COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68576 ELVIA JONES ADMINISTRATRIX : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION EMERGENCY DEPARTMENT : PHYSICIANS, INC., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 5, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 249793 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Thomas Mester, Esq. Beth A. Sebaugh, Esq. Joel Levin, Esq. Jeffrey A. Schenk, Esq. John Schloss, Esq. Quandt, Giffels & Buck Co., James T. Schumacher, Esq. L.P.A. Nurenberg, Plevin, Heller & 800 Leader Building McCarthy Co., L.P.A. 526 Superior Avenue, N.E. 1370 Ontario - First Floor Cleveland, Ohio 44114 Cleveland, Ohio 44113-1792 -2- HARPER, J.: Plaintiff-appellant, Elvia Jones ("appellant"), timely appeals from a judgment of the Cuyahoga County Court of Common Pleas, which journalized the jury's verdict rendered in favor of defendants- appellees, Emergency Department Physicians, Doctor Veregge and Doctor Glaude (collectively "appellees"). In the underlying litigation, appellant, as administratrix of the estate of decedent Mr. Lee Ernest Jones, Sr. ("Mr. Jones"), brought a medical malpractice/wrongful death action against MetroHealth St. Luke's Medical Center ("St. Luke's") and their physicians; Ohio Permanente Medical Group, Inc. and their physicians ("Permanente Medical Group"); Critical Associates, Inc.; Emergency Department Physicians and Kaiser Permanente Medical Center ("Kaiser"). As a result of a settlement agreement, all of the parties named in appellant's complaint were dismissed and did not participate in the litigation except for Drs. Veregge and Glaude. This court, after reviewing the record and the arguments of the parties, affirms the trial court's judgment for the reasons stated herein. The following facts are adduced from the record before this court: Mr. Jones was a sixty-five-year old male who had a complex history of medical problems, including diabetes, complications from diabetes, heart disease, hypertension and chronic renal insufficiency. He was under the treatment of his personal physician, "Dr. Fleming," since 1968. Dr. Fleming, an internal medicine specialist, was employed by Kaiser. -3- Sometime in April of 1992, Mr. Jones complained to Dr. Fleming of extreme pain in his lower extremities each time he walked. Dr. Fleming referred Mr. Jones to "Dr. Byramjee," a Kaiser physician specializing in vascular medicine. Dr. Byramjee had a consultation with Mr. Jones and recommended that Mr. Jones have femoral bypass surgery. Subsequently, Mr. Jones underwent femoral bypass surgery at St. Luke's and remained hospitalized from April 7 to April 19, 1992, under the care of his attending Kaiser physicians. Prior to Mr. Jones' discharge from St. Luke's, a foley catheter generally used to facilitate the flow of excessive urine retained in the bladder and alleviate any obstruction in the urinary tract, was inserted into Mr. Jones. Mr. Jones was discharged with directions to follow up with "Dr. Cotton," his treating nephrologist. On April 20, 1992, Mr. Jones arrived at St. Luke's Emergency Room, complaining of urinary retention and pain from the foley catheter. Dr. Glaude, an emergency care physician, examined Mr. Jones. After evaluating Mr. Jones' laboratory values, in accordance with Kaiser protocol, Dr. Glaude consulted with Mr. Jones' Kaiser physicians concerning his laboratory values and medical condition. Given Mr. Jones' medical condition, Dr. Glaude diagnosed an urinary tract infection, and prescribed "Cipro." Dr. Glaude was advised by the Kaiser physicians to discharge Mr. Jones with instructions for a follow-up visit the following day with Dr. Cotton. -4- However, on April 21, 1992, Mr. Jones returned to the emergency room, once again complaining of pain and an inability to urinate. Dr. Veregge examined him and evaluated his medical laboratory values and diagnosed an urinary tract infection and urinary retention. After a consultation with Kaiser physicians, as required by Kaiser protocol, Mr. Jones was discharged with instructions for him to follow-up with Dr. Fleming, within twenty- four hours. The following morning on April 22, 1992, Mr. Jones went to Dr. Fleming's office complaining of pain. Dr. Fleming evaluated Mr. Jones' medical condition and determined that he should be immediately admitted to St. Luke's. Dr. Fleming arranged for ambulatory transportation to St. Luke's and Mr. Jones was immediately admitted. Subsequently, Mr. Jones died on April 23, 1992. Appellant thereafter, filed a complaint in the Court of Common Pleas of Cuyahoga County against Drs. Veregge and Glaude. Appellant charged that the physicians were negligent in their emergency department care of Mr. Jones, because they failed to admit and then perform a dialysis. The matter proceeded to jury trial with the central issue being whether Drs. Veregge's and Glaude's failure to admit and dialysize Mr. Jones constituted a cognizable claim of medical malpractice, and whether this failure was the proximate cause of Mr. Jones' death. Appellant called numerous witnesses in her case- in-chief. -5- Dr. Gordon Lang, an internal medicine and nephrology