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Miller v. Metrohealth Medical Center

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 23, 2017

HANSFORD MILLER PLAINTIFF-APPELLANT
v.
METROHEALTH MEDICAL CENTER, ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-848117

          ATTORNEY FOR APPELLANT George K. Simakis George K. Simakis, L.L.C.

          ATTORNEYS FOR APPELLEE Kris H. Treu Y. Timothy Chai Moscarino & Treu, L.L.P.

          BEFORE: Kilbane, P.J., Stewart, J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and LocApp.R. 11.1.

         {¶2} Plaintiff-appellant, Hansford Miller ("Miller"), appeals from the trial court's decision granting summary judgment to defendants-appellees, MetroHealth Medical Center ("MetroHealth") and Dr. Paul Priebe, M.D. ("Dr. Priebe"), in Miller's action for medical malpractice and other claims. For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion.

         {¶3} In 2012, Miller, a patient of attending surgeon Dr. Priebe at MetroHealth, was diagnosed with bilateral inguinal and umbilical hernias. On June 11, 2012, Dr. Priebe performed surgery to repair the hernias. Dr. Nathaniel Liu, M.D. ("Dr. Liu") assisted Dr. Priebe with the surgery.[1] By June 16, 2012, Miller suffered a bowel obstruction. Dr. Priebe performed a second surgery. After this surgery, Miller experienced no additional postoperative complications.

         {¶4} On July 9, 2015, Miller filed a complaint against Dr. Priebe and MetroHealth, alleging medical malpractice and medical malpractice via agency in connection with Dr. Priebe's June 11, 2012 surgery. His complaint also included a battery cause of action because of the lack of informed consent to the June 16, 2012 surgery.[2] Dr. Priebe and MetroHealth denied liability. On September 9, 2015, the trial court issued an order setting the dates for discovery, exchange of expert reports, and final pretrial and trial.

         {¶5} On October 8, 2015, MetroHealth and Dr. Priebe were granted leave to file a motion for summary judgment on the battery claim, arguing that there was written consent for both surgeries. MetroHealth and Dr. Priebe were also granted leave to file additional evidentiary materials in support of this motion on November 12, 2015.

         {¶6} On November 6, 2015, Miller filed a combined brief in opposition and contra motion for summary judgment. Miller asserted that although he read and signed both consent forms, he did not consent to Dr. Liu's participation in the June 11, 2012 surgery and he did not consent to Dr. Priebe performing the June 16, 2012 surgery. Miller also asserted that defendants committed malpractice in connection with the June 11, 2012 surgery, and then performed a "cover up" surgery on June 16, 2012.

         {¶7} Two days later, on November 8, 2016, Miller filed a "motion for leave to file plaintiffs brief in opposition to defendants' motion for summary judgment with affidavit in support and plaintiff's contra motion for summary judgment." Miller asked the court to disregard the November 6, 2015 combined brief and motion because of clerical errors. Miller's counsel explained to the trial court that he had attempted to file his brief in opposition to defendants' motion for summary judgment on November 5, 2015 but "unexpectedly encountered technical equipment and PDF software failures which prevented him from doing so. Finally, on November 6, 2015, counsel was able to file [the document] however such was inadvertently incomplete[.]" This document was also incomplete, however, because it contained an excerpt from Miller's deposition but did not contain the supporting brief in opposition.

         {¶8} On November 9, 2015, the trial court issued two journal entries stating:

The docket entry stating motion filed for plaintiffs brief in opposition is stricken. This is not a motion, it is a brief in opposition to the pending motion. The docket entry containing the deposition testimony filed 11/8/15 is also stricken, it is not a motion, it is an exhibit. The plaintiffs motion for leave to file its brief in opposition instanter due to e-filing problems with the clerk's office is granted. The response is deemed timely filed. Dates and orders remain in effect. Notice issued.
Clarification for the docket; the partial motion for summary judgment remains pending and the court is in receipt of the response. Notice issued.

         {¶9} On November 12, 2015, the trial court granted MetroHealth and Dr. Priebe leave to file a reply brief with additional evidentiary materials instanter. By the next day, November 13, 2015, Miller was still apparently experiencing difficulties with e-filing and, as he informed this appellate panel, he filed his affidavit in support of his brief in opposition to summary judgment and contra motion for summary judgment through conventional "over the counter filing" of the written document and also served a courtesy copy on the court.

         {¶10} On November 15, 2015, a Sunday, the trial court issued an order noting that Miller had not obtained leave of court to file his contra motion for summary judgment. The trial court struck both Miller's contra motion for summary judgment and his brief in opposition, then gave Miller "leave to 11/16/15 to file [his] brief in opposition to the motion for summary judgment only." Miller failed to file his brief in opposition by that date, and ...


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