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Smith v. Ruben8/16/2001
APPEAL from the Franklin County Court of Common Pleas.
Defendants, Roger S. Ruben, D.O. and T.C. Hobbs & Associates, Inc. ("T.C. Hobbs"), appeal the judgment of the Franklin County Court of Common Pleas granting plaintiff Jeni Diane Smith's motion for prejudgment interest and denying defendants' motion for a $10,000 setoff from the jury's verdict.
On May 13, 1998, plaintiff filed an amended medical malpractice action against Dr. Ruben, his employer, T.C. Hobbs, and Doctors Hospital ("Doctors"), resulting from defendants' alleged failure to diagnose a bronchogenic cyst revealed during the performance of an esophagram on April 4, 1994. Plaintiff alleged that as a proximate result of defendants' failure to timely diagnose the bronchogenic cyst, plaintiff incurred significant medical expenses when the cyst had to be surgically removed on December 10, 1996. Plaintiff further alleged that the lengthy delay in diagnosis and treatment caused her to suffer pain, emotional distress, loss of employment and impairment of earning capacity. Trial was set for May 3, 2000, but was subsequently continued to May 15, 2000. On May 17, 2000, the jury returned a $50,000 verdict for plaintiff. Upon plaintiff's post-trial motion, the trial court awarded costs to plaintiff in the amount of $1,399.25. Neither plaintiff nor defendants filed an appeal from this judgment.
On May 18, 2000, plaintiff filed a timely motion for prejudgment interest. Under this motion, plaintiff argued that defendants had failed to make a good faith effort to settle the case before it went to trial. Plaintiff first alleged that defendants failed to cooperate in discovery, in that defendants failed to respond to interrogatories served with plaintiff's complaint; failed to attend an initial status conference; and failed to identify potential witnesses, expert or otherwise. In support of these contentions, plaintiff submitted copies of letters from plaintiff's counsel to defendants' counsel, dated December 24, 1998, and April 7, 2000, respectively, requesting responses to the discovery requests served with the complaint; a copy of a decision and entry filed by the trial court on August 6, 1998, indicating that defendants did not appear for an initial status conference on July 29, 1998; a copy of plaintiff's February 4, 1999 disclosure of witnesses; and a copy of the trial court's May 12, 2000 decision and entry granting plaintiff's motion in limine.
Plaintiff also argued that defendants failed to rationally assess their risks and potential liability and failed to make a good faith effort to settle the case. Specifically, plaintiff argued that despite: (1) Dr. Ruben's admission in his December 1998 deposition that he incorrectly read the esophagram film; (2) the discovery deposition testimony of plaintiff's medical expert establishing that Dr. Ruben was negligent in failing to detect the bronchogenic cyst in April 1994; (3) Dr. Ruben's failure to identify an expert witness to testify on his behalf; and (4) her continuing efforts to settle the case, defendants failed to engage in settlement negotiations until three weeks before trial. In support of her contentions, plaintiff submitted a copy of a $150,000 settlement demand made by plaintiff's attorney to defendants' insurance carrier on January 27, 1998; a copy of plaintiff's April 7, 2000 letter to defendants noting that she had yet to receive a response to her January 27, 1998 settlement demand and reiterating her willingness to continue negotiations; a copy of plaintiff's June 4, 1999 letter to defendants noting that defendants had yet to make a settlement offer; a copy of plaintiff's April 28, 2000 letter rejecting defendants' $35,000 offer and reducing p
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