NOTICE OF APPEAL
FROM A COURT OF APPEALS
IN THE SUPREME COURT OF OHIO
LARRY L. STRALEY, JR., : CASE NO. 07 -
Plaintiff-AppeRant, . On Appeal from the Clark CountyCourt of Appeals,
v. . Second Appellate District
TARSEM CHAND GARG, M.D., et aL, : Court of Appeals Case No. 06 CA 0107
Defendants-Appellees. . Trial Court Case No. 04-CV- 0636
MEMORANDUM OF PLAINTIFF-APPELLANT LARRY L. STRALEY, JR.IN SUPPORT OF JURISDICTION
David F. Rudwall (#0009086)500 East Third Street, Suite 239Dayton, OH 45402Telephone: (937) 228-4600Facsimile: (937) 228-4601Email: [email protected]
Counsel for Plaintiff/Appellant Larry L. Straley, Jr.
Kevin W. Popham (#0066335)Arnold Todaro & Welch Co., LPA2075 Marble Cliff Office ParkColumbus, OH 43215Counsel for Defendants/Appellees,
William G. Vazquez-Choisne, M.D.and Springfield Medical Imaging, Inc.
Karen L. Clouse (#0037294)Arnold Todaro & Welch Co., LPA2075 Marble Cliff Office ParkColumbus, OH 43215Counsel for Defendants/Appellees,
Tarsam Chand Garg, M.D.,and Tarsem C. Garg, M.D., Inc.
JUN z s z0o1
CLERK OF COURTSUPREME COURT OF OHIO
TABLE OF CONTENTS
Paee:
TABLE OF CONTENTS
TABLE OF AUTHORITIES
- i -
- ii -
1. STATEMENT OF WHY THIS IS A CASE OF PUBLIC OR GREAT 1GENERAL INTEREST
A. Statement of the Case and Proceedings Below 2
B. Statement of Facts 3
1. Testimony of Plaintiff Larry Straley 3
2. Testimony of Defendant Tarsam C. Garg M.D. 4
III. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW 5
Proposition of Law:
In a malpractice action, where competent expert testimony creates a material issue as towhether the defendants met the standard of reasonable care, a court may not rendersummary judgment on the separate basis that the care is argued to satisfy the customary"duty of good care."
A. The Trial Court Ignored Testimony of Dr. Garg 6
B. The "Duty of Good Practice," Does Not Correspond to Reasonable Care 7
IV. CONCLUSION
CERTIFICATE OF SERVICE
APPENDIX
Exhibit 1: Opinion of the Clark County Court of Common Pleas (October 4, 2006)Exhibit 2: Opinion of the Clark County Court of Appeals (May 14, 2007)Exhibit 3: Decision of the Clark County Court of Appeals (June 21, 2007)
10
11
-i-
TABLE OF AUTHORITIES
Cases: paee:
Bedard v. Gardner, 2005-Ohio-4196 7Berdyck v. Shinde (1993), 66 Ohio St.3d 573 7, 8Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127 1, 6Byrd v. Smith, 110 Ohio St.3d 24 7Cincinnati Ins. Co. v. Am. Line Bldrs. (1994), 93 Ohio App.3d 392 7Hoffman v. Davidson (1987), 31 Ohio St. 3d 60. 6Hubach v. Cole (1938),133 Ohio St. 137, 143 10Loughran v. Kettering Mem. Hosp. (1998), 126 Ohio App.3d 468 7Littleton v. Good Samaritan Hospital & Health Ctr. (1988), 39 Ohio St.3d 86 7Oleksiw v. Weidener (1965), 2 Ohio St.2d 147 6Sturm v. Univ. of Cincinnati Med. Ctr. (2000), 137 Ohio App.3d 557 7Turner v. Turner (1993), 67 Ohio St. 3d 337 1Ware v. Richey (1983), 14 Ohio App.3d 3 6Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272,276 6
Other: paee:
61 Am. Jur. 2d Physicians, Surgeons, and Other Healers § 188 (2002) 8Lewis MH, et al., The Locality Rule and the Physician's Dilemma: Local 8
Medical Practices vs. the National Standard of Care, JAMA 2007 297:2633-2636Peters, The Quiet Demise of Deference to Custom: Malpractice Law 9
at the Millennium, 57 Wash. & Lee L. Rev. 163, 165,170,172 (2000)Prosser and Keeton on Torts (5' Ed., 1984), 185, 189, Section 32 7The T.J. Hooper v. Northern Barge Corporation, 60 F.2d 737, (2d Cir. 1932) 9Williams, Evidence-Based Medicine in the Law Beyond Clinical Practice 10
Guidelines: What Effect Will EBM Have on the Standard of Care?61 Wash. & Lee L. Rev. 479 (2004)
I. THIS IS A CASE OF PUBLIC AND GREAT GENERAL INTEREST
In Ohio, the standard of care required of a medical professional is that of "a reasonable
specialist practicing medicine or surgery in that same specialty in the light of present day
scientific knowledge in that specialty field." Bruni v. Tatsumi (1976), 46 Ohio St.2d 127.
Following summary judgment, no party raised issue with that standard on appeal.
The appeals court should have considered whether plaintiff submitted competent
evidence that defendants did not meet the standard of reasonable care. Instead, the court
separated reasonable care from a"duty of good practice."
The court below held: "The physician's duty of good practice does not preclude any and
all omissions, but only those which his duty of good practice requires him to avoid." In other
words, in this case, an unreasonable misdiagnosis may be excused if the care is "good enough."
Any alteration of substantive standards of law will distort case outcomes. Substantive law
determines which facts are material. Turner v. Turner (1993), 67 Ohio St. 3d 337. If the "duty
of good practice" proliferates through inferior courts, the measure of "good" will inevitably
suggest practice parameters having nothing to do with the standard rule of reasonableness.
