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Barbee v. Finerty1/30/1995
going facts stated that he did not treat the appellant. Also, in his motion package for summary judgment, the appellee attached the affidavits of two podiatrists, who both attested that: (1) the appellee did not exceed the scope of practice for podiatrists by seeing and examining the appellant's lower leg; and (2) that the appellee complied with the standards of practice and care for podiatrists. In particular, both of the appellee's expert affidavits indicated that R.C. 4731.51 only restricts treatment, but does not forbid a podiatrist from examining the lower leg of a patient to determine if there is an ailment of the muscles or tendons governing functions of the foot.
The appellant, in opposition to the appellee's motion for summary judgment, attached the deposition testimony and the affidavit of his expert, Mihran O. Tachdjian, M.D. Dr. Tachdjian's deposition testimony and affidavit indicate that the requisite standard of care for a physician requires a physician: (1) to conduct a careful clinical examination of the whole person (including his hip); (2) to x-ray the hip, which would have revealed the fractured hip; and (3) to subsequently diagnosis and treat the hip. In both his deposition testimony and his affidavit, Dr. Tachdjian criticized the appellee's care of the appellant. According to Dr. Tachdjian, the nonunion of the appellant's femoral neck was a direct and proximate result of the appellee's failure to diagnose and treat the appellant's left femoral neck fracture, which constituted a breach of the standard of care for a medical doctor.
On August 10, 1994, the trial court denied the appellant's motion for partial summary judgment, and granted the appellee's motion for summary judgment.
From this decision the appellant brings this appeal.
The appellant asserts three related assignments of error for our review.
"The trial court erred in ruling the defendant did not exceed the scope of podiatry in granting defendant's motion for summary judgment."
"The trial court erred in granting the defendant's summary judgment motion where the defendant invaded the field of a medical doctor under R.C. 4731.41."
"Since defendant exceeded the scope of podiatry and invaded the field of medical doctors as proscribed by R.C. 4731.41 and 4731.51, the trial court erred isfailing to hold defendant to the applicable standard of care of a medical doctor, as requested in plaintiffs motion for summary judgment."
Since the appellant's three assignments of error are substantially connected, they will be addressed together. The appellant submits that under R.C. 4731.51 (the practice statute), the appellee's deposition testimony acknowledging a clinical examination and an x-ray evaluation of the appellant's tibia, coupled with his diagnosis and advice relating to a bone bruise of the tibia, establishes, as a matter of law, that the appellee exceeded the scope of the practice of podiatry.
Under Civ.R. 56, summary judgment is proper 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; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party against whom the motion for summary judgment is made." State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 324, 4 O.O.3d 466, 470, 364 N.E.2d 267, 2
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