specialist, was retained as appellant's medical expert. His videotaped deposition was played at the trial. Dr. Lang explained that "acute renal insufficiency" is the abrupt decline in the function of the kidney, whereas "chronic renal failure" is a condition where the patient requires a kidney treatment such as dialysis to sustain life. Two laboratory factors such as the "BUN" and "creatinine" levels in the blood evaluate the level of kidney functioning. The "BUN" level measures the blood area nitrogen which is a metabolic water product; and the creatinine level measures the breakdown process of creatine. In other words, the creatinine level is an index of how the kidney is excreting. With respect to hospital protocol, as a general rule, Dr. Lang confirmed that physicians without admitting privileges at a hospital cannot admit patients. Moreover, only a patient's treating nephrologist has the medical expertise and training to determine whether dialysis is an appropriate medical treatment for a patient with a kidney ailment. Furthermore, a physician without expertise in dialysis should not order or perform dialysis, and a physician who orders or performs dialysis without the requisite expertise and training fails to meet the required standard of care. Dr. Lang reviewed Mr. Jones' medical records from 1978 to 1992; medical records from April 2, 1992 through April 19, 1992; emergency records from April 20 and April 21, 1992; admission records from April 22 and April 23, 1992; autopsy records; and the -6- depositions of the other physicians and medical staff involved with Mr. Jones care. Dr. Lang opined to a reasonable degree of medical probability, given Mr. Jones' medical condition that he should have been admitted to St. Luke's because he was suffering from advanced renal insufficiency, a condition complicated by acute renal failure. Given Mr. Jones' medical records, Dr. Lang opined to a reasonable degree of medical probability that during Mr. Jones' in-patient admission from April 7 to April 19, 1992, he required dialysis. Furthermore, had Mr. Jones been dialyzed at any time through his admission of April 22, 1992 his death would have been averted. Finally, he opined to a reasonable degree of medical certainty, even had Mr. Jones been admitted and not dialyzed, his death was imminent. Dr. Glaude, recounted Mr. Jones' medical condition during his examination of him in St. Luke's emergency room on April 20, 1992. He confirmed that both Mr. Jones' BUN and Creatine levels were critically high during Mr. Jones' visits and thus he wanted to admit him due to these high levels. He prescribed the pain medication "Stadol" for Mr. Jones on April 20th. After receiving the lab reports, reviewing Mr. Jones' medical chart, and examining Mr. Jones, Dr. Glaude consulted with Mr. Jones' Kaiser physicians. Dr. Cotton recommended that Mr. Jones be discharged, with directions for him to arrange for follow-up visits. -7- Dr. Glaude did not consider dialyzing Mr. Jones on April 21, 1992, because he was neither a nephrologist, nor was he qualified to determine whether dialysis would be an appropriate treatment plan for Mr. Jones. Dr. Glaude confirmed that he did not admit Mr. Jones because he did not have admitting privileges as an emergency room physician. Dr. Cotton's taped deposition was played to the jury. Dr. Cotton explained that he did not project any actual benefits for Mr. Jones had dialysis been instituted on April 21, 1992. Moreover, Mr. Jones would not have benefitted from dialysis had Mr. Jones been dialysized on April 19, 20, 21, or 22, 1992. He did not, therefore, believe that dialysis would have extended Mr. Jones' life expectancy at all. Dr. Cotton confirmed that the standard of care at St. Luke's required a nephrologist to order and perform dialysis. Drs. Veregge and Glaude, in Dr. Cotton's opinion, did not deviate from the standard of care when they neither admitted nor dialysized Mr. Jones. Moreover, Dr. Cotton did not believe the medical information required that it was necessary to hospitalize Mr. Jones for any nephrology related problems on April 21, 1992. Dr. DeHart, an emergency medicine specialist, also testified as an expert witness for appellant. Dr. DeHart opined that Mr. Jones' medical records from April 7 to April 19, 1992, indicated that Mr. Jones needed dialysis while he was hospitalized at St. Luke's. Mr. Jones' renal function condition had deteriorated from April 7 to April 19, and his medical condition was unstable when he -8- was discharged on April 20. Given these circumstances, he opined to a reasonable degree of certainty, that Mr. Jones needed dialysis immediately. According to Dr. DeHart, the Kaiser physicians deviated from the standard of care by not admitting and dialyzing Mr. Jones, and this deviation was the proximate cause of Mr. Jones' death. He opined that, to a reasonable degree of medical probability, in the absence of dialysis being immediately performed, Mr. Jones' death was imminent regardless of whether he was admitted to the hospital. Dr. DeHart confirmed that a physician lacking experience in dialysis has to defer to a physician experienced in nephrology or