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Hillman v. Kosnik

December 4, 2008

GRANT STEVEN HILLMAN ET AL., PLAINTIFFS-APPELLANTS,
v.
EDWARD KOSNIK ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 00CVA06-5277).

The opinion of the court was delivered by: Sadler, J.

(REGULAR CALENDAR)

OPINION

{¶1} Appellants, Grant, Steven, and Gail Hillman ("the Hillmans" or "appellants"), filed this appeal seeking reversal of a judgment by the Franklin County Court of Common Pleas in favor of appellees, Edward Kosnik and Neurological Associates, Inc. (individually "Dr. Kosnik" and collectively "appellees"). For the reasons that follow, we affirm the trial court's judgment.

{¶2} Steven and Gail Hillman are the parents and natural guardians of Grant Hillman. In early 1990, the Hillmans were referred to Dr. Kosnik to evaluate the cause of seizures Grant was experiencing. An MRI showed that the seizures were the result of a tumor in the temporal lobe of Grant's brain. Dr. Kosnik recommended surgery to remove the tumor, but the parties disagree regarding the nature of the discussions. The Hillmans allege that Dr. Kosnik informed them the surgery would not result in any complications and that there were no potential risks posed by performing the surgery, while Dr. Kosnik alleges that he informed the Hillmans that the tumor was located in an area of the brain that affects memory and speech.

{¶3} On February 7, 1990, Dr. Kosnik performed the surgery. Dr. Kosnik testified that, upon exposing Grant's temporal lobe, he discovered that he would be unable to remove the tumor as planned due to the presence of a large vein. Dr. Kosnik then removed a small part of the tumor so a biopsy could be performed. Dr. Kosnik testified that he informed the Hillmans of this result, but the Hillmans disagree, alleging instead that Dr. Kosnik told them he had removed most of the tumor. The Hillmans allege that, as a result of Dr. Kosnik's actions, Grant suffered permanent brain damage.

{¶4} The Hillmans filed a medical malpractice action against appellees on April 16, 1997, which was voluntarily dismissed on February 11, 2000. On June 6, 2000, the Hillmans refiled the complaint, alleging causes of action for medical malpractice, failure to obtain informed consent, and fraud. Appellees filed a motion for summary judgment supported by Dr. Kosnik's affidavit stating that all actions he took met the standard of care required of a physician. The Hillmans filed a memorandum contra supported by an affidavit executed by Steven Hillman, in which he alleged that Dr. Kosnik had misinformed the Hillmans of the risks associated with the surgery and had told them that the tumor had been removed when it had not. The Hillmans did not support their memorandum contra with any expert medical opinion stating that Dr. Kosnik's conduct had not met the standard of care required of a physician, arguing that the nature of the conduct at issue did not require expert medical testimony.

{¶5} The trial court granted summary judgment in favor of appellees on the medical malpractice and informed consent causes of action, finding that the nature of the claims did require expert medical testimony for the Hillmans to establish their claims, but found genuine issues of material fact existed regarding the Hillman's claim of fraud. The Hillmans filed an appeal that included appeals of the dismissal of the medical malpractice and informed consent claims, but we dismissed that portion of the appeal for lack of a final appealable order. Hillman v. Kosnik, Franklin App. No. 05AP-122, 2005-Ohio-4679.

{¶6} The Hillmans' fraud claim proceeded to a jury trial. The jury returned a verdict in favor of appellees. The Hillmans then filed this appeal, alleging as assignments of error:

Assignment of Error One

The Trial Court erred when it refused to declare a mistrial after the Defendant/Appellee in voir dire told the jury that the Plaintiff/Appellants had already had their day in court and that all of those charges or claims had been dismissed.

Assignment of Error Two

The Trial Court erred by granting the motion of the Defendants/Appellees for Summary Judgment as to the issue of medical malpractice by requiring the use of an expert other than the Appellee.

Assignment of Error Three

The Trial Court erred by granting Summary Judgment thereby dismissing the action regarding the lack of informed consent.

Assignment of Error Four

The Trial Court erred when it introduced to the jury the Defendant/Appellee's wife who was seated in the gallery.

Assignment of Error Five

The Trial Court erred when [it] declared to the Jury that the Defendant/Appellee was to be considered an expert when there was no expert opinion testimony introduced during the trial. This error when considered cumulatively with errors one and four requires a remand.

{¶7} For ease of discussion, we will address the Hillmans' assignments of error out of order. The second and third assignments of error will be addressed together, as both errors involve the trial court's grant of summary judgment in favor of appellees on the Hillmans' claims for medical malpractice and lack of informed consent. We review the trial court's grant of summary judgment de novo. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 654 N.E.2d 1327. Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, when the evidence is construed in a light most favorable to the non-moving party. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183, 677 N.E.2d 343.

{¶8} Under summary judgment motion practice, the moving party bears an initial burden to inform the trial court of the basis for its motion, and to point to portions of the record that indicate that there are no genuine issues of material fact on a material element of the non-moving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264. Once the moving party has met its initial burden, the non-moving party must produce competent evidence establishing the existence of a genuine issue for trial. Id.

{ΒΆ9} In a claim for medical malpractice, a plaintiff must show the existence of a standard of care within the medical community, breach of that standard by the defendant, and proximate cause between the breach of that standard and the injuries suffered by the plaintiff. Williams v. Lo, Franklin App. No. 07AP-949, 2008-Ohio-2804. When the elements of a medical malpractice claim are beyond the common knowledge and understanding of the trier of fact, expert testimony regarding the elements must be offered to prove the claim. Campbell v. Ohio State Univ. Med. Ctr., Franklin App. No. 04AP-96, 2004-Ohio-6072. When a moving party has offered expert testimony in support of a motion for summary judgment, the ...


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