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Taulbee v. Dunsky11/10/2003
Plaintiff-appellant, Lois P. Taulbee, appeals a decision of the Butler County Court of Common Pleas limiting the testimony of her expert witness in a medical malpractice case and granting a directed verdict in favor of defendants-appellees, Martin Dunsky and Kirk Smith.
On May 13, 2000, appellant took her husband, Alan Taulbee, to Middletown Regional Hospital because he was complaining of severe chest pain. He was evaluated by a nurse, then was seen by emergency room physician Martin Dunsky. Dr. Dunsky diagnosed chest wall pain, gave Taulbee pain medication, and advised him to see his family physician in a few days if the condition did not improve.
When his condition failed to improve by May 16, Taublee consulted his family physician, Dr. Kirk Smith. Smith diagnosed gastroesophageal reflux disease and gave Taulbee Prevacid to take. Taulbee contacted Dr. Smith's office the following morning to advise them that the Prevacid was not working. Dr. Smith told Taulbee he needed to give the medicine time to work, and decided to schedule a test to evaluate what he thought might be a heart murmur.
Taulbee died suddenly at home on May 18. An autopsy revealed that the cause of death was a ruptured aortic dissection, which is caused by the tearing of an inside lining of the artery. Appellant filed a medical malpractice action against both Dr. Dunsky and Dr. Smith alleging failure to diagnose the aortic dissection.
A trial began on January 27, 2003. On the third day of trial, appellant presented the testimony of Dr. Alan Markowitz as a medical expert. Dr. Markowitz testified regarding his credentials and experience in diagnosing and treating aortic dissections. However, when Dr. Markowitz was questioned regarding his opinion on the standard of care, counsel for both Dr. Smith and Dr. Dunsky objected on the basis that Dr. Markowitz, a cardiothoracic surgeon, was not qualified to testify regarding the standard of care of an emergency room physician and a family practitioner.
After discussing the objection with counsel, the trial court held a hearing outside the presence of the jury to determine whether Dr. Markowitz was qualified to testify regarding the standard of care applicable to the two physicians. After considering the testimony presented, the trial court found that Dr. Markowitz was not qualified to testify regarding the standard of care to be applied to an emergency care physician or a family practitioner in making a diagnosis of an aortic dissection. Appellant then rested its case. Drs. Smith and Dunsky moved for a directed verdict. The trial court granted a directed verdict in favor of Smith and Dunsky on the grounds that appellant had failed to establish that either of the physicians deviated from the required standard of care.
Appellant now appeals the trial court's decisions that Dr. Markowitz was not qualified to testify to the applicable standards of care and to grant a directed verdict. Appellant raises the following single assignment of error for our review:
"THE TRIAL COURT ERRED BY RULING AS A MATTER OF LAW THAT PLAINTIFF-APPELLANT'S EXPERT WITNESS, ALAN MARKOWITZ, M.D., WAS NOT COMPETENT TO GIVE OPINION TESTIMONY REGARDING THE ISSUE OF WHETHER DEFENDANT -APPELLEES DEVIATED FROM THE STANDARD OF CARE IN THEIR EVALUATION AND TREATMENT OF ALAN S. TAULBEE."
Dr. Markowitz, a board certified cardiothoracic surgeon, testified regarding his credentials and his experience. His practice concentrates on adult cardiac surgery. He stated that he is also consulted by physicians to evaluate patients who are suspected of aortic dissection. He discussed precisely what an aortic dissection is, the c
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