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Proctor v. Patel3/27/2002
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellants, Linda Cheiky and Arlene Proctor appeal from a decision of the Medina County Court of Common Pleas which granted summary judgment to appellee Dr. Ashwin Patel ("Dr. Patel") and granted a directed verdict in favor of appellee Dr. Sue Kuo ("Dr. Kuo"). This Court reverses.
I.
In 1995, Eldred M. Proctor, Jr., ("Proctor") was diagnosed with non-Hodgkin's Lymphoma. The cancer was located in Proctor's throat. In January 1996, Proctor began a course of treatment with Dr. Kuo, a medical oncologist, and Dr. Patel, a radiation oncologist. Dr. Kuo treated Proctor with Adriamycin/Doxorubicin, a type of chemotherapy, at the same time that Proctor was receiving radiation treatments from Dr. Patel. Both doctors were aware that Proctor was receiving the two types of treatment concomitantly. As a result of receiving these treatments concurrently, Proctor developed severe mucositis and dehydration and had to be placed on a liquid diet because he could no longer swallow solid food.
In June of 1996, Proctor went to Dr. Elizabeth Connelly ("Dr. Connelly"), a medical oncologist, for treatment of his condition. Dr. Connelly diagnosed Proctor with severe chronic mucositis (inflammation of the oral cavity and oropharynx), xerostomia (dry mouth), and disphagia (difficulty swallowing). Proctor was unable to swallow food or to produce saliva naturally, and his mouth and tongue were so dry that his tongue would stick to the roof of his mouth. Eventually, Proctor had to have a "PEG tube" inserted directly into his stomach to take nutrition in that manner. Proctor lived with the "PEG tube" until his death in September of 1999.
In 1999, Proctor and his wife commenced this action for medical malpractice and loss of consortium in the Medina Court of Common Pleas. Upon his death in September of 1999, Linda Cheiky, the administratrix of Proctor's estate, proceeded in his stead.
Prior to the commencement of trial, the trial court granted Dr. Patel's motion to dismiss. At the close of appellants' case-in-chief, Dr. Kuo moved for a directed verdict. The trial court granted Dr. Kuo's motion in a decision journalized on February 5, 2001.
Appellants timely appealed and have set forth two assignments of error for review.
II. FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING DEFENDANT KUO'S MOTION FOR DIRECTED VERDICT.
Appellant argues that the trial court erred in granting Dr. Kuo's motion for directed verdict. This Court agrees.
"When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue." Civ.R. 50(A)(4). It is "the duty of a trial court to withhold an essential issue from the jury when there is not sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue." O'Day v. Webb (1972), 29 Ohio St.2d 215, 220. The issue to be determined involves a test of the legal sufficiency of the evidence to allow the case to proceed to the jury, and it constitutes a question of law, not one of fact. Hargrove v. Tanner (1990), 66 Ohio App.3d 693, 695. A court of appeals reviews the trial court's ruling
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