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Turner v. Cleveland Clinic Foundation

9/12/2002



JUDGMENT: AFFIRMED.


. This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 11.1.


. Plaintiffs-appellants, Harold J. Turner, Jr. and Sandra Turner, appeal the judgment of the Cuyahoga County Court of Common Pleas granting the motion for a directed verdict by defendant-appellee, The Cleveland Clinic Foundation ("The Clinic"). Finding no merit to appellants' appeal, we affirm.


. The record reflects that appellants filed this medical malpractice action on January 26, 2000 against appellee and Dr. Douglas Chyatte. In their complaint, appellants alleged that Dr. Chyatte, as an employee of The Clinic, committed medical malpractice by failing to fully inform Mr. Turner of the potential risks and complications of surgery on his brainstem, and that as a result of the surgery, Mr. Turner suffered numerous, severe neurological impairments. Appellants subsequently dismissed Dr. Chyatte from the lawsuit with prejudice.


. On June 28, 2000, the trial court held a pretrial conference and ordered that appellants' expert report be provided to appellee by November 1, 2000.


. On February 9, 2001, appellee filed a motion for summary judgment, asserting that appellants had failed to produce an expert to support their medical malpractice claim. In their brief in opposition to appellee's motion, appellants argued:


"Plaintiff agrees that expert testimony is required in an informed consent case to establish the significant risks which should have been disclosed to the Plaintiff and the probability and magnitude of those risks, which is a matter of medical judgment beyond the knowledge of the lay person. Ware v. Richey (1983), 14 Ohio App.3d 3, 7 [overruled on other grounds, Kalain v. Smith (1986), 25 Ohio St.3d 157]. There is in this case, however, ample expert testimony as to those factors in the deposition of Douglas Chyatte, M.D., the operating surgeon, which was taken on November 7, 2000 in Philadelphia and which is being filed contemporaneously with this Memorandum."


. On May 15, 2001, the trial court denied appellee's motion for summary judgment.


. On July 11, 2001, appellee filed a motion for reconsideration of the trial court's order denying its motion for summary judgment. Upon reconsideration, the trial court again denied appellee's motion. In its order denying appellee's motion, the trial court stated:


. "According to the Ohio Supreme Court in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, medical expert testimony is necessary to establish the significant risks which should have been disclosed to the patient. Plaintiffs have chosen to proceed forward with their case without obtaining an expert for their case in chief. On that basis, Defendant believes that it is entitled to summary judgment.


. "However, Plaintiffs have presented case law to this Court that in medical malpractice cases based on lack of informed consent, the Plaintiff may elicit the `existence, nature and magnitude of the allegedly undisclosed risk of harm; and the causal relationship between the allegedly undisclosed risk and the patient's injuries from the doctor defendant himself.' Ware v. Richey (1983), 14 Ohio App.3d 3, 7 (overruled on other grounds, Kalain v. Smith (1986), 25 Ohio St.3d 157). `In a cause of action based upon lack of informed consent, the required expert testimony may be presented through cross-examination of the defendant-physician.' Ware, 14 Ohio App.3d 3. Based upon the foregoing case law, it will be Plaintiffs' burden to elicit such expert testimony from Dr. Chyatte in order to prevail on their claim of lack of informed consent."


.

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