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O'Malley v. Forum Health

Court of Appeals of Ohio, Eleventh District

June 24, 2013

ANN M. O'MALLEY, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF WILLIAM JAMES O'MALLEY, DECEASED, Plaintiff-Appellee/ Cross-Appellant,
v.
FORUM HEALTH, d.b.a. FORUM HEALTH TRUMBULL MEMORIAL HOSPITAL, et al., Defendants-Appellants/ Cross-Appellees.

Dennis P. Zapka and David H. Boehm, McLaughlin Law, LLP, For Plaintiff-Appellee/Cross-Appellant.

Thomas J. Wilson, Comstock, Springer & Wilson Co., L.P.A., For Defendants-Appellants/Cross-Appellees.

OPINION

TIMOTHY P. CANNON, P.J.

{¶1} Appellants/Cross-Appellees Mohammed Rashid, M.D., and Forum Health, d.b.a. Forum Health Trumbull Memorial Hospital, appeal the Trumbull County Court of Common Pleas' judgment after a jury verdict in favor of Appellee/Cross-Appellant Ann M. O'Malley, individually and as personal representative of the heirs and estate of William James O'Malley, deceased. Appellants also appeal the judgment denying a motion for new trial. Appellants claim the trial court abused its discretion in finding Dr. Louis Flancbaum competent to testify as an expert witness under Evid.R. 601(D) because he did not devote one-half of his professional time to the active clinical practice of medicine at the time he offered his testimony. Appellants contend Dr. Flancbaum's testimony was improper and prejudicial and, therefore, request this court remand the matter for a new trial. The issue on appeal is whether a trial court may find a witness competent to offer expert testimony regarding the liability of a physician in a medical malpractice case if that witness, at the time of testimony, does not devote one-half of his professional time to the active clinical practice of medicine. Appellee/Cross-Appellant appeals the judgment denying a motion in limine, which sought to exclude expert testimony on behalf of appellants from Dr. Neuenschwander.

{¶2} Courts throughout Ohio, including this one, have read the "active clinical practice" requirement of Evid.R. 601(D) flexibly. After examining Dr. Flancbaum's length of practice, extensive experiential background, special experience in trauma care, continuing education, and the fact he was engaged in active clinical practice at the time relevant to the lawsuit, we conclude, in accordance with the purpose and function of Evid.R. 601(D), the trial court did not abuse its discretion in allowing Dr. Flancbaum to testify and in denying a new trial. This conclusion renders the cross-appeal moot. For the reasons more fully set forth below, the judgment is affirmed.

{¶3} On August 29, 2007, Ms. O'Malley filed this medical malpractice action seeking damages for, inter alia, negligence and wrongful death. The allegations stemmed from decedent William O'Malley's September 1, 2006 visit to Trumbull Memorial Hospital emergency room. Mr. O'Malley, age 70, was transported to the emergency room at approximately 6:00 p.m., complaining of acute chest pain following a fall two days prior which resulted in multiple rib fractures. While at the emergency room, numerous tests were performed on Mr. O'Malley that, as Ms. O'Malley's experts would explain, suggested the existence of blood in the patient's chest. When resuscitation efforts commenced hours after the lab test results were available, Mr. O'Malley suffered significant hemorrhage in his left chest cavity which resulted in fatal internal blood loss.

{¶4} Following extensive discovery, including numerous motions in limine, the matter proceeded to trial. During trial, Ms. O'Malley presented, over objection, the videotaped testimony of Dr. Flancbaum as an expert witness. Dr. Flancbaum's testimony indicated that Dr. Rashid, a Trumbull Memorial emergency room physician who treated Mr. O'Malley, deviated from the applicable standard of care and that Mr. O'Malleys death was, in fact, preventable. Dr. Flancbaum opined that Dr. Rashid failed to recognize the severity of Mr. O'Malley's injuries based on lab test results that were available at the time Dr. Rashid first appeared at Mr. O'Malley's bedside; i.e., that the patient was hemorrhaging blood and was technically in hemorrhagic shock upon arrival. Dr. Flancbaum additionally explained that Dr. Rashid failed to address Mr. O'Malley's injuries with proper and timely treatment. Appellants cross-examined Dr. Flancbaum and attacked the credibility of his opinion.

{¶5} Ms. O'Malley also presented the expert testimony of Dr. Samuel Kiehl, who similarly testified that Dr. Rashid failed to recognize the severity of the trauma demonstrated by the test results and failed to respond accordingly.

{¶6} The jury returned its verdict in favor of Ms. O'Malley and against Dr. Rashid and Forum Health in the amount of $556, 779.15. The trial court entered judgment for Ms. O'Malley on April 27, 2012.

{¶7} Shortly thereafter, numerous post-verdict motions were filed. Appellants filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. Ms. O'Malley filed a motion for prejudgment interest which, via October 18, 2012 judgment entry, was dismissed without prejudice.

{¶8} On November 6, 2012, appellants filed their notice of appeal, seeking to challenge the trial court's judgment on the verdict and judgment denying a new trial. We note this appeal is timely, as "[a] journalized jury verdict is not a final, appealable order when a motion for prejudgment interest has been filed and remains pending." Miller v. First Internatl. Fid. & Trust Bldg., 113 Ohio St.3d 474, 2007-Ohio-2457, syllabus.

{¶9} Appellants assert a single assignment of error for consideration by this court, which states:

{¶10} "The trial court committed prejudicial error in allowing the testimony of plaintiffs expert, Dr. Louis Flancbaum, over Dr. Rashid's objection."

{¶11} Under their sole assignment of error, appellants raise two issues. They first contend the trial court abused its discretion in allowing Dr. Flancbaum to testify as an expert when he did not devote any of his time to the active clinical practice of medicine at the time of trial, purportedly in contravention of Evid.R. 601(D). Appellants further contend this alleged abuse of discretion resulted in improper and prejudicial testimony such that the trial court should have granted a new trial pursuant to Civ.R. 59(A)(6) ("judgment is not sustained by the weight of the evidence") and ...


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