Fiske v. Rooney

• Decision Date: 19 March 1998
• Docket Number: No. 97CA2494,97CA2494
• Citation: 126 Ohio App.3d 649,711 N.E.2d 239
• Parties: FISKE, Appellant, v. ROONEY et al., Appellees.
• Court: Ohio Court of Appeals

Page 649

126 Ohio App.3d 649

711 N.E.2d 239

FISKE, Appellant, v. ROONEY et al., Appellees.

No. 97CA2494.

Court of Appeals of Ohio Fourth District, Scioto County.

Decided March 19, 1998.

Fishman & Fey Co., L.P.A., and Elliot T. Fishman, Columbus, for appellant.

Reminger & Reminger, and Thomas D. Hunter, Columbus, for appellee Richard Rooney, M.D.

Bannon, Howland & Dever Co., L.P.A., Robert E. Dever and Steven M. Willard, Portsmouth, for appellee U.S. Health Corporation of Southern Ohio.

STEPHENSON, Presiding Judge.

This is an appeal from various summary judgments entered by the Common Pleas Court of Scioto County, Ohio, in favor of Richard Rooney, M.D. and U.S. Health Corporation of Southern Ohio ("U.S. Health Corp."), defendants below and appellees herein, on the claims brought against them by William B. Fiske, plaintiff below and appellant herein. The following errors are assigned for our review:

"I. The trial court abused its discretion in denying plaintiff-appellant the opportunity to obtain discovery which could directly affect his ability to respond to the motions for summary judgment.

"II. The trial court erred in giving substantial consideration to the affidavit of Wayne Wheeler, M.D., which affidavit has already been disallowed by this court.

"III. The trial court erred in establishing that appellees met their burdens to provide affirmative evidence as to why summary judgment should be granted.

"IV. The trial court erred in determining that no questions of material fact (or competing reasonable inferences thereof) exist in this case, despite findings previously determined by the court of appeals.

"V. The trial court erred by refusing to consider or failing to give sufficient weight to the affidavit of William B. Fiske.

"VI. The trial court erred in failing to consider and/or give sufficient weight to other essential evidence, such as the affidavit of James Glandon.

"VII. The trial court erred in refusing to consider or give substantial weight to the affidavit and deposition testimony of Joan E. Wurmbrand, M.D.

"VIII. The trial court erred in determining that no prima facie case existed for violation of Ohio Revised Code Chapter 4112, despite the contrary determination by this court of appeals.

"IX. The trial court erred in failing to consider plaintiff's claim for intentional or negligent infliction of emotional distress.

"X. The trial court erred in failing to make any ruling regarding appellees' defenses of violation of the statute of limitations."

The record reveals the following facts pertinent to this appeal. On February 20, 1993, appellant was taken to the emergency room at Southern Ohio Medical Center ("SOMC"), an affiliate hospital of U.S. Health Corp., with severe abdominal pain. Appellant informed the hospital staff upon his arrival that he was HIV positive (i.e., infected with the Human Immunodeficiency Virus believed to cause Acquired Immune Deficiency Syndrome or "AIDS"). He was given various tests and x-rays and was later advised by Dr. Robert Dale, the emergency room physician, that he might have appendicitis. It was the recommendation of Dr. Dale that a surgeon be consulted. Dr. Dale left appellant's presence but returned a short time later to inform him that Dr. Richard Rooney, the surgeon on call and appellant herein, refused to examine and evaluate him due to his HIV status. Approximately eight to nine hours after his arrival at SOMC, appellant was transferred to Doctor's Hospital, North, in Columbus, Ohio, at his own expense. He was examined and then admitted for several days of observation but was ultimately released without surgery having ever been performed.

Appellant commenced the action below on February 18, 1994, alleging claims of medical negligence, discrimination, and infliction of emotional distress. He demanded in excess of $150,000 in compensatory damages and $300,000 in punitive damages. Both appellees filed answers denying liability and raising a number of defenses. On June 23, 1994, U.S. Health Corp. filed a motion for summary judgment arguing, inter alia, that appellant was not "refused treatment because he was HIV positive." This argument was supported by the affidavit of Wayne B. Wheeler, M.D., President of Wayne B. Wheeler, Inc., which contracts to operate the emergency room at SOMC. Dr. Wheeler attested that appellant "was given appropriate medical treatment" and that "[n]o discrimination against HIV patients is practiced." It was conceded by the affiant that Dr. Rooney had declined to accept appellant for treatment. However, the affiant continued, Dr. Rooney did agree to take appellant back if he was unsuccessful in his search for medical assistance in Columbus, Ohio. U.S. Health Corp. also argued that, in any event, there was no compensable injury here because appellant ultimately did not require surgery. An opposing memorandum was filed, but, on July 25, 1994, partial summary judgment was entered in favor of U.S. Health Corp.

