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Billman v. Hirth11/19/1996
DESHLER, Judge.
This is an appeal by plaintiffs, Velma R. Billman and Charles H. Billman, from a summary judgment granted by the Franklin County Court of Common Pleas in favor of defendant, Dr. C. Scott Hirth.
On June 24, 1992, plaintiffs fled a complaint alleging that defendant, a physician, was negligent in providing medical treatment to Velma Billman. Specifically, the complaint alleged that, from January 28, 1987 through June 24, 1988, Billman was under the care and treatment of defendant for a cardiac condition, including the prescription of certain cardiac medications (Lasix, Dyazide, and Digoxin). On June 24, 1988, Velma Billman suffered a full respiratory and cardiac arrest, resulting in her hospitalization until March 11, 1990.
The complaint alleged that plaintiffs cardiac arrest "was triggered by hypokalemia (abnormally low potassium content in the blood), in the presence of Digoxin as an aggravating drug." It was averred that defendant was negligent in failing to advise plaintiff of the risks of taking certain medications and in failing to obtain informed consent. It was further alleged that defendant was negligent in failing to prescribe potassium supplements.
Defendant fled an answer on July 22, 1992, denying the allegations of negligence and raising various affirmative defenses. A trial date was assigned for June 22, 1994. Pursuant to a case schedule order, a discovery cut-off date was set for March 16, 1994. On October 12, 1993, defendant fled a motion to compel plaintiffs and their counsel to provide deposition dates for all of plaintiffs' expert witnesses. On October 26, 1993, plaintiffs filed a memorandum in opposition to defendant's motion to compel discovery. Plaintiffs also sought an extension of the discovery cut-off date from March 16, 1994 until May 1, 1994.
On December 8, 1993, the trial court conducted a discovery status conference. By entry filed December 9, 1993, the court issued a pretrial order granting defendant's motion to compel and shortening the original discovery deadline as to the taking of depositions of plaintiffs' expert witnesses. Specifically, the pretrial order provided: "Plaintiff shall make every effort to make plaintiffs['] expert witnesses available for deposition, to be completed by February 15, 1994." The order further provided for " ll other discovery deadlines to remain in effect."
On February 22, 1994, defendant filed a motion for an order prohibiting plaintiffs from offering the testimony of plaintiffs' treating physicians and medical expert witnesses who were not deposed prior to February 15, 1994. Plaintiffs fled a memorandum in opposition on March 2, 1994. On March 9, 1994, the trial court issued a decision sustaining defendant's motion. The court's decision provided in part that plaintiffs were prohibited from introducing medical and expert trial testimony from any of their previously identified expert witnesses "other than that of Drs. Cunningham, Ecker, and Bush." The decision of the trial court was journalized by judgment entry fled April 1, 1994.
Plaintiffs subsequently filed a notice of appeal from the judgment of the trial court. By entry filed June 21, 1995, this court granted defendant's motion to dismiss the appeal for lack of a final appealable order.
On June 21, 1995, defendant filed a motion with the trial court requesting that a pretrial date be assigned and also asking the court to enter an amended case schedule order. On January 26, 1996, the parties entered into an agreed stipulation of facts. Paragraph nineteen of the stipulation of facts provides:
"Mr. and Mrs. Billman, as a result of this cour
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