COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67417 SANDRA S. CALVEY, EXECUTRIX : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION FAIRVIEW GENERAL : HOSPITAL, ET AL. : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 252511 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee Dr. Raymond L. Horwood: JAMES A. JENKINS, ESQ. JAMES G. CORRIGAN, ESQ. JOAN A. FORD, ESQ. 800 Standard Building JOHN A. SIMON, ESQ. 1370 Ontario Street JANIS L. SMALL, ESQ. Cleveland, Ohio 44113 JACOBSON, MAYNARD, TUSCHMAN & KALUR 1001 Lakeside Avenue, Suite 1600 Cleveland, Ohio 44114-1192 For Defendant-Appellee Dr. Guirguis: LESLIE J. SPISAK, ESQ. CLIFFORD C. MASCH, ESQ. REMINGER & REMINGER CO., L.P.A. The 113 St. Clair Building Seventh Floor Cleveland, Ohio 44114 - 2 - DYKE, J.: Appellant filed suit against Dr. Raymond Horwood, Dr. Mary Walborn, Dr. Guirguis and Fairview General Hospital, alleging wrongful death and medical malpractice in the death of 86 year old Pauline Matyi. Dr. Horwood performed hip replacement surgery on Mrs. Matyi and Dr. Guirguis acted as the anesthesiologist. Dr. Walborn was Mrs. Matyi's personal internist. The hospital settled with appellant prior to trial. Directed verdicts were granted in favor of Drs. Horwood and Guirguis after the testimony of appellant's expert witness was found to be inadmissible as to these two defendants. The jury proceeded to find in favor of Dr. Walborn. Appellant filed this timely appeal asserting one assignment of error. I TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF THE APPELLANT WHEN IT DISALLOWED THE TESTIMONY OF APPELLANT'S MEDICAL EXPERT AS TO DEVIATIONS FROM THE STANDARDS OF CARE BY APPELLEES DR. HORWOOD AND DR. GUIRGUIS REGARDING MEDICAL CARE RENDERED TO THE DECEASED ON APRIL 12TH AND 13TH 1991. Appellant argues that the trial court unreasonably and arbitrarily concluded that appellant's expert witness, Dr. Maltz, "speculated" about any facts as the basis of his medical opinions as to the deviations from the standard of care by Drs. Horwood and Guirguis. Appellant also asserts that the court committed error in disallowing the expert testimony as against Dr. Guirguis for the reason that the hypotheticals placed to the expert were based upon - 3 - facts not in evidence. Appellant argues that evidence in the record supported the hypothetical questions placed to Dr. Maltz. Appellant's arguments are not well taken. The issue to be resolved by this appeal is whether the hypotheticals presented to Dr. Maltz were legally sufficient to warrant admitting his opinion-answers into evidence. An expert cannot base his opinion upon facts assumed in a hypothetical question unless evidence tending to establish them is admitted into evidence, either through other witnesses or through the expert testifying upon his own personal knowledge. Evid.R. 703. * * * 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. Mayhorn v. Pavey (1982), 8 Ohio App.3d 189, 191. The court in Mayhorn v. Pavey faced a similar question of law with the procedural difference that the expert's testimony was presented to the jury, not proffered to the trial judge. In Mayhorn v. Pavey the court granted defendant's motion for directed verdict prior to any determination by the jury, finding that the assumptions contained in the hypothetical given to plaintiff's expert were not supported by evidence in the record. The appellate court found that the opinion-answer of plaintiff's expert was of no probative value in that assumed facts, critical to the expert's opinion, were omitted from the hypothetical. - 4 - The appellate court differentiated between the situation where conflicting evidence exists on the record regarding a fact material to the expert's opinion, and the situation facing the court in Mayhorn v. Pavey and this Court, where the evidence of that fact is uncontroverted. In the first situation, it is for the trier of fact to resolve the factual dispute and determine the weight to give to the expert's opinion. However: A different situation arises where there is uncontradicted evidence of a fact which is critical to the expert's formation of a reliable opinion but the hypothetical question does not disclose that fact to the expert, and so his opinion presumably is not grounded upon that fact, but nevertheless purports to resolve a critical issue in the case. The obvious danger is that clever trial counsel, through the omission, may present an unfair and inadequate picture to the expert, and the jury may give undue weight to the opinion without considering its faulty basis. Mayhorn v. Pavey, supra, at 192. The trial court in this case decided to have the opinion testimony proffered rather than presented to the jury in order to determine whether a proper basis existed to admit the testimony. The court was faced with a motion in limine to exclude the expert testimony. The trial judge expressed concern on the record that the opinion and the report of that opinion had been issued prior to Dr. Maltz receiving the deposition testimony of Drs. Walborn and Horwood. Dr. Maltz never had deposition testimony from Dr. Guirguis with which to form his opinion. Although Dr. Maltz stated in his proffer to the court that knowledge of the conversations the doctors shared with each other, - 5 - in which information regarding the patient's status was shared, was not critical to the determination of negligence, his statement to that effect conflicts with his opinion as to how each