COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72628 GERALD PITTOCK, et al : : Plaintiffs-appellants : : JOURNAL ENTRY vs. : and : OPINION KAISER FOUNDATION HEALTH PLAN : OF OHIO, et al : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 302,700 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: RICHARD L. DEMSEY KATHLEEN J. ST. JOHN Attorneys at Law Nuremberg, Plevin, Heller & McCarthy Standard Building, 1st Floor Cleveland, Ohio 44113 For defendant-appellee: BEVERLY A. HARRIS Attorney at Law 100 Franklin's Row 34305 Solon Road Solon, Ohio 44139 KENNETH A. ROCCO, J.: -2- Appellants contend that the trial court abused its discretion in admitting testimony from two treating physicians and in excluding demonstration testimony offered by the plaintiff- appellant. Appellants also would have us find error in the jury's use of a dictionary during its deliberations. Because we find no abuse of discretion in the trial court's evidentiary rulings, and because we find that appellants waived the dictionary use as an appealable issue, we affirm the jury verdict for the defendants- appellees. MEDICAL TREATMENT OF MR. PITTOCK Appellant Gerald Pittock, then sixty-one years old, suffered a major stroke on May 23, 1993, in the dominant left hemisphere of his brain. Mr. Pittock had been involved in a minor traffic accident at about 6:00 a.m. on May 5, 1993, and hit his head against the window. Immediately after the accident, Mr. Pittock could not speak. His speech returned, but as the day went on, his speech remained hesitant and slurred, and when his wife, appellant Roberta Pittock, returned from work, she took him to the Kaiser Permanente emergency room in Parma at about 5:30 p.m. that evening. At the emergency room on May 5, Mr. Pittock was seen by Dr. Harris O. Freedman. T. at 727. The Pittocks told the emergency room nurse and Dr. Freedman that they were there because Mr. Pittock's speech was slurred and he was having trouble finding the words to say. T. at 118, 731. They informed them of the earlier traffic accident. -3- Dr. Freedman's physical examination indicated that Mr. Pittock had high blood pressure, but the physical exam was otherwise normal. T. at 748, 736. Dr. Freedman ordered a CAT scan, which indicated no bleeding. T. at 736-739. Dr. Freedman diagnosed Mr. Pittock as having concussion syndrome, expressive aphasia, and possibly a transient ischemic attack ( TIA ).1 T. at 739, 743. After consultation with Dr. Darshan Mistry, the internist on call, Dr. Freedman prescribed aspirin, in light of the patient's risk factors for cardiovascular disease, and Vasotec, an anti-hypertension medication. T. at 745- 746. In light of Mr. Pittock's head injury, a follow-up examina- tion was suggested with Dr. Mistry. T. at 748. Dr. Mistry, an internist employed by Ohio Permanent Medical Group, Inc., examined Mr. Pittock in a follow-up visit on May 12, 1993. T. at 84. Dr. Mistry had been the internist on call on May 5. T. at 742. The examination showed that Mr. Pittock's blood pressure was down, but he continued to suffer from slurred speech. T. at 86. Mr. Pittock now mentioned that he had a shadow over his left eye. T. at 91. Dr. Mistry ordered a carotid doppler ultrasound to see if the arteries were blocked in Mr. Pittock's neck, which was done the following day, May 13. T. at 89-90. According to the radiologist, Mr. Pittock had almost complete occlusion of the left artery. T. at 95, 94, 671-672. Dr. Mistry ordered a second CAT scan as well, 1A transient ischemic attack, or TIA, can occur in persons who have carotid vascular disease, or hardening of the arteries to the brain. T. at 119. -4- which apparently never was completed. T. at 87-88, 697. The doctor continued the aspirin and Vasotec medication plan. T. at 93. Mr. Pittock had another follow-up appointment with Dr. Mistry on May 17. At that time, in light of the ultrasound's indication of an almost complete occlusion of the left artery, Dr. Mistry recommended that Mr. Pittock see a vascular surgeon as soon as possible. T. at 94, 96. Next, on referral from Dr. Mistry, Mr. Pittock had an appointment with Dr. Aspi Bryamjee, a vascular surgeon employed by Ohio Permanent Medical Group, Inc., on May 19, 1993. T. at 102. Dr. Bryamjee ordered an arteriogram, which was performed on May 21. T. at 103. At issue in the subsequent trial were both the correct interpretation of the ultrasound and the arteriogram and whether Mr. Pittock's condition at that time permitted surgery, which might have prevented the stroke he suffered two days later. T. at 668- 669. Dr. Alfred Martin, a vascular surgeon and appellant's expert witness, read the ultrasound to indicate some flow in the left internal carotid artery. T. at 156. Dr. Bryamjee concluded, from the ultrasound and the arteriogram, that the artery was totally occluded and, hence, inoperable. T. at 674, 681, 683-684. Dr. Bryamjee also testified that he believed that Mr. Pittock had had a stroke on May 5, 1993. T. at 104, 665. He based his conclusion on the fact that Mr. Pittock had an inability to express himself, aphasia, that persisted for more than twenty-four