[Cite as Guiliani v. Shehata, 2014-Ohio-4240.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
PHILIP GUILIANI, : APPEAL NOS. C-130837 C-140016 Plaintiff-Appellant/ : TRIAL NO. A-1105500 Cross-Appellee, : vs. O P I N I O N. : WAGIH M. SHEHATA, M.D., : Defendant-Appellee/ Cross-Appellant.
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 26, 2014
White Getgey and Meyer Co., L.P.A., Ronald A. Meyer and Brian Goldwasser, for Plaintiff-Appellant/Cross-Appellee,
Lindhorst and Driedame Co., L.P.A., Michael F. Lyon, Bradley D. McPeek and Laurie McCluskey, for Defendant-Appellee/Cross-Appellant.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge. {¶1} In this medical-malpractice case, the jury found that defendant-
appellee/cross-appellant Dr. Wagih Shehata had failed to timely diagnose plaintiff-
appellant/cross-appellee Philip Guiliani’s colon cancer. It awarded Guiliani $1,000,000
in noneconomic damages. The jury apportioned 70 percent liability to Dr. Shehata and
30 percent liability to Guiliani. The trial court reduced the award against Dr. Shehata
from $1,000,000 to $700,000 based upon the jury’s apportionment of liability. It
further reduced the award against Dr. Shehata to $250,000 based upon the damage
limitation in R.C. 2323.43.
{¶2} Both Guiliani and Dr. Shehata have appealed the trial court’s judgment.
Their appeals require this court to address for the first time in Ohio the interplay
between R.C. 2315.35, the comparative-negligence statute, and R.C. 2323.43 the
damage-cap statute, and to address the two-tiered damage limitation in R.C. 2323.43.
They also require this court to address the trial court’s decision to exclude Guiliani’s
medical bills and to admit expert testimony from a medical oncologist. Based upon our
review of the record and the law, we affirm the trial court’s judgment.
Evidence Presented at the Jury Trial
{¶3} In 2008, Guiliani, who was 60 years old, was treating with Dr. Stephen
Brewer, a urologist. Dr. Brewer ordered a screening test for prostate cancer, which
came back “abnormal.” Dr. Brewer recommended that Guiliani have a biopsy as soon
as possible, but Guiliani did not have the biopsy done until 18 months later. When
Guiliani underwent the biopsy in June 2009, it showed prostate cancer.
{¶4} After reviewing his treatment options, Guiliani chose brachytherapy, a
procedure where a medical team inserts radioactive pellets or seeds into the prostate.
Dr. Brewer referred Guiliani to Dr. Shehata, a radiation oncologist. Guiliani first saw Dr.
2 OHIO FIRST DISTRICT COURT OF APPEALS
Shehata on July 9, 2009. After consulting with Dr. Shehata, Guiliani elected to treat the
prostate cancer with the implantation of radioactive seeds. The procedure was originally
scheduled for July 28, but Guiliani rescheduled the procedure for September 8, 2009, so
that he could proceed with an elective knee surgery.
{¶5} Prior to the seed-implantation procedure, Guiliani was seen by Dr. Dain
Wahl, a primary-care physician, on August 21, 2009, for complaints of rectal bleeding.
After examining Guiliani, Dr. Wahl prescribed Proctofoam to help with the bleeding. He
also called a gastroenterologist and “set up” a colonoscopy for August 24, 2009. Dr.
Wahl testified that he did not know if Guiliani had followed his recommendation to have
the colonoscopy. Guiliani testified that he was unaware the colonoscopy had been
scheduled because Dr. Wahl talked to him about hemorrhoids. He presented testimony
from the office manager who testified that the procedure had not been written in the
gastroenterologist’s appointment book.
{¶6} Guiliani’s seed-implant procedure took place on September 8, 2009. As
part of the procedure, Dr. Shehata ordered a CT scan to be performed. The CT scan was
interpreted by a radiologist. The radiologist’s report was made available electronically,
and was accessible to all physicians, including Dr. Shehata, the ordering physician.
Contained within the report was an indication of something unusual in the mid-pelvis,
abutting the colon. Specifically, Dr. Reinhart, the radiologist wrote:
Low density mass-like legion within the mid-pelvis abutting the colon.
This could represent complex fluid collection or could represent low
density neoplastic mass. If this has not been previously evaluated, then
further evaluation with CT of the abdomen and pelvis with oral and
intravenous contrast would be suggested.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Dr. Reinhart recommended that Guiliani undergo further evaluation. Dr.
