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Carnahan v. Buckley3/28/2001
JUDGMENT: Affirmed
Plaintiff-appellant, Lisa Carnahan, appeals from a judgment of the Mahoning County Common Pleas Court, granting summary judgment in favor of defendant-appellee, Dr. John J. Buckley, Jr., in a suit for medical malpractice.
On February 9, 1998, appellant filed a complaint for medical malpractice naming as party defendants appellee and Northside Medical Center (NMC). The complaint alleged that appellee and NMC were negligent in the performance of appellant's breast reduction surgery. Appellee filed an answer setting forth various defenses and denying that he was negligent. In addition, appellee included a counterclaim for the balance owed on surgical fees for appellant's "bilateral knee liposuction." NMC filed a separate answer setting forth various defenses and denying negligence.
After a stay of proceedings precipitated by the liquidation of appellee's insurance carrier, appellee refiled his answer and counterclaim on September 23, 1998. Appellee also filed a notice of service of discovery, indicating that interrogatories and a request for production of documents had been forwarded to appellant. On October 8, 1998, NMC refiled its answer.
On January 20, 1999, appellee filed a motion to compel appellant to respond to the interrogatories and request for production of documents. In the alternative, appellee sought a motion to dismiss based on appellant's failure to prosecute her claim. On February 1, 1999, the trial court issued a judgment entry ordering appellant to respond to the discovery requests on or before February 15, 1999. On February 2, 1999, NMC filed a similar motion to compel.
On February 4, 1999, appellant filed a motion requesting a fourteen-day extension in which to respond to appellee's joint motion to compel/dismiss. The trial court sustained appellant's motion giving her until February 19, 1999, to respond to appellee's motion.
On February 12, 1999, the trial court sustained NMC's motion to compel and ordered appellant to respond to NMC's interrogatories and request for production of documents on or before February 22, 1999.
The time for appellant to make some sort of response had passed with no action taken by appellant to prosecute her claim. On March 8, 1999, appellee filed a joint motion for sanctions and dismissal of appellant's claim based on appellant's continued failure to respond to the court's orders requiring appellant to respond to the interrogatories and requests for production of documents. NMC filed a motion to dismiss on the same grounds.
On March 12, 1999, appellant responded to both appellee's and NMC's motion requesting an additional thirty days, until April 12, 1999, to respond to their discovery requests. Appellant claimed that she was unable to respond to the discovery requests due to difficulty in obtaining an expert evaluation resulting from appellee's and NMC's alleged failure to provide all relevant medical records.
On April 13, 1999, appellant filed a notice of voluntary dismissal of NMC. Appellant also filed a notice of service of discovery, indicating that interrogatories and a request for production of documents had been forwarded to appellee.
On April 14, 1999, the court issued a judgment entry ordering both parties, within two weeks, to inspect appellee's original chart to determine if photographs of appellant's surgery still existed and, if so, to make duplicates of those photos.
On August 23, 1999, appellee filed a motion for summary judgment based on appellant's failure to produce any evidence going to the material elements of her claim. On September 30, 1999, appellant filed a motion requ
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