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Ullmann v. Duffus11/15/2005
sue of fact for trial. In an attempt to meet her reciprocal burden, appellant submitted her own affidavit, attached to which are numerous exhibits, including a photocopy of an illustration entitled bird "digestive tract," a photocopy of a Panacur label, Internet printouts regarding Panacur, avian medications, and medical conditions and diseases of the Budgerigar and Cockatiel, and Dr. Mohan's notes.
Appellant did not submit an expert affidavit in opposition to Dr. Duffus' motion for summary judgment. Dr. Duffus argues that she was entitled to summary judgment because appellant failed to produce expert testimony regarding the applicable standard of veterinary care, breach thereof, and causation, whereas appellant argues that her claims require no expert testimony.
{ } Appellant first argues that she is alleging simple negligence rather than malpractice against Dr. Duffus. Appellant correctly states that a claim arising from the professional conduct of a veterinarian is not an action for malpractice for purposes of the one-year statute of limitations applicable to malpractice claims. See Hitchcock v. Conklin (1995), 107 Ohio App.3d 850. However, that fact has no bearing on the necessity of expert testimony to establish such a claim. Other professional negligence claims that do not constitute malpractice for purposes of the one-year statute of limitations nevertheless require expert testimony. For example, although a claim of professional negligence against a nurse does not fall within the traditional definition of malpractice and the one-year statute of limitations applicable to malpractice claims, "expert testimony is necessary to establish the prevailing standard of care where the professional skills and judgment of a nurse are alleged to be deficient." Ramage v. Central Ohio Emergency Servs., Inc. (1992), 64 Ohio St.3d 97, 102. Similarly, because appellant alleges deficiency in Dr. Duffus' exercise of professional skill and judgment, expert testimony is necessary to establish professional negligence.
{ } Appellant next argues that expert testimony is not required to establish Dr. Duffus' duty of care or beach thereof because they are clear and within the knowledge and understanding of laypersons. Although expert testimony is required where an inquiry "pertains to a highly technical question of science or art or to a particular professional or mechanical skill[,]" expert evidence is not required "where the subject of the inquiry is within the common, ordinary and general experience and knowledge of mankind[.]" Jones v. Hawkes Hosp. of Mt. Carmel (1964), 175 Ohio St. 503, paragraph one of the syllabus. Despite appellant's protestations to the contrary, the standard of care required of a veterinarian prescribing medication in the course of treatment is not within the common experience and understanding of laypersons.Ohio courts have infrequently applied the common knowledge exception to obviate the need for expert testimony in medical negligence cases. See Buerger v. Ohio Dept. of Rehab. & Corr. (1989), 64 Ohio App.3d 394, 399. Cases in which courts have done so involve instances of gross inattention to a patient, administrative or supervisory negligence, and miscommunication with a patient. See Cunningham at . Where the alleged negligence involves the exercise of professional skill and judgment, expert testimony is required to establish the prevailing standard of care, a breach of that standard, and proximate cause. Ramage at 103-104. Although Ramage involved a claim of nursing negligence, we find the Supreme Court's requirement of expert testimony equally applicable to a claim of negligence arising out of a veterinarian's exercise of professional skill and judgment. Because the cho
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