Shehata never presented the results of the CT scan to Guiliani. Dr. Shehata testified that
he never received the report. An information technology technician from Christ
Hospital testified that someone with Dr. Shehata’s password had accessed the CT scan
and report on September 15, 2009.
{¶8} Dr. Shehata testified that he did not look at the findings because the CT
scan was not being used to diagnose Guiliani, but to map the placement of the seeds.
Thus, he was uninterested in the radiologist’s interpretation of the image. Dr. Shehata
further testified that he would have expected the radiologist to call him based upon his
report, which had noted the abdominal abnormality as an incidental finding and had
suggested a follow-up study. Dr. Shehata further testified that following the seed-
implant procedure, he saw Guiliani on September 22 and November 9, 2009. Guiliani
did not complain of rectal bleeding at either appointment and Guiliani never told him
that he had seen Dr. Wahl for rectal bleeding in August 2009.
{¶9} Over the next several months, Guiliani began to experience abdominal
discomfort which he had not previously experienced. On March 23, 2010, Dr. Shehata
advised Guiliani to consult a gastroenterologist regarding his GI symptoms and a
possible colonoscopy. On April 5, 2010, Guiliani followed up with his primary care
doctor, Edward Jung. Dr. Jung suggested a CT scan of the abdomen and pelvis. On
April 8, 2010, a CT scan of the abdomen and pelvis was performed. The April 8, 2010
CT scan showed a large mass in Guiliani’s pelvis involving the sigmoid colon, severe
bilateral hydronephrosis and hydroureter secondary to a large pelvic mass, and
thickening in the urinary bladder which was suspicious for tumor involvement.
{¶10} Guiliani was referred to Janice Rafferty, M.D., a colorectal surgeon, who,
along with oncologist Dr. Drosick, began treating Guiliani. Guiliani underwent
4 OHIO FIRST DISTRICT COURT OF APPEALS
chemotherapy and radiation to shrink the tumor. In September 2010, Guiliani traveled
to Houston, Texas to undergo surgical treatment at M.D. Anderson. Guiliani’s bladder,
ureters, and rectum were removed, along with a significant portion of his colon. Guiliani
was left with a permanent colostomy and a permanent urostomy.
{¶11} Dr. Rafferty testified that between September 2009, and April 2010, the
tumor in Guiliani’s pelvis grew from “tiny to huge.” She further testified that had
Guiliani been referred to her following the September 8, 2009 CT scan, the tumor could
have been surgically excised and Guiliani would have been able to undergo a colectomy.
Guiliani would not have needed a colostomy or urostomy. Guiliani’s rectum would have
been preserved.
{¶12} Guiliani also presented expert testimony from Dr. Ross Donehower, a
board-certified oncologist. Dr. Donehower testified that Dr. Shehata was negligent in
failing to read and follow up on the September 2009 CT scan, and that his negligence
proximately caused harm to Guiliani, resulting in substantial delay in the diagnosis of
the mucinous adenocarcinoma of the colon. He testified that had referral and diagnosis
been timely, Guiliani would not have required a pelvic exteneration, nor would Guiliani
have required a permanent colostomy or urostomy. Dr. Donehower admitted, however,
that had a colonoscopy been performed on Guiliani in August 2009, it would have
diagnosed Guiliani’s colon cancer.
{¶13} Dr. Shehata presented expert testimony from Dr. Brewer, a urologist, and
Dr. David Harris, a physician who is board certified in internal medicine, medical
oncology, and hematology. Neither Dr. Brewer nor Dr. Harris testified as to the
standard of care for a radiation oncologist. Both Dr. Brewer and Dr. Harris testified
that colon cancer grows slowly and that it would have taken many years for Guiliani’s
cancer to grow to the size that it had by the time of the April 2010 CT scan. Dr. Harris
5 OHIO FIRST DISTRICT COURT OF APPEALS
disagreed with Dr. Rafferty’s opinion that the size of Guiliani’s cancer had gone from
“tiny to huge” in the six months between the CT scans in September 2009, and April
2010. He testified that Guiliani would have required the same surgery regardless of
whether the cancer had been diagnosed in September 2009, or April 2010. Both Drs.
