COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61060 BARBARA MANNING : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION J. A. RAMOS, M.D., et al : : Defendant-appellants : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 10, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 166,785 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: CHARLES KAMPINSKI Attorney at law 1530 Standard Building Cleveland, Ohio 44113 For defendant-appellants: JOHN V. JACKSON, II THOMAS H. TERRY, III STEVEN J. HUPP Attorneys at Law 1001 Lakeside Avenue, #1600 Cleveland, Ohio 44114-1192 - 1 - FRANCIS E. SWEENEY, J.: Defendants-appellants, J. A. Ramos, M.D., Carl Schikowski, M.D. and Jamie Go, M.D., timely appeal from the judgment of the Cuyahoga County Court of Common Pleas, which journalized the jury's verdict for plaintiff-appellee, Barbara Manning, on her behalf and as Executrix of the Estate of Eulalie Schultz, her deceased mother, in the amount of $1,821.530.00. Appellants raise five assignments of error for our review. For the reasons that follow, we affirm. Appellee brought suit against appellants and other named defendants, who were later voluntarily dismissed and are not par- ties to this appeal, alleging medical malpractice as the cause of the wrongful death and conscious pain and suffering of Eulalie Schultz (hereinafter referred to as "appellee"). Appellee's complaint prayed for judgment "in an amount that will adequately compensate her for the injuries and damages caused by defendants' negligence, plus interests and costs." Soon thereafter, appellee filed with the trial court a "statement of amount of damages" pur-portedly pursuant to R.C. 2309.01, therein seeking $10 million to compensate the estate for damages in the within action. All defendants duly filed answers, and discovery pro- - 2 - ceeded. Thereafter, appellee amended her complaint to include a claim for punitive damages. Appellee's amended complaint added a prayer for punitive damages "in an amount that will deter defen- dants and others from engaging in similar conduct." Subsequently, appellants filed separate motions for partial summary judgment on appellee's punitive damages claim. Appellee filed a single brief in opposition. The trial court overruled appellants' motions, and this cause was thereafter assigned to a visiting judge. Prior to trial, appellants admitted negligence in the care of appellee and admitted that their negligence proximately caused appellee's death. Appellants then renewed their motions for sum- mary judgment on appellee's punitive damages claim and submitted motions in limine to exclude any evidence of punitive damages and to exclude any evidence of negligence and proximate cause on the basis that they had admitted negligence and proximate cause. The trial court denied appellants' motions, and this cause proceeded to a jury trial. At trial, appellee called each appellant as witnesses as if on cross-examination. Dr. Jesus A. Ramos first saw appellee on May 17, 1987 for treatment of a hard lump in her left thigh. Dr. Ramos prescribed Methotrexate due to the severe pain appellee experienced from rheumatoid arthritis. Methotrexate is a highly toxic prescription drug which must be administered to a patient only when that patient can be monitored by a physician. Dr. - 3 - Ramos testified that he knew the requirements for prescribing Methotrexate to patients. Dr. Ramos stated a physician should do some blood work, check the lymph function, do a urinalysis, and check the kidney function before prescribing the drug. He stated the reason for the above tests is to monitor the patient to make sure there are no complications in the use of Methotrexate. Such com-plications include the patient going into depression of bone mar-row count, experiencing liver and kidney problems, bleeding, and experiencing dizziness. Dr. Ramos further stated that the Physi-cian's Desk Reference book clearly warns physicians of the poten-tial complications of using Methotrexate. However, Dr. Ramos stated he did not consult with the Physician's Desk Refer- ence prior to prescribing Methotrexate to appellee. Dr. Ramos treated appellee for a number of problems between May 19, 1987 and March 11, 1988, including a skin rash, flu shot, and the setting of a broken arm. Dr. Ramos further prescribed Methotrexate to appellee on various occasions. However, Dr. Ramos admitted that he did not perform any tests on appellee to monitor her for contraindications from the use of Methotrexate. Further, Dr. Ramos stated that it did not occur to him that appellee fell and broke her arm due to dizziness, which is a symptom associated with the use of Methotrexate. Dr. Ramos saw appellee on December 18, 1987 and noted that she was bleeding from her naval. Apparently, Dr. Ramos saw appel-lee again in early 1988, at which time appellee was not - 4 - experiencing bleeding. Finally, Dr. Ramos saw appellee for the last time on March 11, 1988 when he treated her for hemorrhoids. Dr. Ramos stated she was not bleeding at the time, but he did note that she complained of bleeding. Dr. Ramos further stated he was not able to determine what caused the bleeding. Nonethe- less, Dr. Ramos prescribed appellee more Methotrexate and ordered an X-ray to determine the cause of appellee's bloated abdomen. Dr. Ramos stated his concern was that the Methotrexate was ad- versely affecting her liver. Dr. Ramos apparently followed up with appellee on March 15, 1988 to see if she was all right. She was. Later, he heard appellee was in the hospital. On direct examination, Dr. Ramos testified he believed appel-lee was under the care of her rheumatologist, Dr. Aponte, and apparently he believed appellee was being monitored by him. How-ever, Dr. Ramos admitted he did not get blood tests or stud- ies from appellee's rheumatologist and that this was a mistake. Dr. Ramos stated he should have followed up on appellee's treat- ment. Dr. Jamie L. Go testified that on March 28, 1988, he was on rotation at the emergency room of Parma Community General Hospi- tal when he first treated appellee. Dr. Go stated that when appellee came in, her blood pressure was totally depressed due to the use of Methotrexate and appellee was suffering from pancyto- penia, which is where the three elements of one's blood (the - 5 - white