doctor fell below the appropriate standard of care. (T. 113). Dr. Maltz stated that Dr. Horwood fell below the standard of care by failing to speak directly to Dr. Walborn and by failing to speak to Dr. Fotinos to make certain that the patient was properly treated. (T. 109). Later in his testimony Dr. Maltz specifically relied upon the information received in the deposition of Dr. Horwood. (T. 115). Therefore, the court was properly concerned about the formation of Dr. Maltz's opinion prior to receiving the facts through deposition testimony. Dr. Maltz's opinion as to Dr. Horwood's negligence was based upon his speculations as to what was said and to whom regarding the patient's status. The evidence through Dr. Horwood's deposition testimony would have indicated that he in fact did speak directly to Dr. Fotinos. This testimony was never presented to the jury because the court directed verdicts in favor of the doctors after it determined that Dr. Maltz's opinion lacked probative value, based as it was upon speculation rather than the evidence. Dr. Maltz further testified that Dr. Guirguis fell below the standard of care by failing to properly assess the patient and to order oxygen for her once she was moved to the floor from the post- operative recovery room. (T. 107). Upon cross-examination Dr. Maltz was shown a copy of the nurses' recovery room notes where Dr. - 6 - Guirguis's presence in the post-operative recovery room is noted, as is his awareness of the patient's status and his order for oxygen. (T. 127). Dr. Maltz responded that he was not actually aware of what the facts were regarding the treatment of Mrs. Matyi in the post-operative recovery room. (T. 127). The exhibit containing these nurses' notes was not included in the file before this Court, therefore we must presume regularity in the proceedings below and assume that the exhibit said what appellees claim that it said. Attaching a copy to the appellate brief is insufficient, for it must be contained in the record before this Court can review the document. The hypothetical proffered to the trial court was stated as follows: Doctor, I want you to assume the following facts: I want you to assume that Dr. Guirguis did not assess the patient during the recovery room period; furthermore, I want you to assume that Dr. Guirguis did not order oxygen for her when she was moved to the floor, transferred to the floor; I also want you to assume that he did not call Dr. Horwood or anyone else about her need for oxygen or her oxygen condition. Do you understand the assumptions? (T. 171). Based upon this hypothetical, Dr. Maltz opined that Dr. Guirguis's care of Mrs. Matyi was below standard. The court properly found that evidence did not exist in the record to support the assumptions contained in the hypothetical. (T. 179). According to the nurses' notes presented during Dr. Maltz's cross-examination Dr. Guirguis did assess the patient in the recovery room. Furthermore, testimony from Dr. Guirguis would have indicated that - 7 - his order for more oxygen remained in effect after Mrs. Matyi was transferred to the floor. Dr. Maltz would not have been aware of this fact because appellant failed to ever depose Dr. Guirguis to obtain any factual basis for the formation of Dr. Maltz's opinion. Essentially, the trial court found that the opinion was not sufficiently supported by evidence contained in the record to be probative, and was therefore not admissible. Finally, appellant claims that the court's ruling which allowed Dr. Maltz's opinion against Dr. Walborn but not against Drs. Horwood or Guirguis is arbitrary. Appellant asserts that any speculations made by Dr. Maltz would have been equally applicable to his opinion about the standard of care exercised by Dr. Walborn as to the care exercised by the other two defendants. Appellant's assertion is without merit. The hypothetical offered to demonstrate the basis for Dr. Maltz's opinion of Dr. Walborn's standard of care contained the assumptions that Dr. Walborn was told that Mrs. Matyi was suffering from congestive heart failure; that the patient had been transferred to intensive care; that the house doctor had been called; and, that Dr. Walborn responded to this information with only the question, "What happened?" Evidence existed in the record to support this hypothetical. Thus, the opinion-answer was properly admitted. The admissibility of expert testimony is a matter within the discretion of the trial court and its ruling thereon will not be disturbed on appeal absent a showing of an abuse of that discretion. Frank v. Vulcan Materials - 8 - Co. (1988), 55 Ohio App.3d 153, 563 N.E.2d 339. An abuse of discretion implies an attitude by the trial court that is unreasonable, arbitrary, or unconscionable. Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St.3d 59, 61, 29 OBR 441, 443, 505 N.E.2d 957, 958. Wightman v. Consol. Rail Corp. (1994), 94 Ohio App.3d 389, 402. We can not find that the trial court abused its discretion in finding appellant's expert witness' testimony to be inadmissible. Appellant's assignment of error is overruled. The trial court's ruling which excluded the expert testimony as to Drs. Horwood and Guirguis and the court's grant of the directed verdicts are 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 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. PORTER, J., AND O'DONNELL, J., CONCUR ANN DYKE JUDGE 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, .