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Failure of plaintiff to attempt to introduce testimony fatal to case.

CASE ON POINT: Phibbs v. Children's Hosp. Med. Ctr. of Akron, 2005 WL 1460309 N.E.2d--OH

ISSUE: Is the failure of a plaintiff (whose in limine efforts to introduce testimony of expert medical witnesses he proposes to use is denied) required to move that the testimony be admitted into evidence fatal to his case? Is this so, notwithstanding the fact that the court has already ruled (in limine) that the testimony will not be admitted into evidence? This was the issue in this case involving a patient who allegedly sustained injuries as a result of a hospital's negligence. The proffered in limine testimony of expert medical witnesses was ruled inadmissible by a trial judge. However, the failure of the plaintiff's attorney to move to introduce the evidence on the record in open court was fatal to the plaintiff's case on appeal.

CASE FACTS: Thomas Phibbs, a 16-year-old adolescent, was diagnosed with Henoch-Schonlein Purpura with acute renal failure and other medical conditions. Thomas received treatment for his condition at Children's Hospital Medical Center of Akron from May to July 1996. On January 24, 1997, his mother filed a suit for medical malpractice against Children's Hospital, Drs. Stone, Prebis, and others, asserting that they had mismanaged Thomas' medical treatment and failed to diagnose abdominal abscesses, which resulted in a perforation of his colon. Her suit was voluntarily dismissed. The plaintiff refiled the suit on March 8, 2001. Although the parties engaged in extensive motion practice, the only contested issues involved motions filed in limine by the defendants, Children's Hospital and Dr. Prebis. The hospital filed motions in limine on December 23, 2003, which sought to exclude the plaintiff's witness, Dr. William Inboden, from testifying as an expert. Dr. Stone filed a motion in limine on December 30, 2003, which also sought to exclude the testimony of Dr. Inboden. On March 19, 2004, Children's Hospital and Dr. Prebis filed another motion in limine, this time seeking to exclude the testimony of the plaintiff's expert, Dr. Michael Miller, regarding any damages, injuries, treatment, and care that were incurred and/or rendered after Thomas' discharge from Children's Hospital on July 29, 1996. On March 22, 2004, Dr. Stone filed a motion in limine to bar Dr. Michael Miller from testifying as to causation and/or life expectancy. Dr. Stone filed another motion in limine on April 1, 2004, to bar the testimony of David Goldfarb and John Burke regarding the economic value of Thomas' reduced life expectancy. On March 5, 2004, the trial court granted the motions of Children's Hospital, Dr. Prebis and Dr. Stone in limine barring Dr. Inboden from testifying. On June 23, 2004, the court granted the motion in limine barring to exclude the testimony of Dr. Miller, as well as Goldfarb, and Burke. The case proceeded to trial on July 26, 2004, After a jury trial, the jury returned a verdict in favor of the defendants. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals of Ohio affirmed the judgment of the lower court. The court held, inter alia, that a ruling on a motion in limine is an interlocutory ruling as to the potential admissibility of evidence at trial, and cannot serve as a basis of assigned error on appeal. Because a ruling on such a motion is only preliminary, a party must seek to introduce the testimony or evidence in question at trial in order to properly preserve its right to pursue the issue on appeal.

LEGAL COMMENTARY: The court noted that Ohio's Rules of Procedure provide that it is a party's duty to ensure that the appellate court's file actually contains all parts of the record necessary for an appeal. The court noted that the docketing statement provided in the case consisted only of the original papers, exhibits, and the certified copies of the docket and journal entries but not the transcript of the proceedings of the trial court. The transcript of the proceedings was not filed and made a part of the record at trial prior to the entry of judgment. The court held that because it was without the trial transcript it could not determine whether the plaintiff properly preserved the trial court's rulings on the motions in limine. Accordingly, the court concluded that it was required to presume regularity in the trial court's proceedings and affirmed the trial court's judgment. Editor's Note: This case illustrates how important it is for both sides to have highly skilled and experienced attorneys trying medical malpractice cases. Generally, appellate courts in reviewing cases on appeal are restricted to what is in the official court records and transcripts. Since in limine decisions of trial judges by their very nature are not part of the formal record in cases and thus, not included in records on appeal, appellate courts may not even read or hear of what transpired in limine. Accordingly, attorneys must be mindful, however convinced they are that trial judges have erred in their decisions on matters heard in limine, that they must create records for appellate courts to scrutinize on appeal. In this case, the plaintiff's attorney failed to do so. No matter how meritorious the plaintiff's claims were as to the adverse in limine rulings, the plaintiff was stuck with them.
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Title Annotation:Legal Focus on Hospital Law Issues; Medical malpractice case
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Geographic Code:1U3OH
Date:Jul 1, 2005
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