hours. T. at 104, 674. -5- Mr. Pittock suffered a major stroke on May 23, 1993, in the dominant left hemisphere of his brain, caused by an occlusion of the middle cerebral artery. T. at 693. He is paralyzed on the right side of his body. T. at 9. COMPLAINT AND TRIAL Plaintiffs-appellants Gerald Pittock and his wife Roberta Pittock filed a complaint for medical malpractice on February 1, 1996. They alleged that the stroke could have been prevented but for the negligence of the defendants-appellees, Kaiser Foundation Hospitals ( Kaiser ) and Ohio Permanent Medical Group, Inc. ( Ohio Permanente ). Subsequently, Mr. Pittock's daughter, Linda Brazis, was appointed Guardian for Gerald Pittock and substituted as plaintiff by motion. R. at 28. The case was heard before a jury at trial from April 22, 1997, through April 29, 1997. The jury returned a verdict in favor of the defendants, finding defendant Ohio Permanent Medical Group, Inc., was negligent but that its negligence was not a proximate cause of Mr. Pittock's stroke. T. at 947. The jury found no negligence on the part of Kaiser Foundation Hospitals. T. at 946- 947. Plaintiffs-appellants filed this timely appeal. THE TRIAL COURT'S EVIDENTIARY RULINGS Appellants' first, second and fourth assignments of error present similar questions of law and so will be considered together. -6- Appellants' first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING DR. FREEDMAN TO TESTIFY AS A FACT WITNESS IN VIOLATION OF LOC.R. [LOCAL RULE] 21.1 (PART II). Appellants' second assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING DR. FREEDMAN TO GIVE EXPERT OPINION TESTIMONY IN VIOLATION OF LOC.R. [LOCAL RULE] 21.1 (PART I). Appellants' fourth assignment of error states: THE TRIAL COURT ERRED IN PERMITTING DR. BRYAMJEE TO GIVE EXPERT OPINION TESTIMONY IN VIOLATION OF LOC.R. [LOCAL RULE] 21.1 (PART I). Local Rule 21.1 of the General Division of the Cuyahoga County Court of Common Pleas provides that [a] party may not call an expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel. Loc.R. 21.1(I)(B). It has been held generally that treating physicians are ordinary witnesses, not expert witnesses. Covington v. Sawyer (1983), 9 Ohio App.3d 40, 41 (syllabus). The local rules provide that [i]n the event the expert witness is a treating physician, the Court shall have the discretion to determine whether the hospital and/or office records of that physician's treatment which have been produced satisfy the requirements of a written report. Loc.R. 21.1(I)(C). The local rules also provide that [a]ll parties are required to submit a trial witness list *** no later than seven (7) days -7- prior to the final pretrial date. Loc.R. 21.1(II). There is no indication in the record that either party to this case complied with this requirement. Appellants appear to admit appellees' contention that, in fact, neither side did so. App. Reply Br. at 4. This court has ruled that a trial court has broad discretion in deciding whether to exclude the testimony of expert witnesses who are not properly identified prior to trial. Walworth v. BP Oil Co. (1996), 112 Ohio App.3d 340, 352. In Walworth, the defendant sought to exclude the expert testimony of a psychologist who had examined the plaintiff on the defendant's behalf. Id. The defendant had chosen not to call the psychologist as a witness, in light of her adverse findings, but the plaintiff deposed the psychologist and decided to call her as plaintiff's own witness. Id. The defendant objected on the ground that the plaintiff did not properly identify the psychologist as a witness pursuant to Loc.R. 21.1. Id. In Walworth, we rejected a narrow reading of Loc.R. 21.1, which would have required a mandatory exclusion of expert testimony under the circumstances of that case. Id. We noted a consistent line of case law in this district holding that a trial court has discretion in applying Loc.R. 21.1. Id. (citing Downs v. Quallich [1993], 90 Ohio App.3d 799, 803; Mina v. Southwest Gen. Hosp. [Aug. 17, 1995], Cuyahoga App. No. 67766, unreported, 1995 WL 491126). An abuse of discretion connotes more than an error of law or -8- judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219 (quoting State v. Adams [1980], 62 Ohio St.2d 151, 157). We have reasoned that [t]he purpose behind the witness disclosure rules is to `prevent surprise to either party at the trial or to avoid hampering either party in preparing its claims or defense for trial.' Walworth, 112 Ohio App.3d at 352 (citing Jones v. Murphy [1984], 12 Ohio St.3d 84). In Walworth, we found that the trial court did not abuse its discretion by permitting the psychologist to testify because the defendant made no showing of surprise regarding her testimony. Id. at 353. Here, appellants object to the testimony of two witnesses. Again, as in Walworth, the existence of these witnesses was no surprise to appellants. Indeed, these two witnesses, Dr. Freedman, the emergency room doctor who initially treated Gerald Pittock, and Dr. Bryamjee, the vascular surgeon who examined him shortly before the stroke, conceivably would be among the first persons