Page 1 of 12
11. STATEMENT OF THE CASE AND FACTS
A. Statement of the Case and Proceedin s Below
This medical case asserts that orthopedic surgeon Tarsam Garg, M.D., and radiologist
William Vazquez-Choisne, M.D., failed to diagnosis of an ankle fracture, falling below standards
of reasonable medical care. Following preliminary discovery, the parties were deposed.
Each defendant filed a summary judgment motion. Dr. Garg's motion attaches the
conclusory affidavit of a non-treating expert who did not read depositions or review the x-rays.
Similarly, Dr. Vazquez-Choisne's motion was unsupported by Rule 56 evidence, except the
conclusory affidavit of an expert who did not review the testimonial record, while opining the
defendant did not fall below accepted standards of care.
Plaintiff filed an opposing memorandum with his affidavit, the deposition of Dr. Garg
and a Civ.R.56(F) motion seeking additional time to confer with Dr. Philben before identifying
an expert. The trial court issued an order permitting thirry (30) days to submit an expert affidavit.
Thereafter, the court issued a Decision sustaining summary judgment and dismissing plaintiff's
case in its entirety. Exhibit 1.
Mr. Straley appealed, arguing the trial court ignored Dr. Garg's own competent testimony
which establishes a prima facie case, in favor of summary judgment based solely upon
conclusory affidavits of retained experts. On May 14, 2007, on the appeals court affnmed.
Exhibit 2. An Application for Reconsideration was overruled on June 21, 2007. Exhibit 3.
Page 2 of 12
B. Statement of Facts
1. Testimony of Plaintiff Larry Straley
On July 21, 2002, Larry Straley, a deputy sheriff, responded to an emergency involving an
armed suspect holding a hostage. The suspect fled. Pursuing, Straley scaled a fence, but landing,
his ankle turned outward to the ground.
An emergency squad transported Mr. Straley to Community Hospital with complaints of
ankle pain, swelling and inability to bear weight. An emergency physician ordered x-rays which
were interpreted by the Defendant radiologist Dr. Vazquez-Choisne as "normal." Accordingly,
Mr. Straley followed the next day with an occupational physician and was returned to light duty.
Three weeks later, with continued pain and swelling, plaintiff saw defendant orthopedist
Tarsam Garg, M.D. He brought hospital ankle x-rays from the night of the injury, and watched
Dr. Garg examine the x-rays on a viewbox.
Dr. Garg prescribed physical therapy, exercise and full activity. Though pain persisted
over time, Dr. Garg advised that this was normal. Eleven months a8er the injury, Dr. Garg
decided to re-x-ray the ankle. Plain film x-rays and an MRI confirmed that plaintiff's ankle was
fractured all along. Dr. Garg referred Mr. Straley to foot surgeon Terrence Philbin, M.D., who
unsuccessfully attempted to re-attach a floating bone chip and tighten ligaments. However, by
then, cartilage was irreplaceably damaged and arthritis has set in.
Page 3 of 12
2. Testimony of Defendant Tarsam C. Garp-. M.D.
Based upon his professional skill, training, education and experience, Dr. Garg rendered
opinions concerning liability issues of this particular case, including standards of care which
apply to himself and the radiologist who originally interpreted Mr. Straley's hospital x-rays.
If Dr. Garg sees a patient in his office, he takes his own x-rays, personally reading them.
When seeing patients at the hospital, he reviews those x-rays.
New office patients are also told to bring outside, hospital x-rays. Dr. Garg is trained to
diagnose fractures, and an expert in reading ankle and foot x-rays. He does not dispute that he
reviewed plaintiff's Community Hospital x-rays in his office.
For 11 months, Dr. Garg had numerous opportunities to review hospital x-rays again, but
did not. When he decided to take x-rays, the fracture was discovered. If he had done his own
x-ray, he would have discovered the fracture in the first instance.
Plaintiffl s fracture is visible in hospital x-rays, even without use of an illuminated
"viewbox." A piece of bone broke off inside Mr. Straley's ankle joint. This condition, known as
"osteochondritis dissecans," was not described by Dr. Vazquez-Choisne.
In exercising "reasonable and ordinary interpretive skill and care," prudent specialists are
required to look for osteochondritis dissecans in reviewing x-rays of patients with ankle trauma.
A reasonably prudent orthopedist such as Dr. Garg, or radiologist such as Dr. Vazquez-Choisne,
is expected to competently and professionally diagnose this injury.
The defendant radiologist Vazquez-Choisne had the duty to read Mr. Straley's x-rays
accurately, and upon diagnosing fracture, to adequately communicate findings in a written report.
Instead, Dr. Vazquez-Choisne read the x-rays incorrectly, reporting the ankle was "normal."
Page 4 of 12
When asked, "What are the diagnostic tools available to the reasonably prudent
orthopedic surgeon who wishes to rule out fracture?," he responds: "You look at the x-rays."
Dr. Garg states that if - instead of relying upon Dr. Vazquez-Choisne - he had read the x-rays or
re-taken x-rays of the same injury, it is "most likely" that with reasonable and ordinary
interpretive skill and care, he would have discovered and diagnosed the Plaintiff's fracture.
Page 5 of 12
III. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
Proposition of Law: In a malpractice action, where competent expert testimony creates amaterial issue as to whether the defendants met the standard of reasonable care, a courtmay not render summary judgment on the separate basis that the care is argued to satisfythe customary "duty of good care."
A. The Trial Court Ignored Testimonv of Dr. Garg
The trial judge correctly observed that expert testimony is required in medical malpractice
actions, citing Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127. But the trial court incorrectly states,
"Straley has not produced the opinion of a medical expert, by way of affidavit or any other
means, to support his claims of negligence against the physician-defendants."
Concluding, the court inconsistently cites a decision of this Court permitting a defendant
to testify as to his own compliance with standards of care: "That is essentially the situation here.
The defendant-physicians' motions are supported by affidavits from other medical experts
attesting to their compliance with the standard of care. Straley did not produce an opposing
affidavit. Therefore, he has not made the requisite showing to establish a prima facie case for
medical malpractice," citing Hoffman v. Davidson (1987), 31 Ohio St. 3d 60.
