Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT George K. Simakis George K. Simakis,
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
EILEEN KILBANE, PRESIDING JUDGE
This is an accelerated appeal brought pursuant to App.R. 11.1
and LocApp.R. 11.1.
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.
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. By June 16, 2012, Miller suffered a bowel
obstruction. Dr. Priebe performed a second surgery. After
this surgery, Miller experienced no additional postoperative
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. 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.
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.
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.
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.
On November 9, 2015, the trial court issued two journal
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.
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.
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 ...