Harris and Brewer testified that Guiliani had a colonoscopy two and one-half years
earlier. The gastroenterologist who had performed the colonoscopy had found a polyp,
which would have mandated that Guiliani return within six months. Guiliani, however,
did not. Dr. Harris testified that had Guiliani followed through with this
recommendation and had a colonoscopy, it would more likely than not have disclosed
his colon cancer.
Jury Verdict
{¶14} The jury found in favor of Guiliani and awarded him $1,000,000 in
damages for noneconomic loss. The jury answered interrogatories, finding that Dr.
Shehata was negligent and that his negligence was a proximate cause of injury to
Guiliani. The jury further found that Guiliani was 30 percent negligent and Dr. Shehata
was 70 percent negligent. As a result, the trial court reduced the jury’s award to
$700,000. It then capped Guiliani’s damages at $250,000 pursuant to R.C. 2323.43.
The trial court also awarded Guiliani prejudgment interest.
Guiliani’s Appeal and Dr. Shehata’s Cross-Appeal
{¶15} Guiliani has timely appealed, raising two assignments of error. He argues
the trial court erred by failing to apply the higher damage cap of $500,000 in R.C.
2323.43, and by excluding his medical bills. In his cross appeal, Dr. Shehata argues the
trial court erred by applying R.C. 2315.35, the comparative-fault statute, before applying
the $250,000 damage-cap provision in R.C. 2323.43, and by permitting expert
testimony from Dr. Donehower.
6 OHIO FIRST DISTRICT COURT OF APPEALS
The $250,000 Damage Cap Applies
{¶16} In his first assignment of error, Guiliani argues the trial court erred by
failing to apply the higher damage cap of $500,000 in R.C. 2323.43(A)(3).
{¶17} R.C. 2323.43 limits a plaintiff’s noneconomic damages in a medical-
malpractice action. The statute provides for two levels of caps on noneconomic
damages. The basic cap is the larger of $250,000 or three times the economic damages,
subject to a maximum of $350,000 per plaintiff and a maximum of $500,000 per
occurrence. See R.C. 2323.43(A)(2). The statute also provides for a higher cap of
$500,000 per plaintiff and $1,000,000 per occurrence. But this higher cap applies only
if the plaintiff has sustained certain catastrophic injuries specifically identified as:
(a) Permanent and substantial physical deformity, loss of use of a limb, or
loss of a bodily organ system;
(b) Permanent physical functional injury that permanently prevents the
injured person from being able to independently care for self and perform
life sustaining activities.
R.C. 2323.43(A)(3).
{¶18} Guiliani argues that the trial court erred by failing to apply the higher
cap of $500,000 when he presented expert testimony that he had to undergo a pelvic
exteneration, which included the removal of his bladder, a large part of his colon and
his rectum, thereby necessitating a colostomy and a urostomy. He argues that the
loss of these two organs and the addition of the colostomy and urostomy bags left
him with the loss of a bodily organ system and a substantial physical deformity.
{¶19} Giuliani further argues that the trial court’s determination that the
jury was required to make a factual finding to support the higher damage cap is not
supported by the plain language of R.C. 2323.43. He relies upon R.C. 2323.43(B),
7 OHIO FIRST DISTRICT COURT OF APPEALS
which provides that the jury verdict must be accompanied by answers to the
following interrogatories:
(1) The total compensatory damages recoverable by the plaintiff;
(2) The portion of the total compensatory damages that represents
damages for economic losses;
(3) The portion of the total compensatory damages that represents
damages for noneconomic loss.
{¶20} Giuliani argues that the legislature’s specific inclusion of these
interrogatories reveals its intent that the list be exclusive. Thus, he argues that he
was not required to submit an interrogatory to be entitled to the higher damage cap
of $500,000. Giuliani further argues that because the jury found that Dr. Shehata’s
negligence proximately caused Giuliani’s injuries, the jury’s general verdict, in the
absence of specific jury interrogatories, is a finding in his favor on all the issues
presented in the case. See Stephenson v. Upper Valley Family Care, Inc., 2d Dist.
Miami No. 2009CA38, 2010-Ohio-4390, ¶ 49.
{¶21} The problem with Guiliani’s argument is that it focuses solely on R.C.
2323.43(B) and ignores other sections in the damage-cap statute, which support an
interpretation that the applicability of the higher cap is a factual issue that a jury
must determine. R.C. 2323.43(C)(1) provides in pertinent part: “Division A of this
section shall be applied in a jury trial only after the jury has made its factual findings
and determination as to the damages.” (Emphasis added.) The determination of
damages arguably comes under subsection (B) of the statute. The question then
becomes what factual findings is the statute referring to that the jury must make?
