COREY O‘STRICKER v. ROBINSON MEMORIAL HOSPITAL FOUNDATION, et al.
CASE NO. 2016-P-0042
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2017-Ohio-2600
[Cite as O‘Stricker v. Robinson Mem. Hosp. Found., 2017-Ohio-2600.]
THOMAS R. WRIGHT, J.
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2011 CV 01405. Judgment: Affirmed.
Robert J. Sawyer, 815 Superior Avenue East, Suite 300, Cleveland, OH 44114-2746 (For Plaintiff-Appellant).
Elizabeth Nocera Davis, and Stephen W. Funk, Roetzel & Andress, LPA, 222 South Main Street, Akron, OH 44308 (For Defendant-Appellee, Robinson Memorial Hospital).
Juliana S. Gall, Rocco D. Potenza, and Douglas G. Leak, Hanna Campbell & Powell, LLP, 3737 Embassy Parkway, Suite 100, P.O. Box 5521, Akron, OH 44333 (For Defendants-Appellees, Michael L. Pryce, M.D. and Stow-Kent Orthopedics,
THOMAS R. WRIGHT, J.
{¶1} Appellant, Corey O‘Stricker, appeals two trial court judgments resulting
{¶2} In 2008, O‘Stricker broke his right femur during a basketball game and was transported and admitted to Robinson Memorial Hospital. The following day, Dr. Michael L. Pryce, M.D. of Stow-Kent Orthopedics, Inc. advised O‘Stricker that he needed surgery. Pryce is an orthopedic surgeon. During the surgery, O‘Stricker began violently kicking his right leg which resulted in the pin that was being placed in his leg to bump his hipbone and fracture his hip. The hip fracture required a second surgery.
{¶3} O‘Stricker originally filed suit in 2009, but voluntarily dismissed the case without prejudice in 2010.
{¶4} In October 2011, O‘Stricker refiled his suit against Robinson, Pryce, Stow-Kent, and John and Jane Does 1-10 for medical negligence. The trial court subsequently dismissed the claims against Price and Stow-Kent based on O‘Stricker‘s deficient affidavit of merit.
{¶5} The trial court granted Robinson summary judgment as to all claims based on anesthesia services because O‘Stricker did not timely name the anesthesiologist or nurse anesthetist, who were independent contractors, within the applicable statute of limitations. O‘Stricker does not take issue with this decision on appeal.
{¶6} On July 5, 2016, the case proceeded to jury trial against the only remaining defendant, Robinson. At the close of O‘Stricker‘s case, Robinson moved for a directed verdict, which the trial court granted. O‘Stricker appeals the trial court‘s decision dismissing Pryce and Stow-Kent and its judgment granting a directed verdict in Robinson‘s favor.
{¶7} He asserts four assigned errors:
{¶8} “[1] The trial court abused its discretion and committed prejudicial error where it improperly directed a dismissal of defendants Michael L. Pryce, M.D. and Stow-Kent Orthopedics, Inc. without prior notice of intention to dismiss and hearing pursuant to
{¶9} “[2] The trial court committed error of law and abused its discretion in dismissing the complaint for lack of proper Affidavit of Merit where the cured Affidavit of Merit was properly attached and filed in a timely manner to the Complaint.
{¶10} “[3] The trial court abused its discretion and committed prejudicial error in failing to apply the doctrine of res judicata or collateral estoppels to the second motion by defendants-appellees, Michael L. Pryce, M.D. and Stow-Kent Orthopedics, Inc. to dismiss.
{¶11} “[4] The trial court committed error of law withdrawing case from jury and abused its discretion rendering judgment at end of plaintiff-appellant‘s direct case requiring specific expert testimony of orthopedic surgeon or anesthesiologist in establishing breach of the standard of care. (T-d 92).”
{¶12} Appellant‘s first two alleged errors challenge the trial court‘s decision dismissing his claims against appellees, Michael L. Pryce, M.D. and Stow-Kent Orthopedics, Inc. (Pryce and Stow-Kent). He argues the trial court failed to provide him any notice of its intention to dismiss these defendants, and that its dismissal was erroneous since his second affidavit of merit cured the alleged defects and complied with
{¶13} Pryce and Stow-Kent moved the court to dismiss the refiled complaint against them based on appellant‘s failure to attach a sufficient affidavit of merit to his complaint. Robinson did not join their motion to dismiss.