that the plaintiffs in this malpractice action would attempt to depose. In fact, appellants did depose Dr. Bryamjee, but evidently the deposition was not thoroughly conducted. That Dr. Bryamjee, at trial, provided what appellants characterize as a completely unanticipated explanation for the rationale behind his medical decision not to operate immediately (a key factor in appellants' theory of causation), speaks for itself. App. Brief at 30. Having had the opportunity to depose the vascular surgeon, appellants -9- should not have been surprised to hear the rationale for the surgeon's allegedly negligent actions defended by him on the stand. In fact, Dr. Bryamjee was first called to the stand by appellants. T. at 99. In light of these facts, we cannot find the trial court's decision to admit Dr. Bryamjee's testimony to have been unreasonable, arbitrary or unconscionable, and hence we do not find an abuse of discretion. Blakemore, 5 Ohio St.3d at 219. Appellants contend that the admission of Dr. Freedman's testimony should constitute reversible error in that he was a previously unidentified witness. App. Brief at 21. Appellants point to the fact that no trial briefs or witness lists identified Dr. Freedman as a defense witness. Id. However, given that Dr. Freedman was the emergency room doctor who initially treated Gerald Pittock and that his alleged negligence was, in part, the gravamen of this malpractice case, appellants can hardly claim surprise in his appearance on the stand. Appellants were certainly aware of the identity of Dr. Freedman. Common sense dictates that Dr. Freedman, too, would be among those deposed by appellants. More importantly, however, appellants point to the signifi- cance of the fact that counsel requested that defendants make Dr. Freedman available for discovery, which request was never complied with. Id. Appellants direct our attention to a letter of November 12, 1996, in which counsel for the defendants writes to plaintiffs' counsel as follows: *** you asked for the Emergency Department physician, Dr. Friedman [sic]. At this time, I do not know where he is. He indeed may not -10- have been an employee of the Ohio Permanente Medical Group. I will let you know. Pl. Exh. 22. This same letter notes that depositions for Dr. Bryamjee and another physician had been scheduled for early December. Id. Appellants would have us place great significance on opposing counsel's statement that I will let you know about Dr. Freedman. Id. Dr. Freedman was not represented by defendants-appellees' counsel, as it turned out, because Dr. Freedman was not employed by Kaiser, nor by Ohio Permanente, but by Brentwood Emergency Group, Inc., which provided emergency room physicians to Kaiser.2 T. at 726. Appellants lament that they did not learn this fact until trial. App. Brief at 16. This case went to trial in late April of 1997. Appellants were on notice five months earlier, by way of the November 12 letter above, that Dr. Freedman might not be an employee of the defendants, and yet appellants apparently took no further action to determine Dr. Freedman's employment status or current whereabouts. The Supreme Court of Ohio has stated that the discovery rules give a trial court great latitude in applying sanctions for alleged abuse of discovery. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256. Civ.R. 37, for example, permits the exclu- sion of expert testimony as a sanction for a violation of discovery rules. Earl Evans Chevrolet, Inc. v. Gen. Motors Corp. (1991), 74 2Neither Dr. Freedman nor Brentwood Emergency Group, Inc., was named a party to the suit. -11- Ohio App.3d 266, 282. In Evans, the court noted that exclusion of the testimony would be appropriate [w]here the undisclosed tes- timony of an expert witness creates substantial likelihood of sur- prise. Evans, 74 Ohio App.3d at 282 (emphasis added). As dis- cussed above, we agree with the trial court's implicit finding that there was no substantial likelihood of surprise in the testimony of these treating physicians. T. at 721. Our responsibility as a reviewing court is merely to review these rulings for an abuse of discretion. Nakoff, 75 Ohio St.3d at 256. In order to find an abuse of that discretion, *** the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Id. Appellants had five months to determine Dr. Freedman's employment status or current whereabouts, but there is no indica- tion in the record that appellants took any further action in this regard. There is no record of a request for an admission, for example, or of a motion to compel discovery. Applying the stringent review required under Nakoff, we can discern no abuse of discretion in the trial court's admission of the testimony of Dr. Freedman. Id. We find appellants' first, second, and fourth assignments of error to be without merit, and they are overruled. VOIR DIRE OF DR. FREEDMAN Appellants' third assignment of error states: -12- THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW APPELLANTS TO VOIR DIRE DR. FREEDMAN PRIOR TO HIS DIRECT EXAMINATION TESTIMONY. One purpose of conducting voir dire of a witness is