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Taylor v. McCullough-Hyde Mem. Hosp.12/9/1996
POWELL, Judge.
This is an appeal from a grant of summary judgment entered by the Butler County Court of Common Pleas in favor of defendants-appellees, Terry G. Hunt, M.D., and Eugene Durbin, M.D., concerning the medical malpractice complaint of plaintiffs- appellants, Theresa and Kenneth Taylor. The judgment is affirmed as modified.
On March 9, 1992, Theresa Taylor ("Taylor") was admitted to the emergency room of McCullough-Hyde Memorial Hospital in Oxford, Ohio after complaining of chest pains and was subsequently discharged. On March 10, 1992, Taylor saw Hunt for further testing and returned home.
Later that same day, Taylor returned to the emergency room of McCullough-Hyde with complaints of acute abdominal pain. During this visit, Taylor was treated by Durbin, who discharged her after reviewing the results of several tests. On March 11, 1992, Hunt admitted Taylor to the intensive care unit at McCullough-Hyde. On March 12, 1992, Taylor was transferred to Christ Hospital in Cincinnati, where she underwent surgery to correct a hemorrhaging aneurysm in her lower abdomen.
On July 9, 1993, appellants filed a medical malpractice action against Hunt and Durbin arising out of the alleged negligent care and treatment of Taylor. The complaint alleged that Hunt and Durbin's failure to diagnose Taylor's condition proximately resulted in harm to appellants. Following the deposition of appellants' expert, Michael H. LeWitt, M.D., Hunt and Durbin filed separate motions for summary judgment on the ground that appellants had failed to present any evidence that would support a finding that the alleged negligence of Hunt and Durbin proximately caused Taylor any harm. On September 14, 1996, the trial court granted the motions for summary judgment.
On December 15, 1995, the trial court awarded costs incurred in attending LeWitt's deposition in Pennsylvania in favor of Hunt. On timely appeal of the trial court's judgments, appellants set forth the following assignments of error:
Assignment of Error No. 1:
"The trial court committed reversible error in granting the defendants, Dr. Eugene Durbin and Dr. Terry Hunt, summary judgment in the issue of damages because specific items of damages were presented by expert testimony and kept from a jury deliberation as to their sufficiency."
Assignment of Error No. 2:
"The trial court committed reversible error in granting the defendant, Dr. Terry Hunt, assessing costs and ordering costs, fees and expenses in the sum of $2,899.30."
In their first assignment of error, appellants assert that the trial court erred in granting summary judgment to appellees on the issue of damages because, appellants claim, they presented expert testimony that established damages with reasonable probability. This argument is misplaced, however, since the trial court was never required to reach the issue of damages in granting summarsjudgment. The trial court concluded that appellants failed to produce sufficient evidence that appellees deviated from accepted standards of medical care and that the deviation, if any, was the proximate cause of appellants' alleged harm. Thus, we address appellants' first assignment of error in accordance with the trial court's decision.
Pursuant to Civ.R. 56(C), summary judgment is appropriately rendered when "(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; (3) and it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the par
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