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White v. DePuy8/17/1998
facturer did not act fraudulently, recklessly, or negligently in making the representation."
We find no evidence in the record to support an action either for the common law or the statutory form of this claim. Specifically, we have not found--and the Whites do not identify--any evidence of an express representation made by the manufacturer. Where there is no representation, there can be neither failure to conform by the manufacturer, nor reliance by the plaintiff. Accordingly, we find that summary judgment on this issue was properly granted to DePuy.
III. Negligence
To recover in an action for products liability based in negligence, a plaintiff must show that "the defendant owed him a duty, that the duty was breached and that the injury proximately resulted from the breach." Freas v. Prater (1991), 60 Ohio St.3d 6, 9, 573 N.E.2d 27, 30, citing, inter alia, Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 539 N.E.2d 614. In a negligence context, proximate cause is shown when the injury sustained is shown to be "the natural and probable consequence of the negligence alleged." Id. at 143, 539 N.E.2d at 617.
Applying this standard to the facts in the record, we conclude that appellant has failed to identify genuine issues of material fact concerning DePuy's alleged negligence in manufacturing and selling the replacement hip. There is no evidence in the record concerning either of these claims. Accordingly, as to the claims of negligent manufacture and sale, we affirm the trial court.
In their second assignment of error, the Whites contend that the trial court erred by granting summary judgment to Mercy Fairfield. The Whites argue that the record is sufficient to "establish liability on the part of Mercy Hospital." Specifically, the Whites state that no employee of Mercy Fairfielsinformed Fox that he was implanting different-sized prosthetic components into Gloria White. The Whites suggest that Fox should have been informed of the mismatch by at least one of the following individuals: (1) the person who affixed to Gloria White's chart the adhesive labels taken from the boxes of hip replacement parts, (2) the person who listed the catalog numbers of the component parts used on the document titled "Operating Room Nurse Record," or (3) Chris Smith, a registered nurse employed by Mercy Fairfield, who attended Gloria White's first hip replacement surgery.
"Under the doctrine of respondeat superior, a hospital is liable for the negligent acts of its employees." Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 578, 613 N.E.2d 1014, 1020. To show that a hospital employee was negligent in an action involving conduct within the common knowledge and experience of jurors, a plaintiff must demonstrate that the employee owed a duty of care to the plaintiff, that the employee breached that duty, and that the breach proximately caused the plaintiffs injuries. Id; Ramage v. Cent. Ohio Emergency. Serv. Inc. (1992), 64 Ohio St.3d 97, 103, 592 N.E.2d 828, 833-834. However, when the professional skills and judgment of a nurse are alleged to be deficient, "expert testimony must be presented to establish the prevailing standard of care, a breach of that standard, and that the nurse's negligence, if any, was the proximate cause of the patient's injury." Id. at paragraph one of the syllabus. Here plaintiffs argue, in essence, that the hospital employees were negligent because they exercised poor judgment. We find that the negligence action filed by the Whites concerns matters involving the professional skill and judgment of the nurses employed by Mercy Fairfield. In reaching this conclusion, we observe that plaintiffs appear to agree; the complaint filed against Mercy Fairfield c
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