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R.T. v. Knobeloch

Court of Appeals of Ohio, Tenth District

April 24, 2018

R.T. et al., Plaintiffs-Appellees,
v.
William Knobeloch, M.D. et al., Defendants-Appellants.

          APPEAL from the Franklin County Court of Common Pleas No. 14CV-4879

         On brief:

          Hale Westfall, LLP, and Allan L. Hale; Burg Simpson Eldredge Hersh & Jardine PC, Calvin S. Tregre and Janet G. Abaray, for appellees.

         Argued:

          Peter J. Krumholz.

         On brief:

          Arnold Todaro & Welch, Grier D. Schaffer and Gregory B. Foliano, for appellants.

         Argued:

          Grier D. Schaffer.

          DECISION

          TYACK, J.

         {¶ 1} William Knobeloch, M.D., American Health Network, Inc., American Health Network of Ohio Care Organization, LLC, and American Health Network of Ohio Professional Corp. ("appellants"), are appealing the jury verdict of the Franklin County Court of Common Pleas awarding damages to appellee, S.T., a minor, by and through her mother and next friend, R.T. For the following reasons, we affirm the judgment of the Franklin County Court of Common Pleas.

         I. FACTS AND CASE HISTORY

         {¶ 2} This case arises from the treatment of then six year old S.T. by Dr. Knobeloch, a pediatrician, in the summer of 2012. S.T. was presenting significant behavioral issues in kindergarten which led to a consultation with Dr. Knobeloch. On June 4, 2012, Dr. Knobeloch referred S.T. for counseling with Karen Cowie, LSW.

         {¶ 3} On July 31, 2012, S.T. and her mother met with Dr. Knobeloch for a behavioral consultation. Dr. Knobeloch gave a diagnosis of anxiety and panic disorder but did not rule out pediatric bipolar disorder. S.T. was prescribed 10 mg of Prozac. While the Prozac did seem to make some improvement in S.T.'s behavior, new behavior problems arose.

         {¶ 4} On August 21, 2012, R.T. and Dr. Knobeloch discussed S.T.'s behavior. Dr. Knobeloch spoke with Ms. Cowie who indicated it was her impression that there were instances of mania being exhibited. Dr. Knobeloch, with this new information, now determined a different diagnosis of bipolar disorder though there was a question of whether Dr. Knobeloch told R.T. this new diagnosis. Dr. Knobeloch instructed R.T. to immediately stop giving the Prozac to S.T. and begin administering Lamictal with a one-time daily dose of 25 mg. Lamictal is an anti-epileptic drug that has been used off-label to treat pediatric bipolar disorder.

         {¶ 5} On September 4, 2012, Dr. Knobeloch increased the dosage of Lamictal to 50 mg per day after his nurse spoke to R.T. about S.T.'s behavior. On September 5, 2012, S.T. was seen by Dr. Knobeloch's partner, Brad Pfau, M.D. S.T. had what Dr. Pfau called bug bites and some sort of eye infection that blurred her vision and produced swollen dry eyes. S.T. was prescribed antibiotics as treatment. R.T. expressed her concern that the problems with S.T.'s eyes were related to the Lamictal.

         {¶ 6} On September 7, 2012, S.T. was seen by Dr. Knobeloch. S.T. had redness and swelling around her eyes with a greenish discharge, had oral ulcers, and was covered in a target rash, which appeared as little bullseyes. R.T. also stated that S.T. had developed a high fever. Dr. Knobeloch diagnosed S.T. with Stevens-Johnson Syndrome ("SJS"), a serious rash that develops painful sores and in which the skin sloughs off. SJS exhibits a targeted rash and the involvement of two mucus membranes, the eyes and mouth in this case. S.T. was taken directly to Nationwide Children's Hospital where she remained from September 7, to October 1, 2012. S.T. had to be placed in a medically induced coma to combat the pain of her skin sloughing off.

         {¶ 7} On May 6, 2014, appellees filed suit against Dr. Knobeloch, American Health Network, Inc., and CVS pharmacy, claiming among others, medical malpractice, negligence, and a lack of informed consent. The claims centered on Dr. Knobeloch's improper prescription of Lamictal which allegedly proximately caused SJS.