Generally, a defendant in a malpractice action may testify as to compliance with the
standard of care, thus eliminating the need for an independent expert: "[i]n a malpractice action,
expert testimony nia.y be elicited from a physician defendant called by plaintiff as if under
cross-examination," Oleksiw v. Weidener (1965), 2 Ohio St.2d 147, syllabus of the case. Cf.,
Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, 276 (defendant physician's admissions in
deposition may provide applicable standard of care); Ware v. Richey (1983), 14 Ohio App.3d 3,
syllabus three of the case (expert testimony through cross-examination of defendant-physician).
Page 6 of 12
This Court recently certified the issue "whether it is proper for courts to disregard an
affidavit inconsistent with or contradictory to prior deposition testimony when ruling on a motion
for summary judgment," and answered: "If an affidavit of a movant for summary judgment is
inconsistent with the movant's former deposition testimony, summary judgment may not be
granted in the movant's favor." The Court explained:
[A] summary judgment movant may not benefit from changing a deposition with a latersworn statement. We must remember that the parties are not quite in the same positionwith respect to summary judgment.... The movant has the burden to show the lack ofany genuine issue of material fact. The nonmoving party, on the other hand, receives thebenefit of all favorable inferences when evidence is reviewed for the existence of genuineissues of material facts.
Byrd v. Smith, 110 Ohio St.3d 24, 26, 28-29 (citations omitted).
B. The "Duty of Good Practice," Does Not Corresnond to Reasonable Care .
This Court has only once described a doctor's "duty of good practice." Berdyck v. Shinde
(1993), 66 Ohio St.3d 573. However, the author of that decision, sitting by appointment of this
Court, has written nearly all appellate cases using this phrase. Loughran v. Kettering Mem. Hosp.
(1998), 126 Ohio App.3d 468; Bedard v. Gardner, 2005-Ohio-4196; Cincinnati Ins. Co. v. Am.
Line Bldrs. Apprenticeship Training Program (1994), 93 Ohio App.3d 392. One appeals opinion
using this phrase is written by a different judge, but clearly applies an objective standard of care.
Sturm v. Univ. of Cincinnati Med. Ctr. (2000), 137 Ohio App.3d 557, 561-562.
One "duty of good practice" opinion states, "The standard of conduct required to satisfy a
physician's duty of good practice is dictated by the custom of the profession." Loughran, supra,
at 473-474, citing Littleton v. Good Samaritan Hospital & Health Ctr. (1988), 39 Ohio St.3d 86.
In Littleton, however, while this Court mentions "custom" the Court also clearly distinguishes
Page 7 of 12
the subjective standard, as it pertains to the practice of psychotherapy, from the objective
"malpractice standard of ordinary care" which applies to other medical doctors. Id, at p. 93.
What is troubling in the Opinion below is the court is initiating a departure from
normative legal standards which determine the competency of professional liability claims.
Indeed, explaining its Opinion in the Decision oven-uling the application to reconsider, the court
below refers to that author's decision for this Court in Berdyck, also referring to the source of the
"duty of good care," Berdyck v. Shinde (1993), 66 Ohio St.3d 573, citing Prosser and Keeton on
Torts (5"' Ed., 1984), 185, 189, Section 32.
In turn, Prosser makes this reference to a duty of good care: "the standard of conduct
becomes one of `good medical practice,' which is to say, what is customary and usual in the
profession. It has been pointed out often enough that this gives the medical profession, and also
the others, the privilege, which is usually emphatically denied to other groups, of setting their
own legal standards of conduct, merely by adopting their own practices." Id.
Coincidentally, the Journal of the American Medical Association published an article the
same week the appeals court Opinion denied reconsidera6on, urging that a custom-based
standard of care may serve to promote the practice of substandard medicine. Lewis MH, et al.,
The Locality Rule and the Physician's Dilemma: Local Medical Practices vs. the National
Standard of Care, JAMA 2007 297:2633-2636 (See text, fn. 2 - 6).
Whereas older cases may discuss "custom" and "usage," it has long been established in
most states that unreasonable conduct under the same or similar circumstances is not acceptable.
See, 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers § 188 (2002). In states without such
a standard, the law allows proof of a more subjective nature, as to what "most physicians do,"
Page 8 of 12
though there are rarely studies to establish what most physicians do about anything.
A recent survey of all fifty states, noting that physicians are often treated more favorably
than ordinary tort defendants, demonstrates that modem courts are rejecting a custom-based
standard in favor of a reasonable physician standard:
By the beginning of 1999, a dozen states had expressly refused to be bound by medicalcustoms. Nine additional states, while not explicitly rejecting deference to custom, hadchosen to phrase the duty owed by physicians in terms of reasonability, rather thancompliance with medical customs. In addition, the steady pattern of defections from thecustom-based standard of care over the past several decades suggests that more states willfollow.
Morover, appellate cases in seventeen states "explicitly reject deference to custom in medical
malpractice cases. [And in] at least twelve of those states, the cases rejecting custom-based
standards appear to be authoritative today." Peters, The Quiet Demise of Deference to Custom:
Malpractice Law at the Millennium, 57 Wash. & Lee L. Rev. 163, 165, 170, 172 (2000). Cf,
The T.J. Hooper v. Northern Barge Corporation, 60 F.2d 737, (2d Cir. 1932) (L. Hand, J.).
Further, as power in the health care industry transforms away from physicians and
towards a insurers, a custom-based approach invites the risk that care standards based upon
"what physicians do," may be dictated more by outside influence and convenience, than by
objective analysis of reasonable professional behavior.
Page 9 of 12
IV. CONCLUSION
Is "good practice" no longer the conduct "of a reasonable specialist practicing medicine
or surgery in that same specialty in the light of present day scientific knowledge in that specialty
field?" Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, at paragraph two of the syllabus. Will the
Court's new path follow clinical guidelines, as opposed to empirical, evidence-based medicine?
