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Ullmann v. Duffus11/15/2005
ice of appropriate drugs to treat avian medical conditions requires a veterinarian to exercise professional skill and judgment, appellant was required to submit expert evidence detailing the applicable veterinary standard of care. Appellant failed to submit any such expert evidence.
{ } Appellant likewise failed to present expert opinion testimony that Dr. Duffus' treatment of appellant's birds with Panacur constituted a deviation from the requisite standard of veterinary care. Ohio courts have recognized that how a particular drug acts once ingested is outside the scope of lay expertise and requires expert testimony. See Kerpelis v. Pfizer, Inc., Mahoning App. No. 03 MA 17, 2004-Ohio-3049, at . Only expert testimony of a physician or pharmacist is admissible with respect to the effects of a given type of drug. Freed v. Burrows (Dec. 4, 1987), Trumbull App. No. 3860. In Freed, the court held that the plaintiff was required to introduce expert medical testimony indicating that the defendant-physician was negligent in that the type or amount of drugs prescribed were not those that an ordinary physician would prescribe for the plaintiff's condition. The lay plaintiff's affidavit stating the effect of a given drug was incompetent.
{ } In this case, appellant's lay affidavit is insufficient to establish that Dr. Duffus breached the applicable standard of veterinary care by prescribing Panacur for appellant's birds. Appellant presented no expert opinion testimony that Dr. Duffus' specific conduct constituted a deviation from the standard of care generally practiced by veterinarians under similar circumstances. In the absence of such evidence to contradict Dr. Duffus' expert affidavit, appellant failed to meet her reciprocal burden under Civ.R. 56(E), and Dr. Duffus was entitled to summary judgment on appellant's professional negligence claim. See Bogart v. Claridon Farms, Inc. (June 30, 1992), Geauga App. No. 91-G-1666 (in the absence of expert opinion evidence that the defendant veterinarian's course of treatment deviated from the standard of care generally practiced by veterinarians, summary judgment in favor of the veterinarian was proper).
{ } Even had the trial court considered Dr. Mohan's expert affidavit, which appellant belatedly filed as a supplement to her reply memorandum in support of her motion for relief from judgment, summary judgment in favor of Dr. Duffus would have been appropriate. In his affidavit, Dr. Mohan states that, " ased on the history and lab findings[,] a diagnosis of fenbendazole poisoning is made." (Mohan Affidavit at .) However, Dr. Mohan offers no testimony as to the standard of veterinary care applicable herein. Nor does Dr. Mohan offer an opinion as to whether Dr. Duffus breached that standard of care. Dr. Mohan's affidavit offers no opinion that Panacur is an inappropriate drug for treatment of birds or that Dr. Duffus was negligent in treating appellant's birds with Panacur. The absence of such opinions is fatal to appellant's claim. Thus, even with Dr. Mohan's affidavit as part of the record, appellant failed to meet her reciprocal burden to avoid summary judgment on her professional negligence claim.
{ } Appellant argues that her affidavit, and Dr. Mohan's notes and reports attached thereto, are admissible on the issue of causation and demonstrate a genuine issue of material fact on her negligence claim. Appellant admits that Dr. Mohan's notes would not normally be admissible without Dr. Mohan's testimony or the authenticating testimony of a records custodian, and we find them inadmissible here. Dr. Mohan's notes and reports comprise hearsay statements, which are not admissible as evidence supporting appellant's claims. See Sweatman v. Y
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