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Hillman v. Kosnik9/8/2005
{ } Plaintiffs-appellants, Grant S. Hillman ("Grant"), and his parents, Steven E. Hillman ("Attorney Hillman") and Gail V. Hillman ("Mrs. Hillman"), appeal from the January 10, 2005 decision and entry of the Franklin County Court of Common Pleas, in which that court granted partial summary judgment in favor of defendants-appellees, Edward Kosnik, M.D. ("Dr. Kosnik"), and Neurological Associates, Inc., and ruled that Attorney Hillman is disqualified from further representation as counsel for Mrs. Hillman and for Grant.
{ } This case involves claims of medical malpractice, lack of informed consent and fraud, in connection with medical care rendered to Grant by Dr. Kosnick while the doctor was employed by Neurological Associates, Inc. Appellees filed a motion seeking judgment as a matter of law as to all of appellants' claims. In their reply to appellants' memorandum contra, appellees argued that Attorney Hillman's affidavit submitted with the memorandum contra must be stricken or, in the alternative, Attorney Hillman must be disqualified as counsel for Mrs. Hillman and Grant.
{ } The trial court granted appellees' motion for summary judgment as to the medical malpractice and informed consent claims, and denied the motion with respect to the claim of fraud. The court refused to strike Attorney Hillman's affidavit, but did rule that Attorney Hillman is disqualified from further representation of Mrs. Hillman and Grant in this case, pursuant to DR 5-102 of the Ohio Code of Professional Responsibility. This appeal followed.
{ } Appellants advance three assignments of error for our review, as follows:
Assignment of Error One
The Trial Court erred by denying the right of Steven E. Hillman to appear as counsel in the trial of this case in the trial court.
Assignment of Error Two
The Trial Court erred by granting the motion of the Defendants/Appellees for Summary Judgment as to the issue of medical malpractice by requiring the use of an expert other that the Appellee.
Assignment of Error Three
The Trial Court erred by granting Summary Judgment thereby dismissing the action regarding lack of informed consent.
{ } The relevant facts are as follows. On February 5, 1990, in the course of rendering medical treatment to Grant, who was a minor, Dr. Kosnik informed his parents, Attorney Hillman and Mrs. Hillman, that Grant had a brain tumor and that the tumor should be surgically removed. Dr. Kosnik performed the surgery on February 7, 1990.
{ } Appellants claim that Dr. Kosnik was negligent in his care of Grant, both at the time of surgery and during follow-up care, and that such negligence is the proximate cause of damages suffered by Grant and his parents. They further claim that Dr. Kosnik performed the surgery on Grant's brain without the requisite informed consent from Attorney Hillman and Mrs. Hillman. Specifically, they claim that Dr. Kosnik failed to inform them of the material risks and dangers associated with Grant's surgery, and that Dr. Kosnik went so far as to represent to them that there were no risks or dangers associated with the surgery. Finally, they claim that statements Dr. Kosnik allegedly made before and after the surgery support a cause of action against him for fraud. Appellants' claims against Neurological Associates, Inc., are premised upon a theory of respondeat superior.
{ } In their first assignment of error, appellants argue that the trial court erred in disqualifying Attorney Hillman from further representation of Grant and of Mrs. Hillman. We will not reverse the trial court's decision to disqualify Attorney Hillman absent an
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