The petitions for writs of certiorari are denied.
curate and misleading "regarding reactions not being understood." Bare, speculative, and conclusory allegations of possible inadequacies in warnings are in-sufficient to create a genuine factual issue under the learned intermediary doctrine.
See Krasnopolsky v. Warner-Lambert Company, 799 F.Supp. 1342 (E.D.N.Y. 1992). "[M]ere contention that facts exist or might exist is not sufficient to withstand summary judgment. The party responding to a motion for summary judgment has an obligation to present something which shows that when the date of trial arrives, he will have some proof to support his allegations."
Davis v. Leitner, 1989 OK 146, ¶ 12,
782 P.2d 924, 926. In the absence of
evidence contradicting a warning so as to render it false, nothing is presented requiring trial by a jury.
¶ 23 To meet this burden, Appellants offered deposition testimony of biomedical research scientist Tara Tabatabaie (a non-doctor) to the effect that such reactions were understood at a cellular level, and then Appellants posed arguments based upon Dr. Smith's understanding of the meaning of the phrase "not completely understood."
¶ 24 The question whether all potential reactions are "completely understood" poses a red herring. A fact is material for purposes of summary judgment if its proof would have the effect of establishing or refuting one of the essential elements of cause of action. Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978. The Directions for Use for the bone putty contain the warning: "Although the production technique is designed to eliminate antigenic properties of the product, the possibility of such a reaction is present with any allograft." The facts Appellants attempt to prove through the research scientist are insufficient because even if proven, the information offered does not contradict, refute or render false the warning the bone putty presented a risk of antigenic reaction. Plaintiffs mischaracterized Dr. Smith's testimony about her familiarity with bone putty and the risk of an antigenic reaction posed by its use.
According to an exhibit to IsoTis's reply to Appellants' response to their motion for summary judgment, when asked at deposition if the phrase "really is not clear," Dr. Smith replied "I don't know what else I would expect it to say." She also testified she was aware of the content of the Directions for Use which contained the warnings prior to when she used the bone putty for Plaintiff's surgery.
¶ 25 The material fact at issue was whether the proximate cause of Plaintiffs injury, here an antigenic reaction to the bone putty, was a risk disclosed to Dr. Smith. It was. Judgment in favor of IsoTis based upon the learned intermediary doctrine is not precluded on this basis.
¶ 26 Appellants also argued a "sufficient testing for bone protein and marrow was not performed rendering the product defective and unreasonably dangerous" and Defendants' arguments fail as a matter of law because Dr. Smith did "no independent research or reading." This argument demonstrates a misconception about the learned intermediary doctrine. A major underlying assumption of the learned intermediary doctrine is that a product has properties rendering it dangerous so as to require a doctor's prescription or order for its use. Argument about the particulars of the manufacturing process are not relevant when applying the learned intermediary doctrine. IsoTis's duty as a manufacturer under this doctrine was not to provide an indepth education to trained physicians in the underlying biochemistry in bone putty production but to identify and warn of risks.
¶ 27 To invoke a defense to liability under the learned intermediary doctrine, a manufacturer seeking its protection must provide sufficient information to the learned intermediary of the risk subsequently shown to be the proximate cause of a plaintiffs injury. Here, IsoTis warned of the risk of an antigenic reaction from using its product, Dr. Smith knew an antigenic risk was possible, she knew of such warnings for bone putty, she considered the risk posed by using the bone putty, she decided it was appropriate to use the bone putty based upon her experience with bone putty and Plaintiffs needs, and the Plaintiff had an antigenic reaction. The judgment in favor of IsoTis premised upon application of the learned intermediary doctrine is AFFIRMED.
Mercy's Motion
¶ 28 Mercy argued it may not be held liable for inadequate warnings if IsoTis's motion for summary judgment is granted because Appellants' claim against it is dependent upon their claim the bone putty lacked proper warnings. Having found the learned intermediary doctrine applicable as to IsoTis, the same doctrine applies in favor of Mercy. However, our inquiry into Mercy's liability does not end with the application of this doctrine.
Mercy also distinguishes an Ohio case, Saylor v. Providence Hospital, 113 Ohio App.3d 1, 680 N.E.2d 193 (1996), relied upon by Plaintiffs, which turns upon an Ohio statute imposing supplier liability based upon negligence or supplier misrepresentations and independent supplier liability for failing to warn of a lack of FDA approval of a device. There is no similar statute here and these theories of liability are not applicable to the facts of this case.
