Taylor v. Gazall
2017 Ohio 5493
Ohio Ct. App.2017Background
- Plaintiff Linda Taylor, executor of Jeffrey Stubblefield’s estate, sued vascular surgeon Dr. Mark Gazall for medical malpractice after Stubblefield underwent multiple procedures (angioplasty, stent, thrombectomies, endarterectomies, and a femoral‑to‑popliteal bypass) in Jan–Mar 2010 and died shortly after discharge.
- Post‑operative care included a wound vacuum (wound vac) and anticoagulation; Taylor contends the wound vac use was contraindicated and contributed to injury/death.
- Taylor originally filed a malpractice case in 2011, voluntarily dismissed it in 2013, and refiled in 2014; summary judgment was entered for Gazall in 2016 and is appealed.
- Gazall supported summary judgment with a detailed affidavit and medical records asserting his care met the standard and did not cause death; Taylor opposed with Gazall’s deposition transcript and her affidavit of merit filed under Civ.R. 10(D)(2).
- The trial court excluded the affidavit of merit as inadmissible under Civ.R. 10(D)(2) for summary‑judgment purposes and found Taylor failed to present admissible evidence of specific facts showing deviation from the standard of care or causation.
- The appellate court affirmed: the affidavit of merit was properly excluded and the deposition plus the wound‑vac manual did not, without more, satisfy Taylor’s reciprocal evidentiary burden to create a genuine issue of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the affidavit of merit may be used as summary‑judgment evidence | Taylor: the affidavit should be considered to show negligence and causation | Gazall: Civ.R. 10(D)(2) prohibits using the affidavit of merit as evidence or for impeachment | Court: Excluded the affidavit of merit; rule bars its use as summary‑judgment evidence |
| Whether Gazall’s deposition raises a genuine factual dispute about wound‑vac use (standard of care / causation) | Taylor: deposition answers and wound‑vac manual create a factual issue about negligence and causation | Gazall: deposition shows no contraindication and his care conformed to the standard; manual alone insufficient to prove breach or causation | Court: Deposition and manual do not establish the applicable standard, breach, or causation; no genuine issue created |
| Whether the opponent met the reciprocal burden after movant met initial burden on summary judgment | Taylor: her materials satisfied reciprocal burden | Gazall: plaintiff failed to produce admissible, specific evidentiary materials under Civ.R. 56 | Court: Taylor failed to point to admissible specific facts/evidence to meet reciprocal burden |
| Whether questions by plaintiff’s counsel can be treated as creating factual disputes | Taylor: counsel’s deposition questioning highlights issues | Gazall: only admissible answers/evidence matter, not counsel’s hypotheticals | Court: Court will not treat counsel’s speculative questions as evidence; only admissible testimony/materials considered |
Key Cases Cited
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (Ohio 1978) (summary‑judgment standard and construction of evidence for nonmoving party)
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201 (Ohio 1998) (summary judgment review and standards)
- Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (Ohio 1988) (movant’s burden to establish no genuine issue of material fact)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (Ohio 1996) (reciprocal burden of nonmoving party and admissible evidence required)
- Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (Ohio 1976) (plaintiff must prove standard of care, breach, and proximate causation)