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Wileyv. Good Samaritan Hospital2/20/2004
DECISION
. Plaintiff-appellant/cross-appellee John P. Wiley appeals the judgment entered by the Hamilton County Court of Common Pleas in favor of defendants-appellees/cross-appellants, the Good Samaritan Hospital and Said Nayebi, M.D., in a malpractice action. For the following reasons, we affirm the judgment of the trial court and dismiss the cross-appeal.
. In 1996, Wiley filed his medical malpractice action against Good Samaritan Hospital, Ruth Kremchek, executrix of the estate of Edward J. Kremcheck, M.D., and Said Nayebi. The claim against Ruth Kremchek was later dismissed without prejudice. Good Samaritan and Nayebi filed motions for summary judgment on the basis that the applicable statute of limitations had expired. The trial court granted the motions, and an appeal followed. On appeal, this court reversed the entry of summary judgment and remanded the cause to the trial court for further proceedings.
. Following the remand, Good Samaritan Hospital moved to dismiss the action on the basis of laches. Good Samaritan Hospital also moved to dismiss the action for failure to establish an agency or employment relationship between Nayebi and the hospital, or, in the alternative, for failure to state a claim upon which relief could be granted.
. In February 2000, the trial court granted Good Samaritan Hospital's motion to dismiss on the basis of laches, and it granted summary judgment to Good Samaritan Hospital. The trial court determined that summary judgment was appropriate with respect to the malpractice claim because even though a question of material fact with respect to whether Nayebi was an agent of Good Samaritan Hospital existed, no evidence had been presented demonstrating that Nayebi had performed the surgery or that Nayebi knew of should have known that the placement of a traction wire in Wiley's growth plate was improper. Based on this and the fact that the purported surgeon (Dr. Edward Kremchek) was deceased and that essential records were no longer available, the trial court determined that Good Samaritan, which could only have been negligent through the acts of another, would have been materially prejudiced by allowing the action to go forward. The trial court's entry included Civ.R. 54(B) language that "there no just cause for delay."
. Subsequently, Nayebi moved for a dismissal based upon the doctrine of laches. The trial court denied the motion on the ground that there had not been a sufficient showing of material prejudice to Nayebi, because Nayebi's motion had not articulated the prejudice and because he was the author of the operative notes and was able to testify on his own behalf.
. In 2001, Wiley amended his complaint to include actions for battery and fraud against Nayebi and Good Samaritan Hospital. The case proceeded to a jury trial. After Wiley presented his evidence, he moved for a directed verdict on the issue of battery. Nayebi responded by moving for a directed verdict on the issues of liability and causation. He also sought to exclude testimony from Wiley's experts. Nayebi further moved for a directed verdict on the issues of fraud and battery. Good Samaritan Hospital also moved for a directed verdict on the issues of fraud and battery. The trial court denied Wiley's motion for a directed verdict on the issue of battery, and denied Nayebi's motion for a directed verdict on the issues of liability and causation. But the court granted Nayebi and Good Samaritan Hospital a directed verdict on battery and fraud. The case then proceeded to trial so that Nayebi could defend against the sole remaining claim of medical negligence. After Nayebi rested, he renewed his motion for a directed verdict, which th
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