¶ 29 Appellants raised a new theory for Mercy's liability in response to its motion for summary judgment, claiming negligence in the discharge of Plaintiff following the tumor removal surgery. Mercy argued Appellants were attempting to create sham facts through the affidavit. Mercy argued neither negligent discharge nor informed consent issues were stated in any of Appellants' petitions, including the most recent, a fifth amended petition. More importantly, it argued, during the deposition of Appellants' medical expert Dr. Henry Hug conducted just a week previously, though questioned specifically about his criticisms of Smith and Mercy, he voiced none based on standard of care. During an April 24, 2008 hearing, the trial court observed that the fifth amended petition does not state a negligence claim against Mercy, trial was scheduled on May 19th, and denied Appellants' request to amend their petition.
For example, Dr. Hug testified in his April 15, 2008 deposition as follows:
Q. Did you find any departures whatsoever of Dr. Smith from acceptable standards of care with respect to what you may think they are for an orthopedic surgeon?
A. No, I did not.
Dr. Hug's only standard of care "criticism" of Mercy at that time was a speculation, based upon his own experiences prior to retiring from his thoracic and vascular surgery clinical practice in 1987, that some surgeon who may have been associated with Mercy might have recommended the bone putty to Smith. When asked if, other than this "potential criticism," he had "no other criticisms whatsoever of Mercy Hospital and its employees or agents; correct?" He replied, "Correct."
¶ 30 When determining whether an affidavit may be disregarded because it attempts to create a sham issue of fact, the Court may consider whether the party was cross-examined during earlier testimony, whether the party had access to the evidence at the time of earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain. Ishmael v. Andrew, 2006 OK CIV APP 82, ¶ 16, 137 P.3d 1271, 1276. A trial court may disregard an affidavit purporting to create an issue of fact by directly contradicting prior deposition testimony during which the deponent was both cross-examined and had access to the information forming the basis for the affidavit at the time of the deposition. Savage v. Burton, 2005 OK CIV APP 106, 125 P.3d 1249. Such is the case here. Dr. Hug's 2002 report states he reviewed Plaintiffs medical records. Those medical records contain the same information about the condition of her leg which Plaintiff raised at deposition and upon which he based his premature discharge standard of care criticisms due to premature discharge after the tumor removal surgery. The trial court did not err in concluding no material fact was presented, and rejecting the affidavit. The order granting Mercy's motion for summary judgment is AFFIRMED.
Motion to Amend Petition and for Continuance
¶ 31 Appellants argue the trial court erred by denying their May 8, 2008 "motion to amend petition by stating specific negligent actions by stating them in the pre-trial order," and by denying them a continuance to allow additional discovery. As before, Appellants claim they should have been allowed to amend their petition to state claims based upon negligence in the standard of care due to premature discharge following the tumor removal surgery because they only discovered the basis for amendment after their expert, Dr. Hug, read Plaintiffs October 11, 2005 deposition testimony following his own April 15, 2008 deposition.
It is unclear whether the deposition was provided earlier and Dr. Hug either did not read it or he read it and did not recall the facts he later cited as a basis for his premature discharge standard of care criticisms.
¶ 32 "[T]he trial court has always possessed discretion over whether to allow an amendment to a pleading" subject to 12 O.S. 2001 § 2015[ 12-2015](A)'s requirement "that leave to amend be given freely if justice requires." Prough v. Edinger, Inc., 1993 OK 130, ¶ 8, 862 P.2d 71, 73. Whether to permit an amendment of the pleadings is left to the discretion of the trial court. Andersen v. Fellers, 1998 OK CIV APP 53, ¶ 15, 960 P.2d 851, 855.
¶ 33 A trial court's decision to deny a motion to amend will not be overturned, however, absent a showing of abuse of the court's discretion under the circumstances. Prough, 1993 OK 130, ¶ 8, 862 P.2d at 73. A trial court acts within its discretion when a justifying reason exists to deny a request. McDermott v. Sentry Life Ins. Co., Inc., 2000 OK CIV APP 115, ¶ 27, 15 P.3d 508, 516. "Some of the factors to consider in evaluating whether a time delay is undue are: 1) the number of previous amendment requests; 2) the timing of the request (before or after discovery is closed and a trial date set); and 3) the length of time the movant was aware of the applicability of the amendment." Prough, 1993 OK 130, ¶ 10, 862 P.2d at 73.