Under the statute, the factual findings referenced in (C)(1) relate back to the
catastrophic damage limits set forth in R.C. 2323.43(A)(3)(a) and (b).
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} Requiring a jury interrogatory on the higher cap is also consistent with
federal case law interpreting the more general tort-cap statute, R.C. 2315.18, which
contains the same two-tiered damage cap limitation in R.C. 2323.43 for
noneconomic losses: a standard $250,000/$350,000 cap for noneconomic loss, and
a higher cap of $500,000 if the plaintiff sustains the same catastrophic injuries that
are listed in R.C. 2323.43(A)(3). In Ohle v. DJO, Inc., No. 1:09-cv-02794, 2012 U.S.
Dist. LEXIS 140020, *3 (N.D. Ohio Sept. 28, 2012), the Northern District of Ohio, in
interpreting the catastrophic damage cap in R.C. 2315.18, held that once the plaintiff
crosses the evidentiary threshold of summary judgment on the applicability of the
noneconomic damage maximum, the issue should be one for the jury to decide.
{¶23} In reaching this conclusion, the Ohle court relied upon the Ohio
Supreme Court’s decision in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468,
2007-Ohio-6948, 880 N.E.2d 240, ¶ 30-42, which had upheld the $500,000
noneconomic damage cap in R.C. 2315.18 against a variety of constitutional attacks,
with support from Ohio’s Pattern Jury Instructions and federal case law. First, with
respect to the Arbino decision, the Ohle court noted that the Ohio Supreme Court had
“made clear that noneconomic damages maximum is constitutional only ‘[s]o long as the
fact-finding process is not intruded upon and the resulting findings are not ignored or
replaced by another body’s finding.’ ” Ohle at *7, quoting Arbino at ¶ 37. The Arbino
court had emphasized that the statutory cap was constitutional because the trial
court could not “impose its own factual determination regarding what a proper
award might be,” rather, its implementation of the noneconomic damages maximum
must be analogous to the use of a remitter or application of treble damages. Ohle at
*8, quoting Arbino at ¶ 37. Thus, the trial court may, as a matter of law, apply the
limit to alter the amount of money awarded to a plaintiff for noneconomic damages,
9 OHIO FIRST DISTRICT COURT OF APPEALS
but it cannot disturb the jury’s underlying factual determinations. Ohle at *8, citing
Arbino at ¶ 40.
{¶24} The Ohle court further noted that after the General Assembly had
enacted the nonecomonic damages cap, the Ohio Judicial Conference had
republished the Ohio’s Pattern Jury Instructions (“O.J.I.”) so that “jurors must find
whether they found the plaintiff to be permanently and substantially physically
deformed.” See Ohle at *9; see also OJI-Civil 315.01(6). Thus, O.J.I. “supported
having the jury, and not the judge, decide the issue of the nature of a plaintiff’s
injury.” Id. Finally, the Ohle court noted that the federal court in Bransteter v.
Moore, No. 3:09 CV 2, 2009 U.S. Dist. LEXIS 6692, *2 (N.D. Ohio Jan. 21, 2009),
had agreed that issues concerning the nature and severity of a plaintiff’s injury
should be resolved by jury interrogatory at trial. Ohle at *9. Therefore, the Ohle court
held that the jury was in the best position to determine the nature of the plaintiff’s
injuries, and denied a motion for summary judgment on the applicability of the cap
statute. Ohle at *10.
{¶25} After reviewing the plain language of the statute and the case law
interpreting the general tort-cap statute, we agree with Dr. Shehata that in this case any
determination that Guiliani had suffered injuries necessitating application of the higher
cap amount was a factual finding that had to be made by the jury. We, therefore,
overrule Guiliani’s first assignment of error.
Medical Bills
{¶26} In his second assignment of error, Guiliani argues the trial court erred
in excluding the medical bills from his treatment at M.D. Anderson on the basis that
Guiliani should have presented expert testimony to distinguish between the costs
incurred and any marginal costs proximately caused by Dr. Shehata’s negligence.
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} Guiliani argues this court should review the trial court’s failure to
admit the medical bills under a de novo standard of review because the trial court’s
decision to deny him the opportunity to admit the bills was based upon its analysis of
his burden of proof. We disagree. The trial court’s decision regarding the
admissibility of the medical bills is reviewed under an abuse-of-discretion standard.
