Gerald A. Deer v. River Valley Health Systems
| Decision Date | 03 January 2001 |
| Docket Number | 01-LW-0033,00CA20 |
| Citation | 2001 Ohio 2662 |
| Parties | GERALD A. DEER, Plaintiff-Appellant v. RIVER VALLEY HEALTH SYSTEMS, et al., Defendants-Appellees Case |
| Court | Ohio Court of Appeals |
Gerald A. Deer, Pro Se Appellant, Pickaway Correctional Institute Orient, Ohio.
William R. Thomas, Reminger & Reminger Co., L.P.A., Columbus, Ohio for Appellee River Valley Health Systems.
Stephen V. Freeze, Freund, Freeze & Arnold, Dayton, Ohio, for Appellee Dr. Jerry A. Mayer, D.M.D.
This is an appeal from an order granting summary judgment in favor of appellees, River Valley Health Systems and Dr. Jerry A. Mayer, D.M.D.
In July 1998, the appellant underwent total knee arthroplasty surgery at River Valley Health Systems (River Valley) under the services of Dr. David Herr, O.D., an orthopedic surgeon, and Dr. Rintoul, an anesthesiologist. During the course of the surgery, two of the appellant's teeth were dislodged. All of appellant's teeth were decayed at the gum line prior to his admission to River Valley. Dr. Jerry A. Mayer, D.M.D. (Dr. Mayer) examined the appellant's dislodged teeth following surgery and referred him to Dr. Jeter, a dentist, for treatment. Dr. Jeter performed a restoration procedure, but the teeth did not hold. Appellant was released from care without successful replacement of his teeth.
The appellant initiated his medical malpractice claim against appellees alleging that Dr. Mayer was negligent for failing to repair his dislodged teeth, and that River Valley was vicariously liable under the doctrine of respondent superior and/or agency by estoppel.[1]
The appellees moved for, and were granted, summary judgment. The appellant filed a timely notice of appeal raising the following assignments of error:
We review a trial court's decision to grant summary judgment on a de novo basis. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same criteria as the trial court, which is the standard contained in Civ.R. 56. Lorain Natl. Bank v. Saratoga Apts. (1989) 61 Ohio App.3d 127, 129. Pursuant to Civ.R. 56(C), summary judgment is proper if: (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 the evidence that reasonable minds can come to one conclusion when viewing the evidence in favor of the non-moving party, and that conclusion is adverse to the non-moving party. See Grafton, supra.
The party moving for summary judgment has the initial burden of informing the trial court of the basis of the motion, and identifying those portions of the record that demonstrate the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. To meet its burden, the moving party must specifically refer to the "pleadings, depositions, answers to interrogatories, written stipulations of fact, if any," which affirmatively demonstrate that the non-moving party has no evidence to support the non-moving party's claims. Civ.R. 56(C); id.
If the moving party satisfies its burden, then the burden shifts to the non-moving party to offer specific facts showing a genuine issue for trial. Civ.R. 56(E); Dresher, supra. The non-moving party must come forward with documentary evidence rather than resting on unsupported allegations in the pleadings. Kascak v. Diemer (1996), 112 Ohio App.3d 635, 638. A trial court may grant a properly supported motion for summary judgment if the non-moving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing the existence of a genuine issue for trial. Mayes v. Holman (1996), 76 Ohio St.3d 147.
In order to establish a cause of action for medical malpractice, the plaintiff "must show the existence of a standard of care within the medical community, breach of that standard of care by the defendant, and proximate cause between the medical negligence and the injury sustained." Taylor v. McCullough-Hyde Memorial Hospital (1996), 116 Ohio App.3d 595, 599, citing Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 131-132. Expert testimony is generally required to prove the elements of medical malpractice whenever they are beyond the common knowledge and understanding of the jury. Clark v. Doe (1997), 119 Ohio App.3d 296, 307; Taylor, supra. Once expert testimony is produced in support of a summary judgment motion, the non-movant must submit contrary expert testimony to withstand the summary judgment, unless the standard of care is so obvious that non-professionals can reasonably evaluate the defendant's conduct. Lawson v. Song (Sept. 23, 1997), Scioto App. No. 97-CA-2480, unreported, citing Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272.