         {¶ 8} On August 15, 2016, a jury trial began and, over two weeks later, the jury returned a verdict. It found that Dr. Knobeloch had been negligent and there was a lack of informed consent while finding no liability as to CVS. The total verdict was $1, 578, 539.51. A remittitur reduced the verdict to $1, 028, 539.51.

         {¶ 9} On October 31, 2016, the verdict was journalized creating a final appealable order. Appellants timely appealed.

         II. ASSIGNMENTS OF ERROR

         {¶ 10} Appellants bring seven assignments of error for our consideration:

I. The trial court gave two improper jury instructions and failed to give a third instruction, which is prejudicial error.
II. The court's repeated, leading, invasive interrogation of, and instructions to four of Plaintiffs' experts violated Evid.R. 614(B) and destroyed Defendants' right to receive a fair, impartial trial.
III. The improper exclusion of liability expert, David Franz, M.D., denied Defendants a fair trial, prejudiced the defense before the jury and prohibited presentation of new, material evidence as represented in opening statement.
IV. The court committed prejudicial error by submitting the unsupported informed consent claim to the jury and by overruling Defendants' repeated motions for directed verdict.
V. The jury had no competent evidence to find that Dr. Knobeloch's negligence caused harm by "doubling the patient's dose of Lamictal without seeing the patient."
VI. The court erred by admitting prejudicial, scientifically unreliable, misleading testimony that the dosage of Lamictal proximately caused this patient's SJS and by denying our repeated motions for a directed verdict.
VII. The court erred by admitting testimony of Drs. Kaye and Arrendondo, as their legal competency was never established pursuant to Evid.R. 601(D).

         III. THE TRIAL COURT DID NOT ERR IN GIVING THE JURY INSTRUCTIONS

         {¶ 11} We will address the assignments of error in logical groupings. In the first assignment of error, appellants argue the trial court improperly gave jury instructions on the lack of informed consent and instructions on the Federal Drug Administration's ("FDA") "Black Box" warning. Appellants also argue the trial court erred in failing to give a failure to mitigate damages instruction to the jury.

         {¶ 12} A trial court has discretion in deciding whether to give or refuse a particular instruction, and an appellate court will not disturb that decision absent an abuse of discretion. Clark v. Grant Med. Ctr., 10th Dist. No. 14AP-833, 2015-Ohio-4958, ¶ 50. Requested instructions should be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591 (1991).

         {¶ 13} "However, when a jury instruction contains an incorrect statement of the law, a reviewing court applies a mixed de novo and abuse of discretion standard of review." State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524, ¶ 127, citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 21, citing Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93 (1995). Thus, "[i]n examining errors in a jury instruction, a reviewing court must consider the jury charge as a whole and 'must determine whether the jury charge probably misled the jury in a matter materially affecting the complaining party's substantial rights.' " Kokitka at 93, quoting Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208 (1990). However, in reviewing "the instructions as a whole, and, if taken in their entirety, the instructions fairly and correctly state the law applicable to the evidence presented at trial, reversible error will not be found merely on the possibility that the jury may have been misled." State v. Shepard, 10th Dist. No. 07AP-223, 2007-Ohio-5405, ¶ 7, citing Wozniak v. Wozniak, 90 Ohio App.3d 400, 410 (9th Dist.1993). "In reviewing a record to ascertain the presence of sufficient evidence to support the giving of a special instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction." Feterle v. Huettner, 28 Ohio St.2d 54 (1971), syllabus.

         A. DISCLOSURE IS REQUIRED TO GIVE INFORMED CONSENT

         {¶ 14} Appellees argue that, because appellants offered their own jury instruction as to informed consent, they cannot now complain that the trial court should not have given one under the invited-error doctrine. Under the invited-error doctrine, "[a] party will not be permitted to take advantage of an error which he himself invited or induced." Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20 (1986). While appellants did offer a proposed instruction as to informed consent that was reviewed by the trial court, it is not in the record. Without the language of the proposed instruction, we cannot determine whether appellants invited or induced the error they now complain of.

         {¶ 15} The doctrine of informed consent emerged in the context of the tort of battery. The theory was that failure to obtain informed consent violates the right that every competent human has, a right to determine what is to be done to their body. Bedel v. Univ. of Cincinnati Hosp., 107 Ohio App.3d 420, 427 (10th Dist.1995). The doctrine of informed consent has never required that the physician, prior to administering the treatment, fully inform the patient of all potential risks. Id., citing O'Brien v. Angley, 63 Ohio St.2d 159 (1980).

