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Keller v. Cutright9/17/2001
JUDGMENT: Affirmed
This is an appeal from a decision of the Common Pleas Court of Fairfield County sustaining a defense motion for Summary Judgment. The sole Assignment of Error is:
I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT APPELLANT'S EXPERT FAILED TO OFFER THE EXPERT TESTIMONY NECESSARY TO PROVE MEDICAL MALPRACTICE.
The history of this cause is that appellant engaged the services of appellee's decedent dentist to extract wisdom tooth number thirty-two. Appellant asserts that the lingual nerve was severed resulting in numbness to her tongue, loss of taste and other effects. Appellant subsequently underwent nerve graft surgery. She alleges that the damage to such nerve was the result of negligence during the removal of such tooth. A deposition of appellant's expert, Dr. Bloch, was taken and, based upon such testimony, appellee filed a Motion for Summary Judgment. Other than responding to the Motion, no supplemental affidavits were filed. Civil Rule 56(C) states, in pertinent part: Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law....A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.
Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. In order to survive a motion for summary judgment, the non-moving party must produce evidence on any issue to which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, citing Celotex v. Catrett (1986), 477 U.S. 317. Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. This court's responsibility requires a complete review of the material before the court even though the trial Judge rendered an extensive review thereof and considered in detail the applicable case law as applied to C.R. 56. Prior to his testimony, Dr. Bloch reviewed Dr. Cutright's notes, his radiographs and those of the subsequent surgery together with the records and evaluation related to the latter surgery. He also reviewed Dr. Cutright's deposition. The pertinent portions of Dr. Bloch's deposition testimony are as follows: * A. Well, the position of this wisdom tooth, it's a vertical partial bony impaction and in my opinion, because of the position of the tooth, there should not have been any lingual nerve damage when they took the tooth out.
Q: So just because of the anatomical position of that tooth prior to extraction it was susceptible to extraction without lingual nerve damage?
A: I believe so.
Q: And so damage of the lingual nerve under those circumstances would fall below the standard of care?
A: I believe so.
* So I wanted to clarify that because the tooth has a vertical inclination, it's not horizontal or obliquely angled. The removal of the distal portion of the bone here it would have been very the nerve was damaged either through impr
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