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Schwaller v. Maguire12/19/2003
DECISION
Judgment Appealed From Is: Affirmed
. Plaintiff-appellant Christina Schwaller sued defendants-appellees Sean Maguire, M.D., Lawrence Kurtzman, M.D., and University Hospital, Inc., following mastopexy (breast lift) and liposuction procedures performed in May 1998. The trial court granted partial summary judgment in favor of Maguire and University Hospital on Schwaller's claims for lack of informed consent and battery, as well as on her request for punitive damages. Kurtzman did not move for summary judgment.
. The only issue that remained for trial against Maguire and University Hospital was negligence. Following the trial, the jury returned general verdicts in favor of Maguire, Kurtzman, and University. Schwaller now appeals. We affirm the judgment of the trial court.
1.Factual Background
. In April 1998, Schwaller went to the Plastic Surgery Clinic at the University of Cincinnati to consult with Maguire about a possible breast-reduction procedure. At the time, Maguire was the chief resident of the clinic. Following her consultation with Maguire, Schwaller opted to have a breast-lift procedure performed, rather than a breast reduction. She also chose to have liposuction done on her thighs and hips.
. Schwaller met with Kurtzman, an attending surgeon, and was aware that both he and Maguire would perform the procedures. Schwaller executed a written consent form for the procedures, indicating that she understood the risks inherent in them.
. On May 8, 1998, Maguire and Kurtzman performed mastopexy and liposuction procedures on Schwaller. In the summer of 1998, Schwaller became dissatisfied with the results of the surgical procedures. She contacted an attorney and later learned through him that Maguire had a drug-abuse problem. In October 1999, she filed her malpractice claim against the defendants-appellees.
. In her first assignment of error, Schwaller now argues that the trial court erred by granting summary judgment in favor of Maguire and University Hospital on her claim for battery. We note that Schwaller has appealed only the trial court's entry of summary judgment on her claim for battery and has not appealed the entry of summary judgment on her claim for lack of informed consent. Therefore, she has waived any error regarding the court's dismissal of her claim for lack of informed consent.
. Initially, Schwaller claims that the trial court erred by confusing the tort of battery with the tort of lack of informed consent. We find no support in the record for this contention. Moreover, because summary judgment presents only questions of law, this court reviews the record de novo.
. Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his or her favor.
. In this case, Schwaller's battery claim was based on the failure of the defendants-appellees to "obtain consent of sufficient legality to the act of being assessed and/or operated upon by a habituated and impaired physician." Schwaller argued that, as a result of her legally insufficient consent, the surgical procedures in this case constituted an intentional, nonconsensual touching.
. Maguire had testified in a deposition that, in the winter of 1997, he had begun to abuse opiates, specifically prescription painkillers, for chronic neck pain. By the spring of 1998, Maguire had developed
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