Miller v. Metrohealth Med. Ctr., 106104
| Decision Date | 29 March 2018 |
| Docket Number | No. 106104,106104 |
| Citation | 2018 Ohio 1202 |
| Parties | HANSFORD MILLER PLAINTIFF-APPELLANT v. METROHEALTH MEDICAL CENTER A.K.A. METROHEALTH HOSPITAL, ET AL. DEFENDANTS-APPELLEES |
| Court | Ohio Court of Appeals |
ATTORNEY FOR APPELLANT
George K. Simakis
George K. Simakis Attorney at Law L.L.C.
4186 Pearl Road
Cleveland, Ohio 44109
ATTORNEYS FOR APPELLEES
Kris H. Treu
Timothy Y. Chai
Moscarino & Treu, L.L.P.
{¶1} Plaintiff-appellant Hansford Miller appeals from the trial court's decision granting partial summary judgment in favor of defendants-appellees, MetroHealth Medical Center ("MetroHealth") and Paul Priebe, M.D. (collectively, "appellees") on Miller's medical battery claim. For the reasons that follow, we affirm the trial court's judgment.
Factual and Procedural Background
{¶2} In 2012, Miller sought treatment for abdominal pain with Dr. Priebe at MetroHealth. Dr. Priebe diagnosed Miller with a bilateral inguinal and umbilical hernia and recommended surgery to repair the hernia. Miller executed a written consent form, consenting to the surgery (the "June 11, 2012 consent form"). On June 11, 2012, Dr. Priebe performed the surgery, using a mesh implant to repair the hernia. Nathaniel_Liu, M.D., assisted Dr. Priebe with the surgery (the "June 11, 2012 surgery" or the "first surgery").
{¶3} Miller was discharged on June 12, 2012. After Miller returned home, he began experiencing complications from the surgery. On June 16, 2012, he returned to MetroHealth complaining of severe abdominal pain. He underwent a second surgery on June 17, 2017 (the "June 17, 2012 surgery" or the "second surgery"). Dr. Priebe performed the second surgery. The second surgery was successful and Miller experienced no additional postoperative complications._ {¶4} Miller contends that, prior to the second surgery, he told several MetroHealth employees that he did not want Dr. Priebe to perform the second surgery. Nevertheless, he executed a written consent form, indicating his consent to "[e]xploration and ventral hernia repair with mesh" to be performed by Dr. Priebe.
{¶5} Miller filed suit against MetroHealth and Dr. Priebe in May 2013. In July 2014, he voluntarily dismissed his complaint. A year later, Miller re-filed his action against Dr. Priebe and MetroHealth asserting claims of "negligence— medical malpractice" related to the June 11, 2012 surgery and a battery claim based on lack of consent to the June 17, 2012 surgery. Miller alleged that Miller had breached the "acceptable standard of medical care" by failing to properly implant the mesh in the first surgery and claimed that he had specifically instructed MetroHealth staff, prior to his second surgery, that he did not want Dr. Priebe performing that surgery. Appellees filed answers denying liability and asserting various affirmative defenses.
{¶6} In June 2017, appellees filed a motion for partial summary judgment on the battery claim, arguing that it "has no basis under Ohio law" because Miller gave written consent for the surgery. In support of their motion, appellees submitted excerpts from Miller's deposition and a copy of the June 16, 2012 consent form signed by Miller. Miller opposed the motion, asserting that although he had executed the consent form, he did not, in fact, consent to Dr. Priebe performing the second surgery. He contended that in his testimony that he verbally informed MetroHealth that he did not want Dr. Priebe to perform the second surgery and that he was unaware that what he signed was a consent form for the second surgery. That, along with the testimony of his expert, MichaelWingate, M.D., that Miller did not consent to the second surgery created genuine issues of material fact for trial on the battery claim according to Miller. In support of his opposition, Miller attached excerpts from his deposition, a copy of the consent form for the second surgery and affidavits executed by himself and his expert.
