER COMPANY ARTER & HADDEN 1640 Standard Building 1100 Huntington Building Cleveland, Ohio 44113 Cleveland, Ohio 44115 -2- PATRICIA A. BLACKMON, J.: Ann Teague, plaintiff-appellant, - hereinafter Appellant - timely appeals a jury verdict in favor of St. Luke's Hospital, defendant-appellee - hereinafter Appellee. For the reasons set forth below, we affirm. The facts are as follows: On October 7, 1986, Appellant arrived at St. Luke's Hospital for an appointment with her physician, who ordered some blood testing as part of her checkup. Appellant went to the laboratory to have her blood drawn. Appellant testified at trial that the phlebotomist, who drew her blood, was a white female. She testified that when the phle- botomist inserted the needle into her left wrist; she immediately felt excruciating pain that travelled all over her left arm and fingers. Despite the pain, the phlebotomist continued to draw the blood stating she could have hit a nerve or a bone, and the pain would eventually go away. When the pain and numbness continued until October 10, 1986, Appellant returned to St. Luke's Hospital where she was treated in the emergency room. Appellant was examined, given a splint for her wrist, and instructed to follow up in the orthopedic clinic. During her examination at the orthopedic clinic on October 17, 1986, some evidence of nerve damage was discovered. After several more visits to St. Luke's, Appellant was finally told that there was nothing else that could be done for her. During the trial of this case, Appellant testified that she has -3- pain in her left wrist, arm, and fingers whenever she tried to hold on to something. On March 11, 1988, Appellant filed a negligence action against St. Luke's Hospital alleging that their agent, the phlebotomist, was negligent when drawing the blood from Appellant's left wrist. On or about March 20, 1990, a jury trial was commenced in this case. After approximately three days of trial, the jury returned a verdict in favor of the defense and on or about March 27, 1990 judgment was entered for the defense. During the trial, Appellant called an expert witness Dr. Gerald McIntosh who both reviewed the medical records and examined Appellant. It was Dr. McIntosh's opinion that the phlebotomist caused Appellant to suffer a left superficial radial nerve injury that occurred because of Appellee's deviation from acceptable medical standards of care. Appellee's expert, however, testified that the injecting of the left superficial nerve would not be evidence that the blood drawing procedure was done below acceptable standards. Additionally, there was testimony from Barbara Creel, a supervisor of the Phlebotomy Department at St. Luke's Hospital, and Martin Midgett, who allegedly was the phlebotomist who performed the procedure. Appellant's assignments of error one and two are interrelated and will be discussed together. They state: TRIAL COURT ERRED IN PERMITTING THE TRIAL TESTIMONY OF THE DEFENSE MEDICAL EXPERT, DR. MONROE COLE BECAUSE THE HYPOTHETICAL QUESTIONS OMITTED CRUCIAL FACTS. -4- TRIAL COURT ERRED IN PERMITTING THE TRIAL TESTIMONY OF THE DEFENSE MEDICAL EXPERT, DR. MONROE COLE BECAUSE HIS EXPERT OPINION WAS BASED ON THE OPINION OF OTHER WITNESSES. Both of these assignments of error raise the issue whether Dr. Monroe Cole's testimony was properly admitted by the trial court. Appellant argues that the admission of his testimony was erroneous because the hypothetical questions to him as an expert omitted crucial facts, and his expert opinion was based on the opinion of other witnesses. In Mayhorn v. Pavey (1982), 8 Ohio App. 3d 189, the Franklin County Court of Appeals stated that: The purpose of the rules governing the assumed facts which underlie the hypothetical question and the opinion answer is to insure that the trier of the facts is aware of the facts upon which the opinion rests, so that in the event the trier of the facts rejects these facts as not having been established by the evidence, it will then be warranted in rejecting the opinion also. Id. at 191. Furthermore, when there is a conflict in the evidence concerning the existence of a fact that is material to the expert's forming an opinion, counsel propounding the hypothetical question is entitled to include as an assumed fact his version of the evidence on the disputed fact. It is then for the trier of the facts to resolve the factual dispute and, depending upon its findings, to determine what weight it will give to the opinion - - answer. Id. at 192. See, also Haas v. Kundtz (1916), 94 Ohio St. 238. -5- Whether a hypothetical is proper lies largely within the discretion of the trial