¶ 34 When determining whether the trial court abused its discretion in denying Appellants' motion to amend, we consider the particular facts and circumstances of this case. According to Dr. Hug's September 9, 2002 Report, he reviewed Plaintiffs records from Mercy, the emergency room, x-rays, physical therapy, and office visits with treating doctors. Mercy's records include descriptions of Plaintiffs leg on the day of her first discharge and the identities of Mercy employees, including the resident who facilitated her discharge. His standard of care criticism at the time was premised upon Plaintiffs history of allergy to iodine and based upon an alleged use of "radiopaque bone paste" which "most likely is manufactured with cadaver bone . . . mixed with an iodinated compound to make it radiopaque." In an April 29, 2003 report, he repeated this criticism and recommended obtaining information whether the bone putty "contains iodine or some other allergen." Appellants dropped allegations based upon the presence of iodine following discovery conducted in 2007.
We say "facilitated" because the record contains evidence the resident discharged Plaintiff as a result of an order or instructions from Dr. Smith. According to statements by Appellant's counsel at hearing on May 16, 2008, his office's records indicate they had earlier provided the transcript to Dr. Hug, but if he received it, he lost it when he moved.
¶ 35 Dr. Hug had no criticisms based upon standard of care when he was deposed on April 15, 2008. According to Appellants, Dr. Hug read Plaintiffs 2003 deposition testimony only after that deposition. Dr. Hug was deposed again on May 14, 2008, and questioned about Plaintiffs discharge following the first surgery. He was critical of the discharge because "from the medical records it would appear that there was some inflammation and drainage from the incision."
¶ 36 At a May 16, 2008 hearing on the motion to amend and motions in limine, Defendant pointed out that all the names of Mercy personnel claimed to have prematurely discharged Plaintiff were in the medical records provided to Dr. Hug before his 2002 report, this information had been in Appellants' possession during the six years Dr. Hug had been involved in the case, and Dr. Hug did not raise a standard of care issue in any of three written reports he wrote prior to his May 8, 2008 affidavit. Defendants argued Appellants had failed to conduct a diligent investigation about information in their possession and motion to amend only 11 days before scheduled trial would prejudice their clients. The trial court also noted the information had long been in Appellants' and their expert's possession.
Appellants' counsel, in an apparent effort to rebut the allegation of prejudice, in fact buttressed the Defendants' claim of a lack of diligence by stating, "It's always been in the record. They had them for years. They have always known about it. didn't know about it." (Emphasis added.)
¶ 37 "[A] trial court acts within its discretion if a justifying reason exists for the denial of the movant's request." McDermott v. Sentry Life Insurance Company., Inc. 2000 OK CIV APP 115, ¶ 28, 15 P.3d 508, 516. Like the Court in McDermott, we find relevant the observation "[although . . . leave to amend shall be freely granted, a party must act with due diligence if it intends to take advantage of the Rule's liberality." U.S. v. Midwest Suspension and Brake, 49 F.3d 1197, 1202 (6th Cir. 1995). Diligence was lacking here.
¶ 38 The trial court did not abuse its discretion by denying Appellants' motion to amend given the records in their possession for more than six years and that the motion was filed after discovery had closed and just eleven days before trial was scheduled. Consequently, the trial court also did not abuse its discretion in denying a continuance to allow additional discovery.
The Trial
¶ 39 Appellants claim the trial court "erred as a matter of law" in allowing certain evidence and in refusing to allow certain evidence, in allowing argument during Defendants' opening statement, and in the use of various exhibits. We address these allegations in turn.
¶ 40 Evidentiary rulings by the trial court regarding relevance and admissibility are addressed to the sound discretion of the trial court, whose rulings thereon will not be disturbed absent a showing of abuse of discretion. American National Bank Trust Company of Sapulpa v. BIC Corporation, 1994 OK CIV APP 70, 880 P.2d 420. "Decisions regarding relevance of evidence and its alleged prejudice to the other party will not be overturned absent an abuse of discretion." Mills v. Grotheex, 1998 OK 33, 113, 957 P.2d 540, 541. "A judgment will not be reversed for error in the rejection of evidence unless it appears from an examination of the entire record that such error had probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." Samara v. State, 1964 OK 79, ¶ 0, 398 P.2d 89, 90, cert. den. and appeal dismissed, 381 U.S. 354, 85 S.Ct. 1556, 14 L.Ed.2d 681 (1965).