See, Williams, Evidence-Based Medicine in the Law Beyond Clinical Practice Guidelines: What
Effect Will EBM Have on the Standard of Care? 61 Wash. & Lee L. Rev. 479 (2004).
This case does not involve the subjective "medical judgment" rule, which forgives an
error in judgment that does not amount to an act or omission falling below the standard of care.
Importantly, Dr. Garg never testified that misdiagnosing Mr. Straley's fracture constitutes good
practice. Dr. Garg testified clearly concerning the accepted standard of reasonable care.
Under the reasonable minds test, conflicting opinions and credibility are matters for the
jury as trier of fact. Hubach v. Cole (1938), 133 Ohio St. 137, 143. Construing the evidence
most strongly in favor of plaintiff, as is required by Civil Rule 56(C), reasonable minds are not
compelled to reach "but one conclusion," adverse to the plaintiff, and that Mr. Straley's
treatment, thought unreasonable, was nevertheless acceptable under the law.
Defendants failed to demonstrate entitlement to summary judgment as a matter of law.
In accordance with Civil Rule 56(C), the evidence establishes prima facie medical negligence.
Plaintiff respectfully requests an order reversing and remanding this case for proceedings
consistent with the legitimate rights and interests of the parties.
Page 10 of 12
Respectfully submitted,
David F. Rudwall (#0069086)500 East Third Street, Suite 239Dayton, OH 45402Telephone: (937) 228-4600Facsimile: (937) 228-4601Email: [email protected] for Plaintiff/Appellant Larry L. Straley, Jr.
Page Il of 12
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was mailed by ordinary U.S. mail to thefollowing on June 28, 2007:
Kevin W. Popham, Esq. (#0066335)Arnold Todaro & Welch Co., LPA2075 Marble Cliff Office ParkColumbus, OH 43215Counsel for Defendants/Appellees,
William G. Vazquez-Choisne, M.D.and Springfield Medical Imaging, Inc.
Karen L. Clouse, Esq. (#0037294)Arnold Todaro & Welch Co., LPA2075 Marble Cliff Office ParkColumbus, OH 43215Counsel for Defendants/Appellees,Tarsam Chand Garg, M.D.,
and Tarsem C. Garg, M.D., Inc.
David F. Rudwall (#0009086)Counsel for Plaintiff/Appellant Larry L. Straley, Jr.
Page 12 of 12
0=1 of To jil-ras at Tiark (^^ ^ ^ 04W
Lariy L. Stra!ey, Jr.,
P!r^;r:t:ff,Case No. 04-CV-0636
vs. JUDGE O'NEILL
Tarsem C. Garg, M.ira., et af.,
Defendants.
DECISION AND ENTRY:
(1) SUSTAINING DR. VAZQUEZ-CHOISNE AND SPRINGFIELD MEDICAL
IMAGING'S MOTION FOR SUMMARY JUDGMENT; AND
(2) SUSTAINING DR. GARG'S MOTION FOR SUMMARY JUDGMENT
Rendered this 2nd day of October, 2006.
O'Neill, J.
1. Introduction
This matter comes before the Court upon two motions for summary judgment.
One is brought by Defendants, William G. Vazquez-Choisne, M.D. and Springfield
Medical Imaging; the other by Defendants, Tarsem C. Garg, M.D. and Tarsem C. Garg,
M.D., !nc. In an entry dated August 23, 2006, the Court aranted Plaintiff, Larry Straley,
an extension in order to file an affidavit from a medical expert in order to oppose the
motions. The time granted under the extension has passed without any filing from
Straley
13. Factual and Procedural Background
"i'r.e instant action arises out of an ankle injury sustained by Straley, a SherifPs
Der^uty, :,vnen he Ianderl after sca!ing a fence in pursuit of a suspecL Straley was
II
treated at the emergency room of Community Hospital. Dr. Vazquez-Choisne, a
ioiog at, interpreted x-rays ctt Straley's onkle.
few weeks later, Stra!ey saw ^,. Garg, an orthopedic surgeon. Garg reviewed
Straley's x-rays taken at Community and examined the ankle. Straley saw Dr. Garg for
foliow-up visits a few times over the cou^.`.e of montr;s. Dr. Garg recommended
physical therapy and exert;i:ays. At sorne noint, Garg found that Straley's ankle was
stable and thz:a. :,e had.a !-an3e of rn•:,tior=. Straley returned to his duties.
?he n<.y:?. sumnice, S=s^aley returned to T"?r. Garg cotYiplaining of pain in the ankle.
Dr. Garg ordered an MRI that revealed a condition called "steochondritis dissecans."
Apparently, this is a separation of cartilage from the bone. Upon the diagnosis, Dr. Garg
referred Straley to another surgeon in Columbus who later performed and operation to
repair Straley's ankle.
Straley brought this suit in June 2004 alleging negligence against both Dr.
Vazquez-Choisne and Dr. Garg. Presently, the physicians assert that they are entitled
to summary judgment on Straley's claims because he has not produced the opinion of a
medical expert to establish medical malpractice,
Ill. Standard of Review
A motion for summary judgment is govemed by Rule 56(C) of the Ohio Rules of
Civil Procedure. Rule 56(C) provides, in pertinent part, that:
Summary judgment shall be rendered forthwith if thepleadings, depositions, answers to interrogatories, writtenadmissions, affidavits, transcripts of evidence in thepending case, and written stipulations of fact, if any, timelyfiled in the action, show that there is no genuine issue ofmaterial fact and that the moving party is entitled tojudgment as a matter of law. No evidence or stipulationmay be considered except as stated in this rule. Asummary judgment shall not be rendered unless it appearsfrom such evidence or stipulation and only therefrom, thatreasonable minds can come to but one conclusion and thatconclusion is adverse tc tl-,e party against whom themotion for su= imary judgment is made, such party being
I
entitled to have the evidence or stipulation construed most°;tronGly in P^rc `nvor.