blood cells, red blood cells and platelets) are depressed. Appellee also had pneumonia and epistaxis, which is bleeding through the nose. Dr. Go consulted with Dr. Cowan, a hematolo- gist, who made the diagnosis that pancytopenia was secondary to the prolonged use of Methotrexate. Dr. Go started appellee on antibiotics, per Dr. Cowan's request, to correct problems caused by an infection and also gave appellee a blood transfusion to help correct the problems of the blood depression caused by the Methotrexate. Appellee was admitted to Parma Community General Hospital. On April 6, 1988, Dr. Go took appellee off the antibiotics without referring to Dr. Cowan. By April 8, 1988, appellee wound up with a very high white cell blood count which, Dr. Go stated, could be a sign of an infection or the body's response to a sudden transfusion of blood. Additionally, appellee was suffering from atelectasis, or the collapse of the lung. She had some collapse of her lung upon discharge on April 11, 1988. Dr. Go did not perform a septum test to check for an infection of the lung. Further, Dr. Go stated he knew appellee still had pneumonia when he discharged her. Dr. Go noted in his discharge summary that he would follow appellee's progress at the nursing home where appellee was sent upon discharge. However, Dr. Go stated he only intended to follow her if the nursing home was in the vicinity of the hospi- - 6 - tal. It was not, and Dr. Go did not follow up on appellee's progress. The next day, appellee was brought back to Parma Community General Hospital by ambulance. Dr. Go was not at the hospital that day, but did communicate with Dr. Schikowski. Dr. Go was informed that appellee was diagnosed with right lower lobe pneu- monia, pancytopenia secondary to Methotrexate ingestion, and chronic gastrointestinal bleeding as evidenced by her throwing up partially digested blood. Dr. Go was also informed appellee had an ele-vated blood count. Despite this diagnosis, appellee was discharged back to the nursing home. Dr. Go never followed up on appellee's condition. Appellee died the next day. Finally, Dr. Go admitted on direct examination that he provided appellee with improper care. Dr. Carl Schikowski was the emergency room physician at Parma Community General Hospital when appellee was brought in. Dr. Schikowski treated appellee and made the diagnosis described by Dr. Go. Dr. Schikowski advised Dr. Go of his diagnosis and testified that he relied on Dr. Go in sending appellee back to the nursing home. Dr. Schikowski believed Dr. Go would follow appellee's condition at the nursing home; therefore, Dr. Schikow- ski did not follow up with appellee at the nursing home. On direct examination, Dr, Schikowski admitted he was negligent in not doing a chest X-ray despite finding a few bronchi throughout - 7 - appellee's chest, which would indicate that appellee had pneumo- nia or atelectasis. Dr. Calvin M. Kunin testified as an expert witness on appel- lee's behalf. Dr. Kunin testified that the major problem with Methotrexate is bone marrow depression, which interferes with the growth and development of cells in the bone marrow which produce white blood cells, red blood cells and platelets. Without white blood cells, a person cannot combat infections such as pneumonia. Dr. Kunin stated that a prudent physician prescribing Methotrex- ate should check his patient's white blood cell count and red blood cell count at least once a month, and the patient's plate- let count should be examined periodically as well. Dr. Kunin opined that appellee died of sepsis, a condition or a description of a person with a serious disseminated infection. It was Dr. Kunin's opinion to a reasonable degree of medical certainty that if Dr. Ramos had not given appellee the Methotrexate, or at least had Dr. Ramos monitored appellee's use of the Methotrexate on a proper basis, he would have recognized the fall of appellee's white blood count and of her platelet count and stopped prescrib- ing the drug. The hos-pitalization and infection process would have been prevented, and appellee would have survived. Addition- ally, Dr. Kunin opined that if Dr. Go had pursued appellee's high white blood count and obtained blood cultures, urine cultures and chest X-rays, he would have detected evidence of infection and given appellee antibiotics which would have eradicated appellee's - 8 - infection, and appellee would have survived the infectious pro- cess. Finally, Dr. Kunin stated that if appellee would have been re-admitted to the hospital when she was taken back to the emer- gency room, considering appellee's diagnosis, the infection would have been detected and appellee could have been treated, and she would have survived. After appellee's daughters testified, John F. Burke, an asso-ciate professor of economics at Cleveland State University and an independent consultant, testified regard- ing economic damages suf-fered by appellee. He stated that appellee's life expectancy was an additional 13.4 years according to the life tables published by the Department of Human Services. Dr. Burke testified as to his computation of the value of appel- lee's services to her daughters and appellee's social security and pension benefits as it would effect her estate given her life expectancy. After appellee rested her case, the trial court granted appellants' motion for a directed verdict on the issue of puni- tive damages, and each appellant testified on his own behalf, admitting liability for appellee's death. Based on the above evidence, the jury found in appellee's favor, awarding $1,821,530 in compensatory damages. Thereafter, appellants filed a motion for a new trial, a motion for remitti- tur pursuant to R.C. 2309.01(D) and Civ. R. 54(C), and a motion to conform and amend the verdict pursuant to R.C. 2307.43 (the cap on non-economic damages) and R.C. 2307.43(F)(1) (set-off for - 9 - monies received from defendants who settled prior to trial). The trial court granted appellants' motion to conform and amend the verdict pursuant to R.C. 2307.43(F)(1), but overruled all other motions. This appeal follows. Appellants' first assignment of error states: THE TRIAL COURT ERRED BY ENTERING JUDGMENT FOR PLAINTIFF IN AN AMOUNT EXCEEDING PLAIN- TIFF'S DEMAND AND ERRED WHEN IT DENIED DEFEN- DANTS' JOINT MOTION FOR REMITTITUR. Appellants argue the trial court erred in not granting their joint motion for remittitur. Appellants argue the trial court should have reduced the jury's verdict to zero and entered judg- ment accordingly pursuant to R.C. 2309.01(D) and Civ. R. 54(C). This argument lacks merit. R.C. 2309.01(D) provides in relevant part: If, in accordance with division (B)(2) of this section, the complainant in a tort ac- tion in a court of common pleas has not spec- ified the amount of the damages sought, and whether or not a request was made to that complainant by a party against whom the ac- tion is brought pursuant to division (C)(1) of this section, that complainant shall amend the complaint that he filed in the action to specify the amount of the damages sought. The amendment shall occur *** not later than seven days before the scheduled date of the trial of the action ***. The purpose behind R.C. 2309.01 is to prevent publication of large prayers in tort actions by requiring claimants seeking more than twenty-five thousand dollars in relief to not specify the amount of damages sought. R.C. 2309.01(B)(2). However, R.C. - 10 - 2309.01 does not provide the trial court any guidance in order to proceed when a complainant has failed to amend his complaint to specify the amount of damages sought. Recently, several Ohio appellate courts have looked toward Civ. R. 54(C) to resolve cases wherein complainants failed to amend their complaint to specify the amount of damages sought pursuant to R.C. 2309.01(D). See Rockey v. 84 Lumber Company (July 11, 1991), Cuyahoga App. Nos. 58610 and 58654, unreported (reducing verdict to $25,000); Hunter v. Kuhn (July 3, 1991), Cuyahoga App. No. 60981, unreported (reducing verdict to zero); Shaner v. Glover (Aug. 20, 1991), Shelby App. No. 17-90-18, unre- ported; Copes v. Good Samaritan Hosp. (Dec. 10, 1991), Montgomery App. No. 12726, unreported; and Walsh v. Jagedeesan (Sep. 30, 1991), Stark App. No. 8407, unreported. However, reliance on Civ. R. 54(C) is misplaced. Civ. R. 54(C) provides in pertinent part: *** Except as to a party against whom a judg- ment is entered by default, every final judg- ment shall grant the relief to which the par- ty in whose favor it is rendered is entitled; however, a demand for judgment which seeks a judgment for money shall limit the claimant to the sum claimed in the demand unless he amends his demand not later than seven days before the commencement of the trial. *** The major purpose behind Civ. R. 54(C) is to put the defendant on notice prior to trial as to his potential liability. Bishop v. Grdina (1985), 20 Ohio St.3d 26, 28. Moreover, the same purpose may also be attributed to R.C. 2309.01(D). Rockey, supra, at 6. - 11 - In the present case, the purpose of R.C. 2309.01 was more than adequately served. Appellee fully complied with R.C. 2309.01(B)(2) by not specifying in her prayer for relief the specific amount of damages sought, thereby preventing publica- tion of a large prayer for relief. Moreover, the dual purpose of R.C. 2309.01(D) and Civ. R. 54(C) to place defendants on notice of their potential liability was also met. Appellee fully placed appellants on notice of their potential liability by filing a "statement of amount of damages," seeking therein $10 million in compensatory damages. Appellants' insistence that Civ. R. 54(C) demands this court to reduce the verdict to zero is without merit. Civ. R. 54(C) commands a court to reduce a judgment to the sum claimed in the demand unless the claimant amends his demand not later than seven days before the commencement of the trial. "Sum" is defined as "an indefinite or specified amount of money." Webster's New Collegiate Dictionary (1976). (Emphasis added.) Moreover, this court has held that Civ. R. 54(C) does not require that a mone- tary judgment be stated as a dollar figure. DeFranco v. Village of Valley View (Nov. 29, 1990), Cuyahoga App. No. 57719, unre- ported, at 11. In DeFranco, this court made clear in order to satisfy the notice requirement of Civ. R. 54(C) the pleadings must provide sufficient notice of a defendant's potential liabil- ity. Appellee's demand for judgment seeks "an amount that will adequately compensate her for the injuries and damages caused by - 12 - defendants' negligence ***." Moreover, appellee's "statement of amount of damages" seeks $10 million in compensatory damages. The jury returned a judgment for $1,821,530.00. Thus, the remit- titur provision of Civ. R. 54(C) is not applicable because the judgment is less than the amount sought in appellee's "statement of amount of damages," and this court cannot say that the judg- ment is more than "an amount that will adequately compensate" appellee for her injuries. Moreover, appellants were adequately notified of their potential liability through the pleadings. Finally, we find it convincing that appellants have not been prejudiced as a result of the lower court's ruling denying their motion for remittitur. Notwithstanding appellants' hypertechni- cal reading of R.C. 2309.01 and Civ. R. 54(C), the present case proceeded with no surprises, and appellants were fully informed of their potential liability. Notice was given to appellants through the pleadings that appellee's demand would be $10 mil- lion, and this cause was tried to the jury based upon such noti- fication. In fact, during closing arguments, appellee's counsel argued to the jury that he believed the case was worth between $941,000 and $2,197,000.00. The jury agreed, and this court cannot say the judgment was based on excessiveness, passion or prejudice. Lanee v. Leohr (1983), 9 Ohio App.3d 297. Accordingly, appellants' first assignment of error is over- ruled. - 13 - Appellants' second assignment of error follows: THE TRIAL COURT ERRED WHEN IT DENIED DEFEN- DANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF'S PUNITIVE DAMAGE CLAIM. Appellants argue the trial court erred in overruling their separate motions for partial summary judgment. Appellants con- tend that their evidentiary materials submitted in support of their motions demonstrate a complete absence of any basis for appellee's punitive damages claim. Further, appellants argue appellee failed to offer any evidentiary material to support her claim. Appellants' argument lacks merit. A court reviewing the