court. Additionally, during cross- examination, opposing counsel has the opportunity to ascertain whether a missing fact is important to the opinion of the expert or whether it will affect his opinion. If the expert concedes his answer would have been different if an undisputed material fact in evidence had been included in the hypothetical question, that concession will tend to destroy the probative value of his prior opinion. Id. Appellant takes the position that Dr. Cole's testimony was based on the St. Luke's Hospital Specimen Collection Procedures, which did not contain all the vital steps necessary to perform a venipuncture according to the testimony of both Barbara Creel and Martin Midgett. Although Dr. Cole was not asked about the factors outside of the Specimen Collection Procedures that were testified to by Midgett and Creel, the hypothetical did possess an adequate factual predicate for the question and a sufficient basis for his answer. This court is not persuaded by either Appellee's argument of waiver on this issue or Appellant's argument that she was pre- cluded from effective cross-examination of Dr. Cole at his deposition. Appellant argues that she was unable to adequately cross- examine Dr. Cole, Appellant argues, is that Midgett's testimony revealing other facts about the blood drawing procedure that was -6- not admitted into evidence until Midgett testified. Appellant filed her complaint in March, 1988 and the trial began in March, 1990. With this time frame, it is difficult to accept the rationale that Appellant had no concept of the nature and contents of Martin Midgett's testimony. Furthermore, Appellant did not avail herself, through counsel, of the possibilities of recalling Dr. Cole after the testimony of Martin Midgett and Barbara Creel. It is understood that Dr. Cole's testimony was presented by videotape. Nevertheless, the effort could have been made. Lastly, and probably most important, Appellant may not claim undue prejudice or that the trial court's decision was an abuse of discretion given the extensive direct examination and expert opinion of Dr. Gerald McIntosh. Counsel for Appellant accommo- dated Dr. McIntosh's request to review the Specimen Collection Procedure of St. Luke's Hospital and then asked a number of questions about venipuncture procedures with respect to matters not contained in the Specimen Collection Procedure of St. Luke's Hospital. Given this line of questioning and the admission of Dr. McIntosh's opinion, which was favorable to Appellant, we find no abuse of discretion resulting in undue prejudice based on the argument that the hypothetical presented to Dr. Cole was flawed. On the issue of waiver, Appellant did not waive their objection pursuant to Civ. R. 32(D)(3)(a) because the record does not amply reflect how much knowledge about venipuncture procedures Appellant had at the time of Dr. Cole's deposition. -7- Therefore, it is unclear how the problem could have been obviated when the record does not demonstrate the amount of knowledge regarding venipuncture, outside of the Specimen Collection Procedure, that Appellant's counsel had in her possession. Finally, with respect to this assignment of error, we are not persuaded by Appellant's argument that Dr. Cole's opinion was somehow based on the opinions of other witnesses. Dr. Cole was asked to make five assumptions before rendering his opinion. The first assumption was that the technician who withdrew Mrs. Teague's blood was a phlebotomist. The second assumption was that the phlebotomist was trained at St. Luke's Hospital and had drawn blood at St. Luke's since 1982. Third, Dr. Cole was asked to assume that the technician who withdrew blood from Mrs. Teague followed the standard hospital blood specimen collection procedures as outlined in Appellee's Exhibit 1. The fifth assumption was that Appellant had tiny veins. When the hypothetical question was posed to Dr. Cole, he was asked to make the aforementioned assumptions as well as to base his opinion upon his background, training, and experience. We conclude that the manner in which the hypothetical question was posed was indeed proper; it was not improper for Dr. Cole to assume that the technician performed the venipuncture in accordance with Appellee's Exhibit 1 because this evidence was properly admitted. Assignments of error one and two are therefore overruled. -8- Appellant's third and fourth assignments of error are interrelated and as a consequence will be discussed together. They state, respectively: THE TRIAL COURT ERRED IN PERMITTING BARBARA CREEL AND MARTIN MIDGETT TO TESTIFY CONCERNING THE SPECIFIC BLOOD DRAWING PROCEDURE FOLLOWED ON OCTOBER 7, 1986, WHEN THEY HAD NO INDEPENDENT MEMORY OF MRS. TEAGUE OR THE PROCEDURE FOLLOWED, SUCH TESTIMONY WAS IMPROPERLY ADMITTED UNDER EVIDENCE RULE 406. THE TRIAL COURT ERRED IN PERMITTING THE USE OF HABIT EVIDENCE UNDER E.R. 406 WHEN IT WAS NOT SPECIALLY PLEADED. Both of these assignments of error raise the issue whether the Specimen Collection Procedures embodied in Appellee's Exhibit 1 were properly admitted into evidence as well as testified to under Evid. R. 406. Appellant argues that the Supreme Collection Procedures and the related testimony were improperly admitted under Evid. R. 406. The basis for this argument is that Barbara Creel and Martin Midgett should not have been permitted to testify concerning the specific blood drawing procedure followed on October 7, 1986 because they had no independent memory of Mrs. Teague or the procedure followed. Therefore, according to Appellant, their testimony and the procedures followed were improperly admitted under Evid. R. 406. Evid. R. 406 reads, in its entirety, as follows: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. -9- Further, in the case of Cannell v. Rhodes (1986), 31 Ohio App. 3d 183, this court enumerated to important legal guidelines for the admission of purported habit evidence. The first guideline is that the trial court is given some latitude in determining whether the proponent of habit or routine evidence has provided sufficient foundation for its admission. The second guideline is that the essential test is to show that the person or organization engaged in the behavior regularly enough to make it probable that he or it behaved that way on this occasion. This court is not swayed by Appellant's argument that habit evidence must set forth the entire fixed sequence of steps required for a venipuncture. In fact, the authority of Wigmore, Evidence (Chadbourn Rev. 1983), 1608, 1609, Section 92 cited by Appellant for this proposition appears to be a good source itself as to why this proposition is inaccurate. "If we conceive it (habit) as involving an invariable regularity of action, there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance. But in the ordinary affairs of life, a habit or custom seldom has such an invariable regularity. Hence, it is easy to see why in a given instance something that may be loosely called habit or custom should be rejected because it may not in fact have sufficient regularity to make it probable that it would be carried out in every instance or in the most instances. Whether -10- or not such sufficient regularity exists must depend largely on the circumstances of each case." Clearly, the rules of habit, as evaluated by Wigmore, do not have to possess the rigidity and uniformity that Appellant urges (i.e. that each and every step must be part of and included in a fixed sequence of steps.) Wigmore states unequivocally that "in the ordinary affairs of life, a habit or custom seldom has such an invariable regularity." Appellant's second argument in support of its theory that Exhibit 1 should not have been admitted into evidence is that the venipuncture procedure is not semi-automatic. The authority utilized by Appellant in support of this proposition is a quote from McCormick on Evidence found in the Federal Evidence Rules Advisory Committee Notes. In citing the proposition of law, Appellant emphasized the following: The rationale for the relevance of habit to a particular mode of conduct is that habitual acts may become semi-automatic, thus tending to prove that the person acted in the particular case in the same manner. The fact that the phlebotomist has to exercise judgment in a venipuncture does not vitiate the following of all the procedures in Exhibit 1. It was entirely feasible that all the steps in Exhibit 1 were followed by Midgett whether he additionally had to exercise some judgment or not. The procedures in Exhibit 1 were semi-automatic, based on Midgett's testimony that they were followed on seventy-five to eighty patients per day. The fact that judgment was also used does not render the procedures in -11- Exhibit 1 inadmissible on the theory that they somehow were no longer semi-automatic because of the presence of some judgment in the procedure. Viewing Midgett's testimony in the backdrop of the test in Cannell, the procedures contained in Exhibit 1 were properly admitted as evidence of habit. Midgett testified that he drew blood from seventy-five to eighty patients per day and he never deviated from the procedures in Exhibit 1, from approximately 1982 until the trial in March, 1990. Based on this testimony, we cannot say that the trial court abused its discretion in the admission of Exhibit 1 as habit evidence because the evidence was sufficient to show that Midgett engaged in the behavior regularly enough to make it probable that he behaved that way when drawing Appellant's blood. Having deemed the Exhibit 1 report properly admissible because the trial judge did not abuse his discretion in admitting it, affirmative defense and whether it was specially pled in Appellee's answer pleading is the only other possible argument for reversal on the habit issue. Obviously, this brings forward the added question of whether Appellant waived her objection on affirmative defense and special pleading grounds. We are compelled to contemplate Civ. R. 15(B) which requires that: (B) Amendments to conform to the evidence. 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 -12- 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. Failure to amend as provided herein does not affect the result of the trial of these issues. We do not, however, agree with Appellee's suggestion that they were not required to specially plead "habit or custom" because the evidence was not used to avoid liability. This record clearly reflects the use of habit as an affirmative defense by Appellee. Expert opinions were based on assumptions that the procedure outlined in Exhibit 1 were followed. In fact, it may well have been the properly admitted habit evidence that tipped the "battle of the experts" in favor of Appellee. There was no abuse of discretion by the trial court in its admission. Appellee did not plead "habit or custom" as an affirmative defense in their answer pleadings. However, Civ. R. 15 does apply to this case. Undoubtedly, the issue of habit or custom as an affirmative defense was tried by the implied consent of the parties. The record reflects no objection to the pleadings, an opportunity that was available even post judgment Civ. R. 15. This wavier, because of Appellee's failure to object to the pleadings, requires the conclusion that Appellee tried the "habit or custom" issue by implied consent. This means that Appellee was permitted to utilize habit or custom to avoid liability, as an affirmative defense. Thus, this matter cannot be reversed on Appellee's failure to plead habit or custom as an affirmative defense. Assignment of errors three and four are overruled. -13- Assignment of error five reads: THE TRIAL COURT ERRED IN PERMITTING TESTIMONY REGARDING THE LABORATORY SUMMARY REPORT BECAUSE IT HAD BEEN DESTROYED BY THE APPELLEE AFTER THE LAWSUIT WAS FILED. Appellant relies on Evid. R. 1004 in support of this assigned error. Evid. R. 1004 states "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if: (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith." Appellant argues that the fact that the original Laboratory Summary Report was destroyed after the lawsuit was filed is a prima facie case of bad faith with no other proof. One reason for this argument is that the Phlebotomist's identity was allegedly an issue. The trial court did not abuse its discretion in finding no bad faith on the part of Appellee, given the stringent bad faith definition in Kalain v. Smith (1986), 25 Ohio St. 3d 157. Assignment of error five is overruled. Appellant's sixth and final assignment of error reads: THE TRIAL COURT ERRED IN LIMITING APPELLANT COUNSEL'S CLOSING ARGUMENT AS TO THE TESTIMONY OF MRS. CREEL. An expert must be qualified as such on the record either by direct examination or stipulation of the parties. With respect to Mrs. Creel, this was not done by either party on the record. Once the allegedly damaging statement was made, Appellee could have sought to qualify her as an expert either by stipulation at the sidebar or by voir dire out of the hearing of the jury. Had -14- she been properly qualified as an expert on the venipuncture proceed, and based on Mrs. Creel's credentials, it would not have been an abuse of discretion for her to render an opinion as an expert in the medical procedure of venipuncture. Thus, it was not an abuse of discretion for the trial court not to allow further comment on Mrs. Creel's opinion testimony. The problem is compounded, on the question of prejudice to Appellant, when there was in fact expert testimony of the abnormalcy by Appellant's own expert. Because of this evidence of abnormalcy, we find that Appellant was not prejudice and a reversal is not warranted. Judgment affirmed. -15- It is ordered that Appellee recover of Appellant its 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. Exceptions. DAVID T. MATIA, C.J., and DYKE, J., CONCUR. PATRICIA A. BLACKMON JUDGE 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. .