'E ne Sd,orerne Cou: of Ohio has adopted a three-part standard Eo be used when
deciding if sunr^fnf ry judgnrent :_*. appropriate. The movinc; party must show:
(1) [T]hat there is no genuine issue as to any material iact;.2`, that.K: moving party is entit?ed.to judgrrient as aaf law; and (3) that reasonable rninds can come to b+it neconclusion, and that conclusion is adve:; -;e to the. a,srtyagainst whom the motion for summar.y jur.igr,ient is made,vho is entitled to have t`^- 2videnc. ;::^nctruetf : ,-,_,ststrongly : n his favor.'
Additic, 4 ly, the nonmoving party must go beyond the allegations or denials
contained in his pleadings and affirmatively demonstrate the existence of a genuine
issue of material fact in order to prevent the granting of a motion for summary judgment z
Moreover, the entry of summary judgment against a party is mandated when the
nonmoving party:
[F]ails to make a showing sufficient to establish theexistence of an element essential to that party's case, andon which that party will bear the burden of proof at trial * * *[by designating] specffic facts showing that there is agenuine issue for trial 3
The Supreme Court of Ohio has adopted and approved the Ce/otex burden on
the nonmoving party, provided that the moving party meet its initial burden of informing
the court of the basis for the motion and identifying portions of the record demonstrating
the absence of any genuine issue of material fact."
IV. Analysis and Findings of the Court
In order to establish a claim for medical malpractice, a plaintiff must show by a
preponderance of the evidence: (1) a duty on behalf of the physician-defendant to the
plaintiff; (2) the standard of care recognized by the medical community; (3) the failure of
Harless 3 Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. 66.
2 i,&; iaff v h/heermr (1988), 38 Ohio St.3d 112.
3 Calotex Corp. v. :?aireti (1986) 477 U.S. 317.
4 Dresher v. Burt !1.996). 75 Ohio St.3d 280. -
the defendant to meet that standard of care; and (4) a causal link between the negligent
act ai c3 th i,-iec. sust.:incd 5 In order to ;>-tabli::h factors, the pl-iintift sn!ast
prov:^ie the 4-:.nl^et ^t te-^f'ir)ony of 4 meoi:,:.̂ ^=rxpert.s An exception exist;7.when "th^„
nature of the case is sucr, that the lack of skili or care of the physician and surgeon is so
II
app:^s^--nti .as ,• t3a -=vithii
kno<:Eedge a! .nxp«:rienr^ to is^iderstand and judge it.°' Othennrise, failure to produ_*,
a ;:^F^?r^ .. . Yc.o. Clcit. r}rr.^; ;. ;:^I ra^'.;e."}'^. "•.iC;ea
!r !.,,; . tr2'sr has ,<t z^ nd,;:e:d "he opinion of a medical exprlrt, by
affidavit or any other means, tc support i•:is claims of negligence against the physician
defendants. Nor does this case appear F-, be one in which medical negligence could be
established without expert testimony.
Further, "in the absence of an opposing affidavit of a qualified expert witness for
the plaintiff, the affidavit of a defendant-treating physician attesting to his compliance
with the applicable standard of care presents a legally sufficient basis upon which a trial
court may grant a summary judgment motion in a medical malpractice action."9 That is
essentially the situation here. The defendant-physicians' motions are supported by
affidavits from other medical experts attesting to their compliance with the standard of
care. S4raley did not produce an opposing affidavit. Therefore, he has not made the
requisite showing to establish a prima facie case for medical malpractice.
IV. Conclusion
Based on the foregoing, the Court finds that there are no genuine issues of
material fact; that reasonable minds can come to but one conclusion which is adverse to
5 Collias v. Trqy Radiotogists, Inc., 2nd Dist. No. 19487, 2003-Ohio-6892, ¶11 (citing Bruni v. Tatsumi
(197s), 46 Ohio St,2d 127).
6 Id.
8nwn., at 130.
Wr : ier v. D;; 'a.sa„eie, 2;.d Dis . No. z0737. 2+105-OFilo-:ii 10, 1i8.Young v. Spangier, 10th Dist. No. 2005 CA 00153, 2006-Ohio-401,1124 (citing Hoffman v. Davidson
(1987), 31 Ohio St.3d 601. '
Straley; and that the physicians are entitled to:judgment as a matter of law. Accordingly,
Dr .,.zque ,- .znd Springrie!d vri !sce.'; ,• Yqing's 'r;='4on fo
9,ek ^;; SUSTAINED. And Dr.;. Garg's. for F°.^^iman-
summary r: :dgmr.:yi ', .
j:.idgmenf is h4:reby
SUSTAINED. Because all claims are disposed on these motioris, this deusion shall
c..: stute final judgmeni ent;„ undet^ G^ -` s h -z ;r .:src:iss ^cl. '.:osts. :hall
be assess-d to Plaintiff.
"'rrjies tc:
David F. Rudwall500 E. Third St., Suite 239Dayton, Ohio 45402
Karen L. ClouseArnold Todaro & Welch2075 Marble Cliff Office ParkColumbus, Ohio 43215
Kevin W. PophamArnold Todaro & Welch2075 Marble Cliff Office ParkColumbus, Ohio 43215
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
LAi2RY L. STRALEY, JR.
Plaintiff-Appellant
vs.
C.A. CASE NO. 06CAO107
T.C. CASE NO. 04CV0636
TARSEM CFIAND GARG, M.D., (CivEt. al. CDefendants-Appellees
on^^^ q^ -I
MAY 1 4 2007 1I
FY S ^" ^O P I N I 0 N "' ' IRONALd E. y(NWE.1`\17 C,..;;c?K ,
Rendered on the ttit day of , 2007.
David F. Rudwall, Atty. Reg. No.0009086, 500 East Third
Street, Suite 239, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
Revi;1 L. Popham, Atty. Reg. No.0066335, 2075 Marble CliffOffice Park, Columbus, Ohio 43215
Attorney for Defendants-Appellees, William G. Vazquez-Choisne, M.D. and Springfield Medical imaging, Inc.