{¶15} “[P]ursuant to
{¶16}
{¶17} “(2) Affidavit of merit; medical, dental, optometric, and chiropractic liability claims.
{¶18} “(a) Except as provided in division (D)(2)(b) of this rule, a complaint that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in
necessary to establish liability. Affidavits of merit shall be provided by an expert witness meeting the requirements of
{¶19} “(i) A statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint;
{¶20} “(ii) A statement that the affiant is familiar with the applicable standard of care;
{¶21} ”(iii) The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.
{¶22} “(b) The plaintiff may file a motion to extend the period of time to file an affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good cause shown and in accordance with division (c) of this rule, the court shall grant the plaintiff a reasonable period of time to file an affidavit of merit, not to exceed ninety days, except the time may be extended beyond ninety days if the court determines that a defendant or non-party has failed to cooperate with discovery or that other circumstances warrant extension.
{¶23} “* * *”
{¶24} “(e) If an affidavit of merit as required by this rule has been filed as to any defendant along with the complaint or amended complaint in which claims are first asserted against that defendant, and the affidavit of merit is determined by the court to be defective pursuant to the provisions of division (D)(2)(a) of this rule, the court shall
grant the plaintiff a reasonable time, not to exceed sixty days, to file an affidavit of merit intended to cure the defect.” (Emphasis added.)
{¶25} We review a trial court‘s decision to dismiss a complaint for failure to comply with
{¶26} Pryce and Stow-Kent argue in their renewed motion to dismiss that O‘Stricker‘s affidavit of merit was deficient since O‘Stricker‘s expert, Nicholson, was not an orthopedic surgeon like Pryce, and as such, he was not qualified to testify under
{¶27}
{¶28} “Every person is competent to be a witness except:
{¶29} “* * *”
{¶30} “(D) A person giving expert testimony on the issue of liability in any medical claim, as defined in
{¶31} “(1) The person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state;
{¶32} “(2) The person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school and
{¶33} “(3) The person practices in the same or a substantially similar specialty as the defendant. The court shall not permit an expert in one medical specialty to testify against a health care provider in another medical specialty unless the expert shows both that the standards of care and practice in the two specialties are similar and that the expert has substantial familiarity between the specialties.
{¶34} “If the person is certified in a specialty, the person must be certified by a board recognized by the American board of medical specialties or the American board of osteopathic specialties in a specialty having acknowledged expertise and training directly related to the particular health care matter at issue.”
{¶35} O‘Stricker‘s amended affidavit of merit, notarized January 9, 2012, states:
{¶36} “Now comes Oscar Nicholson, Jr., M.D. being first duly sworn deposes and says, I am a medical doctor duly license[d] to practice medicine in the State of Ohio and that I am in good standing at the time of this affidavit.
{¶37} “Affiant further says that at all times pertinent herein, affiant has practiced general surgery covering all surgical areas of medicine.
{¶38} “Affiant further says, he has reviewed all medical records reasonable [sic] available to Corey O‘Stricker concerning the allegations contained in the Complaint.
{¶39} “Affiant further says as a surgeon with operating privileges in and about various hospitals in the Cleveland
{¶40} “Affiant further says it is his opinion that the standard of care was breached by one or more of the defendants in this action and that the breach caused injury to Corey O‘Stricker.”
{¶41} Nicholson‘s affidavit states that he is a licensed medical doctor in Ohio and that at all pertinent times he practiced general surgery “covering all surgical areas of medicine,” and that he is familiar with the applicable standard of care required in the procedure the plaintiff underwent on April 19, 2008. As appellees aver, Nicholson‘s affidavit does not detail that he was an expert witness who specifically complied with every aspect of
{¶42} In Woods v. Riverside Methodist Hosp., 10th Dist. Franklin No. 11AP-689, 2012-Ohio-3139, ¶13, the Tenth District decided a comparable case in which the
defendants were sued for medical malpractice. The numerous defendant doctors and hospital moved to dismiss the case since plaintiffs failed to satisfy
{¶43} The Tenth District agreed in part, but nonetheless affirmed the dismissal based on the affidavit of merit‘s lack of compliance, explaining:
{¶44} “[A]lthough
{¶45} “However,
complaint. An affidavit that vaguely avers that the standard of care was breached by one or more defendants is insufficient.” Id. at ¶13-14.