granting of a summary judgment must follow the standard set forth in Civ. R. 56(C). Stegawski v. Cleveland Anesthesia Group (1987), 37 Ohio App.3d 78. Civ. R. 56(C) provides that before summary judgment can be granted, it must be determined that: *** (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327. Punitive damages in Ohio are available upon a finding of actual malice. Calmes v. Goodyear Tire & Rubber Co. (1991), 61 Ohio St.3d 470. Actual malice for these purposes is (1) that state of mind under which a person's conduct is characterized by - 14 - hatred, ill will or a spirit of revenge, or (2) a conscious dis- regard for the rights and safety of other persons that has a great probability of causing harm." Id. at 473, citing Preston v. Murty (1987), 32 Ohio St.3d 334, syllabus. In the present case, appellants argue they were entitled to summary judgment since appellee failed to produce some evidence to support her claim for punitive damages. Wing v. Anchor Media, Ltd. of Texas (1991), 59 ohio St.3d 108, paragraph e of the syl- labus. However, appellee, citing to Rodger v. McDonald's Restau- rants of Ohio, Inc. (1982), 8 Ohio App.3d 256, 258, argues that each of the appellants' deposition testimony, attached to their motions for partial summary judgment, provides the necessary evidence of a conscious disregard for the rights and safety of appellee to produce a material issue of fact to defeat appel- lants' motions. We conclude that the deposition testimony of each appellant does not establish the absence of a genuine issue of fact. Dr. Ramos' deposition testimony established that he prescribed Metho- trexate to appellee knowing the very serious potential side ef- fects which included death, without conducting any appropriate laboratory monitoring. Dr. Go's deposition testimony established that he discharged appellee from Parma Community General Hospi- tal, indicating that he would follow up on her condition, yet Dr. Go failed to do so because the nursing home was too far from his place of employment. Finally, Dr. Schikowski's deposition - 15 - testimony indicates that he failed to admit appellee to Parma Community General Hospital despite appellee's diagnosis and the potential serious consequences. Even assuming the trial court erred, appellants can show no prejudice from such error. Appellee was still entitled to pres- ent her case, as more fully detailed in our discussion of appel- lants' third assignment of error, and appellee was precluded from men-tioning her claim of punitive damages to the jury during opening argument. In short, the jury was never made aware of appellee's claim for punitive damages. Accordingly, appellants' second assignment of error is over- ruled. Appellants' third assignment of error is as follows: THE TRIAL COURT ERRED BY OVERRULING DEFEN- DANTS' MOTION IN LIMINE ON THE ISSUE OF PUNI- TIVE DAMAGES AND ALLOWING PLAINTIFF TO PRE- SENT EVIDENCE OF MEDICAL NEGLIGENCE AFTER LIABILITY HAD BEEN ADMITTED. Appellants argue the trial court committed prejudicial error in overruling their motion in limine to exclude all testimony tending to show negligence and proximate cause. Appellants con- tend that since they repeatedly admitted liability for the death of appellee, all testimony concerning negligence and proximate cause become irrelevant. This argument lacks merit. Evid. R. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of conse- - 16 - quence to the determination of the action more probable or less probable than it would be without the evidence." Evid. R. 402 generally provides that all relevant evidence is admissible at trial. At the time the trial court ruled on appellants' motion in limine, appellee was pursuing a claim for both compensatory and punitive damages. Although appellants admitted liability for the death of appellee with respect to her claim for compensatory damages, her claim for punitive damages was still an issue for the jury's determination. Accordingly, appellee had to show that appellants acted with a reckless disregard for the rights and safety of other persons that had a great probability of causing harm. Preston, supra. Although this standard of culpability is higher than mere negligence, the same facts and circumstances which would prove negligence were necessary to attempt to prove that appellants acted with a reckless disregard of the rights and safety of appellee which had a great probability of causing her harm. Additionally, while negligence and proximate cause were no longer at issue, the amount of damages was at issue, including appellee's conscious pain and suffering. As a general rule, evi- dence tending to show the extent of injuries is admissible. Evid. R. 402; Miller v. Irving (1988), 49 Ohio App.3d 96, 97-98 ("It is likewise the general rule that the force of impact is admissible as bearing on the extent of the injuries."). In this - 17 - respect, the ordeal which appellee endured during the time from which she was first treated by Dr. Ramos on May 17, 1987 up until her death on April 13, 1988 was clearly at issue as it relates to her conscious pain and suffering. Accordingly, the trial court did not err in overruling ap- pellants' motion in limine. Appellants' third assignment of error is overruled. Appellants' fourth assignment of error is as follows: THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANTS' OBJECTION AND PERMITTED DR. BURKE TO OFFER OPINIONS INCLUDING DECEDENT'S PEN- SION AND SOCIAL SECURITY BENEFITS AS PLAIN- TIFF'S DAMAGES SINCE THESE DAMAGE OPINIONS WERE PREVIOUSLY UNDISCLOSED TO DEFENDANTS. Appellants argue the trial court erred in allowing appel- lee's expert witness, Dr. Burke, to testify as to his opinion of the value of appellee's remaining social security benefits and pension benefits. This argument lacks merit. Civ. R. 26(E) requires a party to supplement his response to any request for discovery with respect to the identity of each person expected to testify as an expert witness at trial and the subject matter on which he is expected to testify. Further, pur- suant to Civ. R. 37, a trial court has discretion to exclude an expert's testimony as to matters not disclosed. Savage v. Corre- lated Health Serv. (1992), 64 Ohio St.3d 42, 47. The purpose of such sanctions is to prevent trial by surprise and ambush and to - 18 - promote the free flow of information between the parties. Jacks- on v. Booth Memorial Hosp. (1988), 47 Ohio App.3d 176, 179. In the present case, Dr. Burke testified appellee received $8,303 in social security benefits and $8,555 in pension benefits each year. Dr. Burke multiplied these amounts by thirteen and arrived at $227,435 in pecuniary damages. This computation was not included in his report furnished to appellee. However, the amount of social security benefits and pension benefits appellee received were already in evidence through the testimony of appel- lee's daughter. Dr. Burke merely multiplied this figure by thir- teen, which represented appellee's life expectancy. Moreover, loss of prospective inheritance is an item of damages set forth in the wrongful death statute. Terveer v. Baschnagel (1982), 3 Ohio App.3d 312; R.C. 2125.02. Accordingly, the trial court did not abuse its discretion in allowing Dr. Burke to testify as to the value of social security benefits and pension benefits appellee would have received given her life expectancy. Those matters were very much at issue and already in evidence. Furthermore, it is highly unlikely that appellants were taken by surprise or ambushed when Dr. Burke tes- tified as he did. Appellants' fourth assignment of error is overruled. - 19 - Appellants' final assignment of error follows: THE TRIAL COURT ERRED WHEN IT DENIED DEFEN- DANTS' MOTION TO CONFORM THE VERDICT AND MODIFY THE JURY'S AWARD PURSUANT TO R.C. 230- 7.43. The Ohio Supreme Court has held R.C. 2307.43 unconstitution- al. Morris v. Savoy (1991), 61 Ohio St.3d 684. Accordingly, the trial court did not err in denying appellants' motion to conform the verdict and modify the jury's award. Appellants' final assignment of error is overruled. Judgment affirmed. - 20 - It is ordered that appellee recover of appellants her costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. DYKE, P.J. CONCURS (See attached opinion) KRUPANSKY, J. DISSENTS (See attached opinion) JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. 61060 BARBARA MANNING : : Plaintiff-appellee : : C O N C U R R I N G vs. : : O P I N I O N J. A. RAMOS, M.D., et al. : : Defendants-appellants : : : DATE: DECEMBER 10, 1992 DYKE, J., CONCURRING: I respectfully concur in the judgment. As to the first assignment of error, although the plaintiff-appellee failed to comply with R.C. 2309.01(D) when she failed to amend her com- - 2 - plaint to specify an amount of damages, the act of filing the statement of damages with the court was analogous to amending her complaint. Notice was given to the defendants of their potential liability, adequately serving the purpose of the statute. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61060 BARBARA MANNING, ETC. : : Plaintiffs-appellees : : -vs- : DISSENTING : J.A. RAMOS, M.D., ET AL. : OPINION : Defendants-appellants : DATE: DECEMBER 10, 1992 KRUPANSKY, J., DISSENTING: I respectfully dissent. The principal and concurring opin- ions sanction plaintiffs' scheme to inject an unfounded punitive damages claim into a medical action with admitted liability by repeatedly portraying defendants as worthy of punishment to depriving defendants of a fair trial. The principal opinion affirming the resulting jury verdict masquerading as compensatory damages lacks fidelity to the record and represents a substantial departure from well-established standards governing expert medi- cal testimony. The arguments of the principal and concurring opinions cir- cumvent well-established monetary damage pleading requirements. As noted in the principal opinion, plaintiff's case for medical malpractice, wrongful death and punitive damages proceeded to - 3 - jury trial on the Amended Complaint containing the following prayer for relief: WHEREFORE, Plaintiff demands judgment against the Defendant [sic] jointly and severally in a [sic] amount that will adequately compen- sate her for her injuries and damages caused by Defendants' negligence, and punitive dam- ages in amount [sic] that will deter the De- fendants and others from engaging in similar conduct in the future, plus interest and cos- ts. The record demonstrates plaintiffs made no attempt to timely file or serve a proper amended complainti in compliance with Civ. R. 54(C) which requires a specific monetary aounti limiting plain- tiff to that amount in a judgment. Civ. R. 54(C) provides in pertinent part as follows: Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is enti- tled; however, a demand for judgment which seeks a judgment for money shall limit the claimant to the sum claimed in the demand unless he amends his demand not later than seven days before the commencement of the trial. Additional service of process is not necessary upon such amendment. (Emphasis added). In interpreting Civ. R. 54(C), the Ohio Supreme Court has recognized the effect of failure to amend a complaint is to limit the party to the specific monetary demand contained in the com- plaint unless the complaint is amended seven days prior to trial. Bishop v. Grdina (1985), 20 Ohio St. 3d 26, 28. This Court has - 4 - specifically held the failure to plead any specific monetary demand is to limit the party to the zero damages claimed in the complaint. Studier v. Taliak (1991), 74 Ohio App. 3d 512, 515; Bobich v. Convenient Food Mart (Aug. 27, 1992), Cuyahoga App. No. 62923, unreported. The principal opinion ignores this authority and emasculates the Civ. R. 54(C) limitation on recovery "to the sum claimed in the demand" in plaintiffs' complaint by arguing that when plain- tiffs make no specific monetary demand as in the case sub judice the term "sum" may be interpreted to include "an indefinite" amount. Majority Opinion at 11. Such an assertion contradicts the express purpose of Civ. R. 54(C). The principal and concurring opinion's efforts to character- ize plaintiff's "Statement of Amount of Damages" as satisfying the requirements of Civ. R. 54(C) is unpersuasive for several reasons. First, in this context Civ. R. 54(C) establishes the unambiguous twin requirements that a party file and serve a formal amended complaint to raise a specific monetary demand at least seven days prior to trial contrary to the case sub judice. E.g. Studier v. Taliak, supra; Williams v. Glen Manor Home for Jewish Aged, Inc. (1986), 