¶ 41 Appellants argue it was error to exclude testimony by Robert Tortorelli that RSD was the reason Plaintiff received physical therapy and to prevent him from testifying about the reasons she had incurred certain other medical bills. We disagree. Mr. Tortorelli testified the bills were those he and Plaintiff contended resulted from the failure to inform them of the "cadaver bone putty." There was no error in allowing him, when testifying as a member of Plaintiffs family, to identify bills from medical or therapeutic providers for her treatment they allege are connected to the subject of litigation. 12 O.S.Supp. 2002 § 3009[ 12-3009]. The medical records were subject to a stipulation between the parties as to identification, however, witnesses not testifying as an expert are limited to opinions and inferences "not based on scientific, technical or other specialized knowledge." 12 O.S.Supp. 2002 § 2701[ 12-2701](3). It was not error to limit his testimony by preventing him from offering his opinion about the medical causation or diagnoses necessitating Plaintiffs various treatments when such testimony would require "scientific, technical or other specialized knowledge."
Appellants' cite for this proposition 12 O.S. 2001 §§ 2401[ 12-2401] and 2402, which address relevance. Relevance was not the issue when the testimony was proposed. We address the reasons and argument which were presented to the trial court.
According to his testimony, Mr. Tortorelli is a surface water hydrologist with a doctorate in civil engineering. Some medical records listed no diagnosis and only reflected the services provided and the dates of services. Other medical records contained diagnostic codes or labels. Some of these medical records indicated RSD as a diagnosis but some also listed an additional diagnosis for medical conditions not claimed to relate to this litigation, i.e., pain management records for RSD and for cervical disc disease and lumbar disc disease. Some bills were for pain management but included a diagnosis that Plaintiff's RSD was "in remission." The records were all admitted into evidence for the jury's consideration.
¶ 42 Appellants claim the trial court erred by allowing Defendants to use a blow up of a portion of testimony as an aid during opening statements and this error caused prejudice and reversible error. The trial court allowed the use as a demonstrative aid to Defendants' description of anticipated testimony. The testimony in the blow up is part of the recorded testimony of Plaintiffs treating physician Dr. Scott Mitchell which was later presented to the jury as part of their own case in chief. Appellants do not articulate how they were prejudiced by testimony from their own witness other than to complain they needed to move for the admission of one of their own exhibits prior to allowing the jury to view it when they used it to question Plaintiff. Requiring a party to follow proper procedure by laying a foundation for a document offered as part of proof in their case in chief and moving for its admission into evidence prior to allowing a jury to view it does not present reversible error.
¶ 43 They also claim there was reversible error due to the injection of argument during Defendants' opening statement. Based upon the record citations for these alleged errors, the offending statements were, "Please don't leave your common sense at the door when you come into this court-room and decide the issues," "Now, Dr. Smith and I trust you to lay sympathy aside. I anticipate there will be tears in this court-room," and, "We ask you to lay all sympathy aside, judge the facts as you see them from the witness chair." Appellants' objections to the first and third statements were sustained, and their objection to the second statement was overruled. Appellants did not request any admonishments or other corrective action by the trial court following its rulings.
¶ 44 Counsel have wide latitude in both opening statements and closing arguments, subject to the trial court's control. Lerma v. WalMart Stores, Inc., 2006 OK 84, 148 P.3d 880. There must be a showing counsel's conduct substantially influenced the jury's verdict and/or denied a fair trial. Id. ¶ 20, 885. A court abuses its discretion when it uses its discretion to an end or purpose justified neither by reason nor by evidence. Patel v. OMH Medical Center, Inc., 1999 OK 33 ¶ 20, 987 P.2d 1185, 1194, cert. denied, 528 U.S. 1188, 120 S.Ct. 1242, 146 L.Ed.2d 100 (2000). If it appears there has been misconduct in a trial, the aggrieved party may move the court to declare a mistrial, but by failing to do so "will be deemed to have taken his chances with the jury." Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, 110, 455 P.2d 696, 697. Appellants did not pursue any remedy to ameliorate the effect of the remarks, did not move for mistrial, and have not shown the remarks to have caused prejudice, influenced the jury's verdict or denied them a fair trial. Reversal on this theory is denied.