{¶7} On July 18, 2017, the trial court granted defendant's motion for partial summary judgment on the battery claim, entered judgment on that claim and certified the matter for immediate appeal under Civ.R. 54(B), indicating that there was "no just cause for delay."1 Miller appealed, raising the following sole assignment of error for review:
The Trial Court erred when in granted Appellees' Motion for Partial Summary Judgment (battery claim) because Appellant did not consent to receiving medical care and treatment from Appellee Paul Priebe, M.D. on or about June 16, 2012 as evidenced by Appellant's Affidavit, Appellant's deposition testimony and expert Affidavit.
Law and Analysis
Standard of Review
{¶8} We review summary judgment rulings de novo, applying the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We accord no deference to the trial court's decision and conduct an independent review of the record to determine whether summary judgment is appropriate.
{¶9} Under Civ.R. 56, summary judgment is appropriate when no genuine issue as to any material fact exists and, viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party, entitling the moving party to judgment as a matter of law.
{¶10} On a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, the nonmoving party has the reciprocal burden to point to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial. Id. at 293. Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id.
{¶11} "Although courts are cautioned to construe the evidence in favor of the nonmoving party, summary judgment is not to be discouraged where a non-movant fails to respond with evidence supporting the essentials of his claim." Mayhew v. Massey, 2017-Ohio-1016, 86 N.E.3d 758, ¶ 11 (7th Dist.), citing Leibreich v. A.J. Refrig., Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993). Civ.R. 56 must be applied in a manner that balances the right of the nonmoving party to have a jury try claims that are adequatelybased in fact with the right of the moving party to demonstrate, prior to trial, that the claims have no factual basis. See, e.g., Mayhew at ¶ 11, citing Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 11.
Medical Battery
{¶12} In his sole assignment of error, Miller contends that the trial court erred in granting partial summary judgment in favor of appellees on his battery claim.
{¶13} To recover on a claim for battery, a plaintiff must prove an "intentional, unconsented-to touching." Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St.3d 82, 84, 671 N.E.2d 225 (1996); Schwaller v. Maguire, 1st Dist. Hamilton No. C-020555, 2003-Ohio-6917, ¶ 14; Lipp v. Kwyer, 6th Dist. Lucas No. L-02-1150, 2003-Ohio-3988, ¶ 25. _Every competent adult has a right to decide what is done to his or her body. Lipp at ¶ 24, citing Siegel v. Mt. Sinai Hosp., 62 Ohio App.2d 12, 21, 403 N.E.2d 202 (8th Dist.1978). In a medical setting, if a physician treats a patient without authorization or consent, the physician has committed a technical battery — even if the procedure is beneficial or harmless. Lacey v. Laird, 166 Ohio St. 12, 139 N.E.2d 25 (1956), paragraph one of the syllabus; Maglosky v. Kest, 8th Dist. Cuyahoga No. 85382, 2005-Ohio-5133, ¶ 24; Estate of Leach v. Shapiro, 13 Ohio App.3d 393, 395, 469 N.E.2d 1047 (9th Dist.1984); see also Dean v. Akron Gen. Med. Ctr., 9th Dist. Summit No. 18636, 1999 Ohio App. LEXIS 6169, *13 (Dec. 22, 1999) ().
{¶14} Unconsented touching can arise either because no consent was given or because the consent that was given was limited and the procedure(s) performed wentbeyond the consent given. See, e.g., Dean at *13; see also Leach at 395 ( ).
{¶15} Where, however, a patient gives express, informed consent prior to medical treatment, there is no battery. If a defendant offers proof that a plaintiff has consented to a medical procedure and the plaintiff fails to present evidence that the procedure was performed without informed consent or that the procedure performed exceeded his or her informed consent, "there is a failure of proof on an essential element of battery." Marcum v. Holzer Clinic, Inc., 4th Dist. Gallia No. 03CA25, 2004-Ohio-4124, ¶ 37; citing Lipp, 2003-Ohio-3988. Whether consent has been given is generally an issue of fact. Leach at 395, citing Wells v. Van Nort, 100 Ohio St. 101, 125 N.E. 910 (1919).
{¶16} Miller contends he did not consent to the second surgery and that, therefore, the second surgery constituted an intentional, nonconsensual touching. Miller does not dispute that he signed the consent form on June 16, 2012. However, he claims that he also told certain MetroHealth staff he did not want Dr. Priebe performing the second surgery. He argues his deposition and affidavit testimony and the affidavit from his expert Dr. Wingate were sufficient to create a jury question as to whether ...
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