Burris v. Lerner

139 Ohio App.3d 664, 745 N.E.2d 466 (8th Dist. 2000)

This was an appeal from a summary judgment granted to Raisa Lerner, M.D., in a medical malpractice/wrongful death case. The action was brought by the administrator of the estate of Earnest Burris, who died from a heart attack the day after he had undergone a thallium stress test ordered by Dr. Lerner. The stress test revealed abnormal results which, according to the plaintiff’s expert cardiologist, should have caused Dr. Lerner to have Burris hospitalized, thus avoiding the fatality. Dr. Lerner contended that she was not informed of the stress test results, and that they would not have required her to admit Mr. Burris even if she had been informed. Dr. Rocco, the cardiologist who read the results, testified he did not recall whether he had reported the abnormal results to Dr. Lerner, but that it would have been his custom and practice to do so.

The trial court granted summary judgment to Dr. Lerner, but the court of appeals reversed. The court found that Dr. Rocco’s testimony as to his custom and practice in communicating this information was admissible as evidence of his routine practice under Evid. R. 406, and thus created a fact question as to whether Dr. Lerner was informed of the test results. The court also found that the affidavit from the plaintiff’s expert cardiologist opining that the standard of care required Dr. Lerner to admit Mr. Burris to the hospital when she received the stress test results was sufficient to create a fact question as to Dr. Lerner’s liability.

Plaintiff’s attorneys on the appeal: William S. Jacobson, Kathleen J. St. John