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White v. DePuy8/17/1998
learly states a cause of action for medical, as opposed to ordinary, negligence. See Katz v. Mt. Sinai Med. Ctr. (May 7, 1998), Cuyahoga App. No. 72608, unreported, 1998 WL 229506.
We begin by observing that there is no expert testimony in the record concerning the prevailing standard of care. The absence of this essential testimony is fatal to the Whites' prima facie case of medical negligence. Although the record contains an affidavit by Chris Smith which sets forth her understanding of the steps to be "followed during a hip replacement," it is insufficient to qualify as the requisite expert testimony. Smith has not been qualified as an expert, and Smith's affidavit does not indicate how the protocol she describes relates, if at all, to the standard of care in the nursing profession. In addition, even if there were expert testimony in record concerning the standard of care for nurses, there is no evidence concerning the conduct of the nurses during Gloria White's hip replacement surgery, i.e., whether they breached the standard of care. The testimony of Fox suggests that they did notsAlthough Fox could not recall the specifies of how the components parts were selected during White's surgery, he testified that generally his privately employed surgical assistant would "be the one to check the individual implants before they were handed to me and before I put them in the person."
Thus, viewing the evidence as Civ.R. 56(C) requires, we find that the Whites have failed to meet their burden of proof. See Dresher, 75 Ohio St.3d at 293, 662 N.E.2d at 273-274. Summary judgment was properly granted to Mercy Fairfield. The second assignment of error is overruled.
In summary, we affirm the trial court's decision denying the Whites' motion for summary judgment. We also affirm, in part, the trial court's decision granting DePuy's motion for summary judgment. We reverse the trial court insofar as it granted summary judgment to DePuy on the common-law claim of implied warranty/strict liability in tort. Finally, we affirm the trial court's decision to grant summary judgment to Mercy Fairfield. Accordingly, the judgments are affirmed in part, reversed in part, and the cause is remanded.
Judgments affirmed in part, reversed in part and cause remanded.
KOEHLER, J., concurs.
POWELL, P.J., concurs in part and dissents in part.
POWELL, Presiding Judge, concurring in part and dissenting in part.
I concur with the majority's opinion to overrule the Whites' second assignment of error and affirm the trial court's decision granting summary judgment to Mercy Fairfield. However, I respectfully dissent from the portion of the majority's opinion that reverses the trial court's decision granting summary judgment to DePuy, and I concur in judgment only with the portion of the majority's opinion that affirms the trial court's decision denying the Whites' motion for summary judgment.
As noted in the majority opinion, common-law claims for implied warranty/strict tort liability require a plaintiff to establish that a defect was the direct and proximate cause of the plaintiffs injuries or loss. The majority finds that summary judgment for DePuy was precluded because issues of material fact exist regarding whether the prosthetic hip manufactured by DePuy was a defective product that proximately caused White's injury . Specifically, the majority finds that an issue of fact arises from Fox's testimony and a recall announcement bsDePuy as to whether the polyethylene cup liner of the hip was a defect that proximately caused White's injuries. I disagree.
The recall announcement and Fox's deposition
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