Craig Copeland v. University Radiologists of Cleveland, Inc.

• Court: Ohio Court of Appeals
• Writing for the Court: KRUPANSKY, J.
• Decision Date: 22 April 1993
• Docket Number: 93-LW-1382,62332
• Citation: Craig Copeland v. University Radiologists of Cleveland, Inc., 62332, 93-LW-1382 (Ohio App. Apr 22, 1993)
• Parties: CRAIG COPELAND, Plaintiff-Appellant v. UNIVERSITY RADIOLOGISTS OF CLEVELAND, INC., ET AL., Defendants-Appellees

CRAIG COPELAND, Plaintiff-Appellant v. UNIVERSITY RADIOLOGISTS OF CLEVELAND, INC., ET AL Defendants-Appellees

No. 62332.

93-LW-1382 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

April 22, 1993

Civil appeal from Common Pleas Court No. CV-189839.

For Plaintiff-Appellant: JAMES R. PATTERSON, KEVIN C. ROUCH Patterson, Rouch & Lease, 155 East Broad Street, 16th Floor Columbus, Ohio 43215.

For Defendants-Appellees University Radiologists of Cleveland, Inc. and James Lieberman, M.D., ROBERT D. WARNER, NANCY F. ZAVELSON, Reminger & Reminger, The 113 St. Clair Building, Cleveland, Ohio 44114

University Hospitals of Cleveland, Inc. and J. Montanez, M.D.: DONNA M. CONGENI, EDWARD J. JERSE, Arter & Hadden, 1100 Huntington Building, Cleveland, Ohio 44115.

OPINION

KRUPANSKY J.

Plaintiff-appellant Craig Copeland appeals from orders of the trial court granting summary judgment in favor of defendants-appellees University Radiologists of Cleveland, Inc. ("University Radiologists"), University Hospitals of Cleveland, Inc. ("University Hospitals") and Drs. James Lieberman, M.D. and J. Montanez, M.D.

Plaintiff filed the complaint sub judice in the trial court May 14, 1990 alleging medical malpractice against seven-defendants, viz.: (1) University Radiologists; (2) University Hospitals; (3) James Lieberman, M.D.; (4) J. Montanez, M.D.; (5) Michael Keith, M.D.; (6) Cleveland Metropolitan General Hospital; and (7) University Orthopedic Associates, Inc. ("University Orthopedics"). Plaintiff alleged that he had previously filed and voluntarily dismissed a similar action against these defendants and others without prejudice pursuant to Civ. R. 41(a)(1) on Nay 15, 1989.

Plaintiff's complaint relates to surgery performed on his left led which had been amputated below the knee in the 1960's as a result of a motorcycle accident and involves a lengthy medical history. The record demonstrates that plaintiff had an operation following the amputation of his left stump in 1984 performed by: non-party physician Dr. David Kline who reported that he had removed the tibial nerve in the stump and a neuroma at its distal end. The September 22, 1987 surgery performed by Dr. Keith forming the basis for the case sub judice involved the subsequent removal of the saphenous nerve and neuroma in plaintiff's left stump and resulted in the discovery that Dr. Kline had not removed the tibial nerve and neuroma as his operative notes had reported. Plaintiff claims generally that various defendants herein should have discovered the fact that Dr. Kline had not in fact removed the tibial nerve and neuroma in the 1984 surgery contrary to his medical reports and that the remaining defendants should not have completed the planned surgery to remove the saphenous nerve and neuroma in his stump without informing him of this discovery and obtaining his informed consent. Plaintiff claims the September 22, 1987 surgery on his amputated left stump adversely affected his prosthetic care.

Count I of plaintiff's complaint alleged that the first four defendants, viz., University Radiologists, University Hospitals, Drs. Lieberman and Montanez failed to properly diagnose the medical condition of plaintiff's left knee in connection with radiological services and a magnetic resonance image ("MRI") performed at University Hospitals April 27, 1987. The MRI report summarizing the results contained the names of Dr. Lieberman, whose professional corporation is University Radiologists, and Dr. Montanez, a resident of University Hospitals at the time. Count II of plaintiff's complaint alleged that the remaining three defendants, viz., Dr. Keith, University Orthopedics and Cleveland Metropolitan General Hospital provided negligent orthopedic and surgical services and conducted surgery without plaintiff's prior informed consent. The affidavit of plaintiff's counsel attached to the complaint stated that counsel had consulted with a licensed radiologist, but had been unable to consult with an orthopedic surgeon prior to filing the action.

