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OH: misdiagnosis of abdominal abscesses on teen: court holds in limine rulings not appealable.

CASE FACTS: The parents of Thomas Phibbs, a 16-year-old diagnosed with Henoch-Schonlein Purpura with acute renal failure and other medication conditions. The boy received treatment for his condition at Children's Hospital from May to July 1996. On January 24, 1997, the child's mother, individually and as the mother of Thomas, filed a complaint for medical malpractice against the hospital, Drs. Stone, Prebis, and others asserting that they mismanaged Thomas' medical condition and failed to diagnose abdominal abscesses, which resulted in preformation of his colon. Although the parties engaged in extensive motion practice, the only contested issues involved motions in limine filed by the plaintiffs. Children's Hospital and Dr. Prebis filed a motion in limine on December 23, 2003, which sought to exclude the plaintiffs' 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, to exclude the testimony of the plaintiff's other expert, Dr. Michael Miller, regarding any damages, injuries, treatment, and care that occurred after Thomas' discharge from the hospital on July 29, 1996. On March 22, 2004, Dr. Stone filed a motion in limine to bar to Dr. 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 Drs. David Goldfarb and John Burke regarding economic value of Thomas' reduced life expectancy. The trial court granted all motions to exclude testimony of Drs. Miller, Goldfarb and Burke. After a .jury trial, the jury reached a verdict in favor of all defendants. The plaintiffs 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 the basis for assigned error on appeal. The court held that because a ruling on such a motion is only preliminary, a party must actually seek to introduce the evidence or testimony once the issue is presented at trial, in order to properly preserve the issue for an appeal. Since in this case the plaintiffs failed to offer the testimony into evidence (instead relying on the trial judge's in limine ruling) the court affirmed the decision for the defendants. Phibbs v. Children's Hospital Medical Center, 2005 WL146039 N.E.2d--OH

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Children's Hospital's case of medical malpractice
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Geographic Code:1U3OH
Date:Jun 1, 2005
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