See Fiorini v. Whiston, 92 Ohio App.3d 419, 426, 635 N.E.2d 1311 (1st Dist.1993);
Garcea v. Woodhull, 9th Dist. Wayne No. 01CA0069, 2002-Ohio-2437, ¶ 8.
{¶28} Based upon our review of the record, we cannot say the trial court abused
its discretion in denying the admission of these medical bills. In this complex medical
case, Guiliani needed an expert to make the causal connection between Dr. Shehata’s
negligence and Guiliani’s treatment at M.D. Anderson. The evidence showed he
required a major operation regardless of whether Dr. Shehata was negligent. Under
these circumstances, Guiliani could not claim all the costs from the September 2010
surgery when he would also have had significant costs if the cancer had been discovered
in September 2009. As a result, we overrule Guiliani’s second assignment of error.
Guiliani’s Comparative Negligence
{¶29} In his first cross-assignment of error, Dr. Shehata argues that “the trial
court erred in entering judgment for Guiliani that was not properly reduced to
account for his thirty percent comparative negligence.”
{¶30} Dr. Shehata argues that the trial court erred in applying R.C. 2315.35
before it applied the damage limitation in R.C. 2323.43. R.C. 2315.35 provides that
[a]fter the court makes its findings of fact or after the jury returns
its general verdict accompanied by answers to interrogatories * * *
the court shall diminish the total amount of the compensatory
damages that would have been recoverable by an amount that is
11 OHIO FIRST DISTRICT COURT OF APPEALS
proportionally equal to the percentage of tortious conduct
determined under section 2307.23 of the Revised Code that is
attributable to the plaintiff. If the percentage of the tortious
conduct determined to be attributable to the plaintiff is greater
than the sum of the percentages of the tortious conduct
determined to be attributable to all parties to the tort action from
whom the plaintiff seeks recovery plus all persons from whom the
plaintiff does not seek recovery in this action, the court shall enter
judgment in favor of the defendants.
(Emphasis added.)
{¶31} R.C. 2323.43(D)(1) prohibits the trial court from entering judgment for
noneconomic loss in an amount that exceeds the damages caps set forth in the statute.
Dr. Shehata argues that the definition of recoverable: “capable of being recovered, esp.
as a matter of law,” should naturally lead a court to presume that the adjustment for a
plaintiff’s comparative negligence should be made after the statutory limitation is
applied because, as a matter of law, Guiliani cannot recover in excess of $250,000. We
disagree.
{¶32} R.C. 2323.43(A)(2) states that “Except as otherwise provided in division
(A)(3) of this section, the amount of compensatory damages that represents damages for
noneconomic loss that is recoverable in a civil action under this section to recover
damages for injury, death, or loss to person or property shall not exceed * * * $250,000.”
R.C. 2323.43(B) further provides that the jury in a jury trial shall return a general verdict
accompanied by answers to interrogatories that specify:
(1) the total compensatory damages recoverable by the plaintiff;
12 OHIO FIRST DISTRICT COURT OF APPEALS
(2) the portion of the total compensatory damages that represent
economic loss;
(3) the portion of the total compensatory damages that represents
noneconomic loss;
{¶33} R.C. 2323.43(C)(1) further provides that
after the trier of fact in a civil action upon a medical * * * claim to recover
damages * * * complies with (B) the court shall enter a judgment in favor
of the plaintiff for compensatory damages for noneconomic loss. In no
event shall a judgment for compensatory damages for noneconomic loss
exceed the maximum recoverable amount that represents damages for
noneconomic loss as provided in divisions (A)(2) and (A)(3) of this
section. Division A of this section shall be applied in a jury trial only
after the jury has made its factual findings and determination of
damages.
{¶34} The statute further provides that the jury cannot be instructed regarding
the existence of the statutory damage caps. See R.C. 2323.43(A)(3) (providing that “[i]f
the trier of fact is a jury, the court shall not instruct the jury with respect to the limit on
compensatory damages for noneconomic loss described in divisions (A)(2) and (A)(3)
and neither counsel for any party nor a witness shall inform the jury or potential jurors
of that limit.”). Reading these subsections together supports the interpretation that the
jury award represents the uncapped amount of compensatory damages recoverable by
the plaintiff.
