COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67495 MARILYN F. MARINO, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION ALAN SCOLNICK, M.D, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : APRIL 13, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 241229 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: William J. Novak Peter C. Tucker RUBENSTEIN, NOVAK, EINBUND PAVLIK & CELEBREZZE 270 Skylight Office Tower 1660 West 2nd Street Cleveland, Ohio 44113-1498 For defendant-appellee: Steven J. Hupp John A. Simon JACOBSON, MAYNARD, TUSCHMAN & KALUR 1001 Lakeside Avenue, Suite 1600 Cleveland, Ohio 44114-1192 -3- NAHRA, J.: Plaintiffs-appellants Marilyn and Joseph Marino instituted a medical malpractice action against defendant-appellee Dr. Alan Scolnick. The jury returned a verdict for appellee. Appellants now appeal the trial court's failure at trial to exclude the testimony of appellee's expert witness Dr. Thomas Frank. In late 1985, appellant Marilyn Marino, aged 52, was referred to appellee, a gynecologist, by her family doctor, Dr. Ochoa, a rheumatologist. Mrs. Marino had been experiencing heavy vaginal 1 bleeding. After examining her, appellee performed a "D&C" and requested a barium enema. This test showed appellant had 2 diverticula in the sigmoid colon. After these procedures, appellee recommended appellant undergo a hysterectomy. Appellant agreed; the operation was performed in January 1986. During this surgery, for medical reasons, appellee did not remove appellant's appendix. Two months later, appellant returned to appellee for a post- operative visit. Appellee prescribed estrogen for appellant. He instituted this hormone replacement therapy since he was aware it would maintain the normal secretions from the vagina and prevent the thinning of the vaginal walls which can occur after a hysterectomy. The prescription was to expire in six months; 1 Quoted material is testimony given by a witness at trial. 2 According to Stedman's Medical Dictionary, diverticula are small pouches or sacs in the walls of a tubular organ. -4- appellee wanted to see appellant at that time to monitor her condition. In April 1986, appellant's appendix ruptured and she was treated at a hospital for that occurrence. Appellant apparently blamed appellee for the incident; thereafter, she refused to return to appellee because she was "mad at him." During this period of time, appellant did not see any gynecologist and stopped taking estrogen. In September 1990, appellant began experiencing some discharge in her vaginal area. When she informed Dr. Ochoa about it, he suggested she return to appellee. She followed that advice. Thus, in September 1990, appellee one again examined appellant. He did both a speculum exam and also a bi-manual pelvic exam. Appellee noticed appellant's vagina was "quite irritated," she had a "decreased estrogen effect." After taking a vaginal smear, he observed "many red blood cells." Appellee made a diagnosis of atrophic vaginitis, i.e., "an inflammation of the vagina" which is "caused by several years of absence of the female hormone estrogen." The condition results in thinning of the vaginal tissues which then become "susceptible to irritation" and infection. Appellee placed appellant on estrogen therapy. Approximately two weeks later, appellant saw appellee again. Appellee did another vaginal smear and observed bacteria were present. He decided appellant had an infection, so he prescribed two types of antibiotics. Appellant came back a month later; at that time appellee noted only a "yellow discharge." Appellee saw -5- no sign of infection so he continued appellant on hormone replacement therapy. Six months later, appellant appeared for her semiannual examination once again complaining of "some infection." Appellee did his routine examination and a vaginal smear. He once again observed "heavy bacteria," so he prescribed an antibiotic. Appellant subsequently called appellee in July 1991 because she was again experiencing some discharge. Appellee told her to come to his office for an examination. Once again, appellee performed a routine examination, observed a mild infection was present, and prescribed a different antibiotic. In November 1991, appellant saw appellee for a semiannual examination. When asked, appellant stated "her discharge had some burning." Appellee performed his routine examination and a vaginal smear. He observed a heavy bacterial count and the presence of some white blood cells. He prescribed two antibiotics for the infection. A few months later, appellant went to her family doctor and "complained