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Carnahan v. Buckley3/28/2001
ian is a legally sufficient basis upon which to grant a motion for summary judgment in a medical malpractice action absent any opposing affidavit of a qualified expert witness for the plaintiff. Id. at 62.
A plaintiff in a malpractice action is required to provide expert testimony establishing the standard of care and that it was not met. Bruni, 46 Ohio St.2d at 130. It is well established that " ailure to provide the recognized standards of the medical community is fatal to the presentation of a prima facie case of medical malpractice by the Plaintiffs." Rogoff v. King (1993), 91 Ohio App.3d 438, 446; Jones v. Roche Laboratories (1992), 84 Ohio App.3d 135, 139.
In this case, appellant offered no such evidence. Although appellant claimed that she was unable to obtain an expert opinion due to the lack of pre-operative photographs, appellant offered no evidence in support of this assertion. Consequently, appellant failed to meet her reciprocal burden and appellee was entitled to judgment as a matter of law.
As below, appellant maintains on appeal that summary judgment was improper because she "intended" to proceed on a "spoliation of the evidence" theory. In Smith v. Howard Johnson Co., Inc. (1993), 67 Ohio St.3d 28, 29, the Ohio Supreme Court acknowledged that a cause of action exists in tort for interference with or destruction of evidence. The elements of a claim for interference with or destruction of evidence are:
"(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's acts[.]" Id.
In this case, appellant presented no evidence going to the elements for a claim for interference with or destruction of evidence. Appellant's intention to proceed with such a claim is insufficient. The most conspicuous omission is any evidence in the form of an affidavit or otherwise that the pre-operative photographs were necessary in order for an expert to make a determination of whether appellee was negligent. Moreover, appellant's complaint does not set forth such a claim nor has appellant made any attempt to amend her complaint to reflect her "intention."
Accordingly, appellant's assignments are without merit.
The judgment of the trial court is hereby affirmed.
Vukovich, J., concurs
Waite, J., concurs
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