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Pittock v. Kaiser Foundation Health Plan of Ohio5/14/1998
orrect interpretation of the ultrasound and the arteriogram and whether Mr. Pittock's condition at that time permitted surgery, which might have prevented the stroke he suffered two days later. T. at 668- 669. Dr. Alfred Martin, a vascular surgeon and appellant's expert witness, read the ultrasound to indicate some flow in the left internal carotid artery. T. at 156. Dr. Bryamjee concluded, from the ultrasound and the arteriogram, that the artery was totally occluded and, hence, inoperable. T. at 674, 681, 683-684.
Dr. Bryamjee also testified that he believed that Mr. Pittock had had a stroke on May 5, 1993. T. at 104, 665. He based his conclusion on the fact that Mr. Pittock had an inability to express himself, aphasia, that persisted for more than twenty-four hours. T. at 104, 674.
Mr. Pittock suffered a major stroke on May 23, 1993, in the dominant left hemisphere of his brain, caused by an occlusion of the middle cerebral artery. T. at 693. He is paralyzed on the right side of his body. T. at 9.
COMPLAINT AND TRIAL
Plaintiffs-appellants Gerald Pittock and his wife Roberta Pittock filed a complaint for medical malpractice on February 1, 1996. They alleged that the stroke could have been prevented but for the negligence of the defendants-appellees, Kaiser Foundation Hospitals ( Kaiser ) and Ohio Permanent Medical Group, Inc. ( Ohio Permanente ). Subsequently, Mr. Pittock's daughter, Linda Brazis, was appointed Guardian for Gerald Pittock and substituted as plaintiff by motion. R. at 28.
The case was heard before a jury at trial from April 22, 1997, through April 29, 1997. The jury returned a verdict in favor of the defendants, finding defendant Ohio Permanent Medical Group, Inc., was negligent but that its negligence was not a proximate cause of Mr. Pittock's stroke. T. at 947. The jury found no negligence on the part of Kaiser Foundation Hospitals. T. at 946- 947. Plaintiffs-appellants filed this timely appeal.
THE TRIAL COURT'S EVIDENTIARY RULINGS
Appellants' first, second and fourth assignments of error present similar questions of law and so will be considered together.
Appellants' first assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING DR. FREEDMAN TO TESTIFY AS A FACT WITNESS IN VIOLATION OF LOC.R. [LOCAL RULE] 21.1 (PART II).
Appellants' second assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING DR. FREEDMAN TO GIVE EXPERT OPINION TESTIMONY IN VIOLATION OF LOC.R. [LOCAL RULE] 21.1 (PART I).
Appellants' fourth assignment of error states:
THE TRIAL COURT ERRED IN PERMITTING DR. BRYAMJEE TO GIVE EXPERT OPINION TESTIMONY IN VIOLATION OF LOC.R. [LOCAL RULE] 21.1 (PART I).
Local Rule 21.1 of the General Division of the Cuyahoga County Court of Common Pleas provides that party may not call an expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel. Loc.R. 21.1(I)(B). It has been held generally that treating physicians are ordinary witnesses, not expert witnesses. Covington v. Sawyer (1983), 9 Ohio App.3d 40, 41 (syllabus). The local rules provide that n the event the expert witness is a treating physician, the Court shall have the discretion to determine whether the hospital and/or office records of that physician's treatment which have been produced satisfy the requirements of a written report. Loc.R. 21.1(I)(C).
The local rules also provide that ll parties are required to submit a trial witness list * no later than seven (7) days prior to the final pretrial date. Loc.R. 21.1(II). The
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