¶ 45 Similarly, no reversible error is presented by the trial court's refusal, following an objection by Defendants, to allow Plaintiffs friend, Sherry Henley, to read a nurse's note from her first hospitalization to the jury. Henley reviewed the record only after her deposition and the only reason given for allowing her to read the note was the alleged use of notations familiar to nurses. Although she was a registered nurse, Henley appeared as a fact witness who had seen Plaintiff only during her second hospitalization. She was not qualified as an expert, and was never a Mercy employee. Further, the medical records containing the nurses' notes were not yet admitted into evidence at the time Appellants asked Henley to read them aloud to the jury. In support of this allegation of error, Appellants cite 12 O.S. 2001 § 2401[ 12-2401] and § 2402, which address the relevancy of evidence. That was not the issue regarding the nurses' notes. Like with the testimony of Robert Tortorelli, the record was subject to a stipulation as to identification, but such a stipulation is not a waiver of the need to establish a proper foundation for admissibility or to move for admission of evidence prior to publishing it to a jury.
In the trial transcript, Appellant's counsel indicated he would make an offer of proof, and then he stated simply: "The offer of proof is page 13 of Plaintiffs' Exhibit No. 8." We need not address this offer. This page, which contains two nurses' notes, later was admitted into evidence as part of Plaintiffs' Exhibit No. 8.
¶ 46 Appellants argue it was error to exclude from evidence the video deposition testimony of Jocelyn Nguyen, an IsoTis research associate, and the further use of the same video deposition to rebut Dr. Smith's testimony. The trial court reviewed the testimony and determined it may have been relevant to products liability issues no longer part of the case but was not relevant to the informed consent issues being tried. "It is not error to refuse to admit evidence which does not prove or disprove any fact in issue in the trial of a lawsuit." Marcum v. Zaring, 1965 OK 125, ¶ 0, 406 P.2d 970. 971.
Appellants' argument the testimony would rebut testimony by Dr. Smith "after she testified that the antigenic reaction that the package insert [warns about] was a good thing and desirable" mischaracterizes that testimony. While asking Dr. Smith, about reactions to the bone putty and if it was a "good thing" to induce a reaction, she replied: "To have an osteoinduction [bone formation stimulating] process, yes. To have an adverse antigenic reaction, no."
¶ 47 Appellants argue medical records of Dr. Barney Blue and "Dr. King" should not have been admitted into evidence because they weren't identified on witness lists before trial. A careful reading of the record shows Dr. Blue's records were used for impeachment of Plaintiffs descriptions of the health complaints and problems she attributed to the RSD and claimed resulted from surgery performed by Dr. Smith.
Plaintiff identified Dr. Blue as a doctor who had manipulated her back due to pain. She did not recall seeing a "Dr. King."
¶ 48 Prior inconsistent statements of a record may be used for impeachment of testimony given at trial, 12 O.S.Supp. 2002 § 2613[ 12-2613], and records may be used to refresh a witness's memory on matters relating to direct testimony upon cross-examination, 12 O.S.Supp. 2002 § 2612[ 12-2612]. That is what occurred here. After laying a foundation, Defendants' counsel asked Plaintiff about Dr. Blue's June 18, 1999 medical record listing complaints of fatigue, swollen feet and body, arm and leg pain, and "knots" in her arms and legs, all of which were complaints she testified were from RSD resulting from surgery. Contrary to Appellants' claim these records were admitted into evidence, the record cited by them shows the trial court sustained an objection to records of a "Dr. King," and did not allow his medical records to be used for impeachment purposes and, more importantly, Dr. Blue's records also were not admitted into evidence. Further, several symptoms and problems Plaintiff attributed to RSD also are described in other medical records predating her surgery to which no objections were interposed. No error is presented in the use of Dr. Blue's records for impeachment.
When asked about what problems she attributed to RSD, Plaintiff listed swollen feet, severe pain, lack of sleep, stinging, burning, problems walking (raving to use a cane or walker) and digestive system problems due to pain medications, The conditions and symptoms present prior to surgery included pain unresponsive to medicatior, fatigue, joint pain, joint stiffness and swelling, muscle crumps and pain, back pain, difficulty walking, depression, and numbness or tingling.