{¶35} Moreover, as Guiliani points out, the Tenth Appellate District has reached
a similar conclusion in an analogous situation involving statutory caps for punitive
13 OHIO FIRST DISTRICT COURT OF APPEALS
damages under R.C. 2315.21. In Faieta v. World Harvest Church, 10th Dist. Franklin
No. 08AP-527, 2008-Ohio-6959, the Tenth District rejected the same narrow
construction of the word “recoverable” that Dr. Shehata advances in this case.
{¶36} In Faieta, the jury had awarded compensatory damages of $764,235 and
punitive damages of $5 million against the defendant World Harvest Church (“WHC”).
Id. at ¶ 87. The defendant had argued that the court was required to apply the punitive-
damage cap (2x the compensatory-damage limit) to the already-capped compensatory
damages under R.C. 2315.21, which limits the noneconomic compensatory damages to
$250,000. Id. at ¶ 88. Because the statute did not expressly state whether the
limitation applied before or after the cap, the court was faced with determining
legislative intent. Id. at ¶ 89
{¶37} The Tenth Appellate District noted that the defendant’s argument focused
on the word “recoverable” in R.C. 2315.21(B)(2) and (3), summarizing its analysis as
follows:
R.C. 2315.21(D)(2) explicitly provides that the ‘compensatory damages
awarded to the plaintiff from that defendant, as determined pursuant to
[R.C. 2315.21(B)(2) or (3)]’ are to be used to calculate the cap on
damages. Those statutory provisions refer to the uncapped, total
compensatory damages to be awarded to the plaintiff from each
defendant. R.C. 2315.21(B)(2) and (B)(3) make no reference to statutory
caps on damages awards, and R.C. 2315.18(F)(2) expressly precludes the
trial court from informing the jury of the existence of statutory caps. The
court applies statutory caps on compensatory damages only after the jury
has rendered its verdict and made an award of compensatory damges in
the case. See R.C. 2315.18(E)(1). Accordingly, we conclude the total
14 OHIO FIRST DISTRICT COURT OF APPEALS
compensatory damages referenced in R.C. 2315.21(B)(2) are the
uncapped compensatory damages the jury awarded.
Id. at ¶ 90.
{¶38} Similarly, R.C. 2323.43(A)(3) states
If the trier of fact is a jury, the court shall not instruct the jury with
respect to the limit on compensatory damages for noneconomic loss
described in divisions (A)(2) and (A)(3) of this section, and neither
counsel for any party nor a witness shall inform the jury or potential
jurors of that limit.
Because the legislature has explicitly indicated that a jury cannot be instructed regarding
the existence of statutory caps on compensatory damages representing noneconomic
loss as it applies to medical malpractice, it would be inconsistent with the substance of
R.C. 2323.43(B)(3) to define “recoverable” damages as capped damages. Moreover, if
the legislature had intended that the comparative-negligence statute apply after the
damage-cap statute, it could have explicitly provided for that in the damage-cap statute.
{¶39} In addition to the Faieta court, courts in California, Maine, and
Massachusetts have reached the same conclusion, holding that a jury’s determination of
comparative negligence should be applied before any statutorily mandated caps on
damages are subtracted from the total amount of damages. See McAdory v. Rogers, 215
Cal.App.3d 1273, 264 Cal. Rptr. 71 (Cal.Ct.App.1989); Atkins v. Strayhorn, 223
Cal.App.3d 1380, 273 Cal.Rptr. 231 (Cal.Ct.App.1990); Brown v. Crown Equip. Corp.,
2008 ME 186, 960 A.2d 1188, ¶ 25 (Me.2008); Rodriguez v. Cambridge Housing Auth.,
59 Mass.App.Ct. 127, 795 N.E.2d 1 (Mass.App.Ct.2003). Those courts have held that
applying comparative negligence before the statutory-damage limit does not frustrate
the purpose of comparative-negligence principles. See Atkins, supra.
15 OHIO FIRST DISTRICT COURT OF APPEALS
{¶40} Given our review of the language of the statute, and the above authority,
we hold that the trial court did not err in applying R.C. 2315.35, the comparative-
negligence statute, to reduce the jury’s verdict from $1,000,000 to $700,000 to account
for its finding that Guiliani was 30 percent comparatively negligent, before applying the
damage cap of $250,000 in R.C. 2323.43. As a result, we overrule Dr. Shehata’s first
cross-assignment of error.