Karen L. Clouse, Atty. Reg. No. 0037294, 2075 Marble CliffOffiee Park, Columbus, Ohio 43215
Attorney for Defendants-Appellees,Tarsesn Chand Garg, M.D. and Tarsem Chand Garg, M.D., Inc.
GRADY, J.:
This is an appeal from a summary judgment granted to two
Defendant-physicians on claims for relief alleging medical
malpractice. The trial court found that Plaintiff failed to
THF COIIRT OF APPEALS OF OHIOSECOND AI'PELLATE DISTR7CT
preserve a genuine issue of material fact as to the claims for
relief he alleged because he did not present or point to
evidence from which reasonable minds could conclude that the
Defendants breached the duty of care they owed hisa. We agree
and, accordingly, will affirm the judgment from rihich the
appeal was taken.
Plaintiff, Larry Straley, is a Clark County Sheriff's
deputy. On July 21, 2002, he injured his right ankle while
chasing a suspect on foot. Plaintiff was taken to Community
i3ospital in Springfield, where he was treated in the emergency
room on complaints of pain, tenderness, swelling, and
inability to bear weight. Ankle x-ray films were ordered at
that time by Defendant, William Va7Cquez-Choisne, M.D., a
radiologist, who interpreted them as negative for bone, joint,
and soft tissue abnormalities. Plaintiff Straley was released
on a referral for occupational therapy.
After several sessions of occupational therapy failed to
resolve Plaintiff's ankle problems, he was referred to
Defendant, Tarsem Garg, M.D., an orthopedic surgeon.
Following his examination of Plaintiff and review of Dr.
Vazquez-Choisne's radiological report, Dr. Garg referred
Plaintiff for additional physical therapy. On Sept^ber 25,
2002, Dr. Garg released Plaintiff from further care and
i
Tlib; COOitI' OY' APPEALS OF OHiOSECOND APPELLATE n7STRlCT
apermitted him to return to work.
In June 2003, Plaintiff returned to Dr. Garg with
complaints of pain in his right ankle. Dr. Garg ordered an
MRS study, which revealed osteochondritis dissecans in
Plaintiff's right ankle. Osteochondritis dissecans is a
condition in which a loose piece of bone and cartilage
separates from the end of the bone because of a loss of blood
supply.
Dr. Garg referred Plaintiff to another orthopedic
surgeon, who performed surgery in August 2003. Following that
surgery, Plaintiff experienced a wound infection, which
necessitated re-hospitalization, additional surgery, treatment
with antibiotics and prolonged immobilization of the ankle.
Plaintiff returned to work but claims permanent a.njuries.
On June 3, 2004, Plaintiff filed a complaint aga3.nst Drs.
Garg and Vazquez-Choisne and their professional corporations
on claims for relief alleging medical malpractice. The
Defendants filed responsive pleadings. On June 2 and 5, 2006,
Defendants filed motions for summary judgment. Each motion
was supported by the affidavit of a qualified medical expert,
who opined that the Defendant physician concerned conformed to
and/or did not deviate from the applicable standard of care in
his treatment of Plaintiff because each did those things a
TNE COURT OF APPI?ALS OF OPIIOSECOND APPELLAT6 DIS'IRICt'I'
reasonably prudent physician would have done under the same or
similar circumstances.
Plaintiff did not respond to the motions with evidence
from his own medical expert. Instead, Plaintiff moved for a
continuance pursuant to Civ.R. 56(F). Plaintiff's attorney
averred that he had been unsuccessful in his efforts to
interview the orthopedic surgeon who performed surgery on
Plaintiff' s ankle to correct his osteochondritis dissecans
condition and that he needed additional time to depose the two
Defendants' medical experts. Plaintiff requested a
continuance of sixty days following comPletion of that
discovery to respond to the Defendants' motions for summary
judgment.
The trial court granted Plaintiff's Civ.R. 56(F) motion,
in part, but gave him only thirty additional days in which to
file a response to the motions for summary judgment.
Plaintiff filed a response, but the response i.ncluded no
affidavit of an expert witness contradicting the opinions of
Defendants' experts. Rather, Plainti£f filed his own
affidavit, stating that he had brought the x-rays ordered and
interpreted by Dr. Va2quez-Choi.sne to Dr. Garg, who viewed
them. Plaintiff further relied on the deposition testimony of
Dr. Garg, who conceded that evidence of the osteoehondritis
THE COURT OF APPF.AI.S OP 01410Sr,COND APPRLLATIi ll1STR1CT
G
dissecans condition which his later ffitI revealed was likewise
shown by the x-rays that had been ordered and interpreted by
Dr. Vazquez-Choisne, who failed to diagnose the condition, and
that had he ordered his own x-rays instead of relying on Dr.
Vazquez-Choisne's report, Dr. Garg would have discovered the
osteochondritis dissecans condition upon his initial
examination of Plaintiff.
The trial court granted the motions for s+*mm9ry judgment
filed by both Defendant physicians. The court found that, as
against the affidavits of Defendants' experts who opined that
no negligence occurred, Plaintiff failed to satisfy the burden
imposed on him under the rule of Dresher v. Surt, 75 Ohio
St.3d 280, 1996-Ohio-107, because Plaintiff failed to present
evidence from a medieal expert preserving a genuine issue of
material fact for trial on his negligence claim.
Plaintiff Straley f'iled a timely notice of appeal. He
presents two assignments of error.
FIRST ASSICNNMENT OF ERROR
"THE TRIAL COURT IMPROPERLY IGNORED EVIDENCE SUSMITTED IN
OPPOSITION TO SUMbIAI2Y JVDCdMENT."
SECOND ASSIGNMENT OF ERROR
"TSE TRIAL COURT IMPROPERLY GRANTED SL3MMARY JUDCMNT."
