Carol J. Cancilla, Executrix, Estate of James Cancilla v. Fairview General Hospital, 94-LW-3971

• Decision Date: 05 May 1994
• Docket Number: 65424,94-LW-3971
• Parties: CAROL J. CANCILLA, Executrix, Estate of James Cancilla, Plaintiff-appellant v. FAIRVIEW GENERAL HOSPITAL, et al, Defendant-appellees
• Court: Ohio Court of Appeals

CAROL J. CANCILLA, Executrix, Estate of James Cancilla, Plaintiff-appellant v. FAIRVIEW GENERAL HOSPITAL, et al Defendant-appellees

No. 65424.

94-LW-3971 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

May 5, 1994

Civil appeal from Court of Common Pleas Case No. 224,390.

For plaintiff-appellant: HENRY J. HILOW, Attorney at Law, One Cleveland Center, 1375 East Ninth Street, #2920, Cleveland Ohio 44114.

For defendant-appellees: HARRY D. CORNETT, KATHRYN L. BOSELLI Attorneys at Law, 1100 Huntington Building, Cleveland, Ohio 44115.

OPINION

DONALD C. NUGENT, J.

This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the Cuyahoga County Court of Common Pleas, and the briefs of counsel. Oral argument was waived.

Plaintiff-appellant, Carol J. Cancilla, Executrix of the Estate of James J. Cancilla, deceased, brought the instant medical malpractice action against defendant-appellees, Fairview General Hospital (hereinafter "Fairview General" or "appellees") and its resident physicians Saeb Bayazid, M.D., Hilton Sparks, M.D., Frederick Cole, M.D., and Brent Bogart, M.D.

On September 8, 1988, Mr. Cancilla was admitted into Fairview General by Dr. Carlos Maldonado (not a party to this lawsuit) for a hemipancreatectomy to remove a pancreatic tumor. Mr. Cancilla developed post-operative complications and ultimately died on October 14, 1988. During Mr. Cancilla's hospitalization, he was seen at various times by some of the individual defendants in this case, each of whom was a surgical resident at Fairview General.

Appellees filed a joint motion for summary judgment, arguing that appellant'S expert witness, Dr. John A. Feemster, did not criticize Fairview General's residents' care and treatment of Mr. Cancilla. Rather, Dr. Feemster's criticism was focused on Dr. Maldonado's care of Mr. Cancilla. Fairview General also argued that it could not be held vicariously liable pursuant to Albain v. Flower Hosp. (1990), 50 Ohio St.2d 251 for the negligent acts of a staff physician such as Dr. Maldonado.

In opposition to Fairview General's motion, appellant argued that Fairview General was liable for Mr. Cancilla's death pursuant to the doctrine of respondeat superior based on the negligence of its resident physicians, the individually-named defendants.

After Fairview General filed a reply brief, the trial court granted appellees summary judgment. Appellant timely appeals, raising the following assignments of error:

I. DID THE TRIAL COURT ERR IN GRANTING APPELLEE'S (sic) MOTION FOR SUMMARY JUDGMENT WHERE THERE DID EXIST A GENUINE ISSUE OF MATERIAL FACT AS TO THE TREATMENT OF THE DECEDENT BY THE APPELLEES.

II. DID THE TRIAL COURT ERR IN GRANTING APPELLEE'S (sic) MOTION FOR SUMMARY JUDGMENT WHERE REASONABLE MINDS COULD COME TO MORE THAN ONE CONCLUSION AS TO THE ACTIONS OF THE APPELLEES.

Because appellant fails to separately argue each assignment of error, see App. R. 16(A)(7) and 12(A)(2), this court will consider both assignments of error together. Essentially, appellant argues that the trial court erred in granting appellees' motion for summary judgment where there exist genuine issues of material fact in her action for medical malpractice.

A court reviewing the granting of a summary judgment must follow the standard set forth in Civ. R. 56(C). Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78; Petrey v. Simon (1984), 19 Ohio App. 3d 25, paragraph one of the syllabus. Civ. R. 56(C) provides that before summary judgment may be granted, it must be determined that:

(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

The burden of establishing that no genuine issue as to any material fact remains to be litigated is on the party moving for summary judgment. Turner v. Turner (1993), 67 Ohio St.3d 337, 340; Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 120. Once a party moves for summary judgment and has supported his or her motion with sufficient and acceptable evidence, the party opposing the motion has a reciprocal burden to respond by affidavit or as provided in Civ. R. 56(C), setting forth specific facts explaining that a genuine issue of material fact exists for trial. Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. A motion for summary judgment forces the nonmoving party to produce evidence on all issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of syllabus (Celotex v. Catrett [1986], 477 U.S. 317, approved and followed.).

The key to a summary judgment is that there must be no genuine issues to any material fact. A "genuine issue" exists when the evidence presents a "sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail over the other as a matter of law." Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 251-52; Turner, supra, at 340. The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Anderson, supra; Paul v. Uniroyal Plastics Co. (1988), 66 Ohio App.3d 277, 281. A "material fact" depends on the substantive law of the claim being litigated. Anderson, supra, at 247-48; Turner, supra. "Only disputes over facts that might affect the outcome of the suit under the governing law will preclude entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, supra, at 247-48. Therefore, in determining whether a genuine issue of material fact remains to be litigated, we must turn our attention to the substantive law of the claims being litigated. Appellant's cause of action against appellees is for medical malpractice.

Appellant first argues that Fairview General may be held liable through the doctrine of respondeat superior based on the negligence of Fairview General's resident physicians, the individual defendants herein. It is uncontested that a hospital may be held vicariously liable, under the doctrine of respondeat superior, for the negligence of its employees. See, Albain, supra, at 264; Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97. Fairview General admits that the individual defendants, the resident physicians, are employees of the hospital. However, Fairview General argues that appellant has failed to raise a material issue of fact as to the resident physicians' negligence.

In order to establish a cognizable claim of medical malpractice, a plaintiff must show the existence of a standard of care within the medical community, breach of that standard of care by the defendant/physician, and proximate cause between the medical negligence and the injury sustained. Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86; Bruni v. Tatsumi (1976), 46 Ohio St.2d 127. In Bruni, supra, at 137, the Ohio Supreme Court stated:

Proof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff.

Generally, the issue of whether a physician has proceeded in the treatment of a patient with the requisite standard of care and skill must be determined from the testimony of experts. Bruni, supra, at 130; Chupka v. Rigsby (1991), 75 Ohio App.3d 795; Buerger v. Ohio Dept. of Rehab. & Corr. (1989), 64 Ohio App.3d 394; Johnson v. Hammond (1988), 47 Ohio App.3d 125. Additionally, the element of proximate cause must be established through the testimony of a physician or other expert competent to testify. Schumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367; Lee v. Metrohealth Med. Ctr. (May 13, 1993), Cuyahoga App. No. 62430, unreported, at 21. Thus, where there is competent expert testimony, based on a reasonable degree of medical probability, that the negligent acts or omissions of a physician were the direct and proximate cause of the patient's death or injury, summary judgment must be denied. Ramage, supra; schumaker, supra; Vasas v. Univ. Hosp. of Cleveland (Feb. 11, 1993), Cuyahoga App. No. 64129, unreported.

In the present case, Fairview General argues that Dr. Maldonado was solely liable for the death of Mr. Cancilla. Dr. Maldonado is not a party to this lawsuit and has settled a similar suit with appellant. Fairview General further contends that appellant's expert witness, Dr. Feemster, testified only to Dr. Maldonado's negligence. At his deposition, Dr. Maldonado gave the following testimony:

Q. Doctor, turning back to the case of Mr. Cancilla, is it fair to say that your primary criticism with the care in this case has to do with the failure to timely go in and drain and clean up Mr. Cancilla's fluid collection abscess whatever it was?

A. Yes.

Q. And, doctor, you would agree with me, wouldn't you, that that was the attending physician's ultimate decision, when to do that or whether-to do that?

THE WITNESS: Yes.

Q. And is it fair to say, doctor, that your opinions concerning the deviation from the standard of care concerning this surgery, whether to do it, when to do it -- that your opinions are directed at Dr. Maldonado's decisionS or failures to

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