Purnell Sweeney, Adm. v. Deaconess Hospital of Cleveland

• Court: Ohio Court of Appeals
• Writing for the Court: CORRIGAN, J.
• Decision Date: 30 December 1993
• Docket Number: 93-LW-5322,64349 and 64357
• Citation: Purnell Sweeney, Adm. v. Deaconess Hospital of Cleveland, 64349 and 64357, 93-LW-5322 (Ohio App. Dec 30, 1993)
• Parties: PURNELL SWEENEY, ADM., ET AL., Plaintiff-Appellants v. DEACONESS HOSPITAL OF CLEVELAND, Defendant-Appellee NO. 64349 and 64357.

PURNELL SWEENEY, ADM., ET AL Plaintiff-Appellants v. DEACONESS HOSPITAL OF CLEVELAND Defendant-Appellee No. 64349, 64357.

93-LW-5322 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

December 30, 1993

Civil appeal from Common Pleas Court Case Nos. CV-162236 and CV-190732.

For Plaintiff-Appellant: NWABUEZE OKOCHA, Okocha & Associates Co., L.P.A., 409 Investment Building, 601 Rockwell Avenue Cleveland, Ohio 44114-1602.

For Defendant-Appellees Deaconess Hospital: DALE E. MARKWORTH, 2150 Illuminating Building, 55 Public Square, Cleveland, Ohio 44113-1994. and Richard Ader, M.D.

Ronald John Bacik, M.D.: ROBERT C. SEIBEL, DOUGLAS G. LEAK, Jacobson, Maynard, Tuschman & Kalur, 1001 Lakeside Avenue #1600, Cleveland, Ohio 44113-1994.

Jose S. Arias, M.D.: GEORGE S. COAKLEY, NANCY F. ZAVELSON, Reminger & Reminger, 113 St. Clair Bldg., Cleveland, Ohio 44114-1273.

OPINION

CORRIGAN, J.

The consolidated appeals sub judice stem from two wrongful death/medical malpractice and related tort actions following the death of Sylvia Sweeney at Deaconess Hospital of Cleveland ("Deaconess") after delivery of a child. Decedent delivered a baby boy May 26, 1986, became ill while hospitalized and died nine days thereafter on June 4, 1986. The claims stem from the alleged failure to diagnose and treat decedent's condition during the five day period following May 31, 1986.

The record demonstrates that three separate actions were filed in the trial court. The first complaint, which is not contained in the record, was filed against obstetrician Dr. Jose Arias, M.D. in Case No. CV-118472 October 29, 1986 (the "First Case"). The First Case was assigned to Judge Gorman and voluntarily dismissed on December 29, 1987.

Plaintiff Purnell Sweeney, individually, as administrator of the estate of Sylvia Sweeney and as next friend of decedent's two surviving minor children, and decedent's father Nelson Rodriguez obtained new counsel and filed a second complaint against Deaconess and Dr. Arias in Case No. CV-162236 December 21, 1988 (the "Second Case"). Plaintiffs' complaint in the Second Case raised five "claims" for wrongful death, medical malpractice, negligence, mental anguish and loss of consortium and was originally assigned to Judge Pokorny.

Deaconess and Dr. Arias filed motions for partial summary judgment on plaintiffs' wrongful death and loss of consortium claims in the Second Case based on the statute of limitations in October, 1989. The trial court granted partial summary judgment in favor of defendants Deaconess and Dr. Arias on the wrongful death and loss of consortium claims in an order journalized February 5, 1990. Judge Pokorny thereafter transferred the Second Case to Judge Gorman who presided over the First Case prior to the voluntary dismissal.

Plaintiffs thereafter filed an amended complaint in the Second Case which sought to raise claims against three additional defendants involved in the treatment of decedent at Deaconess prior to her death, viz.: (1) Dr. Richard Ader, M.D., a cardiologist; (2) Dr. Ronald Bacik, M.D, a pulmonologist; and (3) Dr. Mandapat, M.D., an internist. The trial court "dismissed" the amended complaint in the Second Case in an order journalized June 21, 1990.