Expert Testimony
{¶41} In his second cross-assignment of error, Dr. Shehata argues the trial court
erred in permitting Giuliani to present expert testimony from Dr. Donehower, a board-
certified medical oncologist, overruling Dr. Shehata’s motions to strike Dr. Donehower’s
testimony, and overruling Dr. Shehata’s motion for a directed verdict. Dr. Shehata
specifically argues that Dr. Donehower has no special training or residency in radiation
oncology, has no experience in the procedure that caused the generation of the report,
and does not work with radiation oncologists until after patients have had surgery.
{¶42} “A trial court has discretion to determine whether a witness is competent
to testify as an expert, and the trial court’s decision will not be reversed absent an abuse
of discretion.” Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557,
¶ 19. Evid.R. 702 provides that a witness may testify as an expert if “[t]he witness is
qualified as an expert by specialized knowledge, skill, experience, training, or education
regarding the subject matter of the testimony.”
{¶43} The Ohio Supreme Court has held that in medical-malpractice cases “a
witness need not practice in the exact same specialty as that of the defendant-physician;
rather, it is the scope of the witness’s knowledge and not the artificial classification by
title that should govern the threshold question of his qualifications.” Alexander v. Mt.
Carmel Med. Ctr., 56 Ohio St.2d 155, 160, 383 N.E.2d 564 (1978). “When fields of
16 OHIO FIRST DISTRICT COURT OF APPEALS
medicine overlap and more than one type of specialist may perform the treatment, the
witness may qualify as an expert even though he does not practice the same specialty.”
Id. at 158. Thus, an expert need only aid the trier of fact in the search for the truth and
need not be the best witness on the subject. Id. at 159.
{¶44} Dr. Donehower testified that he is a board-certified oncologist, and
former member of the board of directors of the American Society of Clinical Oncology.
Clinical oncology is a specialty of medicine that encompasses medical oncology, surgical
oncology, and radiation oncology. The record reflects that, although the three specialties
apply different modalities to treat cancer, the guidelines are the same.
{¶45} Dr. Donehower testified that he has been practicing medicine for 37 years
and that throughout his career he has worked closely and intensively with radiation
oncologists in his practice. He reviews cases, attends conferences, and routinely
discusses cases with them. He is involved in the care of patients who undergo seed-
implant procedures by radiation oncologists, and he has worked with radiation
oncologists when a patient is receiving seed implants. Based upon this experience, he
knows the standard of care for radiation oncologists when they order CT reports for
seed-implantation procedures. The standard of care is to review the films and read the
report.
{¶46} Based upon our review of the record, we cannot conclude that the trial
court abused its discretion in concluding that Dr. Donehower was qualified to render an
opinion as to the standard of care for a radiation oncologist. See Ishler v. Miller, 56
Ohio St.2d 447, 453, 384 N.E.2d 296 (1978) (doctor specializing in neurology and
psychiatry competent to testify as to standard of care of orthopedic surgeon in
unnecessary surgery case); King v. LaKamp, 50 Ohio App.3d 84, 553 N.E.2d 701 (1st
Dist.1988) (orthopaedic surgeon competent to testify to standard of care of a podiatrist);
17 OHIO FIRST DISTRICT COURT OF APPEALS
Peters v. Lohr, 1st Dist. Hamilton No. C-060230, 2007-Ohio-7062, ¶ 37 (neurosurgeon
competent to testify to standard of care of a vascular surgeon); Manchise v. Ionna, 1st
Dist. Hamilton No. C-120874, 2013-Ohio-3612, ¶21 (gastroenterologist testifying as to
the standard of care of an emergency-room physician); Schutte v. Mooney, 165 Ohio
App.3d 56, 2006-Ohio-44, 844 N.E.2d 899, ¶ 29-35 (2d Dist.) (vascular surgeon
testifying as to the standard of care of emergency-room physician).
{¶47} Although this court might reach a different result with respect to Dr.
Donehower’s qualifications as an expert in this case, the admission of his testimony was
not an abuse of discretion. See Culp v. Olukoga, 2013-Ohio-5211, 3 N.E.3d 724, ¶ 59
(4th Dist.2013) (“an abuse of discretion will not be found simply because a reviewing
court could reach a different opinion were it deciding the issue de novo.”). We,
therefore, overrule Dr. Shehata’s second cross-assignment of error, and affirm the
judgment of the trial court.
Judgment affirmed.
DINKELACKER, P.J., and DEWINE, J., concur.
Please note: The court has recorded its own entry this date.