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Canty v. Affordable Chiropractic12/17/1998
ht of Canty's subsequent decision to appeal the trial court's grant of summary judgment and allows us to proceed to determine this case on its merits.
In his assignment of error, Canty challenges the trial court's decision to grant summary judgment in favor of the defendants. Summary judgment may be granted only if no genuine issue of material fact exists. Civ.R. 56(C). Our standard of review for summary judgment is the same as that of the trial court. Consequently, we review cases de novo. Brown v. Scioto Cty Bd of Commrs. (1993), 87 Ohio App.3d 704, citing Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, appeal dismissed (1988), 39 Ohio St.3d 710. In applying the de novo standard, we review the trial court's decision independently and without deference to the trial court's determination. Id. at 711.
Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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, that party being entitled to have the evidence construed most strongly in its favor. Brown, supra, citing Bostic v. Connor (1988), 37 Ohio St.3d 144, 146; cf., also State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14; Civ.R. 56(C).
The burden of showing no genuine issue as to any material of fact is on the party who requested the summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520. However, the non-moving party has the initial burden of showing a genuine issue of material fact for trial. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. See Dresher v. Burt, supra at 295, (limiting syllabus 3 of Wing v. Anchor Media, Ltd. Of Texas (1991), 59 Ohio St.3d 108.) An issue is genuine only if the evidence is such that a reasonable jury could find for the non-movant. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242.
In order to obtain summary judgment on the ground that Canty could not prove its case, the defendants had to state the basis for their motion and demonstrate the absence of a genuine issue of material fact on an essential element of Canty's claim. Dresher at 293. In this case, the defendants alleged that Canty failed to produce expert testimony to support his malpractice claim. Such expert testimony is required in malpractice cases in Ohio in order to establish the applicable standards of care. See Barbee v. Finerty(1995), 100 Ohio App.3d 466, 470, discretionary appeal not allowed (1995), 72 Ohio St.3d 1530; Hubbard v. Laurelwood Hosp. (1993), 85 Ohio App.3d 607, 614, appeal dismissed (1993), 67 Ohio St.3d 1450; Morris v. Children's Hospital Medical Ctr. (1991), 73 Ohio App.3d 437, 444; Robb v. Community Mut. Ins. Co. (1989), 63 Ohio App.3d 803, 806. Establishing the applicable standard of care by expert testimony has been held to be essential to presenting a prima facie malpractice claim. Grote v. J. S. Mayer & Co., Inc. (1990), 59 Ohio App.3d 44, 45-46. Because Canty failed to meet this burden, summary judgment was properly entered against him. See Dresher at 293. Canty's assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to c
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