The law imposes a duty of `Igood practice" on physicians
TIIF. (7OURT OP' APPEALS OF 01110SECOND APPELLATR DISTRICT
6
and other health care providers, and a physieian's breach of
that duty in the physician's care and treatment of a patient
constitutes actionable negligence, or malpractice, for which
the physician is liable in damages for injuries and losses
suffered by the patient which proximately result from the
breach. Berdyck v. Shinde (1993), 66 Ohio St.3d 573., 579,
1993-Ohio-183.
In order to prevail on a claim for relief for
malpractice, a plaintiff must prove, by a preponderance of the
evidence, that the defendant physician's acts or omissions
fell below the particular standard of conduct that the
physician's duty of good practice imposes. Such proof
rei •a res the affirmative testimony of an expert witness who is
qualified to testify concerning the applicable standard of
conduct, and who opines that the defendant physician's conduct
failed to satisfy that standard. Evid.R. 702; R.C.
2743.43(A).
When a medical malpractice claim for relief is predicated
on a physa.cian's failure to diagnose a disease or condition,
the required expert witness must testify that the defendant
failed to do some particular thing or things that a physician
of ordinary skill, care, and diligence would have done under
like or similar cireumstances in order to satisfy the
TI1H COURT OF APPEALS OF OHIOSECOND APPP.t,LATB DISTRICT
physician's duty of care, and that the injuries or losses
complained of were a direct and prosimate result of that
failure. Sru.ni v. Tatsvmi (1976), 46 Ohio St.2d 127, 131-132,
346 N.E.2d 673.
A party against whom a claim for relief is asserted may
move for a summary judgment as to all or part of the claim for
relief asserted against him, and summary judgment must be
rendered for the movant if the pleadings and evidentiary
materials filed in the action show there is no genuine issue
of material fact relevant to the claim for relief and that the
moving party is entitled to judgment as a matter of law. The
court must find that reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that
party being entitled to have the evidence construed most
strongly in the party's favor. Civ.R. 56(C).
"[A] party seeking summary judgment, on the ground that
the nonmoving party cannot prove its case, bears the initial
burden of informing the trial court of the basis for the
motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on
the essential element(s) of the nonmoving party's claims. The
moving party cannot discharge its initial burden under Civ.R.
THE COURT OP APPRALS OP OHIOSTiCOND APPELLATE DISTRICT
R
56 simply by making a conclusory assertion that the nonmoving
party has no evidence to prove its case. Rather, the moving
party must be able to specifically point to some evidence of
the type listed in Ca.v.R. 56(C) which affirmatively
demonstrates that the nonmoving party has no evidence to
support the nonmovi.ng party's claims. If the moving party
fai.ls to satisfy its initial burden, the motion for summary
judgment must be denied. However, if the moving party has
satisfied its initial burden, the nonmoving party then has a
reciprocal burden outlined in Civ.R. 56(E) to set forth
specific facts showing that there is a genuine issue for trial
and, if the nonmovant does not so respond, s-ary judgment,
if appropriate, shall be entered against the nonmoving party."
Dresher, 75 ohio St.3d at 293.
The trial court found that, the Defendants having
produced evidence from their expert witnesses that no breach
of their respective duties of care occurred, Plaintiff failed
to satisfy his reciprocal burden under Dresher v. Burt,
because he failed to offer testimony of his own ex,pert
contradicting those opinions. Plaintiff argues that such
additional expert testimony was unnecessary because he could
rely on the deposition testimony of Dr. Garg to satisfy his
burden.
'1'HE COURT O1' APPEALS OF OHIOSF(:OND APPELLATE DISTRICT
0
Construing Dr. Garg's testimony most strongly in favor of
Plaintiff, the testimony demonstrates that Plaintiff's
osteochondritis dissecans condition was evident from the x-ray
films that Dr. Vazquez-Choisne ordered when Plaintiff was
treated in the hospital emergency room, and that both
physicians failed to diagnose the condition when they
interpreted those films. That Dr.Garg also viewed them is
established by Plaintiff's deposition testimony. Dr. Garg
further testified that had he ordered his own x-rays, he would
have discovered the fracture from which Plaintiff's
osteochondrita.s dissecans condition resulted.
Dr. Garg's testimony fails to demonstrate that his acts
or omissions and/or those of Dr. Vazquez-Choisne, while they
in fact occurred, fell below the standard of conduct required
of a physician of ordinary skill, care, and diligence under
like or similar circumstanees. That proof requires
affirmative allegations of fact probative of the applicable
staadard of conduct, and may not be inferred merely because an
omission to act occurred. The physieian's duty of good
practice does not preclude any and all omissions, but only
those which his duty of good practice requires him to avoid.
Affirmative evidence from a qualified witness that such a
breach of duty occurred is necessary to prove malpractice by
THE COURT OF APPEALS OF OHIOSGCOND APPELLA'1'E ll1STRICT
10
a preponderanee of the evidence. Dr. Garg's statements do not
rise to that level, even when they are construed most strongly
in Plaintiff's favor. Civ.R. 56(C). As against Defendants'
affidavits, those concessions by Dr. Garg fail to create a
aenuine issue of material £act.
The motions for summary judgment the Defendants filed
were not so much a Dresher v. Burt claim that Plaintiff lacked
the required evidence as they were assertions, which
Defendants' experts supported, that no breach of their
respective duties of care occurred. Plaintiff argues that the
opi.nion those experts expressed was too conclusory to
foreclose the claim.s for relief alleged in Plaintiff' s
eomplaint, and therefore the trial court erred when it granted
their motions for s++-=ry judgment.
We agree that the opinions Defendants' experts stated are
conclusory. Each avers that he examined the records of
Plaintiff's care and treatment and, on that basis, opines that
no breach of any duty of care the Defendants oared Plaintiff
occurred. Neither identifies the particular standard of
conduct that was required of a physician of ordinary skill,
care, and diligence in like or similar circumstances.
