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Ullmann v. Duffus11/15/2005
care and the lack thereof, as applied to physicians and surgeons generally. In other words, with respect to liability of many specialists, both directly and in some instances indirectly associated with the practice of medicine, rules respecting ordinary care as applied to a layman are not applicable, but the rules of what is ordinary care and the lack thereof as applied to the trained professional are applied.
Storozuk v. W.A. Butler Co. (1964), 3 Ohio Misc. 60, 61-62. A plaintiff's burden to establish veterinary negligence parallels a plaintiff's burden in establishing professional negligence against other medical professionals:
n order to establish negligence by a veterinarian, it must be shown that the injury complained of was caused by the doing of a particular thing that a veterinarian of ordinary skill, care and diligence would not have done under like or similar circumstances, or by the failure or omission to do some particular thing that such a veterinarian would have done under like or similar circumstances. * * * Turner v. Sinha (1989), 65 Ohio App.3d 30, 35. Thus, to establish her negligence claim against Dr. Duffus, appellant must establish that a veterinarian of ordinary skill, care, and diligence would not have prescribed Panacur under like or similar circumstances and that Dr. Duffus' prescription of Panacur caused appellant's loss.
{ } In a medical malpractice action, " roof of the recognized standards [of the medical community] must necessarily be provided through expert testimony." Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 131-132. Additionally, the issue of "whether the [defendant] has proceeded in the treatment of a patient with the requisite standard of care and skill must ordinarily be determined from the testimony of medical experts." Id. at 130. In the absence of an opposing affidavit of a qualified expert for the plaintiff, a defendant-physician's affidavit attesting to his compliance with the applicable standard of care presents a legally sufficient basis upon which a court may enter summary judgment in a medical malpractice action. Cunningham v. Children's Hosp., Franklin App. No. 05AP-69, 2005-Ohio-4284, at , citing Marcum v. Holzer Clinic, Inc., Gallia App. No. 03CA25, 2004-Ohio-4124, at .
{ } In support of her motion for summary judgment, Dr. Duffus submitted her own expert affidavit, in which she details her examination and diagnosis of Osiris and her prescription of Panacur for appellant's birds. Dr. Duffus also testifies about Panacur and its uses. Dr. Duffus states that: since the 1960s, extensive research has demonstrated that fenbendazole is a safe and effective treatment against a broad spectrum of parasites in all species of animals and humans; neither Food and Drug Administration regulations nor state or federal law prohibits prescription of fenbendazole as a deworming medication; and she is unaware of any scientific study or professional standard of care that prohibits the use of fenbendazole for treatment of roundworms in cockatiels or parakeets. To a reasonable degree of scientific certainty, Dr. Duffus opines that: "at all relevant times, I complied with the applicable standard of veterinary care in connection with the treatment of [appellant's] birds, to be expected of veterinarians licensed by the State of Ohio, possessing similar training, education, and experience, and performing veterinary services under like or similar circumstances[.]" (Duffus Affidavit at .) With her affidavit, Dr. Duffus met her initial burden on summary judgment.
{ } Because Dr. Duffus met her initial burden on summary judgment, appellant was required, pursuant to Civ.R. 56(E), to set forth specific facts demonstrating a genuine is
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