         [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.



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                      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.




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                     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



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                     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



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                       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).



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                     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,



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                        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.

(Emphasis added.)

        {¶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



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                       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.



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                      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);



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                     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.




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