{¶46} We agree that an affidavit of merit does not have to include the specific averments evidencing that the affiant satisfies every aspect of
{¶47} However, and like Woods, appellant‘s affidavit was still deficient because
{¶48} As in Woods, Nicholson‘s affidavit is insufficient to satisfy the requirement in
sufficient to comply with
{¶49} Accordingly, we agree that O‘Stricker‘s amended affidavit of merit was deficient since Nicholson only avers that “one or more defendants” breached the standard of care without identifying which named defendant or defendants he believed acted below the standard of care, and as such, the court‘s decision granting the motion to dismiss was proper.
{¶50} We also disagree with O‘Stricker‘s argument that the trial court did not provide him adequate notice before dismissing his claims against Pryce and Stow-Kent. To the contrary, he was provided notice and a hearing after the trial court permitted him to amend his affidavit of merit beyond the 60 days permitted in
{¶51} O‘Stricker‘s third assigned error claims the trial court was barred by res judicata from reconsidering Pryce and Stow-Kent‘s motion to dismiss based on O‘Stricker‘s affidavit of merit because this precise argument was previously rejected by the trial court before O‘Stricker voluntarily dismissed his original complaint. We disagree.
{¶52} As O‘Stricker contends, Pryce and Stow-Kent previously moved to dismiss his suit against them arguing that his affidavit of merit did not comply with
{¶53} “[A] voluntary dismissal pursuant to
{¶54} Thus, regardless of whether this issue was previously considered and rejected by the trial court before O‘Stricker voluntarily dismissed his suit without prejudice, it has no res judicata effect upon the refiling of his claims because the order was interlocutory at the time O‘Stricker dismissed his claims. Toledo Heart Surgeons v. The Toledo Hosp., 6th Dist. Lucas No. L-02-1059, 2002-Ohio-3577, ¶35,
{¶55} O‘Stricker‘s final assigned error avers the trial court erred in directing a verdict in Robinson‘s favor.
{¶56} We review an order granting a directed verdict de novo since it presents a question of law. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶4.
{¶57} “According to
{¶58} “* * * ‘A motion for directed verdict * * * does not present factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence.‘” (Citations omitted.) Id. at ¶3-4.
{¶59} The case proceeded to a jury trial in July of 2016 against Robinson only. O‘Stricker‘s counsel presented the testimony of Dr. Nicholson and O‘Stricker along with three exhibits before resting his case. At the conclusion of plaintiff‘s evidence, Robinson moved for a directed verdict based on O‘Stricker‘s failure to ask his expert any questions as to the doctor‘s standard of care or breach of the standard. The trial court agreed and ordered a directed verdict in Robinson‘s favor.
{¶60} In order to establish a viable claim for medical malpractice, a plaintiff must establish:
{¶61} “(1) a duty running from the defendant to the plaintiff, (2) a breach of that duty by the defendant, (3) damages suffered by the plaintiff, and (4) a proximate causal relationship between the breach of duty and the damages. Hester v. Dwivedi, 89 Ohio St.3d at 578, 733 N.E.2d 1161.” Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc., 108 Ohio St.3d 494, 2006-Ohio-942, 844 N.E.2d 1160, ¶17.
{¶62} O‘Stricker claims the trial court improperly dismissed his case on the erroneous premise that a general surgeon is not qualified to testify as to the standard of care and alleged breach by an orthopedic surgeon. However, the trial court granted a directed verdict based on O‘Stricker‘s complete failure to elicit testimony establishing the hospital‘s standard of care or its breach of the standard.
{¶63} Regardless of whether Nicholson, as a general surgeon, qualified as an expert to give an opinion on the standard of care to be employed by an orthopedic
surgeon, appellant‘s counsel never elicited testimony to this effect. Instead, Nicholson simply recited the facts from O‘Stricker‘s operative report and noted that the cause of O‘Stricker‘s second fracture was O‘Stricker “getting light in anesthesia” and his violent kicking during surgery. Appellant did not set forth any evidence showing that either Robinson or its employees breached any duty or standard of care owed to him. Furthermore, Robinson had previously been granted partial summary judgment for claims arising from anesthesia because O‘Stricker failed to name the anesthesiologist or the nurse anesthetist, who were the hospital‘s independent contractors, before the statute of limitations ran.
{¶64} Thus, the trial court properly directed a verdict in Robinson‘s favor.
{¶65} The trial court‘s judgment is affirmed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.