COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68117 KATHLEEN HUDSON, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION JOSE ARIAS, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 93-247561-CV JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: DENNIS R. LANSDOWNE, ESQ. GEORGE S. COAKLEY, ESQ. SPANGENBERG, SHIBLEY, TRACI, REMINGER & REMINGER LANCIONE & LIBER 113 St. Clair Avenue, N.E. 2400 National City Center Cleveland, Ohio 44114 Cleveland, Ohio 44114-3400 - 2 - DYKE, J.: Plaintiffs-appellants, Kathleen Hudson and her husband Robert, appeal a verdict granted in favor of Defendant-appellee, Jose Arias, M.D., a board certified obstetrician-gynecologist, in their medical malpractice action which asserted that appellee failed to act appropriately to diagnose an alleged, pre-cancerous lesion of 1 appellant's colon when she sought his services for a hysterectomy. Appellants claimed that appellee's failure to repeat a pre- operative barium enema x-ray wherein the presence of stool may have prevented the visualization of a possible, benign, pre-cancerous or cancerous polyp, resulted in a delayed diagnosis of colon cancer. In their first assignment of error, appellants argue that appellee's medical expert was unqualified to testify because the only applicable standard of care in this case is that of a gynecologist and appellee's expert, a gastroenterologist, stated that he did not know what the standard of care was for a 2 gynecologist reviewing the results of an allegedly ambiguous 1 For purposes of clarity, "appellant" refers to Kathleen Hudson. 2 Appellants' expert opined that the x-ray was ambiguous because the presence of stool in the transverse colon made it impossible to exclude the possible presence of a polyp which could have been benign, pre-cancerous or cancerous. Appellee and his expert contended that the x-ray was not ambiguous because appellee ordered the x-ray for the pre-operative purpose of confirming appellant's pelvic organ placement prior to performing her total abdominal hysterectomy, which it did. Appellee and his expert contended that the x-ray was also not ambiguous because appellant did not seek appellee's services to rule out cancer and because she had no signs, symptoms, complaints or high risk factors indicative of colon cancer. - 3 - barium enema study. In their second assignment of error, appellants claim that the trial court erred in instructing the jury that there was a dispute as to whether the appellee was acting as a gynecologist or a primary care physician/internist when he reviewed the results of the above-cited study. Upon review we find appellants' assignments of error to be well taken. Accordingly, the judgment of the trial court is reversed and this cause is remanded. Appellant presented to the appellee for the first time on June 9, 1988 with complaints of heavy, vaginal bleeding. Appellee recommended a D&C and performed same on July 7, 1988. Appellant did not contact appellee again until her annual appointment in June, 1989. Appellant indicated during this visit that she continued to have vaginal bleeding. Appellee recommended a total abdominal hysterectomy, however appellant indicated to the appellee that she wished to postpone the hysterectomy until her symptoms became unmanageable. One year later, to wit., on June 18, 1990, appellant called appellee's office to schedule surgery which would take place on July 12, 1990. On July 10, 1990 appellee saw the appellant in his office for the purpose of evaluating and preparing her for surgery. He stated that he performed a vaginal and rectal examination; that he tested appellant's stool for blood utilizing a 3 guaiac test; that appellant's stool tested negative for blood and 3 Appellant stated that she did not recall whether the appellee performed a rectal examination and guaiac test. - 4 - that he reviewed certain pre-operative tests including a chest x- ray, IVP (Intravenous Pyelogram) and barium enema but did not discuss the results of these tests with the appellant because the results fell within the normal range. The results of the barium enema study were stated by the radiologist as follows: BARIUM ENEMA 7-2-90 There is a large amount of stool in the colon with several large chunks of stool particularly in the transverse colon making it impossible to exclude an underlying polypoid lesion. There is free flow of barium through the colon with reflux into the small bowel. IMPRESSION: Grossly normal barium enema but with a large amount of stool present particularly in the transverse colon. Spencer H. Anderson, M.D. (Plaintiffs' Exhibit #1, Radiology Report, Parma Community General Hospital, 7-2-90) Appellee ordered the barium enema to confirm the size, location and relationship of appellant's lower abdominal organs. He explained that appellant's enlarged uterus could displace these organs and that x-ray confirmation of their location would assist in reducing surgical complications. He further stated that he did not repeat the barium enema study because appellant presented no gastroenterological complaints, demonstrated no personal or family history of colon cancer and demonstrated no clinical symptoms of - 5 - 4 intestinal cancer to warrant such repetition. On July 12, 1990 appellee performed the hysterectomy and appellant made a full recovery. Appellant did not contact the appellee again until September, 1991. Appellant stated that she made the appointment with appellee at this time so he could review her hormone replacement therapy. She further stated that her only complaints at this time were vaginal itching and night sweats. Appellee performed a vaginal and rectal exam. However, the routine guaiac test he performed indicated the microscopic presence of blood in appellant's stool. In response to such finding, appellee ordered a barium enema, a liver and spleen scan and referred the appellant to a