to avoid unfair prejudice or surprise. Sindel v. Toledo Edison Co. (1993), 87 Ohio App.3d 525, 529. Nonetheless, the admissibility of expert testimony rests within the discretion of the trial court. Id. While the better practice is to allow voir dire, see, e.g., Turner v. Turner (1993), 67 Ohio St.3d 337, 343, we find that the trial court did not abuse its discretion in denying voir dire, given the factual situation before us. As we have already discussed, we agree with the trial court that there was no substantial likelihood of surprise in the testimony at issue. We find appellants' third assignment of error to be without merit, and it is overruled. THE JURY'S REQUEST FOR A DICTIONARY Appellants' fifth assignment of error states: THE TRIAL COURT ERRED IN SUBMITTING A DIC- TIONARY TO THE JURY WITHOUT NOTIFYING THE PARTIES. Appellants contend that there is a strong possibility that the jury made inappropriate use of the dictionary provided and that this influenced its decision. This court has recognized the long-standing rule that a judgment will not be reversed because of alleged juror misconduct unless prejudice to the complaining party is shown. Bell v. Mt. Sinai Med. Ctr. (1994), 95 Ohio App.3d 590, 599 (citing State v. -13- Kehn [1977], 50 Ohio St.2d 11, 19). In Bell, the appellant suggested that individual jurors improperly used dictionaries to help them understand certain terms in a medical malpractice action. Id. Appellant there argued that the trial court erred in not ordering a new trial. Id. An appellate court will not consider any error that a party could have called to the trial court's attention, but did not, at a time when such error could have been corrected. LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 123. In overruling the assignment of error in Bell, we noted that no objection was raised at trial when the dictionary usage became known. Bell, 95 Ohio App.3d at 599. We ruled that appellant there had waived the issue for appeal. We find a similar situation in the case before us. The jury requested the use of a dictionary, from one of the assistants, during deliberations. T. at 946. The court brought this to the attention of the parties. Id. No objection was raised by either party, either before or after the verdict was read. Id. Appellants thus waived this issue on appeal. LeFort, 32 Ohio St.3d at 123. Even assuming the existence of error, we find no showing of prejudicial juror misconduct. A jury is presumed to follow the jury instructions as given by the trial court. Bell, 95 Ohio App.3d at 599. See, also, Pang v. Minch (1990), 53 Ohio St.3d 186, 195. In Bell, the jurors admitted using the dictionaries to look up several definitions. Bell, 95 Ohio App.3d at 600. However, the court was unable to compare the definitions utilized by the jury -14- with the instructions given by the court in order to determine the existence of prejudice. Id. Here, appellants have not established what use, if any, actually was made of the dictionary. A judgment will not be reversed because of alleged juror misconduct unless prejudice to the complaining party is shown. Id. at 599. Appellants' fifth assignment of error is without merit and is overruled. MR. PITTOCK'S ABILITY TO COMMUNICATE Appellants' sixth assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN NOT ALLOWING GERALD PITTOCK TO TESTIFY AND IN NOT ALLOWING A DEMONSTRATION OF HOW ROBERTA PITTOCK COMMUNICATES WITH GERALD PITTOCK AS EVIDENCE OF THE NATURE AND EXTENT OF HIS INJURIES. Appellants contend that their inability to present a demon- stration of how Roberta Pittock communicates with her husband constituted an abuse of discretion by the trial court. Appellants argue that such a demonstration should have been admissible as relevant and probative of the damages and injury suffered by Mr. Pittock. A trial court is vested with the sound discretion to rule on the admission or exclusion of evidence based on relevance. Nielsen v. Meeker (1996), 112 Ohio App.3d 448, 450. A trial court's evidentiary rulings will not be reversed unless that discretion has clearly been abused. Id.An abuse of discretion implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore, 5 Ohio St.3d at 219. -15- Appellants were able to demonstrate Mr. Pittock's communica- tive abilities during the testimony of the neurologist, Dr. Howard Tucker. T. at 532-535. The court reasonably could have found further testimony or demonstration on this issue to be cumulative. In any event, we do not find the court's ruling to be unreason- able, arbitrary or unconscionable. Blakemore, 5 Ohio St.3d at 219. We therefore find no abuse of discretion, and appellants' sixth assignment of error is overruled. All of appellants' assignments of error having found to be without merit, the jury's verdict below is affirmed. -16- It is ordered that appellees recover of appellants 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 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. JOSEPH J. NAHRA, P.J. and TERRENCE O'DONNELL, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(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 .