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Stewart v. Cleveland Clinic Foundation12/6/1999
27 Ohio App.3d at 384-385, 713 N.E.2d at 37] judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46.
"In Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, the Ohio Supreme Court recently discussed the proper standard to be applied when reviewing summary judgment motions. The court stated as follows:
" 'Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C).'
"This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107, 614 N.E.2d 765, 767-768; Howard v. Wills (1991), 77 Ohio App.3d 133, 601 N.E.2d 515. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported, 1991 WL 156416."
The tort of lack of informed consent in a medical context was discussed in Klein v. Biscup (1996), 109 Ohio App.3d 855, 863, 673 N.E.2d 225, 230-231:
"The Supreme Court of Ohio established the tort of informed consent in Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, 17 OBR 281, 477 N.E.2d 1145, and defined the elements in the syllabus:
" 'The tort of lack of informed consent is established when:
" '(a) The physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any;
" '(b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and
" '(c) a reasonable person in the position of the patient would have decided against the therapy had the material risks and dangers inherent and incidental to treatment been disclosed to him or her prior to the therapy.' "
In the case sub judice, given the competing expert testimony and documentary evidence provided in the record on appeal, we conclude that there exists genuine issues of material fact on whether Klais gave informed consent to be a participant in the Phase III clinical trial and receive the treatment he was afforded by the Clinic and LaVertu, Adelstein, and Saxton. Accordingly, the trial court erred in granting summary judgment for these four defendants.
With regard to the trial court granting summary judgment in favor of Weinstein, we conclude that this order is a nullity void and must be reversed and vacated. At the time the trial court made this summary judgment order, Weinstein was no longer a party to the action, having been voluntarily dismissed by plaintiffs approximately two weeks prior to the court's rulings on the summary judgment motions.
The first assignment of error is affirmed.
Judgment affirmed in part reversed in part and cause remanded.
PORTER, A.J., and DYKE, J., concur.
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