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Roetenberger v. Christ Hospital9/30/2005
only if there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition." See Pesek v. University Neurologists Assn., Inc., supra.
{ } The trial court in the case sub judice instructed the jury that " lthough some other gastroenterologists might have used a method different from that used by Dr. Saeed, this in itself does not prove negligence."
{ } The record contains no evidence that any method of treating Karen Roetenberger's bile duct stones different from an ERCP with conscious sedation was within the standard of care. The question was whether Saeed was negligent in performing the procedure, administering the reversal drugs, or caring for Karen Roetenberger when she "coded."
{ } We hold that the trial court erred in giving the "different methods" instruction. The second assignment of error is sustained.
{ } Roetenberger's third assignment of error, which alleges that the trial court erred in permitting Dr. Jeffrey Gross to testify for Saeed because Gross had been designated as an expert for another defendant but not for Saeed, and because Gross offered new opinions not contained in his previous deposition testimony, is overruled. Roetenberger knew Gross's identity, the subject of his expertise, and the general nature of his testimony. See Cherovsky v. St. Luke's Hosp. of Cleveland (Dec. 14, 1995), 8th Dist. No. 68326. In addition, the trial court stopped the trial and allowed Roetenberger to again depose Gross regarding his opinions. We hold that the trial court did not abuse its discretion in allowing Gross to testify. See Brokamp v. Mercy Hosp. Anderson, supra.
{ } Roetenberger also argues under this assignment of error that the trial court erred in permitting Gross to give opinions outside his expertise. The competency of an expert is left to the sound discretion of the trial court. See Scott v. Yates (1994), 71 Ohio St.3d 219, 221, 643 N.E.2d 105. We agree with the trial court that the fact that Gross was an anesthesiologist went to the weight to be given his opinions and not to their admissibility. See Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 695, 591 N.E.2d 762; Rouse v. Riverside Methodist Hosp. (1983), 9 Ohio App.3d 206, 459 N.E.2d 593.
{ } The fourth assignment of error alleges that the trial court erred in denying Roetenberger's request for a "negative" or "adverse inference" instruction.
{ } In Brokamp v. Mercy Hosp. Anderson, supra, at 870, 726 N.E.2d 594, we stated, "The concept of negative, or adverse, inference arises where a party who has control of the evidence in question fails, without satisfactory explanation, to provide the evidence. In that situation, the jury may draw an inference that would be unfavorable to that party. For example, this concept applies where the party willfully suppresses evidence that, if produced, would explain that party's conduct. 'Ohio courts normally would require a strong showing of malfeasance -- or at least gross neglect -- before approving such a charge.' " (Citations omitted.)
{ } Roetenberger argues that his malpractice claim was based in part on the improper monitoring of his wife during the ERCP procedure. Roetenberger further argues that hospital procedure required the monitoring and recording of a patient's vital signs before and during the procedure. Some vital signs such as blood pressure, oxygen saturation, and pulse rate could be monitored by a protocol machine. Other vital signs were required to be noted and handwritten on the patient's chart. There were no records of Karen Roetenberger's vital signs during the ERCP procedure. Roetenberger argues that the absence of any record of Kare
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