We reversed that judgment in Fiske v. Rooney (1995), 105 Ohio App.3d 269, 663 N.E.2d 1014 (Fiske I ), wherein this court held that the affidavit of Dr. Wheeler was insufficient under Evid.R. 601(D) because it did not set forth any of the requisite information necessary to qualify him to give an expert opinion. Thus, we determined, U.S. Health Corp. had not carried its burden on summary judgment. It was also the ruling of this court that appellant had set forth a prima facia case for discrimination and had sufficiently alleged a claim for infliction of emotional distress. Neither of these issues had been addressed by the evidence, and, therefore, the judgment was reversed and the cause remanded for further proceedings.

On remand, both appellees renewed the drive for summary judgment. U.S. Health Corp. filed its motion on November 6, 1996, and again made the argument that appellant was not refused treatment because of his HIV status. An affidavit by Dr. Wheeler, substantially similar if not identical to the one we rejected in Fiske I, was again submitted in support of that argument. U.S. Health Corp. also relied on deposition testimony by appellant to the effect that he agreed to seek treatment in Columbus after Dr. Dale informed him that he would not be seen by a surgeon at SOMC. It was argued that this admission demonstrated a cooperative decision on the part of appellant to seek treatment elsewhere. Dr. Rooney then filed a motion for summary judgment on November 18, 1996, wherein he denied ever having refused treatment for appellant. This was supported by his own deposition testimony during which he recounted the substance of his conversation with Dr. Dale (the emergency room physician). Dr. Rooney testified that he "never" told Dr. Dale that he would not see, or treat, the patient.

Appellant responded to these motions, at first, by requesting an extension of time so that he could take the depositions of Drs. Dale and Wheeler. U.S. Health Corp. "strenuously object[ed]" to such an extension being granted, and the trial court denied his request. Appellant then filed several memoranda in opposition to summary judgment. First, he argued that the motion by U.S. Health Corp. should be overruled because it presented (substantially) the same arguments and evidentiary materials as were reviewed and rejected by this court in Fiske I. Further, appellant submitted his own affidavit wherein he attested that "Dr. Dale told me that Dr. Rooney, who was the surgeon on call, refused to see me and evaluate me, because I was HIV-positive." The affiant continued that "Dr. Dale said, 'I'm sure you have experienced this before,' " which, appellant contends, was in reference to the refusal to provide medical care due to his HIV status. These statements were corroborated by the affidavit of James Glandon, who was an eyewitness to the discourse between appellant and the emergency room physician. An affidavit by Joan E. Wurmbrand, M.D., was also submitted in opposition to summary judgment. Dr. Wurmbrand attested that she had reviewed the medical records in this case and that, in her opinion, SOMC "significantly deviated from the standard of care for emergency rooms in hospitals" in that appellant was neither seen by a surgeon nor admitted as a patient and was "forced to be transported to Columbus" for evaluation. These materials were found to be insufficient.

On January 14, 1997, the trial court entered two separate judgments sustaining the motions filed by appellees. The court found that Dr. Rooney did provide a surgical consultation and that appellant "voluntarily agreed" to be transferred to Columbus. Thus, the court reasoned, the "essential elements of this cause cannot be proven." It was conceded that appellant's affidavit contradicted the gist of the deposition testimony upon which the court was supposedly basing its decision. However, the court reasoned, the affidavit could not be considered if it conflicted with the deposition and certainly could not be used to defeat appellees' motions for summary judgment. Appellant's claims were therefore ordered dismissed, and this appeal followed. Additional facts will be discussed where pertinent to a particular assignment of error.

Appellant's first assignment of error is directed at the trial court's refusal to grant him a continuance on the summary judgment proceedings so that he could obtain the deposition testimony of Drs. Dale and Wheeler. We note at the outset that the decision to grant or deny a continuance is generally relegated to the sound discretion of the trial court. See State v. Grant (1993), 67 Ohio St.3d 465, 479, 620 N.E.2d 50, 66-67; State v. Lorraine (1993), 66 Ohio St.3d 414, 423, 613 N.E.2d 212, 220. Similarly, the provisions of Civ.R. 56(F) allow for the trial court to grant a continuance during summary judgment proceedings so that additional discovery may be had to oppose a motion. This too is relegated to the sound discretion of the trial court. See,...