¶ 49 Appellants claim reversible error in the refusal to allow a wider range of testimony within the expertise of research scientist Tara Tabatabaie, who has a Ph.D. in chemistry. Prior to trial, Defendants filed a motion in limine asking, in part, for a prohibition of medical or other expert testimony not "within the expert's realm of expertise," and the trial court reserved the issue until trial. At trial, Defendants objected to allowing expanded testimony from Dr. Tabatabaie because she did not have a medical degree she was not qualified to testify about medical causation, and her testimony, if allowed, would be cumulative because Dr. Hug covered medical causation about RSD. The trial court then limited her testimony to that "from her background as a chemist" about allergic reaction to bone putty. On this record, no reversible error is stated regarding' that determination on the scope of her competence to testify.
At the hearing on motions in limine, Appellants' counsel advised she would testify the bone putty was unreasonably dangerous because it was not tested for bone marrow. The trial court found she was qualified to testify about what can cause allergic reaction and about antigens but not about medical causation and diagnosis of Plaintiff's condition or about danger because that was part of the former product liability cause of action and it was not relevant to informed consent.
¶ 50 Appellants argue the trial court allowed "rank hearsay" by Dr. Smith about bone putty manufacturing, a process it was not shown she had observed, Dr. Smith was asked for her "understanding" about how bone putty is manufactured and testified in response how "[t]he overall process, I understand, is they harvest bone steriley from cadaver bone that is then steriley processed down to the bone proteins only" into "basically a liquid or powder form" which is reconstituted into sheets or a matrix for use by surgeons like herself. Appellants did not object based upon hearsay but instead objected that she was "not qualified" to answer the question. This objection goes to witness competency. Reversal may not be obtained based on arguments and issues raised for the first time on appeal. Kepler' v. Strain, 1978 OK 52, 579 P.2d 191.
¶ 51 Appellants argue it was error to exclude affidavits signed by Dr. Smith which were attachments to motions for summary judgment by IsoTis and Mercy, citing 12 O.S.Supp. 2002 § 2613[ 12-2613]. At trial, they argued the affidavits were admissible as prior inconsistent statements by Dr. Smith.
¶ 52 The criteria for the admission of prior inconsistent statements to attack the veracity or credibility of a witness are governed by the 12 O.S.Supp. 2002 § 2607[ 12-2607] and § 2613. Before allowing evidence of a witness's prior inconsistent statements, the trial court "must satisfy itself that the proffered testimony is sufficiently inharmonious with the declarant's in-court testimony and is relevant to a non-collateral matter. A proper foundation must be laid before the extrinsic impeachment evidence may be admitted." Crussel v. Kirk, 1995 OK 41, ¶ 8, 894 P.2d 1116, 1119. (Emphasis in original; footnotes omitted.)
¶ 53 Here, Appellants cross-examined Dr. Smith about alleged inconsistencies between statements in her affidavits and her trial testimony. For example, her August 30, 2007 affidavit, which was attached as an exhibit to IsoTis's Motion for Summary Judgment, stated she "was familiar with, received, read, and understood" warnings for the bone putty "prior to" Plaintiffs first surgery. She testified at trial how she had read those warnings but did not recall precisely when that occurred prior to Plaintiffs first surgery. The trial court examined the affidavits and determined they were not inconsistent with Dr. Smith's trial testimony. We agree, and find no reversible error is presented.
Motion for Directed Verdict
¶ 54 Appellants argue the trial court erred as a matter of law in overruling their motion for a directed verdict made at the end of trial. Defendants argue denial of the motion was proper because the record contained evidence in their favor.
¶ 55 "We review the denial of a motion for directed verdict de novo." Computer Publications, Inc. v. Welton, 2002 OK 50, ¶ 12, 49 P.3d 732, 735. As taught in Messier v. Simmons Gun Specialties, Inc., 1984 OK 35, ¶ 28, 687 P.2d 121, 130:
When the trial court considers a demurrer to the evidence or a motion for directed verdict, it must consider as true all evidence and all reasonable inferences favorable to the party against whom the demurrer or motion is directed, and disregard any conflicting evidence which is favorable to the demurrant or movant. Either motion should be overruled in the absence of proof which tends to show any right to recover.
