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: DRudwall@aol.com

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: DRudwall@aol.comCounsel 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