dialysis to institute dialysis for a patient. Dr. DeHart confirmed that Drs. Veregge and Glaude would have fallen below the standard of care had they ordered or performed dialysis when they lacked the training or experience in dialysis or nephrology. After both parties presented their cases, the matter went to the jury. The jury returned a verdict in favor of Drs. Veregge and Glaude. The jury found that neither doctor was negligent in his care and treatment of Mr. Jones. II. In the sole assignment of error, appellant asserts the trial court erred when it denied her motion in limine to exclude testimony referring to the negligent concurrent or subsequent care provided to Mr. Jones by physicians other than Drs. Veregge and Dr. Glaude. Appellant specifically contends the evidence of negligence concerning the Kaiser physicians was inadmissable pursuant to -9- Evid.R. 402 because it was not relevant to establish the proximate cause of Mr. Jones' death. Finally, appellant submits the evidence concerning the negligent conduct of the Kaiser physicians served to mislead and confuse the jury. Drs. Veregge and Glaude counter that appellant's assignment of error is devoid of merit for two reasons. First, the trial court had the discretion to admit evidence relevant to the requisite elements of a medical malpractice/wrongful death action, and evidence relevant to the establishment of the proximate cause of Mr. Jones' death. Second, in a medical malpractice/wrongful death action, a defendant has the right to assert that he did not breach a duty to the plaintiff and/or if a breach occurred, that the breach was not a proximate cause of the alleged injury. A trial court is vested with broad discretion in the admission and exclusion of evidence and a reviewing court will not reverse a trial court's judgment for failure to admit or exclude evidence, unless the trial court has clearly abused its discretion and the complaining party has suffered material prejudice. Rigby v. Luke County (1991), 58 Ohio St.3d 269. The term "abuse of discretion" connotes more than an error of law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 50 Ohio St.3d 217. The trial court's decision will not be disturbed absent a materially prejudicial abuse of discretion. Kirschbaum v. Dillon (1991), 58 Ohio St.3d 58. Evid.R. 401 defines relevant evidence as follows: -10- "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Pursuant to Evid.R. 402, the trial court has the discretion to admit or exclude evidence. Evid.R. 402 reads: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible. In order to establish a cognizable claim of medical malpractice, a plaintiff must show the existence of standard of care within the medical community, breach of the standard of care by the defendant-physician, and proximate cause between the medical negligence and the injury sustained. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127; Littleton v. Good Samaritan Hosp. and Health Ctr. (1988), 39 Ohio St.3d 86. In Bruni, the Ohio Supreme Court explained the burden of proof that a plaintiff must carry in order to successfully prevail in a medical malpractice claim. The Bruni court stated: Under Ohio law, as it has developed, in order to establish medical malpractice, it must be shown by a preponderance of the evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or commission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury -11- complained of was the direct result of such doing or failing to do some one or more of such particular things. Ault v. Hall (1928), 119 Ohio St. 422. (Citations omitted). Bruni, at 131. Furthermore, the proof of malpractice, in effect, requires two evidentiary steps; evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of the plaintiff. Bruni at 131. Generally, the issue of whether a physician has proceeded in the treatment of a patient with the requisite standard of care and skill must be determined from the testimony of experts. Bruni at 130. Expert testimony is required to establish that a physician was unskilled or negligent. Bruni at 130. In addition, expert testimony is also required to establish a causal link between the alleged negligent act and the injury sustained. Ault v. Hall (1928), 119 Ohio St. 422. The Ault Court stated, in pertinent part: It follows, of course, that plaintiff must show *** that the injury complained of was the direct result of doing or omitting to do some one or more of such particular things (as are required by the applicable standard of care). Ault v. Hall, supra; Coopers v. Sisters of Charity of Cincinnati Inc. (1971), 27 Ohio St.2d 42. Proximate cause is established when a plaintiff provides the trier of fact with evidence that the injury was more likely than not caused by the defendant's negligence. Bruni, supra; Coopers, -12- supra. Even assuming that a party establishes the negligent conduct of an alleged wrongdoer and an injury, the element of proximate cause must be separately established for the party to prevail. Zukoff v. The Pennsylvania Rd. Co. (1948), 86 Ohio App. 84. A motion in limine seeks an anticipatory ruling that evidence will probably be inadmissable, so it