Any conclusory quality in the opinions of Defendants'
experts is largely a product of Plaintiff's equally eonelusory
TIIE: COUIt'f OF APPF.ALS OF OFltOSECOND APPELLATE DIS7'RIC]'
I ,
pleading in his complaint, which alleged merely that "The
Defendants, and each of them, fell below accepted staadard of
practice in providing diagnosis, care and/or treatment to
Plaintiff Larry L. Straley, Jr." (Paragraph 4). No operative
facts were alleged in support of the claim. The evidence that
Defendants produced was sufficient to contradict that bare
assertion, and because it was uncontroverted, Defendants were
entitled to summary judgment on the motions each filed.
The assignments of error are overruled. The judgment of
the trial court will be affirmed.
BROGAN, J. And FAIN, J., concur.
Copies mailed to:
David F. Rudwall, Esq.
Kevin W. Popham, Esq.
Karen L. Clouse, Esq.
Ron. Richard J. O'Neill
THE COURT Ofl APPEALS OF OHIOSECOND APPELLATE DISTRiCT
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
LARRY L. SZ'RALEY, JR.
Plaintiff-Appellaat C.A. CASE NO. 06CA0107
Vs. T.C. CASE NO. 04CV0636
TAR58NM CHAND GARG, M.D., FTNAL ENTRYEt ai.Defendants-Appellees
Pursuant to the opinion of this court rendered oa the
WY, day of , 2007, the judgment of the trial
court is A£fizmed. Costs are to be paid as provided in App.R.
24.
CLCOUn?
MAY X 4 ; °i.;7
MIXE FAIN, dR.,RONALD E. vip: _^_
THE COURT OF APPEALS OF O1110SECOND APPELLATE DISTRICT
Copies mailed to:
David F. Rudwall, Esq.500 East Third StreetSuite 239
Dayton, Ohio 45402
Kevin L. Popham, Esq.2075 Marble Cliff Office ParkColumbus, Ohio 43215
Karen L. Clouse, Eaq.2075 Marble Cliff Office ParkColumbus, Ohie 43215
gon. Richard J. O'Neill101 N. Limestone Street5priagfield, OS 45502
TIIE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTItICT
N•
TOTAL P.14
IN THE COURT OF APPEALS OF CLARK COUNTY
LARRY L. STRALEY, JR.
Plaintiff-Appellant C.A. CASE NO. 06CA107
vs.
TARSEM C. GARG, M.D., et al.
Defendants-Appellees
DECISION AND ENTRY
Rendered on the , /'-day of UIJE , 2007.
PER CURIAM:
This matter is before the court on an App.R. 26(A)
application for reconsideration filed by Plaintiff-Appellant,
Larry L. Straley, Jr.
"The test generally applied upon the filing of a motion
for reconsideration in the court of appeals is whether the
motion calls to the attention of the court an obvious error in
its decision, or raises an issue for consideration that was
either not considered at all or was not fully considered by
the court when it should have been." City of Columbus v.
Hodge (1987), 37 Ohio App.3d 68, at 68.
Straley's application satisfies neither of the tests in
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
2
Hodge. Straley takes issue with our application of the "duty
of care/standard of conduct" analysis in Berdyck v. Shinde, 66
Ohio St.3d 573, 1993-Ohio-183, arguing that it departs from
the "standard of care" applicable to medical malpractice
claims. That contention lacks merit, and identifies no
obvious error.
The Berdyck analysis adopts Professor Keeton's'
identification of the components of liability on a claim for
medical malpractice, to which the more general "standard of
care" terminology is customarily applied. See: Joyce-Couch
v. DeSilva (1991), 77 Ohio App.3d 278; Wise v. Doctors
Hospital North (1982), 7 Ohio App.3d 331. There is no
functional difference between the two. The Keeton analysis
has the advantage of distinguishing between duty and breach of
duty, the elements of liability, while the more general
"standard of care" terminology conflates those two elements
unnecessarily.
Plaintiff takes issue with our reliance on the standard
of "good practice" to identify the duty of care imposed by law
on physicians. He offers no reason why that standard should
not apply, except for his unfamiliarity with it. Plaintiff
argues that the duty is defined according to what a
'Prosser And Keeton On Torts (5`h Ed., 1984), Section 32.
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
3
"reasonable physician" would do, but a reasonable physician
owes a legal duty of good practice to his patient. Berdyck.
The trial court granted summary judgment for the
Defendant physicians on the issue of liability. We affirmed,
agreeing that the evidence, even construed most strongly in
the Plaintiff's favor, fails to preserve a genuine issue of
material fact concerning the breach of the duty of care
alleged. A genuine issue of material fact exists when the
evidence presents a disagreement sufficient to require
submission to a jury. Turner v. Turner, 67 Ohio St.3d 337,
1993-Ohio-176.
Plaintiff reviews again the disposition testimony of
Defendant Garg, which we fully considered and addressed in our
opinion. Dr. Garg concedes that both he and Defendant
Vazquez-Choisne failed to diagnose Plaintiff's OCD condition
from his x-ray. Dr. Garg explained that the indications of
the OCD condition on the x-ray that both relied on, which was
later diagnosed through an bD2I, were so obscure that the
diagnosis was not made from the x-ray. Standing alone, that
testimony would not permit reasonable minds to find that the
Defendant's failures to thus diagnose the condition fell below
the standard of conduct which a reasonably prudent physician
in their respective specialities must satisfy in
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
4
that circumstance, or that a reasonably prudent physician in
the same circumstance would have taken other diagnostic steps
that likely would have revealed the condition. Thus, no
aenuine issue of material fact is preserved on the issue of
liability.
The application for reconsideration is Overruled.
IT IS SO ORDERED.
MIKE FAIN, JUDGE
Copies mailed to:
David F. Rudwall, Esq.500 East Third StreetSuite 239Dayton, Ohio 45402
Kevin L. Pophaxn, Esq.
2075 Marble Cliff Office ParkColumbus, Ohio 43215
Karen L. Clouse, Esq.
2075 Marble Cliff Office Park
Columbus, Ohio 43215
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT