Plaintiff-appellant, Lanny Blakeman, the administrator of the estate of Adam Blakeman, appeals from the trial court's order granting a directed verdict in favor of the defendant-appellee, Dr. C.J. Condorodis, in a survivorship and wrongful death action. On appeal, the plaintiff asserts three assignments of error: the trial court erred (1) by granting a directed verdict in favor of Condorodis after refusing to allow the plaintiff's expert witness to testify on proximate cause, (2) by striking from the amended complaint a demand for special medical damages, and (3) by granting the motions to dismiss of defendants F.J. Froehlich, M.D., Condorodis and F.J. Froehlich, M.D., Inc. The plaintiff's first assignment of error has merit, and we reverse the trial court's order granting a directed verdict in favor of Condorodis. We find no error, however, with respect to the plaintiff's second and third assignments and affirm the trial court's orders striking the demand for medical damages and dismissing Froehlich and the defendant corporation.
At trial the plaintiff attempted to prove that Condorodis negligently delivered Adam Blakeman by elective caesarian section before the infant had reached fetal maturity. As a consequence, the plaintiff contended, Adam developed infant respiratory distress/hyaline membrane disease, causing his prolonged hospitalization and ultimate death at the age of fourteen months.
Defense counsel objected, citing Evid.R. 703. The basis of the objection was that Calkins's opinion was impermissibly based upon the expert opinion of others, specifically the opinions of radiologists contained in the hospital records, since Calkins had not personally viewed the x-ray films. See Zelenka v. Indus. Comm. (1956), 165 Ohio St. 587, 60 O.O. 524, 138 N.E.2d 667.
Evid.R. 703 states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." "Data" is generally defined as "[o]rganized information generally used as the basis for an adjudication or decision"
In the case sub judice, the medical records containing the radiologists' reports were admitted in evidence by agreement of the parties.
Moreover, the fact that Calkins did not personally view the x-rays goes to the weight and not to the admissibility of his expert opinion. See Virag v. Allstate Ins. Co. (Dec. 14, 1989), Cuyahoga App. No. 56391, unreported, 1989 WL 151291. The materiality of Calkins's testimony did not depend upon whether he was capable of diagnosing hyaline membrane disease by x-ray. The x-ray findings of hyaline membrane disease were already part of the stipulated medical records. Rather, the materiality of Calkins's testimony was his opinion on proximate cause assuming the validity of the x-ray findings of record. If the defense wished to make a collateral challenge to Calkins's opinion because of error in the radiologists' diagnoses and findings, it could have offered testimony or evidence from radiologists to contradict the x-ray readings of hyaline membrane disease.
We conclude, therefore, that the trial court erroneously sustained counsel's objection and abused its discretion in not allowing Calkins to testify. Furthermore, based upon the proffer of his testimony, and the stipulations at the close of the plaintiff's case, we hold that the court erred in directing a verdict in favor of Condorodis, since the admitted and proffered evidence did not entitle him to a verdict as a matter of law. See Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467; Humphrey v. Dent
The defendants moved to strike from the plaintiff's amended complaint the demand for Adam Blakeman's medical expenses as damages. The motion was grounded on the principle that such medical expenses were the obligation of the parents who incurred the expense, and, therefore, a claim for their recovery could not be brought by the estate of the child, but rather, by the parents (whose claim was barred by the statute of limitations). See Grindell v. Huber (1971), 28 Ohio St.2d 71, 57 O.O.2d 259, 275 N.E.2d 614. The trial court granted the motion, agreeing that the estate of Adam Blakeman was not the real party in interest to claim recovery for such expenses.
In Grindell v. Huber, supra, the Ohio Supreme Court held:
"Where a minor child sustains an injury allegedly as the result of negligence of a defendant, two separate and distinct causes of action arise: an action by the minor child for his personal injuries and a derivative action in favor of the parents of the child for the loss of his services and his medical expenses. (Paragraph three of the syllabus of Whitehead v. General Tel. Co., 20 Ohio St.2d 108 [49 O.O.2d 435, 254 N.E.2d 10], approved and followed.)" (Emphasis added.) Grindell, supra, paragraph one of the syllabus.
Notwithstanding this authority, the plaintiff contends that the estate of Adam Blakeman is legally liable for his medical expenses as necessaries. Generally, however, a minor is only secondarily liable to one who furnishes necessaries.
"The liability of an infant for necessaries is * * * dependent upon whether or not he has an existing supply of necessaries, or parents and guardians who are able and willing to supply him with the necessities of life. The mere fact that the goods or services are in general considered necessaries does not make them necessary to the particular infant if he has already been supplied with them. * * * Moreover, even if all other tests of what is necessary are met it must appear that the goods or services were supplied on the credit of the infant and not of his parent, guardian or third person. Therefore, the mere fact that the creditor has supplied necessaries to the family unit of which the infant is a part does not render the infant liable unless he contracted for the necessaries. Thus, the liability, although quasi-contractual, requires that
In the case sub judice, there is no evidence of record that the parents, or their insurance company, failed or refused to pay any of the medical expenses incurred, or that the medical expenses were supplied on the credit of the infant. We agree with the trial court that the estate of Adam Blakeman was not the real party in interest to recover the medical expenses. The plaintiff's second assignment of error is, therefore, overruled.
The plaintiff asserts in his third assignment of error that the trial court erred by granting the motions for dismissal of Dr. F.J. Froehlich and the corporate defendant, C.J. Condorodis, M.D., and F.J. Froehlich, M.D., Inc. Neither defendant was named in the original complaint filed on May 15, 1984. Both were named for the first time in the plaintiff's amended complaint filed on March 16, 1989. The defendants moved for dismissal based upon the plaintiff's failure to obtain leave from the trial court to join additional parties, and because the claims against these defendants were barred by the statute of limitations contained in R.C. 2305.11(A).
The trial court had discretion to refuse to recognize the additional parties because of the plaintiff's failure to obtain leave to file an amended complaint. See Civ.R. 15(A); Zinner v. Romberg (Oct. 27, 1983), Cuyahoga App. No. 46494, unreported, 1983 WL 2721. Upon the principle that lower court proceedings are entitled to a presumption of regularity, we conclude that the plaintiff's failure to seek leave was a basis for the lower court's ruling, and we find no abuse of discretion demonstrated. We overrule the plaintiff's third assignment of error on this basis alone.
Furthermore, we agree that the claims against Froehlich and the corporate defendant were barred by the statute of limitations contained in R.C. 2305.11(A), now R.C. 2305.11(B), which provides that an action for malpractice shall be brought within one year after the cause accrued.
We sustain, therefore, only the plaintiff's first assignment of error and overrule his remaining two. The order of the trial court granting a directed verdict in favor of Condorodis is reversed and the cause remanded for further proceedings consistent with this decision. The order of the trial court striking the claim for medical expenses and dismissing Froehlich and the defendant corporation is hereby affirmed.
GORMAN, P.J., SHANNON and KLUSMEIER, JJ., concur.