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Ewers v. Hospice of Dayton12/2/2005
{ } Charlotta Jane Ewers ("Ewers"), as executor of the estate of Dorothy Mae Ewers and in her individual capacity, appeals from a judgment of the Greene County Court of Common Pleas, which granted summary judgment in favor of Jerry Clark, M.D., on her medical malpractice claim.
{ } Toward the end of her life, Dorothy Ewers ("Dorothy") resided at the Trinity Community Nursing Home ("Trinity"), where Clark served as the Medical Director. Dorothy had been diagnosed with congestive heart failure and had been taking prescription pain medication prior to moving to Trinity. She was allegedly allergic to certain types of other pain medications. According to the complaint, Clark changed Dorothy's medication, prescribing doses that were too high and medications to which she was allergic, and Dorothy started to suffer from lack of coordination and disorientation. The complaint further alleged that Dorothy fell out of bed at the nursing home in early September 2002 due to neglect. She died a short time later.
{ } Shortly after Dorothy's death in September 2002, Ewers filed a complaint against Trinity, some of its employees, including Clark, Hospice of Dayton, and some of Hospice's employees, alleging wrongful death, breach of contract, negligence, fraud, infliction of emotional distress, and loss of consortium. Only the wrongful death claim against Clark is involved in this appeal. On September 2, 2003, Clark filed a motion for summary judgment in which he argued and affied by affidavit that his care of Dorothy had been in accordance with acceptable standards of medical practice. In his affidavit, he also described his handling of her medication and monitoring and averred that his evaluation, care, and treatment did not cause Dorothy's death.
{ } Ewers filed her response to Clark's motion for summary judgment on October 6, 2003. In her response, Ewers asserted that the motion for summary judgment was premature because discovery had not been completed and there was "a realistic possibility that genuine issues of material fact will surface as discovery proceeds." She also asserted that Clark's affidavit was insufficient for purposes of summary judgment because it was conclusory and failed to state with specificity the manner in which he had complied with the standard of care. Evers did not include with her response any evidence of the type described in Civ.R. 56(C)
{ } Clark moved to strike Ewers's response to his motion for summary judgment as untimely. He further argued that the year since the filing of the complaint had been ample time for Ewers to have Clark's care and treatment of the decedent reviewed by a medical expert. Clark asserted that Ewers was required to come forward with evidence that called his care into question.
{ } On November 6, 2003, the trial court granted Clark's motion for summary judgment. Specifically, it noted that no evidence had been offered that any expert witness was prepared to testify that Clark had failed to maintain the requisite standard of care. The court further noted that the case was not one in which the lack of skill or care of the physician was so apparent as to be comprehensible to a layman without the aid of an expert. In view of Ewers's reliance only on evidence that "may be discovered in the future" in response to the motion for summary judgment, the court concluded that summary judgment was appropriate. The court subsequently overruled a motion for reconsideration.
{ } Ewers raises two assignments of error on appeal.
{ } I. "THE COURT ERRED IN GRANTING DEFENDANT JERRY CLARK'S MOTION FOR SUMMARY JUDGMENT."
{ } Ewers claims that summary judgment was inappropriate for tw
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