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Stuller v. Price9/20/2001
APPEAL from the Franklin County Court of Common Pleas.
Plaintiffs-appellants, Richard A. Stuller and Dorothy Stuller, appeal from a decision of the Franklin County Court of Common Pleas granting the summary judgment motion of defendant-appellee, Phillip D. Price, M.D.
Appellants filed a medical malpractice action on June 23, 1999, asserting claims for negligence and loss of consortium, and seeking punitive damages against appellee and several other defendants, including Mount Carmel Medical Center. Subsequently, appellee filed a summary judgment motion on July 21, 2000, asserting that appellants had failed to identify, within the time frame provided by the trial court's scheduling order, an expert witness to opine that appellee's treatment fell below the standard of care. Additionally, appellee attached an affidavit attesting that his conduct was in accordance with the standard of care. Appellants responded with a memorandum in opposition to the summary judgment motion on August 3, 2000, which included an affidavit from Dr. Jay Jacoby opining that appellee's treatment fell below the standard of care and that appellant Richard Stuller was injured as a direct and proximate result of appellee's treatment. Appellee filed a reply on October 2, 2000, arguing that Dr. Jacoby's affidavit failed to comply with Evid.R. 601(D), in that it failed to state that Dr. Jacoby spends at least one-half of his professional time engaged in the active clinical practice of medicine; therefore, appellee argued that Dr. Jacoby was not competent to testify as a medical expert and that his affidavit could not be used to establish a genuine issue of material fact. On November 20, 2000, the trial court filed a judgment entry granting appellee's summary judgment motion. Appellants filed a timely notice of appeal.
On appeal, appellants assert one assignment of error:
THE TRIAL COURT'S GRANTING OF DEFENDANT-APPELLEE PHILLIP D. PRICE'S MOTION FOR SUMMARY JUDGMENT AND FINDING THAT NO GENUINE MATERIAL ISSUE OF FACT REMAINS TO BE TRIED WAS AN ABUSE OF DISCRETION.
Appellant Richard Stuller was a patient of appellee's. On July 13, 1998, Richard was admitted to Mount Carmel Medical Center for stomach bypass surgery, known as a Roux-en-y gastric bypass, performed by appellee. Richard spent three and one-half months in the hospital and five months in a nursing home. Richard had to undergo three additional surgeries, including an emergency splenectomy. According to Richard, he continues to suffer from partial blindness, paralysis and tremors, and will require additional medical care in the future.
In appellants' single assignment of error, they argue that the trial court erred by granting appellee's summary judgment motion. We disagree.
An appellate court reviews a trial court's grant of summary judgment independently and without deference to the trial court's determination. Sadinsky v. EBCO Mfg. Co. (1999), 134 Ohio App.3d 54, 58. An appellate court applies the same standard as the trial court in reviewing a trial court's disposition of a summary judgment motion. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107. Before summary judgment can be granted under Civ.R. 56(C), the trial court must determine that:
* (1) o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. * [State ex rel. Parsons v. Fl
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