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Seibert v. Murphy11/21/2002
DECISION AND JUDGMENT ENTRY
. Tina Seibert and her minor son, Tim Dwayne Moore, filed a complaint against Tim's pediatrician, Rick Murphy, M.D., alleging that Murphy negligently failed to diagnose Tim and thereby caused injuries to him. After a jury trial before the Scioto County Court of Common Pleas, the court found in favor of Murphy. Seibert filed a motion for a new trial and a motion for relief from judgment, alleging that Murphy's expert gave false testimony during the trial. Seibert attached affidavits proving that the expert's testimony was false, but the trial court denied her motions. Seibert appeals, asserting that the trial court abused its discretion and permitted a manifest miscarriage of justice by denying her motions. Because we find that Seibert could have corrected the irregularity in the proceedings by presenting evidence contrary to the expert's testimony during the trial, or at least could have sought a continuance to preserve her right to do so, Seibert waived her right to object now to the false testimony. Accordingly, we affirm the judgment of the trial court.
I.
. Seibert took Tim to Murphy's office on the morning of February 14, 1997 because Tim had a high fever, sore throat, headache, cramping, and his knee joints were swollen to the point where Tim had difficulty walking. Murphy's records show that he diagnosed Tim with the flu, prescribed Tylenol and Ibuprofen, and advised Seibert to return in a week if Tim's condition did not improve. Murphy also orally told Seibert to call his office if Tim's condition worsened.
. Seibert called Murphy's office in the early afternoon and informed the nurse that Tim was vomiting. The staff advised Seibert to give the medication more time to take effect. Around 5:00 p.m., Seibert noticed that a rash appeared on Tim's body, but she did not call Murphy. By 9:00 or 10:00 p.m., Tim's condition had worsened and Seibert took him to the emergency room at the Southern Ohio Medical Center.
. Doctors at SOMC diagnosed Tim with meningococcemia and meningitis. He was transported by a Life Flight helicopter to Children's Hospital in Columbus, where he remained until March 1, 1997. He suffered permanent injuries that limit his ability to walk, caused him to lose parts of seven fingers, and left permanent scarring.
. At trial, Seibert presented an expert who testified that Murphy's treatment and diagnosis of Tim was negligent because Murphy did not conduct proper investigative tests despite the fact that Tim complained of symptoms, such as being unable to walk and having swollen joints, which are not typical of the flu. Seibert's expert opined that Tim's injuries could have been completely avoided if Murphy had conducted a proper and thorough examination.
. Murphy presented the expert testimony of Dr. Blaize Congeni, who opined that Murphy met the acceptable standard of care in treating Tim. Dr. Congeni testified that the fact that Tim did not develop a rash until around 5:00 p.m. was very important in this case, because once a rash develops, the diagnosis of meningococcal disease is readily apparent and antibiotics should be administered immediately.
. Seibert attempted to impeach Dr. Congeni by referring to his sworn testimony in a prior case, Schwochow v. Chung (1995), 102 Ohio App.3d 348, where Dr. Congeni testified for the plaintiff on a very similar set of facts. In the Schwochow case, Dr. Congeni testified that the doctor, Dr. Chung, did not perform to an acceptable standard of care by failing to conduct a proper and thorough examination and order appropriate tests for his patient. The child was later diagnosed with meningitis and died. When Seiber
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