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Fowerbaugh v. Univ. Hospitals3/3/1997
KARPINSKI, Judge.
Plaintiff-appellant, Albert Fowerbaugh, executor of the estate of Eileen Egyed, appeals from a jury verdict in favor of defendants-appellees, Young-Sun Yoon, M.D. and University Imaging, Inc., on the claim against them for failure to timely diagnose and treat Egyed's lung cancer.
Fowerbaugh commenced this medical malpractice/wrongful death action by filing a complaint against five defendants: (1) decedent's treating physician, Michael Nochomovitz, M.D.; (2) his practice group, University Physicians, Inc.; (3) University Hospitals of Cleveland; (4) radiologist Yoon; and (5) his radiologist group, University Imaging. Fowerbaugh voluntarily dismissed his claim against University Hospitals and settled and dismissed his claims against Dr. Nochomovitz and University Physicians.
The case proceeded to a jury trial against Yoon and University Imaging on October 2, 1995. The evidence revealed that Egyed sought treatment from Dr. Nochomovitz and University Physicians more than ten years earlier in August, 1985. Egyed was sixty-five years of age, had been a longstanding smoker, and complained of shortness of breath. Nochomovitz diagnosed her as suffering from obstructive pulmonary disease. Egyed was treated with various medicationsuntil referred to Dr. Yoon and University Imaging for a chest x-ray more than four years thereafter on October 6, 1989.
Dr. Yoon observed a "patchy density" in the completed x-ray of Egyed's lower right lung. The exact cause of the "patchy density" was not clear from the x-ray and Dr. Yoon recommended further evaluation to rule out neoplasm. Dr. Yoon dictated findings, which were transcribed into a typewritten report; however, the parties presented conflicting evidence concerning the distribution of the report. University Imaging routinely distributed copies of such reports to the referring physician, the x-ray department, and the patient's chart. There is no dispute that a copy of Yoon's October 10, 1989 typewritten report was placed on Egyed's chart in treating physician Nochomovitz's office file.
Nochomovitz testified that he generally reviewed such written reports on receipt and admitted that the document might contain a mark he placed on it to indicate that he had seen it. It is clear from the record, however, that radiologist Dr. Yoon did not also initiate contact with Dr. Nochomovitz or Egyed to communicate orally the content of his report. Dr. Nochomovitz did not request such an oral report from Dr. Yoon, and the report as orally dictated was available to Dr. Nochomovitz, before and after the report was transcribed, by initiating a telephone call through a push-button telephone system.
Plaintiff's expert, Dr. Jeffrey Crass, stated that Dr. Yoon should have made a telephone call to communicate orally his report to Dr. Nochomovitz. This testimony concerning the proper standard of care was contradicted by Dr. Yoon and defense experts Paul Wheeler, M.D., Thomas Jackson, M.D., and Richard Christie, M.D., who testified that oral communication was not necessary given the distribution of the written report. Neither plaintiff's nor defendants' experts testified, to a reasonable degree of medical certainty, that the standard of care required Dr. Yoon to communicate the report in any form directly to Egyed, the patient.
Egyed did not receive the recommended follow-up care. Approximately thirty-four months after the x-ray, Egyed was diagnosed with advanced lung cancer when she was being treated for an unrelated condition. Egyed died from bronchogenic adenocarcinoma (cancer) approximately six months later at seventy-eight years of age on February 17, 1993. Fowerbaugh's s
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