In this case, Dr. Mayer submitted his own affidavit in support of summary judgment establishing his qualifications by education, training and experience; and averring that he met all the accepted standards of care for oral and maxillofacial surgeons in like or similar circumstances in his care of appellant, and that he committed no act or omission below such standards. With submission of his affidavit, Dr. Mayer met his burden under Dresher to show that appellant has no evidence to support his malpractice claim against him. See Kamenar v. Radiology Associates of Barberton, Inc. (Apr. 23, 1997), Summit App. No. 17957, unreported, citing Hoffman v. Davidson (1987), 31 Ohio St.3d 60, 62 ().
Appellant did not present expert testimony in opposition to Dr. Mayer's summary judgment motion. Instead, appellant contends that the standard of care with regard to Dr. Mayer is so obvious that non-professionals can reasonably evaluate his conduct without further evidence. This argument is meritless. Due to the nature of a medical malpractice claim, it is only in rare cases that the need for expert testimony is obviated, and this is not one of them. Appellant's claim against Dr. Mayer relates to his examination of his dislodged teeth and his referral to Dr. Jeter.[2] A physician has a duty to diagnose and prescribe treatment within the ordinary standard of care. See Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 583. However, the standard for diagnosing and treating dislodged teeth is not a matter of common knowledge to a layperson. As such, appellant was required to produce expert testimony regarding the standard of care in this particular case, and Dr. Mayer's departure from that standard. Because the appellant failed to come forward with evidence creating a genuine issue for trial, appellant's second assignment of error is overruled.
Turning to the grant of summary judgment in favor of River Valley, appellant argues that River Valley is liable under the doctrine of respondent superior. Under this doctrine, a hospital as an employer can be held vicariously liable for the torts of its employees or agents. See Costell v. Toledo Hospital (1994), 98 Ohio App.3d 586. The doctrine generally does not apply to an independent contractor over whom an employer retains no right to control the mode and manner of doing the contracted-for work. See Councell v. Douglas (1955), 163 Ohio St. 292, 295-296. However, Ohio has adopted an agency-by-estoppel exception for hospital vicarious liability for negligence of independent practitioners with whom the hospital contracts, but over whom it retains no right to control. Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435. Under the Clark exception, a plaintiff must establish that: (1) the hospital held itself out to the public as a provider of medical services; and (2) in the absence of notice or knowledge to the contrary, the plaintiff looked to the hospital as opposed to an individual practitioner to provide competent medical care. Id.
In this case, River Valley submitted the affidavit testimony of its Risk Manager, Jean Kelly, R.N., in support of its motion for summary judgment. Ms. Kelly testified that at no time were the named physicians or dentists River Valley employees, servants and/or agents; nor did River Valley hold out or represent that they were employees, servants and/or agents of the hospital. In addition, River Valley incorporated by reference Dr. Herr's arguments and affidavit contained in his summary judgment motion, which included Dr. Herr's opinion that he had met the requisite standard of care in his treatment of appellant. River Valley met its burden under Dresher with this evidence.
In opposition to River Valley's summary judgment motion, appellant submitted his own affidavit and relied on the doctrines of agency by estoppel and res ipsa loquitur to establish liability on the part of River Valley. Appellant did not present any evidence to establish an actual agency relationship between River Valley and his treating physicians or dentists. Nor did appellant present expert testimony on the issue of negligence.
In his affidavit, the appellant testified that he was referred to River Valley for emergency room treatment by Dr. Canos at the Lawrence County Jail where he was incarcerated. He testified that although Dr. Canos is listed as his family physician in medical records, Dr. Canos was not his family physician, but rather a physician on duty at the jail. Appellant stated that he sought medical care from River Valley as a provider of medical services and made no affirmative choice of physicians after arriving at River Valley. He did not specifically seek out care with Dr. Herr, but merely...
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