27 Ohio App. 3d 246; Douthitt v. Garri- son (1981), 3 Ohio App. 3d 254. The record demonstrates that plaintiffs are familiar with these requirements to amend a com- plaint as indicated by the proper filing and service of the Amended Complaint which also did not contain a demand for a - 5 - specific amount in money damages. However, contrary to the misrepresentation in plaintiffs' brief on appeal that the "State- ment of Amount of Damages" was served on counsel for defendants, Brief at 1, the certificate of service accompanying plaintiffs' "Statement of Amount of Damages" filed in the trial court demon- strates plaintiffs did not properly serve the document on defen- dants. The certificate of service indicates that the Statement of Amount of Damages was served on counsel for two defendants only, viz., Parma Community General Hospital and Dr. Patawaran, and not served on counsel for any of the other parties remaining in the action when the document was filed. It is interesting to note that both of these parties to whom the "Statement of Amount of Damages" was served settled the matter and three of the defen- dants on whom the Statement of Amount of Damages was not served eventually went to trial. The Civil Rules require service of all documents filed with the trial court in an action following the original complaint to all parties. As a result, the "Statement of Amount of Damages" should not have been considered by the trial court and has no legal effect. Civ. R. 54(C) and 5(D). Even under the liberal interpretation of the majority opinion concerning "notice," these three defendants who eventually went to trial did not receive proper "notice." Moreover, the majority opinion likewise ignores the fact that the action proceeded to trial upon plaintiffs' "Amended - 6 - Complaint" which was filed by plaintiffs with the express purpose of abandoning and superseding any prior pleadings filed in the action. See Civ. R. 15; Wrinkle v. Trabert (1963), 174 Ohio St. 233. It is contrary to logic to construe plaintiffs' "Statement of Amount of Damages" as an "amendment" to the Amended Complaint since the "Statement of Amount of Damages" was filed prior to the Ameded Complaint. The Court in Studier v. Taliak, supra, recog- nized that the failure to plead specific actual damages exceeding zero dollars in an amended complaint as required by Civ. R. 8 results in a failure to state a claim for relief. Id. Civ. R. 8(H) provides an exclusive list of elements which may be omitted from amended complaints when the elements were disclosed in prior pleadings and the specific amount of monetary damages demanded is not among those exclusions. The majority opinion's related contention that the defen- dants were "adequately notified of their potential liability through the pleadings," ante at 14, is unpersuasive since a "Statement of Amount of Damages" is not a recognized "pleading" defined by Civ. R. 7(A), which expressly states that no pleading other than those specified by the rule shall be allowed. The concurring opinion's related argument that plaintiff's filing the Statement of Amount of Damages is "analogous to amending her complaint", ante at 21, is no more persuasive since it likewise ignores the express requirements for amending a complaint in this - 7 - context contrary to the following admonition by the Ohio Supreme Court to adhere to the requirements of the Civil Rules: However hurried a court may be in its efforts to reach the merits of a controversy, the integrity of the procedural rules is depen- dent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment. Miller v. Lint (1980), 62 Ohio St. 2d 209, 215. This Court has rejected the argument that mere "notice" con- stitutes an adequate substitute for the requirement to file and serve any mandatory pretrial amendment contrary to the majority opinion. Dawson v. Cleveland Metropolitan General Hospital (Nov 20, 1986), Cuyahoga App. Nos. 51052 and 51779, unreported. The Dawson Court reversed a $1,000,000 verdict in a medical malprac- tice wrongful death action where the trial court permitted plain- tiff to amend the complaint on the day of trial to enable intro- duction of a nonbinding medical malpractice arbitration award into evidence without having timely filed and serviced an amended com-plaint to reflect the award under the analogous requirements of former R.C. 2711.21(D) and Loc. R. 37(S). Id. at 23-24. The Court recognized the existence of "prejudice" in this context despite the defendant's prior actual knowledge of the arbitration award as follows: Even if Cleveland Metro were not surprised, allowing the amendment of the complaint just prior to the commencement of trial, preju- diced Cleveland Metro. It was not antici- pated by Cleveland Metro in its trial stra- tegy that such evidence [of the prior arbi- tration award] would be admitted. - 8 - Id. at 24. As in Dawson, supra, defendants were entitled to rely on this defense to preclude evidence of damages not properly raised by the pleadings once plaintiff embarked on the deliberate gambit to inject an unfounded punitive damages claim into the proceed- ings and failed to timely file and serve a specific amended monetary demand to the Amended Complaint. Even if granting final judgment or remittitur in favor of defendants were not warranted under Civ. R. 54(C) as the majority opinion argues, the judgment should be reversed and remanded for a new trial limited solely to the issue of compensatory damages. The record demonstrates plaintiffs were repeatedly and pervasive- ly permitted to portray defendants in a grotesquely prejudicial. light. The trial court properly granted a directed verdict for defendants on the issue of punitive damages after having denied defendants' pretrial motions in limine and for summary judgment for punitive damages since plaintiffs presented no evidence supporting their claim of "actual malice." See Moore v. Retter (1991), 72 Ohio App. 3d 167. However, this ruling was too late to erase the prejudice against defendants which had already pervaded the trial and oh so subtley now deprived defendants of a jury charge explaining the elements of punitive damages. The jury charge would have alerted the jury to the limited circum- stances under which punitive damages could be awarded. There- - 9 - fore, in my opinion, the