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Limle v. Laboratory Corp. of America5/2/2000
APPEAL from the Franklin County Court of Common Pleas.
On May 28, 1998, Anthony W. Limle, individually and as executor of the estate of Joy E. Limle (hereinafter "the decedent"), filed a complaint against Laboratory Corporation of America ("LabCorp"), Ishrat J. Butt, M.D., Celes M. Bryant, C.T., and Roy E. Manning, M.D. Mr. Limle set forth claims for relief of wrongful death, medical malpractice and professional negligence. In essence, the complaint averred that the decedent's death was caused by the defendants' negligence. Specifically, it was alleged that Dr. Butt, a pathologist and employee-agent of LabCorp, and Celes Bryant, a cytotechnologist and employee of LabCorp, failed to detect early signs of a malignancy on the decedent's Pap smear. Dr. Manning, the decedent's gynecologist, allegedly treated and evaluated the decedent in a manner below acceptable standards of care, including failing to sufficiently perform certain cervical biopsies.
On March 15, 1999, Mr. Limle filed a motion of voluntary partial dismissal pursuant to Civ.R. 41(A)(1)(a), dismissing LabCorp and Celes Bryant without prejudice. A jury trial was held on the claims against Drs. Butt and Manning. The jury returned verdicts in favor of both Dr. Butt and Dr. Manning. A judgment entry was journalized on August 3, 1999. Mr. Limle (hereinafter "appellant") has appealed to this court, assigning the following errors for our consideration:
1. The Trial Court Erred To The Substantial Prejudice Of The Plaintiff-Appellant In Instructing The Jury To Disregard The Testimony Of The Plaintiff-Appellant's Expert Witness On The Issue Of Proximate Ca se[.]
2. The Trial Court Erred To The Substantial Prejudice Of The Plaintiff-Appellant In Submitting An Interrogatory Which Required The Jury To Find That The Defendant-Appellee Dr. Butt Was Negligent Not Only In Her Interpretation Of Plaintiff- Appellant's Decedent, Joy Limle's, October 1993 PAP Smear, But Also In The Recommendations She Made For Additional Evaluation[.]
In his first assignment of error, appellant contends the trial court erred in striking and instructing the jury to disregard the testimony of his expert, Richard J. Stock, M.D., with regard to the decedent's survivability had negligence not occurred. At trial, Dr. Stock, a specialist in obstetrical, gynecological and neonatal pathology, testified as to his opinion on several key issues, including whether or not Drs. Butt and Manning (hereinafter collectively referred to as "appellees") were negligent, and the chances the decedent would have lived had negligence not occurred.
As to the issue of survivability, during appellant's case Dr. Stock testified that had the decedent been diagnosed properly in October/November 1993, her probability of survival would have been eighty to ninety percent. (Tr. 217, 234.) Dr. Stock also testified that had the decedent been properly diagnosed in October 1994, her chance of survival would have been slightly higher than fifty percent. On cross-examination, the following exchange occurred:
Q. * I can go back to the deposition if I had to, but I understood you stated, for you to be able to give the type of opinion you need to give here in this court, you had to go back and look at a few articles on this type of cancer, correct?
A. Yes, that's what I said. Id. at 280-281.
After appellant had rested and after three defense witnesses had testified, counsel for Dr. Butt moved to strike all of Dr. Stock's testimony with regard to survivability. Defense counsel's basis for the motion was that Dr. Stock had "admitted" his opinions on such were based on a review of several medical articles not i
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