¶ 56 "`Informed consent,' as it was adopted in Scott v. Bradford, [ 1979 OK 165], 606 P.2d 554 (Okla. 1980), entails three basic elements: 1) nondisclosure, 2) causation, and 3) injury." Smith v. Karen S. Reisig, M.D., Inc., 1984 OK 56, 686 P.2d 285, 288. "However, a physician has no duty to inform a patient of risks known by the patient." Goss v. Oklahoma Blood Institute, 1990 OK CIV APP 14, 128, 856 P.2d 998, 1007 (citing Spencer By and Through Spencer v. Seikel, 1987 OK 75, 112, 742 P.2d 1126, 1129).
¶ 57 Dr. Mitchell, who treated Plaintiff for RSD, testified he did some research on the syndrome and from it concluded the most likely cause of Plaintiffs RSD was the bone tumor itself. Plaintiff agreed that she knew allergic reactions were possible and gave Dr. Smith information about her own allergic reactions to iodine and penicillin. Appellants' adult son testified in their case in chief that he heard Dr. Smith say, prior to the first surgery, "we're going to remove this, and we're going to put in this paste." This evidence could be considered as evidence in defense of elements Appellants were required to prove and as supporting judgment for Defendants. There was not an "absence of proof in Defendants' favor, and it was for the jury to decide whether Appellants met their burden of proving all necessary elements for their cause of action.
Jury Instructions
¶ 58 Appellants argue the trial court erred because, although it instructed the jury on the issue of informed consent, by instructing the jury on the issue of negligence the issue of informed consent was essentially removed from the jury's consideration. Appellants not only did not object to the negligence instructions, they proposed these same instructions given the jury. Nothing in this record suggests a probability the jury was confused or misled and thereby reached a different result by the giving of the negligence instructions in conjunction with the instruction on informed consent. No reversible error is presented.
Nor, strictly speaking, is an error of law presented. A claim based on lack of informed consent is "a cause of action sounding in negligence" for breach of a duty. Scott v. Bradford, 1979 OK 165, ¶ 11, 606 P.2d 554, 557.
¶ 59 Appellants also argue "in view of the evidence produced at trial of previous medical problems, the Court should have also given OUJI 4.10 on Aggravation of Pre-Existing Conditions." The case was not pled or tried as a case for aggravation of a pre-existing condition and Appellants did not request such an instruction. "[B]y the standard announced in Woodall [v. Chandler Material Co., 1986 OK 4, 716 P.2d 652], there is not a probability that the jury would have reached a different result if it had been given an instruction on the aggravation of a pre-existing condition. Therefore, the trial court did not err by denying the injured party's request to include OUJI-Civ. 4.10." Bierman v. Aramark Refreshment Services, Inc., 2008 OK 29, ¶ 24, 198 P.3d 877, 885. The same applies here.
¶ 60 Appellants further allege error in the trial court's failure to adopt their Requested Instruction No. 1. This proposed instruction included allegations about the claims Plaintiff sought to add via the motion to amend the pleadings and gave Appellants' version of the case issues. In arguing "[t]he trial Court failed to even apprise the jury of the issues they were to try by refusing Plaintiffs (sic) Requested Jury Instruction No. 1," Appellants overstate the duty of the trial court. The trial court has a "duty to instruct on the fundamental issues of a case," however "[i]n giving instructions, the trial court is not required to frame issues, but it must state the law correctly." Smicklas v. Spitz, 1992 OK 145, ¶ 11, 846 P.2d 362, 367. The proposed instruction would have served to confuse and mislead the jury about the issues in the case and it was properly rejected.
¶ 61 Appellants also claim it was error not to give requested instructions on Plaintiffs "mental pain and suffering, past and future," on her "loss of time," and "loss of enjoyment of life" as elements in fixing her damages. The jury could not have been mislead by not being instructed in these elements for setting damages in light of the verdict in favor of Defendants. Any error was harmless.
Conclusion
¶ 62 No reversible error has been shown with respect to the trial court's determinations regarding admissibility or inadmissibility of evidence or testimony, the application of the learned intermediary doctrine, instruction of the jury, or the denial of Appellants' eleventh-hour motion to amend the pleadings. The judgment entered on the jury's verdict in favor of Defendants is AFFIRMED.
BUETTNER, P.J., and HANSEN, J., concur.