compensatory damages award was inflated on the ground of passion and prejudice. Plaintiffs apparently concede this point and did not appeal from the trial court's order granting the directed verdict against them on this issue. The majority opinion ignores the anomoly recognized by other courts resulting from the denial of a defendant's pretrial motion for summary judgment on punitive damages and the subsequent grant of a directed verdict on punitive damages against plaintiffs during trial of the issue based upon the same evidence. The two determinations are governed by the identical standard ignored by the majority. See Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St. 2d 116, cert. den., 452 U.S. 962; Van Horne v. Peo- ples Banking Co. (1990), 64 Ohio App. 3d 745. The majority opinion reaches this perplexing conclusion by improperly applying the standards governing summary judgment. R.C. 2315.21. To raise a genuine issue concerning punitive damages for the jury in this context, plaintiffs must demonstrate by "clear and convincing evidence" defendants acted with "actual malice" as follows: (1) the state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of caus- ing harm." R.C. 2315.21; Calmes v. Goodyear Tire & Rubber Co. (1991), 61 Ohio St. 3d 470, 473 (quoting Preston v. Murty (1987), 32 Ohio St. 3d 334, syllabus; emphasis added); Ferritto v. Olde & Co., - 10 - Inc. (1989), 62 Ohio App. 3d 582; see also Moore v. Retter, supra. Evidence the defendants acted with a "reckless disregard" or was aware of the mere "possibility" or "forseeability" of potential harm is insufficient to satisfy this standard and demonstrate a "great probability" of harm. Id. The record demonstrates defendants filed motions for summary judgment on this issue due to the lack of evidence of actual malice accompanied by their own affidavits and depositions taken by plaintiffs. Defendants thereafter supplemented their motions with the deposition testimony of plaintiff's expert, Dr. Kunin, which likewise contained no expert medical opinion testimony defendants acted with a "conscious disregard" for decedent's safety "that has a great probability of causing harm." See Moore v. Retter, supra. The principal opinion nevertheless affirms the denial of defendants' motion for summary judgment by applying the wrong legal standard. First, contrary to the majority opinion, ante at 14, defen- dants are not required to present evidence to negate plaintiffs' claim for punitive damages and establish the absence of actual malice to force plaintiff to present supporting evidence. State ex rel. Coulverson v. Ohio Adult Parole Authority (1991), 62 Ohio St. 3d 12, 14; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, syllabus paragraph three. Second, the "clear and convincing evidence" standard governing punitive damages claims under R.C. 2315.21 applies to pretrial motions for summary - 11 - judgment. See Baby Tenda v. Taft Broadcasting (1989), 63 Ohio App. 3d 550, 553 (citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242). Finally, the principal opinion improperly con- fuses the lesser element of "reckless disregard," ante at 16, with the element of "conscious disregard", ante at 14, contrary to the express holding of this Court in Ferritto v. Olde & Co., Inc. supra. Even if the principal opinion's dubious conclusion that the evidence submitted by defendants demonstrated they acted with a "conscious disregard for the rights and safety of [plaintiff]", majority opinion at p. 14, the record contains no medical expert opinion testimony whatsoever to establish the fundamental predi- cate omitted from the analysis of the principal opinion that the risk had a "great probability of causing harm." Defendants' affidavits and deposition testimony did not admit this element and plaintiff's expert provided no such opinion testimony. Accord Moore v. Retter, supra. The purpose for requiring expert medical opinion testimony concerning causation in medical cases is to assist the jury in evaluating complex scientific or technical matters involving unfamiliar issues such as prescribing Methotrexate in the case sub judice. The need for expert opinion testimony to establish the standard of "a great probability of causing harm" to warrant punitive damages is at least as great as the causation standard of "probability" necessary to recover compensatory damages. The - 12 - same reasons dictate the necessity for expert opinion testimony to determine a "great probability of causing harm." The jury cannot infer causation from the circumstances without assistance based on medical expert testimony concerning "probabilities." It is imper-missible to permit the jury to speculate on evidence based upon "possibilities" or "potential" harm. See Cooper v. Sisters of Charity (1971), 27 Ohio St. 2d 242. As a result, the majority opinion's discussion of "potential" adverse side effects or con-sequences, majority opinion at 14-15, is insufficient to raise the issue of punitive damages as a matter of law. Moore v. Retter, supra. The majority opinion contends plaintiffs' improper injection of the punishment theme was "harmless" since plaintiffs did not use the term "punitive" in their opening statement and the trial court eventually granted defendants a directed verdict on this issue. Such a conclusion ignores the fact counsel for plaintiff had a field day when granted an unrestricted opportunity to paint defendants in a grotesquely prejudicial light. The record is replete with statements and questions implying defendants did not care what barbaric treatment they rendered plaintiff over the course of approximately 170 pages of transcript out of more than 290 pages supporting plaintiffs' case and total of 467 pages to document the entire proceedings. The majority opinion's asser- tion that plaintiff did not fully convey this punitive message to the jury and recharacterization of the evidence elicited by - 13 - plaintiffs to support a claim for punitive damages into evidence properly directed toward establishing plaintiff's pain and suf- fering is blatantly disingenuous and lacks fidelity to the re- cord. It is axiomatic that evidence of defendant's mental state is not relevant to claims for compensatory damages and presents sub- stantial tendency to mislead and confuse the jury and undermine a proper determination of this sole issue. The Court in Johnson v. Knipp (1973), 36 Ohio App. 3d 218, explained this fundamental principle in this context as follows: Lawsuits, in personal injury case, are to compensate the injured party, and not to pun- ish the tortfeasor. Criminal courts punish. Civil courts do not punish and, historically, favor admissions of liability by negligent parties. Such admissions would be meaning- less, and not forthcoming, if courts were to permit defendants to be 'crucified' by evi- dence which is not material and injected sol- ely to draw sympathy from the jury, or to punish the defendant. It is the court's duty to see that verdicts are rendered which compensate for injuries. If a case warrants punitive damages, then such damages should be pleaded and proven, and not injected into a case through clever trial tactics [to] result in [inflated] com- pensatory awards. Id. at 223. The assertion that this testimony elicited by plaintiff was properly admitted into evidence is wrong for four independent legally sufficient reasons. - 14 - First, the trial court should not have permitted the intro- duction of any evidence concerning damages since no claim for any specific monetary damages of any kind was properly raised by the pleadings as discussed under the first assignment of error. Second, puntive damages are never cognizable in wrongful death actions or survival actions absent evidence of "actual malice" as in the case sub judice. See Rubeck v. Huffman (1978), 54 Ohio St. 2d 20. Third, a review of the transcript reveals a complete lack of medical opinion testimony to establish that any of plaintiff's medical ailments over the eleven month period prior to her death recited at length by the principal opinion resulted from defen- dants' negligence or caused any conscious pain and suffering. The Ohio Supreme Court has held that evidence of a plaintiff's repeated nosebleeds following an automobile accident was insuffi- cient to support an award of compensatory damages without accom- panying medical opinion testimony to establish causation between the acci-dent and the medical condition. Darnell v. Eastman (1970), 23 Ohio St. 2d 13. The Court held that the mere recital of a medical treatment history as in the case sub judice is insufficient to support an award of any damages as a matter of law. Id. at 17. The record demonstrates plaintiffs likewise presented no evidence concerning each specific condition de- scribed in the principal opinion during the period she was treat- ed by defendants was "probably" or "more likely than not" caused - 15 - by defendants' negligence rather than ideopathic causes or her prior use of Methotrexate prescribed by a previous physician. Id.; Cooper v. Sisters of Charity, supra. The disclosure of potential symptoms or complications in the Physicians Desk Refer- ence does not satisfy this requirement. Finally, none of the evidence presented by plaintiffs during the disputed testimony had any tendency to prove plaintiff's pain and suffering. The record contains only two references during this portion of the testimony to plaintiff's "pain." Doctor Ramos explained during this portion of the testimony that he prescribed Methotrexate to relieve plaintiff's pre-existing pain from her severe rheumatoid arthritis. (Tr. 41). The only other reference to "pain" in the challenged testimony was recorded in plaintiff's medical treatment records by a nurse in the Parma General Hospital emergency room prior to plaintiff's death indi- cating plaintiff was "without pain." (Tr. 81). I am unable to share the majority's conclusion that the per- vasive error resulting from admitting this challenged testimony was "harmless." The Ohio Supreme Court has established the fol- lowing standard for reviewing the erroneous admission of evidence in this context: the reviewing court must not only weigh the prejudicial effect of those errors but must also determine that, if those errors had not occurred, the jury or other trier of fact would probably have made the same decision. O'Brien v. Angley (1980), 63 Ohio St. 2d 159, 164-165 (citing Civ. R. 61 and R.C. - 16 - 2309.59); accord Loudy v. Faries (1985), 22 Ohio App. 3d 17 (reviewing court should determine whether verdict induced by the admission of incompetent evidence over timely objection). Concluding the jury would probably have reached the same $1.8 million verdict, after a fair trial properly limited to the sole issue of compensatory damages and without the pervasive injection of these erroneous considerations, is not warranted by the record sub judice and results in a manifest miscarriage of justice. Similiar principles govern the erroneous denial of defen- dants' motions in limine to exclude the introduction of any evi- dence concerning punitive damages, negligence and proximate cause after defendants' admitted liability for compensatory damages. The purpose of a motion in limine is to avoid the injection of prejudicial matter into trial which is not relevant or admissible as in the case sub judice. State v. Grubb (1986), 28 Ohio St. 3d 199, 201; Detling v. Chockley (1982), 70 Ohio St. 2d 134. Rever- sal is warranted where a party refers to inadmissible evidence in support of unfounded claims during opening statement and preju- dice results from eliciting the evidence as in the case sub judice. Caserta v. Allstate Ins. Co. (1983), 14 Ohio App. 3d 167. Permitting plaintiffs' expert economist, Dr. Burke, to tes- tify concerning approximately a quarter of a million dollars in damages which had not been disclosed during pretrial discovery contrary to Civ. R. 26(E)(1)(b) compounds this injustice and - 17 - provides an independent ground for reversal. Tritt v. Judd's Moving & Storage, Inc. (1990), 62 Ohio App. 3d 206. As noted above, plaintiffs' amended Complaint failed to raise any issue concerning specific monetary damages. Although the loss of prospective inheritance may be recovered in a wrongful death action under R.C. 2125.02, such damages are never presumed and must be established by the evidence. Wise v. Timmons (1992), 64 Ohio St. 3d 113. Since the majority opinion fails to adequately address these issues, I respectfully dissent and would reverse and remand this matter for a new trial confined to the issue of comepnsatory dam- ages only. .