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Lambert v. Shearer12/15/1992
PETREE, Judge.
Defendant, Earnest Shearer, D.O., appeals from the Franklin County Court of Common Pleas, where a jury assessed $2.4 million in damages against him in thismedical malpractice action. Since we find that the trial court committed various prejudicial errors, we must reverse.
In 1988, Wayne Lambert's continued flu and cough symptoms prevented him from running his family restaurant in Urbana, Ohio, and he therefore sought medical attention. At the time, he had no personal physician and rarely went to any doctor because he had been a healthy forty-eight-year-old man. Since he ran the restaurant himself, he always tried to take care of himself, but he never could end his lifelong habit of smoking up to three packs of cigarettes per day.
Lambert's illness prompted him to call Dr. Karl Lee, an Urbana osteopath and former restaurant patron. When Lambert visited Dr. Lee, he presented with symptoms of fever, nausea, diarrhea, and coughing. At this first visit, the doctor examined him, prescribed some antibiotics, and had a chest X-ray done on January 21, 1988. But Lambert's condition worsened. He saw Dr. Lee again and the doctor ordered another chest X-ray, which was done on February 1, 1988. Dr. Lee habitually read his own X-rays instead of waiting for a radiologist to do so. He originally diagnosed Legionnaire's disease but later changed this to acute pneumonia. Since Lambert's condition and his lung congestion did not improve under Dr. Lee's care, he decided to seek a second opinion.
At the suggestion of family friend Mable Ray, Lambert paid a visit to defendant, who treated Mable's deceased husband George at the Beechwold Medical Clinic in Columbus, Ohio. Defendant is an osteopath who uses "homeopathic," or natural healing methods, in his practice. His homeopathic treatments include manipulative therapy, much like that employed by an ordinary chiropractor. Further, they include the use of various nutritional supplements in lieu of prescription drugs. They also include a host of what are popularly called "alternative" or nontraditional medical methods.
When he first met defendant, Lambert was awed by the doctor's appearance and manner. Defendant is an elderly, distinguished-looking gentleman. The doctor then gave Lambert an extensive and exhausting tour through the clinic, which is located in a converted house. The clinic is not listed in the yellow pages of the telephone book, as defendant does not advertise. Lambert, who had littlsexperience with medical facilities, felt that some of the clinic's equipment looked old and homemade. But he nevertheless trusted defendant because he appeared to be an experienced, "impressive" man. Several other doctors practiced with him at the clinic. Defendant never said to Lambert that he limited his practice to supplemental treatments.
Lambert was so impressed that he continued coming to defendant for weekly medical care from February 1988 through November 1988. Despite defendant's assertions during trial that he only does treatments and not diagnoses, he admitted that he diagnosed Lambert's ailments on numerous occasions. Indeed, the barebones medical records he kept show this. For instance, he told Lambert that head amoebic dysentery, a parasitic bowel disease. He also diagnosed him as having influenza and pneumonia. Then, on March 12, 1988, he diagnosed something called "paratyphoid" fever. Defendant likewise noted on his charts that Lambert had "cabin fever." On April 14, 1988, he said Lambert's problem was "occlusive peripheral arterial disease," or, in other words, hardening of the arteries. On June 23, 1988, defendant made a diagnosis of emphysema.
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