2022 Ohio 80
Ohio Ct. App.2022Background
- On Jan. 7, 2017, plaintiff Frederick Myers, who used a wheelchair, visited Hudec Dental for treatment; dental assistant Xiomara Rosario tried to position him for a panoramic x-ray.
- Rosario testified she assisted and held Myers as he stood for the x-ray; Myers alleges Rosario released him and he fell, fracturing his right ankle.
- Staff helped Myers back into his wheelchair; Myers told staff and treating dentist Dr. Koshy he was uninjured and proceeded with a multi-hour exam; swelling was reported to his son the next day.
- Myers sued Hudec, Dr. Koshy, and Rosario for negligence and punitive damages; an affidavit of merit from Dr. Edmund Effort was attached but later challenged as insufficient.
- Defendants moved for summary judgment arguing Myers lacked expert proof of the dental standard of care, the affidavit/report was untimely and inadequate under Loc.R.21.1 and Civ.R.26(B)(7), and punitive-damage prerequisites were unmet.
- The trial court granted summary judgment, concluding Myers’ claims were dental claims requiring expert proof, the affidavit of merit was deficient and not admissible to defeat summary judgment, and no genuine issue of material fact remained. Myers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to prove negligence | Myers: no expert required because the fall was ancillary to treatment and obvious to laypersons | Hudec: claim arises from dental treatment; expert required to prove standard of care and causation | Court: Expert testimony required. Claim is a dental claim under R.C. 2305.113(E)(6); no lay-obviousness exception here |
| Whether Myers’ affidavit of merit / expert report satisfied Loc.R.21.1 and Civ.R.26(B)(7) | Myers: submitted affidavit of merit with complaint; that satisfied requirements | Hudec: affidavit was substantively deficient and late; plaintiff failed to exchange expert report per local and civil rules | Court: Affidavit omitted required expert statements and is inadmissible under Civ.R.10(D); expert report was untimely; trial court did not abuse discretion in excluding and granting summary judgment |
Key Cases Cited
- Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976) (expert testimony generally required to establish medical/dental standard of care unless matter is within common knowledge)
- Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711 (1996) (medical-staff failure-to-supervise facts where lay knowledge sufficed; distinguishable where staff left a high-risk patient unattended)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (party moving for summary judgment bears initial burden; nonmoving party must show specific opposing facts)
- Menifee v. Ohio Welding Prods., 15 Ohio St.3d 75 (1984) (elements of negligence: duty and breach)
- Jones v. Hawkes Hosp. of Mt. Carmel, 175 Ohio St. 503 (1964) (examples where expert testimony not required because negligence was obvious to laypersons)
- Adkinson v. Alex Bell Dental — Daniel Cobb DDS, LLC, 162 N.E.3d 187 (2020) (discusses when dental standard of care requires expert proof and when lay inference may suffice)