2019 Ohio 3733
Ohio Ct. App.2019Background
- Sharon McHugh, longtime patient of Dr. James Fraser, underwent extraction of two teeth on March 14, 2016 for periodontal disease.
- On March 17, 2016 Sharon was bitten by her dog; the bite broke the skin. Within days she developed flu-like symptoms and was diagnosed with sepsis, renal failure, thrombocytopenia; treating records attributed sepsis to Capnocytophaga from a dog bite.
- Sharon was hospitalized multiple times, required splenectomy and other surgeries, and sustained significant injuries.
- Plaintiffs (Sharon, Charles McHugh, and subrogated insurer) sued Dr. Fraser for dental malpractice, alleging breaches including failure to prescribe antibiotics; they produced an expert, Dr. Morhaim, whose report said Dr. Fraser’s substandard care "may have acted" as a contributing factor.
- Defendant moved for summary judgment arguing plaintiffs could not prove proximate cause; the trial court granted summary judgment, finding plaintiffs’ expert could not state causation to a reasonable degree of dental/medical certainty and hospital records supported the dog-bite cause. Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of dog-bite/hospital records on summary judgment | Court should not consider hospital records or counsel's "assertion" about dog bite; evidence was inadmissible | Records and Sharon's deposition show dog bite; records and testimony are proper Civ.R. 56(C) evidence | Court properly considered Sharon's deposition and hospital records; dog bite evidence admissible |
| Adequacy of plaintiff expert on proximate cause | Dr. Morhaim's report and depo create triable issue that Fraser's breaches (esp. failure to prescribe antibiotics) contributed to infection | Expert could not say to reasonable degree of dental certainty that Fraser caused sepsis; thus proximate cause element unmet | Expert testified only that Fraser "may have" contributed and expressly could not state "more likely than not" causation; testimony legally insufficient |
| Cumulative evidence (including affidavit of merit) creates a material fact issue | Affidavit of merit and expert materials cumulatively establish causation issue for trial | Affidavit of merit is not admissible summary-judgment evidence; only expert depo/report relevant and it was deficient | Affidavit of merit is not Civ.R. 56(C) evidence; plaintiffs failed to produce admissible evidence on causation |
| Whether expert testimony was unnecessary because causation was obvious | Capnocytophaga is common oral flora; lay jurors could infer dental origin without expert; Fraser admitted breach (no antibiotics) | Microbiology and causation are beyond lay knowledge; expert testimony required to connect breach to sepsis | Exception to expert testimony inapplicable; causation required expert explanation |
| Constitutional challenge to dental licensing scheme | Licensing/CE rules insufficiently specific, depriving due process and plaintiffs’ day in court | Challenge was not pleaded below and Attorney General not served; procedural defects and jurisdictional rules bar review | Issue waived for failure to raise below and to serve AG; court lacks jurisdiction to adjudicate statute's constitutionality |
Key Cases Cited
- Comer v. Risko, 106 Ohio St.3d 185 (sets de novo summary-judgment review standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (allocates burdens on summary-judgment movant and nonmovant)
- Welco Indus., Inc. v. Applied Cos., 67 Ohio St.3d 344 (courts should construe doubts for nonmoving party)
- White v. Leimbach, 131 Ohio St.3d 21 (expert causation must be stated in terms of medical probability)
- Stinson v. England, 69 Ohio St.3d 451 (causation must be expressed as greater-than-50% likelihood)
- Anderson v. Liberty Lobby, 477 U.S. 242 (definition and treatment of "genuine issue" and material fact)