Johnson v. Hammond

• Decision Date: 18 April 1988
• Docket Number: No. 53541,53541
• Citation: 47 Ohio App.3d 125,547 N.E.2d 1004
• Parties: JOHNSON et al., Appellants, v. HAMMOND, Appellee.
• Court: Ohio Court of Appeals

Page 125

47 Ohio App.3d 125

547 N.E.2d 1004

JOHNSON et al., Appellants, v. HAMMOND, Appellee.

No. 53541.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 18, 1988.

Syllabus by the Court

The doctrine of res ipsa loquitur does not relieve the plaintiff in a medical malpractice case of the burden of presenting expert medical testimony on the requisite standard of care and skill. The plaintiff must present evidence to show that the injury would not have occurred in the ordinary course of events if ordinary care had been observed before an instruction of res ipsa loquitur would be justified. This showing requires expert evidence on the ordinary procedures in performing a circumcision.

Joseph L. Coticchia, for appellants.

James L. Malone, Cleveland, for appellee.

PATTON, Justice.

Plaintiffs-appellants, Steve R. Johnson, a minor, and George A. Johnson and Bernice Johnson, Steve's parents and natural guardians (hereinafter "plaintiffs"), appeal from an order of the Court of Common Pleas of Cuyahoga County that dismissed their complaint for medical malpractice against defendant-appellee, Louis E. Hammond, M.D. The following facts give rise to this appeal:

On or about October 16, 1984, Steve R. Johnson was born in St. Luke's Hospital in Cleveland, Ohio. Immediately following Steve's birth, defendant Hammond performed a circumcision on the infant. The circumcision was performed with a device known as a Gomco clamp. During the procedure, a part of the clamp referred to as the "bell" was placed over the glans of the infant's penis. The clamp was tightened down over the foreskin. The foreskin was fitted over the bell and trimmed.

The clamp was left in place for approximately three minutes. After three minutes, there ordinarily will be a seal and no bleeding. In this case, the Gomco clamp slipped when it was removed, lacerating the infant's penis and causing bleeding. Defendant sutured the lacerated area and then performed the circumcision freehand. The circumcision resulted in an infection and a cyst.

In October 1985, the plaintiffs commenced this action for negligence against the defendant. The defendant answered the complaint on November 26, 1985 by denying plaintiffs' allegations of negligence.

The matter was referred to an arbitration panel. Plaintiffs offered no expert testimony at the arbitration hearing. In a two-to-one decision, the arbitration panel awarded plaintiffs $10,000.

On October 22, 1986, defendant filed his notice of non-acceptance of the arbitrators' award. Thereafter, the case was scheduled for trial in the common pleas court.

On the day of the trial, March 9, 1987, the court held a hearing on whether the plaintiffs' case could survive a motion for a directed verdict if the plaintiffs offered no expert medical testimony on the standard of care and skill for a circumcision. For purposes of the hearing, both parties stipulated as to what evidence would be presented at trial if plaintiffs' case were to proceed on the merits. ¹ The lower court concluded that plaintiffs' case could not proceed in the absence of expert medical testimony on the requisite standard of care, and, accordingly, dismissed plaintiffs' complaint in an order journalized on March 10, 1987.

Plaintiffs appealed on March 18, 1987 and asserted a single assignment of error:

"The trial court erred by granting defendant's motion for a directed verdict."

The assignment of error is well-taken.

We note at the outset that in professional liability cases involving allegedly negligent conduct, "[t]he issue as to whether the physician and surgeon has proceeded in the treatment of a patient with the requisite standard of care and skill must ordinarily be determined from the testimony of medical experts." Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 130, 75 O.O.2d 184, 186, 346 N.E.2d 673, 676. See, also, Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, 274, 10 OBR 386, 389-390, 461 N.E.2d 1331, 1335. An exception to the rule requiring expert testimony exists when the lack of skill or care of the physician and surgeon is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it. See Bruni v. Tatsumi, supra, 46 Ohio St.2d at 130, 75 O.O.2d at 186, 346 N.E.2d at 677.

In the instant case, plaintiffs contended that the defendant performed the circumcision in a negligent manner. Under the circumstances of this case, we cannot say that the alleged lack of skill or care of the defendant in this case is so apparent as to be within the comprehension of laymen requiring only common knowledge and experience to understand and judge it. Accordingly, some expert testimony on the requisite standard of care and skill would be necessary under these facts to show that the defendant deviated from that standard.

Plaintiffs assert that the doctrine of res ipsa loquitur is applicable to this action and that this doctrine may be used to establish a physician's negligence even in the absence of expert testimony on the appropriate standard of medical care. The doctrine of res ipsa loquitur may be applied in medical malpractice actions, but is only a rule of evidence which allows the trier of fact to draw an inference of negligence from the facts presented. See Morgan v. Children's Hospital (1985), 18 Ohio St.3d 185, 187, 18 OBR 253, 254, 480 N.E.2d 464, 465. See, also, Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, 17 O.O.3d 102, 406 N.E.2d 1385. The doctrine is not applicable in malpractice actions in which its claimed applicability is based solely upon the fact that the treatment was unsuccessful or terminated with poor or unfortunate results. Oberlin v. Friedman (1965), 5 Ohio St.2d 1, 34 O.O.2d 1, 213 N.E.2d 168, paragraph three of the syllabus. In Hake v. George Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 52 O.O.2d 366, 262 N.E.2d 703, the court stated:

"To warrant application of the rule a plaintiff must adduce evidence in support of two conclusions: (1) That the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed." Id. at 66-67, 52 O.O.2d at 367, 262 N.E.2d at 705.

In the instant case, the defendant concedes that the Gomco clamp used in the circumcision procedure was under his exclusive management and control. The only remaining issue is...