Marcum v. Holzer Clinic, Inc., 2004 Ohio 4124 (OH 7/22/2004), Case No. 03CA25.
| Citation | 2004 Ohio 4124 |
| Decision Date | 22 July 2004 |
| Docket Number | Case No. 03CA25. |
| Parties | Kristina R. Marcum, D.O., et al., Plaintiffs-Appellants, v. Holzer Clinic, Inc., et al., Defendants-Appellees. |
| Court | Ohio Supreme Court |
Rodger A. Marting, Circleville, Ohio, for Appellants.
J. Todd Davis, Columbus, Ohio, for Appellees Holzer Clinic, Inc., Jamal Haddadd, D.O., and Charles Stone, M.D.
DECISION AND JUDGMENT ENTRY
{¶1} Dr. Kristina Marcum, D.O., and Dan Marcum appeal the trial court's summary judgment entered in favor of Holzer Clinic, Inc., Dr. Jamal Haddad, D.O., and Dr. Charles Stone, M.D. in Marcum's medical malpractice action. They contend that the court improperly entered summary judgment in appellees' favor because: (1) Drs. Haddad's and Stone's affidavits attesting that they complied with the applicable standard of care in their treatment of Dr. Marcum are inherently self-serving, incompetent, and should not be considered as Civ.R. 56 evidence; (2) genuine issues of material fact remain regarding whether res ipsa loquitur applies; and (3) genuine issues of material fact remain regarding the torts of battery and lack of informed consent.1
{¶2} Because the Ohio Supreme Court has explicitly recognized that a defendant-treating physician's affidavit attesting that he complied with the applicable standard of care in a medical malpractice action is competent evidence in Civ.R. 56 proceedings, the trial court did not erroneously consider Drs. Haddad's and Stone's affidavits. Second, even under a res ipsa loquitur theory, expert testimony is required in medical malpractice cases. Appellants have none, and thus, the trial court did not err by entering summary judgment under this theory. Third, no genuine issues of material fact remain regarding the torts of battery or lack of informed consent. Appellees presented admissible Civ.R. 56 evidence showing that Dr. Marcum was properly informed, and appellants did not respond with competent Civ.R. 56 evidence regarding this issue. Thus, the court properly entered summary judgment on this claim. Therefore, we affirm the trial court's judgment.
{¶3} Dr. Marcum underwent surgery to attempt to correct problems associated with endometriosis and abdominal adhesions. During surgery, an enterotomy (a hole in the small bowel) occurred. Dr. Marcum's surgeon, Dr. Haddad, consulted Dr. Stone, who repaired the enterotomy.
{¶4} Appellants filed a complaint against several defendants, including Holzer Clinic, Inc., Dr. Jamal Haddad, D.O., and, Dr. Charles Stone, M.D.2 They alleged medical malpractice, battery/tort of lack of informed consent, loss of consortium, negligence, mental anguish, and violation of the family medical leave act.3
{¶5} Appellees subsequently filed a summary judgment motion. In it, they argued that no genuine issue of material fact remained regarding whether they complied with the applicable standard of care. They referred to Dr. Haddad's and Dr. Stone's affidavits in which each averred that he, and the other, complied with the applicable standard of care. Dr. Haddad attested that during the surgery, an enterotomy occurred and that this is a known complication of the surgery he performed on Dr. Marcum. When he discovered the enterotomy, he immediately consulted Dr. Stone, a general surgeon. Dr. Stone successfully repaired the enterotomy. Dr. Haddad opined that both he and Dr. Stone exercised that degree of skill, care, and diligence required by the recognized standards of the medical community. Dr. Stone similarly opined that both he and Dr. Haddad exercised proper care in their treatment of Dr. Marcum. Dr. Haddad further asserted that before surgery, he explained the risks and complications. Appellees then argued that in light of their evidence, appellants carried a burden to come forward with admissible Civ.R. 56 evidence showing the existence of a genuine issue of material fact.
{¶6} In response to appellees' motion, appellants claimed that appellees had failed to identify their expert witnesses and requested the court to prohibit appellees from calling expert witnesses. Appellants also argued that appellees filed their motion before completion of discovery and that appellees were wrong to state that appellants carry a burden to show a genuine issue of material fact.
