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Barbee v. Finerty1/30/1995
EVANS, Judge.
Plaintiff-appellant Adam L. Barbee appeals from summary judgment granted against him in his medical malpractice action brought against defendant-appellee William M. Finerty, Jr., D.P.M. The appellant contends that the appellee exceeded the scope of the practice of podiatry, and therefore should be held to the standard of care of a medical doctor. The appellee submits that the appellant failed to establish a prima facie case of medical malpractice due to the appellant's failure to present expert testimony establishing a deviation from the requisite standard of care and skill a podiatrist owes in his treatment of a patient, or expert testimony establishing that the appellee exceeded the scope of practice as delineated by R.C. 4731.51. For the reasons that follow, the judgment of the trial court is affirmed.
The undisputed facts, taken in a light most favorable to the appellant, follow. In early September 1983, the appellant, then about eight years old, sustained an injury to his left leg after tripping over an iron rod and falling onto the playground at his school. Complaining of pain approximately three inches below the left knee, where a small circle that felt "hot" developed, the appellant sought the care of the appellee, a doctor of pediatric medicine. Based on this information, the appellee performed a clinical examination of the appellant's left leg below the knee and ordered an x-ray of the appellant's lower left leg. The appellee's final diagnosis concluded that the lower leg was not fractured and that the pain was due to shin splints or a bone bruise. The appellee advised the appellant to avoid overexerting his left leg until the pain subsided. The appellant did not seek a second opinion after his visit with the appellee.
In March 1984, the appellant was pushed at school and fell on his left side. He experienced pain in his left hip and visited the Defiance Memorial Hospital. X-rays taken of the appellant's left hip revealed a closed displaced fracture base of the neck of the left hip with new bone and non-union of the clear portion of the fracture and absence of circulation to the left femoral head and neck on the proximal side of the fracture. The hospital's final discharge report concluded that the appellant sustained the fracture during his September 1983 fall.
On September 21, 1992, the appellant instituted a medical malpractice action in the Court of Common Pleas of Defiance County against the appellee and the Bryan Medical Group,(fn1) alleging a failure to diagnose the fracture to the neck of the left femur, thereby allowing the appellant to walk for several months with an undetected, untreated, and nondisplaced fracture.
On August 30, 1993, the appellant moved for partial summary judgment on the issue that the appellee exceeded the scope of podiatry, and therefore should be held to the standard of care of a medical doctor. The appellee opposed the motion and also sought summary judgment, contending that the appellant: (1) failed to provide expert testimony demonstrating that the appellee exceeded the scope of the practice of podiatry; and (2) that the appellant failed to establish the requisite standard of care of a podiatrist. The trial court denied the appellant's motion for summary judgment and granted the appellee's motion for summary judgment. In granting summary judgment in favor of the appellee, the trial court ruled that expert testimony was required under the facts of this case to establish that the appellee rendered treatment within the meaning of R.C. 4731.51 (the statute governing the practice of podiatry.)
The appellee's affidavit in opposition to the fore
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