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McGeary v. Brocker11/20/2002
. Defendants-appellants, Robert J. Brocker, Jr., M.D. (Dr. Brocker) and the Neurological Diagnostic Clinic, appeal from the judgment of the Mahoning County Court of Common Pleas granting plaintiffs-appellees, Janyce and John McGeary (Mr. and Mrs. McGeary), relief under Civ.R. 60(B).
. This case arises from a medical malpractice claim against appellants. The events leading up to the lawsuit as alleged in appellees' complaint are as follows. In October 1987, Mrs. McGeary underwent a craniotomy to remove an acoustic neuroma. In 1992 Dr. Brocker, an employee of the Neurological Diagnostic Clinic, examined Mrs. McGeary for a postoperative evaluation. Dr. Brocker referred Mrs. McGeary for an MRI to rule out a recurrence of the acoustic neuroma. Appellees assert that Dr. Brocker represented to them that he would advise them if the MRI revealed any abnormal findings. The MRI revealed a mass of one centimeter that was highly suspicious for a recurrent acoustic neuroma. Appellees claim that Dr. Brocker negligently failed to inform them or their family physician of this finding. In 1996, Mrs. McGeary underwent another MRI that revealed the acoustic neuroma had grown to approximately three centimeters. Mrs. McGeary did not learn of the results of the 1992 MRI until November 18, 1996. Because of Dr. Brocker's negligence and the delay in diagnosis of her condition, Mrs. McGeary required a surgical procedure and also suffered permanent left side facial paralysis.
. Appellees originally filed their complaint on January 21, 1997. They voluntarily dismissed the complaint without prejudice and then refiled on January 4, 1999. Appellants filed a motion for summary judgment on January 28, 1999, asserting appellees were required to provide expert testimony to support their medical negligence claim. Appellees requested and the trial court granted six extensions of time to respond to the summary judgment motion. Appellees stated that these extensions were necessary in order to locate an expert who could provide an affidavit to satisfy their burden in summary judgment. The last motion for extension of time in the record was filed on September 20, 1999 and the court granted appellees 30 days to file a response.
. Appellees' counsel, Atty. Martin F. White (Atty. White), asserts that before the October 1999 deadline, he dictated a motion for an indefinite extension of time in which to conduct discovery. This motion was never filed. According to Atty. White, at the time he prepared the motion he was inundated with work, his mother became seriously ill and passed away, and his office underwent secretarial changes that may have resulted in the motion never being transcribed and filed. Since the trial court never received a response to the summary judgment motion from appellees, it granted summary judgment in favor of appellants on November 4, 1999.
. Atty. White asserts that he never received a copy of the judgment entry granting appellants' summary judgment. He asserts he continued to work on appellees' case throughout the year 2000 assuming that the trial court had granted the motion he dictated. Atty. White states that while reviewing appellees' file in September 2000, he noticed that his motion for an indefinite extension was not in the file. He then contacted the clerk of courts and learned that the court had granted appellants' summary judgment motion.
. On November 3, 2000, appellees filed a Civ.R. 60(B) motion for relief from judgment. The trial court conducted a hearing on the motion at which Atty. White and the deputy clerk of courts testified. The court granted the motion for relief from judgment and vacated its previous summary judgment ruling. Appellants fi
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