about having this awful infection still after all this time." She also informed him she was "having trouble going to the bathroom." Apparently based on what appellant had told him, Dr. Ochoa decided to perform a sigmoidoscopy. The results of this test led him to refer appellant in March 1992 to Dr. Martin Schneider, another gynecologist. Dr. Schneider gave appellant a "complete physical" and performed a rectal examination. At that time, he detected an -6- 3 abnormality, possible a "pelvic mass" or a "colovaginal fistula." He referred appellant to Dr. Kessler, a gastroenterologist. In April 1992, Dr. Kessler performed a colonoscopy on appellant. After this test, which showed "severe diverticulosis," a barium enema was performed. Ultimately, in May 1992, appellant had surgery in which a portion of her colon was removed. Appellant and her husband thereafter filed suit against appellee. A jury trial eventually ensued. At trial, appellants alleged appellee breached the standard of care expected of gynecologists when he failed to perform a rectal examination of appellant during his treatment of her. Appellant contended that the performance of a rectal examination would have revealed appellant had a colovaginal fistula by July 1991 and an earlier diagnosis would have led to less extensive colon surgery. To present their case, appellants called appellee as a witness on cross-examination, testified in their own behalf and introduced into evidence the deposition testimony of their expert witness, Dr. 4 George Kaufer, a general surgeon. Appellants also introduced into evidence the medical records of appellant Marilyn Marino's treating physicians throughout the relevant time period, with the exception of those of Dr. Ochoa. 3 Appellant's counsel explained this condition in a simplified manner by stating it as "an opening between the vagina and the rectum caused by a perforated" diverticulum. See footnote 2. 4 This deposition was not included in the record on appeal. See App.R. 9. -7- Appellee testified in his own behalf and called as an expert witness Dr. Thomas Frank, a gynecologist. Although appellant objected, the trial court permitted Dr. Frank to testify concerning the appropriate standard of care and whether in his opinion appellee was negligent in his treatment of appellant. Subsequently, the jury returned a verdict for appellee on appellant's complaint. Appellants have instituted a timely appeal and present the following as their sole assignment of error for this court's review: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ALLOWING THE TESTIMONY OF THE DEFENDANT-APPELLEE'S EXPERT WITNESS, THOMAS M. FRANK, WHERE THE FACTS USED BY THE WITNESS WERE NEITHER PERCEIVED BY THE WITNESS NOR ADMITTED IN EVIDENCE. Appellants argue the testimony of Dr. Frank on the issue of the standard of care was inadmissible pursuant to Evid.R. 703 because it was based in part on facts which were not admitted into evidence, viz., Dr. Ochoa's medical records. Appellants thus contend the trial court erred in overruling their objection to the admission of Dr. Frank's testimony. This court disagrees. The extent to which expert testimony and opinion evidence are received rests largely in the discretion of the trial judge. Camden v. Miller (1986), 34 Ohio App.3d 86 at 91. See, also, Frank v. Vulcan Materials Co. (1988), 55 Ohio App.3d 153. Evid.R. 703 provides: RULE 703. Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. -8- The requirements for the admissibility of evidence pursuant to this rule have several times been considered by the Ohio Supreme Court. In State v. Jones (1983), 9 Ohio St.3d 123, the court admonished: The rule clearly requires that the facts upon which an expert opinion is based must be perceived by the expert or admitted in evidence. The commentators on Ohio evidence agree that each element of fact upon which the opinion is based must either be perceived by the expert or admitted during the course of the trial. [Footnote omitted.] In this case, the state concedes that the three expert witnesses based their opinions that Jones continued to be mentally ill and in need of hospitalization in part on reports and medical histories not admitted in evidence and not prepared by the witnesses. [Footnote omitted.] Therefore, we find that it was error to admit the expert opinion testimony. Id. at 124-125. (Emphasis added.) See, also, State v. Chapin (1981), 67 Ohio St.2d 437; Kraner v. Coastal Tank Lines (1971), 26 Ohio St.2d 59. However, in State v. Solomon (1991), 59 Ohio St.3d 124, the court added the caveat that in considering the admissibility of the testimony, the language of the rule must be particularly noted: . . . [W]here an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid. R. 703 has been satisfied. It is important to note that Evid.R. 703 is written in the disjunctive. Opinions may be based on perceptions or facts or data admitted in evidence. Id. at 126. (Emphasis in original.) Int his case, Dr. Frank testified on direct examination in relevant part as follows: -9- Q. Doctor, based upon Dr. Scolnick's office chart, would you tell us what conditions or diagnosis did Dr. Scolnick treat Mrs. Marino for in 1990 and '91? A. According to the records and the chart, atrophic vaginitis. Q. And didDr. (sic) Scolnick treat Mrs. Marino's vaginitis properly? A. Yes. Q. Did the standards of care require Dr. Scolnick to do rectal exams on Mrs. Marino in 1990 and '91? A. No. Q. Was there a particular indication at any time for Dr. Scolnick to do a rectal exam on this patient? A. No, there wasn't. Q. Do you have an opinion as to whether Dr. Scolnick met the standard of care in this case during his care and treatment of Mrs. Marino? A. Yes, I do. Dr. Scolnick did meet the standard of care. Q. Could you tell us a little bit how you base that opinion; on which facts you base that opinion? A. Dr. Scolnick saw the patient, took a history each time, documented his phone calls, did a physical exam, documented the results in the chart, treated her presenting symptoms accordingly. (Emphasis added.) Dr. Frank further testified that symptoms of colovaginal fistulas are readily recognizable, then gave the following testimony: Q. Based upon all the medical records you reviewed, do you have an opinion in this case as to whether Mrs. Marino's colovaginal fistula existed in 1991? A. Yes, I do. -10- MR. NOVAK: Objection. May I approach the bench? THE COURT: You may approach the bench. (Thereupon, a discussion was had between Court and counsel off the record at the bench, after which the following further proceedings were had in open court:) THE COURT: You may ask the doctor, do you have an opinion, and is it based on a particular doctor's records? THE WITNESS: Yes. My opinion would be -- THE COURT: No. No. Based on what? THE WITNESS: Based on Dr. Scolnick's records. THE COURT: You may respond, based upon what you saw in Dr. Scolnick's records. Objection overruled. A. Based on what I read in Dr. Scolnick's records I do not believe the patient had a colovaginal fistula in 1991. Q. Doctor, could you explain how you came to this conclusion? A. Yeah. The patient did not exhibit the typical findings of colovaginal fistula. She was not passing bowel movement through the vagina. She was not passing rectal gas through the vagina. She did not have that characteristic smell of discharge. She did not have the abscess that was mentioned later on Dr. Scolnick's (sic) pelvic (sic) examination. She did not have anything abnormal on her pelvic examination, and I think all those things added together make it fairly clear that, to a medical certainty, we can state here that she didn't have that fistula at that time. * * * -11- Q. Assuming that Mrs. Marino's had a colovaginal fistula and had a pelvic mass in 1991, based upon that assumption, do you have an opinion as to whether Dr. Scolnick's bi-manual examinations would have detected this mass? * * * THE COURT: Whether or not that kind of examination could have depicted the mass? MR. HUPP [APPELLEE'S COUNSEL]: Y e s , sir. THE COURT: Proceed. A. Yes. I think that type of exam would have depicted, detected the mass. By reading Dr. Schneider's records later on the mass apparently was fairly easy to feel. In the chart it states that Mrs. Marino is not an obese patient which sometimes makes it difficult to examine. He would have felt it. If it was there, he would have felt it. Q. Again, Doctor, assuming that the mass was there in 1991, and excluding Dr. Ochoa's record for a minute; based upon that hypothetical, would a rectal examination by Dr. Scolnick in 1991 have diagnosed this condition? A. Well, again, if the mass was there, he would have felt it on the bi-manual and rectal examination. Now, asking about the fistula, no, the rectal examination would not have felt the fistula because the fistula, we find later, is some 18, 20 centimeters this far from the edge of the rectum. Now, Dr. Scolnick, I assume his fingers are about as long as mine, about eight centimeters long, so my eight centimeter finger couldn't have come anywhere near a fistula that would have been 20 centimeters up inside of her rectum. Q. Is it your opinion, Doctor, that when Dr. Scolnick did the vaginal examinations he palpated the entire vaginal cuff? -12- A. Or (sic), yes. Q. And, assuming that the patient -- THE COURT: Let me interrupt you. You're testifying as to his records, not just what you assume that another OBGYN did? That is very important, Doctor. THE WITNESS: Yes. THE COURT: From his records? THE WITNESS: Yes, from his records. THE COURT: Okay. A. We can make that conclusion. Q. Based upon the fact that Dr. Scolnick did the vaginal examination at the vaginal cuff, is it your opinion that that examination would have found the mass at the vaginal cuff? A. Yes. Q. Doctor, based upon your reviewing of the medical records, do you have an opinion as whether Mrs. Marino was injured in anyway by Dr. Scolnick's care and treatment? A. Yes, I do. THE COURT: O b j e c t i o n overruled. Q. You may answer. A. Yes. I see no way in which Mrs. Marino was injured by Dr. Scolnick's actions. (Emphasis added.) On cross-examination, Dr. Frank testified: Q. So in 1986, '90 and '91, when the standard of care is the issue in this case, you were not board certified, isn't that correct? -13- A. That's correct. Q. Thank you. Now, you testified that your opinions are based upon your reading and reviewing of Dr. Scolnick's records. A. Dr. Scolnick's, and, of course, the other physicians that I mentioned earlier. Q. Okay. Would that include Dr. Ochoa? A. I did review his chart, yes. Q. Did that become and form the basis of your opinion on direct examination? MR. HUPP: Objection, your Honor. THE COURT: You may answer. A. It certainly is part of my opinion. Whether it directed very much of it, I can't really say, but it was one of the things that I reviewed -- the entire case in preparation for coming here today. And I used all the information available to help draw my conclusions. Q. And did Dr. Ochoa's records then form the basis of your opinion in this case? MR. HUPP: Objection. THE COURT: Overruled. A. Certainly, again, it was part of the many factors that I considered that helped draw my conclusions, sure. (Emphasis added.) The foregoing demonstrates Dr. Frank's testimony complied with Evid.R. 703. Initially, it must be noted that on the issue of the standard of care, Dr. Frank expressly stated his opinion was based solely on appellee's office charts, which were introduced into evidence at trial. Camden v. Miller, supra. Secondly, with respect to the issues of proximate cause and injury, Dr. Frank testified that his opinion was based on his -14- perusal of appellee's office charts and the other doctors' records, and it was only on cross-examination that he stated Dr. Ochoa's records had also been reviewed. Viewing his testimony in context, it is clear he only verified his findings with reference to Dr. Ochoa's records. Thus, the situation is analogous to that faced by the court in State v. Underwood (1991), 73 Ohio App.3d 834, wherein the following was pointedly stated: . . . [I]t is possible for experts to review or observe information, yet not base their opinions on that information. In other words, Evid.R. 703 does not require that all information reviewed by an expert either be perceived by him or be admitted in evidence at the hearing. . . . [A]n expert witness does not necessarily "base" an opinion on every piece of information the expert reviewed prior to formulating the opinion. Webster's New Universal Unabridged Dictionary (2 Ed.1983), 154, defines the verb "base" as "to lay the base or foundation of." Black's Law Dictionary (5 Ed.1979), 138, does not define the verb "base," but defines the noun "base" as follows: "Bottom, foundation, groundwork, that on which a thing rests." Just as a builder might review many materials before selecting some to use as a building foundation, an expert might review many pieces of information before selecting some to use as an opinion foundation. (Emphasis in original.) See, also, Lambert v. Goodyear Tire & Rubber Co. (1992), 79 Ohio App.3d 15 at 30-31. It is clear from a perusal of his testimony that the facts and data upon which Dr. Frank based his opinion were those which were perceived by him and admitted into evidence. Therefore, the trial court did not abuse its discretion by admitting his testimony into -15- evidence. State v. Underwood, supra; Camden v. Miller, supra; cf., State v. Chapin, supra; State v. Jones, supra. Accordingly, appellants' sole assignment of error is overruled. Affirmed. -16- It is ordered that appellee recover of appellants his 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. BLACKMON, P.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA 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. .