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Ullmann v. Duffus11/15/2005
ellow Freight System, Inc. (Aug. 29, 1996), Franklin App. No. 96APE03-329 (holding that a medical report attached to the affidavit of counsel and filed in opposition to a properly supported motion for summary judgment was inadmissible hearsay).
{ } We acknowledge that at least one Ohio court and courts in other jurisdictions have permitted lay testimony on the issue of causation in breach of warranty or products liability cases in which a plaintiff's animal suffered adverse effects after ingesting the defendant's product. See Zedeker v. Logan Farm Bureau Coop. Assoc. (Mar. 18, 1985), Logan App. No. 8-83-24; Swift & Co. v. Morgan & Sturdivant (C.A.5, 1954), 214 F.2d 115; Western Feed Co. v. Heidloff (1962), 230 Ore. 324, 370 P.2d 612; Harberer v. Moorman Mfg. Co. (1950), 341 Ill.App. 521, 94 N.E.2d 611. However, even assuming the admissibility of appellant's affidavit testimony on the issue of causation, appellant still failed to demonstrate a genuine issue of material fact with respect to the applicable standard of veterinary care and Dr. Duffus' alleged breach thereof. Because appellant failed to demonstrate a genuine issue of material fact on essential elements of her professional negligence claim, Dr. Duffus was entitled to summary judgment on that claim.
{ } In the second count of her complaint, appellant alleges that Dr. Duffus' prescription of Panacur in the course of treating appellant's birds constituted a breach of an implied warranty that Panacur was fit for her birds. In response to Dr. Duffus' motion for summary judgment, appellant re-characterized her warranty claim, arguing that Dr. Duffus warranted that she would maintain her expertise and sufficient knowledge of bird medications. On appeal, appellant again re-characterized her warranty claim as a Uniform Commercial Code claim based on an implied warranty of fitness for a particular purpose. Dr. Duffus argues that Ohio courts have not applied implied warranty principles in professional negligence actions and that appellant's second count is actually a claim for medical negligence. We agree.
{ } In the absence of a special agreement, the implied liability of a physician or surgeon extends no further than liability for failure to exercise the proper degree of skill. Davish v. Arn (1940), 32 Ohio Law Abs. 646. In this case, appellant does not allege that Dr. Duffus made any express or special warranty with respect to her treatment of appellant's birds. Dr. Duffus had an implied duty to exercise the requisite standard of veterinary care when treating and prescribing medication for appellant's birds. Ohio courts have not imposed any additional implied warranty on a provider of medical services. In her warranty claim, appellant effectively argues that Dr. Duffus breached an implied warranty by failing to comply with the requisite standard of veterinary care. In the absence of an express warranty, appellant's remedy for Dr. Duffus' alleged failure to meet the requisite standard of care is a claim for professional negligence, as set forth in Count 1 of appellant's complaint. Therefore, Dr. Duffus was entitled to judgment as a matter of law on appellant's claim for breach of implied warranty.
{ } In the third count of her complaint, appellant alleges a claim of lack of informed consent. The tort of lack of informed consent is established when:
(a) The physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any;
(b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient;
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