Barbee v. Finerty1/30/1995
72. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 139-141. Summary judgment is appropriate when the nonmoving party does not "produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. A reviewing court applies Civ.R. 56(C) to the evidence and allegations contained in the record. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 30 OBR 78, 79, 506 N.E.2d 212, 215.
Under Ohio law, in order to establish a prima facie case of medical negligence, a plaintiff must establish the following through expert testimony: (1) the standard of care recognized by the medical community; (2) a failure of the defendant/physician to meet the standard of care; and (3) a direct causal connection between the negligent act and the injury sustained. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 131-132, 75 O.O.2d 184, 186-187, 346 N.E.2d 673, 677-678. See, also, Ramage v. Cent. Ohio Emergency Serv, Inc. (1992), 64 Ohio St.3d 97, 102, 592 N.E.2d 828, 832; Hoffman v. Davidson (1987), 31 Ohio St.3d 60, 62, 31 OBR 165, 167-168, 508 N.E.2d 958, 960-961.
R.C. 4731.41 prohibits the practice of medicine or surgery without a license. The practice of podiatry in Ohio is limited by statutory definition. R.C. 4731.51 provides:
"The practice of podiatry consists of the medical, mechanical, and surgical treatment of ailments of the foot, the muscles and tendons of the leg governinsthe functions of the foot; and superficial lesions of the hand other than those associated with trauma. Podiatrists are permitted the use of such preparations, medicines, and drugs as may be necessary for the treatment of such ailments. The podiatrist may treat the local manifestations of systemic diseases as they appear in the hand and foot, but the patient shall be concurrently referred to a doctor of medicine or a doctor of osteopathic medicine and surgery for the treatment of the systemic disease itself. General anaesthetics may be used under this section only in colleges of podiatry approved by the medical board pursuant to section 4731.53 of the Revised Code and in hospitals approved by the joint commission on the accreditation of hospitals, or the American osteopathic association. The use of x-ray or radium for therapeutic purposes is not permitted."
The appellant submits that R.C. 4731.51 is not a proper subject matter for expert testimony. However, as explained by the Franklin County Court of Appeals in Matthews v. Walker (1973), 34 Ohio App.2d 128, 135, 63 O.O.2d 208, 212, 296 N.E.2d 569, 573:
"It can be seen that a podiatrist, pursuant to such empowering statute [R.C. 4731.51], is given considerably broader authority to treat ailments of the foot, the muscles, and the tendons of the leg governing functions of the foot. Such treatment, as set forth in such section [R.C. 4731.51], may be by medical, mechanical, or surgical means. * * * It becomes rather obvious that such section [R.C. 4731.51] permits a podiatrist to engage in a rather wide range of professional medical activities concerning the foot, leg and the hand, including surgical treatment. Such activities, we suggest, do in fact require an independent professional skill and judgment in the diagnosis and the treatment of certain physical ailments."
Given the broad sweep of the statute, we are hard pressed to determine, in the absence of expert testimony from the appellant, whether the appellee engaged in the treatment of the appellant, or for that matter, whether the appellee exceeded the scope of t
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