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Davis v. Georgopoulos

December 2, 2008

ALBERT DAVIS, PLAINTIFF-APPELLANT,
v.
GEORGE GEORGOPOULOS, M.D., ET AL., DEFENDANTS-APPELLEES.



CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Case No. 04CV4307.

The opinion of the court was delivered by: Vukovich, J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite, Hon. Mary DeGenaro.

{¶1} Plaintiff-appellant Albert Davis appeals from a jury verdict entered in the Mahoning County Common Pleas Court in favor of defendants-appellees George Georgopoulos, M.D. and his medical practice. The sole argument on appeal is that a portion of a jury interrogatory, which the jury never reached, was akin to the special verdict prohibited by Civ.R. 49(C). Due to the failure to establish preservation of the alleged error by objection in the trial court, we find waiver of any issues surrounding the interrogatory. For the reasons expressed below, the judgment of the trial court is affirmed.

STATEMENT OF THE CASE

{¶2} In 2004, plaintiff filed a medical malpractice complaint against George Georgopoulos, M.D. and George Georgopoulos, Inc. (collectively referred to as defendant). The complaint alleged negligent performance of a coronary bypass that was conducted in 2000 but was not discovered until 2004, when plaintiff received a heart catheter to diagnose his further chest pain. Trial to a jury began on March 31, 2008. Defendant filed proposed jury interrogatories, which the court accepted.

{¶3} The first interrogatory initially asked if the jury found by a preponderance of the evidence that defendant deviated from the standard of care in the medical care and treatment of plaintiff and required the jury to circle "yes" or "no." If six or more jurors answered yes, then the second part of this interrogatory asked the jury to describe the act(s) or omission(s) that the jury found to constitute a deviation from the standard of care. The jury circled "no" and thus found that defendant did not deviate from the standard of care. As such, they did not answer the second part of the interrogatory.

{¶4} Rather, they proceeded to sign a general verdict for defendant on April 2, 2008, which was entered by the court on April 3, 2008. Plaintiff filed timely notice of appeal.

ASSIGNMENT OF ERROR

{¶5} Plaintiff's sole assignment of error provides:

{¶6} "THE TRIAL COURT ERRED, TO THE DETRIMENT OF APPELLANT BY ALLOWING THE JURY TO USE APPELLEE'S INTERROGATORY NO. 1."

{ΒΆ7} Plaintiff's only argument is that, although the jury answered "no" to the first part of the interrogatory and thus found that defendant did not deviate from the standard of care, the second part of the interrogatory (which only was to be answered in the case of a "yes" answer to the first part) constituted reversible error. Plaintiff believes that an interrogatory asking the jury to describe the acts or omissions they found to constitute a deviation from the standard of care is equivalent to a special verdict, which is prohibited by law. In claiming prejudice, he urges that the question could have confused and frustrated jurors if they felt unable ...


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