should be excluded until the opponent demonstrates its propriety. Brentson v. Chappel (1990), 66 Ohio App.3d 83. The ability of a trial court to entertain such a motion lies in the inherent power and discretion of the trial judge to control the proceedings. Rich v. Quinn (1983) 13 Ohio App.3d 102, 105. With the applicable principles of law set forth, we now turn to the central issue in this appeal, i.e., whether the trial court erred when it denied appellant's motion in limine. Appellant sought to exclude the expert medical testimony of Dr. Lang, on the ground that the evidence concerning the negligence of Kaiser doctors was irrelevant to the issue of whether Drs. Veregge's and Glaude's conduct was negligent and the proximate cause of Mr. Jones' death. After this court's review of Dr. Lang's testimony, we find the trial court did not err when it denied appellant's motion in limine as the evidence was relevant to the requisite elements in a medical malpractice/wrongful death action. As stated infra, to prevail in a medical malpractice/wrongful death action, a plaintiff must meet specific evidentiary standards. Littleton, Bruni, Alexander. -13- Dr. Lang's testimony went directly to the material elements of appellant's medical malpractice/wrongful death claim viz. whether Drs. Glaude and Veregge deviated from the standard of care in their treatment of Mr. Jones when they failed to admit him and order dialysis; whether the deviation was negligent and a breach of the standard of care; and whether this conduct was the proximate cause of Mr. Jones' death. Dr. Lang opined to a reasonable degree of medical certainty that Mr. Jones required kidney dialysis, both prior to the two emergency visits and while he was hospitalized at St. Luke's. Dr. Lang's testimony was also relevant in establishing the acceptable standard of care for an emergency department physician who lacks admitting privileges and expertise or training in nephrology. Dr. Lang's testimony confirmed that had Drs. Veregge and Glaude ordered or performed dialysis as a treatment plan for Mr. Jones their conduct would have deviated from the appropriate standard of care. Thus, Dr. Lang's testimony was relevant to evaluating whether Glaude's and Veregge's conduct constituted medical malpractice when they failed to admit and then order dialysis for Mr. Jones. Finally, we note that appellant's reliance on Strother v. Hutchinson (1981), 67 Ohio St.2d 283; R.H. Macy & Co. v. Otis Elevator Co. (1990), 51 Ohio St.3d 108, is misplaced as each case is distinguishable from the facts in the case at bar. Strother and R.H. Macy & Co., each address the issue of intervening/ superseding causation, issues not present in the underlying litigation. Given the foregoing, we are unpersuaded by appellant's argument that -14- appellant suffered material prejudice when the trial court denied the motion in limine. Appellant failed to demonstrate that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. Blakemore. Consequently, appellant's contention lacks merit. Next, we turn to appellant's second contention that the jury was either confused nor misled by the evidence admitted by the trial court. Appellant specifically charges the evidence confused the jury and prevented the jury from understanding the issues in the underlying litigation. Appellant insists that the jury lacked the capacity to comprehend the evidence admitted, because the jury was composed of lay people. Evid.R. 403 permits the exclusion of evidence on certain grounds. The rule reads: (A) Exclusion Mandatory. Although relevant, evidence is not admissible if the probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. (B) Exclusion Discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by consideration of undue delay, or needless presentation of cumulative evidence. Evidence with probative value may be excluded if it has the danger of misleading and prejudicing the jury. Collins v. Storer Communications, Inc. (1989), 65 Ohio App.3d 443. The trial court is in the best position to determine whether the testimony or evidence is confusing or misleading and what impact the evidence will have on the jury. Renfro v. Black (1990), 52 Ohio St.3d 27. -15- The trial court's decision will not be disturbed absent a materially prejudicial abuse of discretion. Kirschbaum, supra. This court's review of the record fails to substantiate appellant's contention that the admitted evidence served to mislead or prevent the jury from understanding the issues presented. The trial court specifically instructed the jury that it could not consider statements made by the court and the attorneys as evidence. Moreover, the trial court appropriately charged the jury with the applicable principles of law pertaining to medical malpractice/wrongful death and the requisite burden of proof. For the reasons stated, appellant's contention is not well taken. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. -16- 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 Cuyahoga County 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. PATRICIA ANN BLACKMON, P.J., AND ANN DYKE, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .