Kenneth L. West v. Cleveland Clinic Foundation, 00-LW-2813

• Decision Date: 15 June 2000
• Docket Number: 77183,00-LW-2813
• Parties: KENNETH L. WEST, ET AL., Plaintiffs-Appellants v. CLEVELAND CLINIC FOUNDATION, ET AL., Defendants-Appellees CASE
• Court: Ohio Court of Appeals

KENNETH L. WEST, ET AL Plaintiffs-Appellants v. CLEVELAND CLINIC FOUNDATION, ET AL Defendants-Appellees

No. 77183.

00-LW-2813 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

June 15, 2000

Civil appeal from Court of Common Pleas, Case No. 373603.

For Plaintiffs-Appellants: DAVID H. DAVIES, ESQ., P.O. Box 1264 Willoughby, Ohio 44096.

For Defendants-Appellees: KRIS H. TREU, ESQ., EDWARD S. JERSE, ESQ., Moscarino & Treu, L.L.P., The Hanna Building, 1422 Euclid Ave., #630, Cleveland, Ohio 44115.

OPINION

JAMES M. PORTER, J.

This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1.

Plaintiffs-appellants Kenneth and Alta West, husband and wife, appeal from summary judgment entered by the trial court in favor of the defendants-appellees Cleveland Clinic Foundation and Dr. Iain H. Kalfas on plaintiffs' medical malpractice claim for injury during back surgery. The trial court granted summary judgment and dismissed the case on the grounds that plaintiffs failed to produce an expert report or testimony establishing the standard of care or breach thereof being the proximate cause of plaintiff's injuries. We find no error and affirm.

The plaintiffs originally filed this action on August 14, 1996. In October 1997, the trial court ordered the plaintiffs to produce an expert report by November 14, 1997. On December 8, 1997, after they failed to produce an expert report by the required date, the defendants filed a motion for summary judgment. On January 20, 1998, while that motion was pending, the plaintiffs voluntarily dismissed the action without prejudice.

On January 11, 1999, the plaintiffs refiled this action. On March 25, 1999, the trial court ordered the plaintiffs to produce an expert report by May 21, 1999^[1] and set the case for trial on September 27, 1999. As of July 15, 1999, almost two months after the court's deadline, the plaintiffs still had not produced an expert report or requested an extension of time in which to do so.

On July 15, 1999, the defendants filed a motion for leave to file a motion for summary judgment instanter with an attached motion for summary judgment. The defendants sought summary judgment based on the plaintiffs' failure to produce an expert report in support of their claims. In an August 9, 1999 entry, the trial court granted the defendants' motion for leave to file the attached motion.

On September 1, 1999; following a pre-trial, the trial court issued a journal entry stating that plaintiffs "still has not produced report" and that the trial date of September 27, 1999 remained "firm." As the trial date approached, the plaintiffs still had not produced an expert report, moved for an extension of time, or responded to the defendants' motion for summary judgment. Finally, on September 24, 1999, only three days before trial, the plaintiffs filed a motion to continue the trial date for a minimum of ninety days to allow completion of discovery, to extend the time for the production of plaintiffs' expert report until September 27, 1999, and to allow fourteen days from that date to respond to the defendants' motion for summary judgment.

On September 29, 1999, the court denied the plaintiffs' motion and granted summary judgment in favor of the Clinic and Dr. Kalfas. The plaintiffs' motion to reconsider was denied and this timely appeal ensued.

Plaintiffs' sole assignment of error states as follows:

I.

THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.

Appellate review of summary judgments is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105; Zemcik v. La Pine Truck Sales & Equipment (1998), 124 Ohio App.3d 581, 585. The Ohio Supreme Court recently restated the appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-70 as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.

Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E). Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59.

Plaintiffs, in their three and one-half page brief on appeal argue in conclusory fashion several procedural and substantive points without citation to any authority or parts of the record on which they rely in violation of App.R. 16 (A)(7). The thrust of these arguments seems to be that it was unfair to grant summary judgment without giving plaintiffs further time to file an expert report or oppose the summary judgment motion.

Plaintiffs argue that "[t]he allegations of the Complaint may be established without expert testimony." In other words, plaintiffs contend that allegations of the complaint are sufficient if established to allow a lay jury to infer medical malpractice from the circumstances alleged. We find this argument unpersuasive. Plaintiffs themselves describe this as "an action for medical malpractice" and their complaint alleges that medical care given by the defendants "fell below the acceptable and/or reasonably prudent standard of care." (Aplts' Brf. at 1; Complaint ¶7). The plaintiffs simply conclude that "the allegations of the Complaint may be established without expert testimony." (Aplt's Brf. at 4) They offer no explanation or argument for their conclusion.

The lower court recognized that in the ordinary case where plaintiff is alleging substandard medical treatment, the plaintiff must provide expert medical opinion to establish a prima facie case. The plaintiff may not simply rest upon the allegations of medical negligence as stated in his complaint. Saunders v. Cardiology Consultants, Inc. (1990), 66 Ohio App.3d 418, 420; Hoffman v. Davidson (1987), 31 Ohio St.3d 601 61; Guth v. Huron Road Hospital (1987), 43 Ohio App.3d 83, 84.

In McAlpine v. St. Vincent Charity Hosp. (Dec. 16, 1999), Cuyahoga App. No. 75509, unreported, this Court recently set forth the requirement of expert testimony in a medical malpractice claim as follows:

A plaintiff in a malpractice action is required to provide expert testimony establishing the standard of care and that it was not met. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 130. It is well established that "[f]ailure to provide the recognized standards of the medical community is fatal to the presentation of a prima facie case of medical malpractice by the Plaintiffs." Finley v. U.S.A. (N.D. Ohio 1970), 314 F.Supp. 905, 911; Rogoff v. King (1993), 91 Ohio App.3d 438, 446; Jones v. Roche Laboratories (1992), 84 Ohio App.3d 135, 139; Copeland v. University Radiologists of Cleveland, Inc. (Apr. 22, 1993), Cuyahoga App. No. 62332, unreported at 11.

This requirement of expert testimony in a medical malpractice action also extends to the question of informed consent. The tort of lack of informed consent consists of the following elements:

"(a) The physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any;

(b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and

(c) a reasonable person in the position of the patient would have decided against the therapy had the material risks and dangers inherent and incidental to treatment been disclosed to him or her prior to the therapy."

Stewart v. Cleveland Clinic Foundation (Nov. 24, 1999), Cuyahoga App. No. 75430, unreported, quoting Nickell v. Gonzalez (1985), 17 Ohio St.3d 136.

"[I]n order to prevail on a claim for lack of informed consent, medical expert testimony is necessary to establish the significant risks which would have been disclosed to support the plaintiff's claim since the probability and magnitude of those risks is a matter of medical judgment beyond the knowledge of the lay person." Ratcliffe v. University Hospitals of Cleveland (Mar. 11, 1993), Cuyahoga App. No. 61791, unreported, citing Ware v. Richey (1983), 14 Ohio App.3d 3, 7. The court in Bedel v. Univ. OB/GYN Assoc., Inc. (1991), 76 Ohio App.3d 742, 744, similarly explained:

Generally, the plaintiff has the burden of proving by expert medical evidence what a reasonable medical practitioner of same discipline, practicing in the same or similar communities under the same or similar circumstances, would have disclosed to his patient about the risks incident to a proposed treatment, and of proving that the physician departed from that standard. Pierce v. Goldman (May 17, 1989), Hamilton App. No. C-880320, unreported. Proof of the recognized standards of the medical community must be provided through expert testimony. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127.

Based on the above authorities, it is clear that medical malpractice claims,...