gastroenterologist. In October, 1991 appellant was diagnosed as having a malignant polypoid lesion of the left transverse colon which was removed on October 17, 1991 without evidence of metastases. On February 18, 1993 appellant filed the instant action which proceeded to trial on October 3, 1994. Dr. Michael Baggish, Department Chairman of Obstetrics and Gynecology at Good Samaritan Hospital, Cincinnati, former Chairman of the Department of Obstetrics and Gynecology (OBGYN) at Syracuse University Medical School and a OBGYN journal editor, referring to 4 A history and physical conducted by the anesthesiologist one day prior to surgery indicated that appellant had "no gastro- intestinal symptoms;" that she had no family history of colon cancer; that her liver and spleen were not "palpable" and that there were no masses or tenderness in her abdomen. (Plaintiffs' Exhibit #1, History and Physical Report, Parma Community Hospital, July 11, 1990) - 6 - the fact that the presence of stool in the x-ray made it "impossible to exclude an underlying polypoid lesion" testified that a reasonably prudent gynecologist would have repeated the test and that the appellee fell below the standard of care in failing to do so. Dr. Baggish opined that the appellee was also negligent because he failed to inform the appellant of the results of this allegedly ambiguous test so she could determine whether to have it 5 repeated. Dr. David Ransohoff, a nationally recognized, practicing gastroenterologist, Co-Director of the Robert Johnson Clinical Scholars Program at the University of North Carolina Medical School and former advisor to the National Cancer Institute for the development of colon cancer screening policies, testified that under the circumstances "the standard of care" did not require the appellee to repeat the barium enema performed on July 2, 1990. (Depo. at 14) Dr. Ransohoff testified that he disagreed with Dr. Baggish's opinion that the allegedly ambiguous test should have been repeated because appellant presented with no gastrointestinal symptoms; because she was under fifty years of age; because she demonstrated no high risk factors for colon cancer in either her personal or family history; because her stool tested negative for blood at that time and because the instant enema was ordered to 5 Both experts testified via video-taped depositions. Appellants' filed a Motion in Limine with respect to Dr. Ransohoff's deposition which was overruled by the court prior to and during trial. - 7 - 6 confirm organ placement and not to rule out cancer. Dr. Ransohoff admitted that he did not know what the standard of care was for a gynecologist but testified that in interpreting the results of a barium enema study, the appellee was essentially functioning as a "primary care physician" (Tr. 39) and that appellee "acted within a standard of care for a -- an internist or primary care doctor." (Tr.46) A majority of the jury (six jurors out of eight) rendered a general verdict in favor of the appellee and special verdict in favor of the appellee on the issue of negligence. The instant appeal followed. I THE TRIAL COURT ERRED BY PERMITTING DEFENDANT'S EXPERT WITNESS IN A MEDICAL MALPRACTICE CASE TO TESTIFY WHEN THAT WITNESS DID NOT KNOW THE STANDARD OF CARE APPLICABLE TO THE CASE. In their first assignment of error, appellants claim that pursuant to Alexander v. Mt. Carmel Medical Center (1978), 56 Ohio St.2d 155 and Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, appellee's expert failed to demonstrate sufficient knowledge of appellee's specialty to qualify him as an expert in this case. We agree. Having held that a podiatrist was competent to testify, to 6 Dr. Ransohoff stated that "[g]iven that there was no special reason at all to worry about cancer in this patient and that he had done the test for a wholly different reason, and given that barium enemas are commonly interpreted -- show stool and can't completely rule out a cancer, I think it was reasonable for ... Dr. Arias to say, I learned what I needed to learn about the pelvic organs, and given this person's very low risk, that I don't need to do further workup here. (Depo. 13) - 8 - wit., knowledgeable and familiar with the principles involved in determining when to remove a tight leg cast, the Alexander court went on to consider whether such podiatrist was qualified to testify to the standard of care applicable to the defendant, orthopedic surgeon. At Pages 159-160 of the opinion the court stated: What thus remains is to focus upon Dr. Cohen's qualifications as an expert witness. Any question pertaining to Dr. Cohen's knowledge and familiarity as a podiatrist with casts previously has been resolved by our prior notation of his testimony concerning his formal training and his actual clinical experience in the application of casts and their ancillary care. This court must now determine whether plaintiff's expert was qualified to testify concerning the standard of care that should be exercised by an orthopedic surgeon with respect to the application and removal of casts which are too tight. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127. Ohio case law reveals the adoption of the generally accepted rule that the witness must demonstrate a knowledge of the standards of the school and specialty, if any, of the defendant physician which is sufficient to enable him to give an expert opinion as to the conformity of the defendant's conduct to those particular standards and not to the standards of the witness' school and or specialty if it differs from that of the defendant. See, Willett v. Rowekamp (1938), 134 Ohio St. 285; Bruni v. Tatsumi, supra. Thus it is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshold question of his qualifications. In Alexander, it was clear that the podiatrist did not know the standard of care to be attributed to an orthopedic surgeon. - 9 - 7 See, Alexander Dissent at 163. However, the podiatrist did affirmatively testify that "there was a common way all surgeons applied casts and that the principles used in applying the plaintiff's cast were the same as he had been taught." Id. at 160. The Alexander court then noted that: "The record, therefore, contains probative evidence that there exists a minimum standard of care common to all specialties with regard to the application of casts." Id. at 160. In the instant case, while Dr. Ransohoff was extremely knowledgeable (because of his expertise in developing colon cancer screening protocols) about the standard of care applicable to gastroenterologists, primary care physicians and internists involved in determining when an ambiguous barium enema study should be repeated, he was unable to demonstrate his knowledge as to the standard of care applicable to appellee's specialty. While such lack of knowledge would not necessarily disqualify his testimony, Dr. Ransohoff, unlike the podiatrist in Alexander, failed to make 7 At Page 163 of Alexander, dissenting Justice Leach wrote: When the testimony (including the proffer) of Dr. Cohen is carefully examined, it clearly appears that he did not even attempt to profess expertise involving the orthopedic question of when an ankle and leg cast, placed to immobilize the area to accomplish the knitting of bones following an open reduction and internal fixation by the use of screws and wires, could or should be removed. Nor did Dr. Cohen actually assert any knowledge of the key question as to the standard of care involved in such a medical decision; nor the deviation by any of the defendants from such standard. - 10 - any statements which would establish the existence of a "minimum standard of care common to all specialties" regarding the decision to repeat an ambiguous barium enema study. Our review of the record demonstrates that Dr. Ransohoff's statements regarding the applicable standard of care refer to his own school and specialty and not to appellee's school and specialty or to all surgical specialties. Consequently, while Dr. Ransohoff, as a gastroenterologist was competent to testify under Alexander, he ultimately disqualified himself when he admitted that he had no knowledge as to what gynecologists do or should do when faced with an allegedly ambiguous barium enema study. Since Dr. Ransohoff had no knowledge of the standard of care to wit., the conduct required of gynecologists in this situation, it follows that he could only speculate as to a deviation from or a compliance with such standard as it is unknown to him. Therein lies the prejudice to the appellants. While we are not unmindful that an anesthesiologist who stated that he was "not familiar with everything an obstetrician does" and who also stated that he was familiar with the standard of care applicable to obstetricians in intensive care settings "to some extent," was held to be qualified to testify as an expert against an obstetrician; such anesthesio- logist did testify that he served as a former director of obstetric anesthesia and that he worked and consulted closely with obstetricians in intensive care units. See, Wells v. Miami Valley Hosp. (1993), 90 Ohio App.3d 840. Unlike the anesthesiologist in - 11 - Wells, Dr. Ransohoff's credentials and experience failed to establish a prior or current professional relationship with the discipline of gynecology or with practicing gynecologists themselves. Accordingly, we cannot say that Dr. Ransohoff demonstrated sufficient knowledge of the standards of appellee's specialty pursuant to Alexander, to qualify him to testify as an expert in appellee's behalf. Appellants' first assignment of error is sustained. II THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THERE WAS A DISPUTE AS TO THE DEFENDANT PHYSICIAN'S CAPACITY WHEN THERE WAS NO EVIDENCE OF ANY SUCH DISPUTE OR ISSUE. Appellants contend that there was no evidence in the record to raise a disputed issue as to whether the appellee was acting as a gynecologist or a primary care physician/internist in analyzing the results of appellant's barium study. We agree. At trial, a jury is entitled to receive from the court such instructions in the general charge that will place all of the issuable facts in controversy that are presented by the pleadings and the evidence. Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12. While Dr. Ransohoff asserted that appellee was "behaving" like a primary care physician or internist in determining whether to repeat a barium enema study, he did not affirmatively dispute appellant's and Dr. Arias' testimony which established a patient- gynecologist relationship. While other jurisdictions have held that experts' conflicting testimony as to the applicable standard - 12 - 8 of care constitutes a question of fact for the jury, Alexander and Bruni hold that an expert may testify only to the defendant physician's school and specialty or to a "minimum standard of care common to all specialties" regarding the procedure at issue. Hence, the trial court erred in instructing the jury with respect appellee's dual capacities which implicate competing standards of care as opposed to a single standard of care. Appellants' second assignment of error is sustained. Accordingly, this cause is reversed and remanded. It is so ordered. 8 See, Rock v. Pickleman (1991), 574 N.E.2d 682 and Wright v. Schulte (1983), 441 So.2d 660. - 13 - This cause is reversed and remanded to The Court of Common Pleas for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein taxed. It is ordered that a special mandate be sent to said 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. PATTON, C.J., AND *CORRIGAN, J. CONCUR ANN DYKE JUDGE *Sitting By Assignment: Judge John V. Corrigan, Retired, of the Eighth District Court of Appeals. 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, .