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County of Summit v. Akron General Medical Center12/22/1999
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:
Following a jury verdict in his favor, judgment was entered for Dr. James Rosser ("Rosser") and against Penny Dean ("Dean") in her medical malpractice case against him. The trial judge did not instruct the jury on Dean's medical battery claim against Rosser. During the trial, a directed verdict was entered in favor of Dr. Peter Boutsicaris ("Boutsicaris") on Dean's claims of malpractice and battery. Dean has appealed both the directed verdict in favor of Boutsicaris and the judgment in favor of Rosser.
Dean has assigned as error that the trial court (1) improperly directed a verdict in favor of Boutsicaris with respect to his medical malpractice claim; (2) improperly withheld the claims of technical battery against both physicians from the jury; and (3) transformed the objective standard of care into a subjective one by instructing the jury that the standard was that of a laparoscopic surgeon rather than a board certified general surgeon. We overrule all three errors and affirm the judgment of the trial court.
I.
In August 1993, Boutsicaris performed an emergency surgery on Dean to remove a portion of her colon in which she had perforated diverticulitis. Rather than reconnect the two loose ends of her colon together immediately, Boutsicaris pulled the top end through the abdominal wall to create a temporary colostomy. He sealed the severed end of the lower portion, creating an internal stump connected to her rectum.
In early January 1994, Boutsicaris recommended that Dean consider laparoscopic surgery to reverse the colostomy and to reconnect her colon. He referred her to Rosser, who had performed several similar surgeries. Rosser is a board certified general surgeon and is a specialist in laparoscopic surgery. At the time of the operation, Rosser was the surgeon with the most experience in colorectal laparoscopic surgeries at Akron General Medical Center and he was to perform or supervise all laparoscopic colorectal surgeries at the hospital. After a consultation with Rosser, Dean agreed to proceed with the laparoscopic reconnection. During the consultation, Rosser explained that "if we ha difficulty to the point where no progress was being made that would be opened and the operation carried out in the opened fashion." At Dean's request Boutsicaris agreed to assist in the laparoscopic surgery, but more specifically to be available in case difficulties arose which required conversion to an open surgery.
Prior to this elective surgery, Dean signed two consent forms, one the night before surgery and a second one on the day of surgery. The forms were identical in all relevant aspects. The forms describe the operation being requested as "laparoscopic takedown and colostomy reversal Hartman's Pouch - possible laparotomy." Rosser and Boutsicaris are both listed as physicians performing the operation. The forms contain an acknowledgment that "unforeseen conditions may be revealed that necessitate an extension of the original procedure or different procedures" and that "the practice of medicine is not an exact science that it may involve the making of medical judgments based upon facts known to the physician at the time[.]" It authorizes the surgeons to perform "such surgery/procedures that are necessary in the exercise of their professional judgment." The space included for Dean to record any exceptions to the above authorization is blank on both forms, as is another section designated "Remarks." The forms also acknowledge that Dean has "had an opportunity to discuss
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