         The tort of lack of informed consent is established when:

(a) The physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any;
(b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and
(c) a reasonable person in the position of the patient would have decided against the therapy had the material risks and dangers inherent and incidental to treatment been disclosed to him or her prior to the therapy.

Nickell v. Gonzalez, 17 Ohio St.3d 136 (1985), syllabus.

         {¶ 16} The lack of informed consent jury instruction given in this case states:

LACK OF INFORMED CONSENT: DEFENDANT WILLIAM KNOBELOCH, M.D.
Plaintiffs claim that Defendant Dr. Knobeloch breached the standard of care by failing to inform them about his treatment of his diagnosis of bipolar disorder, and the risks and benefits of the drug Lamictal he prescribed for [S.T.] To demonstrate lack of informed consent, [appellees] must prove by a greater weight of the evidence that:
(A) Defendant Dr. Knobeloch failed to disclose and discuss the material risks and dangers inherently and potentially involved with his treatment of his diagnosis of bipolar disorder, and the risks and benefits of the drug Lamictal; and
(B) the risks and dangers that should have been disclosed actually occurred and were a proximate or direct cause of injuries, harm, or loss to the Plaintiffs; and
(C) a reasonable person in the Plaintiffs' position would have decided against taking Lamictal if the material risks and dangers inherent and incidental to it had been disclosed.

(Aug. 31, 2016 Jury Instructions at 9-10.)

         {¶ 17} Appellants not only argue there was no testimony as to what constitutes the proper standard of care in order to give informed consent, they also argue the instructions improperly contained the phrase "of his diagnosis of bipolar disorder." Appellants argue that the instructions improperly focused the jury on a factual untruth that Dr. Knobeloch did not tell R.T. he was treating S.T. for bipolar disorder with Lamictal. This argument is not well-taken. The jury instruction does not state whether Dr. Knobeloch informed R.T. of his diagnosis of bipolar disorder. The focus of the instruction is whether Dr. Knobeloch discussed the material risks and dangers inherently and potentially involved with the treatment.

         {¶ 18} Appellants argue there was no testimony from appellees' experts as to what the standard of care should have been to give proper informed consent stating that it was misleading and improper to submit the unsupported informed consent claim to the jury. This argument is a mischaracterization of the law. The first prong of a lack of informed consent claim requires appellees to present evidence that a physician failed to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy. Nickell at syllabus. The jury instruction properly states that appellees must prove that "Dr. Knobeloch failed to disclose and discuss the material risks and dangers inherently and potentially involved with his treatment of his diagnosis of bipolar disorder, and the risks and benefits of the drug Lamictal." (Aug. 31, 2016 Jury Instructions at 10.)

         {¶ 19} The remaining question is whether appellees presented competent and credible evidence that Dr. Knobeloch failed to disclose to R.T. and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy of prescribing Lamictal for a diagnosis of pediatric bipolar disorder.

         {¶ 20} R.T. testified at trial that, on August 21, 2012, Dr. Knobeloch called her after talking to Ms. Cowie who had seen S.T. the previous day. R.T. was very concerned about S.T.'s behavior and her reaction to Prozac. Dr. Knobeloch instructed her to immediately stop administering Prozac and begin Lamictal:

Q. What were you told by Dr. Knobeloch that day?
A. Dr. Knobeloch said that he had spoken with Karen Cowie and that he was going to prescribe a medication that would help stabilize her mood.
Q. What were you told about Lamictal?
A. I was just told that it was a drug that was going to be used to calm her down, to take away the side effects from the Prozac that she was having.
Q. Did he tell you about the risks and benefits of Lamictal?
A. No, he did not.
Q. Did he tell you about any other alternatives?
A. No, he did not.
Q. Had he told you about any other drugs?
A. No.
Q. What about the alternatives of taking nothing?
A. He did not.
Q. What were you told about the dosage of Lamictal?
A. We did not discuss a dosage.
Q. Did Dr. Knobeloch ask to see [S.T.]?
A. No.
Q. What did he tell you about the dose he was prescribing for Lamictal?
A. He didn't discuss a dosage. He didn't tell me.
** *
Q. Did he tell you about any possible adverse reactions and ...

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