{¶7} In an attempt to create a genuine issue of material fact, appellants submitted Dr. Marcum's affidavit. She stated:
{¶8} She further asserted that appellants (1) exceeded the consent given, (2) "the actions and failures to act of Defendant are negligent," (3) "the actions and failures to act of Defendants have caused substantial mental anguish to both Plaintiffs," and (4) "there are material issues of genuine fact in this matter, as is set forth above and as will be more fully elicited at trial." Nowhere in her affidavit did she state that she is licensed to practice medicine and devotes at least fifty percent of her professional time in the active clinical practice of medicine.
{¶9} Appellees then filed a response attacking Dr. Marcum's affidavit. Appellees asserted that the trial court should not consider her affidavit because her expert medical testimony is not admissible. Appellees argued that Dr. Marcum's affidavit was not based on personal knowledge because at the time: (1) she was under general anesthesia, which rendered her unconscious; (2) she did not state that she reviewed medical records; and (3) she did not state that she has personal knowledge regarding the standard of care for a gynecologic surgeon or a general surgeon. Appellees further pointed out that Dr. Marcum's failed to comply with Evid.R. 601(D): She did not state that she is licensed to practice medicine or that she spends more than one-half of her professional time in the active clinical practice of medicine. Finally, appellees noted that Dr. Marcum did not express her opinions within a reasonable degree of medical certainty.
{¶10} Appellants answered appellees' response, but did nothing to correct the deficiencies with Dr. Marcum's affidavit, and they did not produce any other evidence.
{¶11} The court granted appellees summary judgment on all claims because it agreed with appellees that Dr. Marcum was not competent to render an expert opinion on the issues before it. It thus concluded that appellees, by producing Drs. Haddad's and Stone's affidavits, met their burden of showing the absence of a material fact regarding whether appellees failed to comply with the applicable standard of care and that appellants failed to reciprocate. The court then concluded that the remaining claims were dependent upon appellants' medical malpractice claim and that because the medical malpractice claim could not survive appellees' summary judgment motion, none of the other claims could.
{¶12} Appellants' brief does not set forth traditional assignments of error in the manner required by App.R. 16. Instead, they raise "Issues Presented" and identify "assignments of error" in general fashion. Nonetheless, we will review their "issues presented" along with the "assignments of error" and address what we believe are the main arguments.
{¶13} First, they contend that the court incorrectly considered Drs. Haddad's and Stone's affidavits, which attest that they complied with the applicable standard of care in their treatment of Dr. Marcum. They claim that the court should not have considered the affidavits because: (1) appellees failed to identify Drs. Haddad and Stone as expert witnesses; (2) neither doctor was subject to cross-examination; (3) Dr. Haddad cannot be an expert witness for Dr. Stone, and Dr. Stone cannot be an expert witness for Dr. Haddad; (4) Dr. Stone, a general surgeon, is not competent to testify concerning the standard of care for a gynecologic surgeon; and (5) Dr. Stone lacks personal knowledge of the events leading up to the enterotomy, because he was not present at that moment. Second, appellants contend that genuine issues of material fact remain concerning whether they can prevail under a res ipsa loquitur theory, arguing that the doctrine places the burden on appellees to prove that they were not at fault. Third, appellants assert that genuine issues of material fact remain regarding the torts of battery and lack of informed consent, claiming that Dr. Marcum's affidavit regarding this issue conflicts with Dr. Haddad's affidavit.
{¶14} We conduct a de novo review of a trial court's summary judgment decision. See, e.g., Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Lexford Prop. Mgmt., L .L.C. v. Lexford Prop. Mgmt., Inc. (2001), 147 Ohio App.3d 312, 316, 770 N.E.2d 603. Under Civ.R. 56, summary judgment is proper when: (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 but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion is made, that conclusion is adverse to that party. See, e.g., Grafton.
{¶15} A court may not sustain a summary judgment motion solely on the moving party's conclusory assertion that the nonmoving party has no evidence to prove its case. Instead, the "party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial...
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...at ¶15, citing Cunningham v. Children's Hosp., Franklin App. No. 05AP-69, 2005-Ohio-4284, at •¶12, citing Marcum v. Holzer Clinic, Inc., Gallia App. No. 03CA25, 2004 Ohio 4124, at ¶19. It is unrebutted that Dr. Cook is a licensed physician, specializing in the practice of general surgery, i......