Plaintiffs thereafter filed a separate complaint against Doctors Ader, Bacik and Mandapat in Case No. CV-190732 May 25, 1990 (the "Third Case"). Plaintiffs' complaint and subsequent amended complaint in the Third Case raised claims for negligence, medical malpractice, mental anguish and loss of consortium. The Third Case was originally assigned to Judge Zingale who subsequently entered an order transferring the Third Case to Judge Gorman who was presiding over the Second Case. Judge Gorman thereafter consolidated the Second and Third Cases in an order journalized July 17, 1990. Plaintiffs voluntarily dismissed with prejudice all claims against Doctors Ader, Bacik and Mandapat under the amended complaint in the Third Case except for Purnell Sweeney's individual claim for loss of consortium.

The trial court thereafter dismissed the action against Dr. Mandapat on September 18, 1990. The remaining four defendants thereafter filed motions for summary judgment on all claims pending against them. Defendants' motions for summary judgment in the Second and Third Case were based in part on the deposition testimony of plaintiffs' expert, Dr. Lawrence Repsher, M.D., a pulmonologist and critical care physician,and argued plaintiffs failed to establish a prima facie case against them. The record demonstrates plaintiffs did not oppose defendants motions for summary judgment in an order journalized in the Second and Third Case December 18, 1991.

Plaintiffs thereafter filed a motion to vacate the judgment in the Second and Third Case and notices of appeal to this Court of Appeals in Case Nos. 63106 and 63105, respectively. The trial court subsequently granted plaintiffs' motion to vacate the December summary judgments for defendants in an order journalized in the Second and Third Case on January 23, 1992. The trial court order vacating the summary judgment entries specifically granted plaintiffs until March 1, 1992 to respond to defendants' pending motions for summary judgment. Plaintiffs' appeals in Court of Appeals Case Nos. 63105 and 63106 were thereafter voluntarily dismissed.

The record demonstrates plaintiffs failed to respond to defendants' motions for summary judgment by the March 1, 1992 deadline set forth in the order vacating the prior summary judgment entries and did not request an extension of time to respond. Plaintiffs filed their belated brief in opposition to defendants' motions for summary judgment with accompanying material more than two weeks thereafter on March 17, 1992. Plaintiffs requested leave to file the belated motion instanter by motion filed on March 18, 1992. The trial court again granted defendants' motions for summary judgment, without ruling on plaintiffs' motion for leave to file their belated opposition, in an order journalized in the Second and Third Cases on August 11, 1992.

Plaintiffs timely filed separate notices of appeal in Court of Appeals Case Nos. 64349 and 64357 from the trial court order granting defendants summary judgment in the Second and Third Case. This Court of Appeals thereafter consolidated the two appeals for disposition in an order journalized October 7, 1992. Plaintiff subsequently settled and dismissed all claims against Deaconess in the Second Case in an order journalized December 18, 1992.

Plaintiffs' sole assignment of error in the two consolidated appeals follows:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT INASMUCH AS THERE REMAIN GENUINE ISSUES OF MATERIAL FACT FOR A JURY TO DETERMINE.

Plaintiffs' sole assignment of error lacks merit.

Plaintiffs contend the trial court improperly granted summary judgment in favor of Doctors Arias, Ader and Bacik in the Second and Third Cases since the deposition and affidavit testimony of Dr. Repsher established a prima facie case of medical malpractice necessary to sustain their claims. However, based on our review of the record sub judice, plaintiffs have failed to exemplify any error.

It is well established that summary judgment is warranted pursuant to Civ. R. 56(C) when, after construing the evidence timely filed in the action most strongly in favor of the nonmoving party, there is no genuine issue of material fact, reasonable minds can come to but one conclusion and the moving party is entitled to judgment as a matter of law. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Morris v. Children's Hospital Medical Ctr. (1991), 73 Ohio App.3d 437. The Ohio Supreme Court has recognized that to defeat summary judgment in cases involving medical claims, plaintiff must produce evidence to establish (1) breach of the applicable standard of care and (2) injury proximately caused by the deviation from the standard of care, stating as follows:

In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions or circumstances, and that

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