All seven defendants filed answers denying the substantive allegations of plaintiff's complaint during the course of the proceedings in the trial court. The trial court established a comprehensive discovery schedule and the defendants ultimately filed various motions for summary judgment and to dismiss the actions against them. The record demonstrates that plaintiff did not supplement the affidavit supporting his complaint against three defendants and failed to identify a medical expert on the issue of causation prior to the deadline established by the trial court.

The trial court granted the motion of defendants University Radiologists and Dr. Lieberman to exclude the belated affidavit of plaintiff's belatedly identified orthopedic expert, Dr. Andrew Newman, and granted summary judgment in favor of four defendants, viz.: (1) University Radiologists; (2) Dr. Lieberman; (3) University Hospitals; and (4) Dr. Montanez. The record demonstrates the trial court dismissed the remaining three defendants, viz., Cleveland Metropolitan General Hospital, University Orthopedics and Dr. Keith, for lack of subject matter jurisdiction based upon plaintiff's failure to supplement the affidavit supporting his complaint against them pursuant to R.C. 2307.42. Plaintiff timely appeals from the trial court's orders granting summary judgment in favor of the remaining four defendants and striking the affidavit of his belatedly identified expert, Dr. Andrew Newman, raising three assignments of error.

Plaintiff's first assignment of error follows:

THE TRIAL COURT ERRED IN GRANTING THE MOTION OF JAMES LIEBERMAN, M.D. AND UNIVERSITY RADIOLOGISTS OF CLEVELAND, INC. FOR RECONSIDERATION OF MOTION FOR SUMMARY JUDGMENT.

Plaintiff's first assignment of error lacks merit.

Plaintiff argues the trial court improperly granted summary judgment in favor of defendants Dr. Lieberman and his professional corporation University Radiologists. The record demonstrates the trial court initially denied the motion of Dr. Lieberman and University Radiologists for summary judgment on the issue of breach of the applicable standard of care, but upon reconsideration and the submission of additional evidence, granted their motion due to plaintiff's failure to produce any evidence on the issue of proximate cause.

The Ohio Supreme Court has recognized that a medical malpractice plaintiff must produce evidence to establish (1) breach of the applicable standard of care and (2) proximately caused damages in a medical malpractice action as follows:

In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions or circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things.

Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, syllabus; Darnell v. Eastman (1970), 23 Ohio St.2d 13; Luci v. Martin (June 8, 1989), Cuyahoga App. No. 55485, unreported. To establish proximate cause in this context plaintiff must demonstrate through expert medical opinion testimony, unless the matter is within the common knowledge of lay persons, that the medical negligence "in probability" caused the alleged injury. Id.

The motion of Dr. Lieberman and University Radiologists for reconsideration of the trial court's denial of their motion for summary judgment was supported inter alia by affidavits of the following, viz.: (1) Dr. Lieberman, a certified radiologist, stating that he and University Radiologists were not negligent; (2) Dr. Ernest Marsolais, plaintiff's treating orthopedic surgeon who referred plaintiff to Dr. Lieberman, stating that Dr. Lieberman conformed to the applicable standard of care; and (3) Dr. Michael Keith, the orthopedic surgeon who conducted the September 22, 1987 surgery on plaintiff's left stump, stating than Dr. Keith would have performed the same type surgery in the same manner on plaintiff regardless of Dr. Lieberman's April 27, 1987 MRI report.

The affidavit of Dr. Keith in support of the motion for reconsideration denied the existence of any causal connection between the MRI report and Dr. Keith's September 22, 1987 surgery and specifically states in pertinent part as follows:

3. I performed the surgery on Craig Copeland [plaintiff] at Cleveland Metropolitan General Hospital on September 22, 1987.

4. I had noticed the MRI study interpretation as done by Dr. James M. Lieberman in reference to Craig Copeland. Prior to the surgery, I had made a preoperative diagnosis of a neuroma.

5. During the surgery, I discovered a neuroma on Craig Copeland's leg and I excised the same.

6. In spite of the MRI study interpretation the same type of surgery would have been performed whether the MRI study had described the neuroma as a scar and/or as a neuroma.

7. It is my medical opinion that my surgery did not change as a result of the MRI study interpretation as done by Dr. Lieberman. (Emphasis added).

Plaintiff opposed this motion for reconsideration with affidavits from Dr. Andrew Newman, M.D., a previously undisclosed expert orthopedic surgeon, and plaintiff Craig Copeland. However, based upon our review of the record, neither of these two affidavits sufficiently raised a genuine issue of material fact concerning the proximate causation of plaintiff's alleged physical injuries to preclude summary judgment. ...