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
Attorney at Law L.L.C.
ATTORNEYS FOR APPELLEES Kris H. Treu Timothy Y. Chai
Moscarino & Treu, L.L.P.
BEFORE: E.A. Gallagher, A.J., McCormack, J., and Celebrezze,
JOURNAL ENTRY AND OPINION
A. GALLAGHER, A.J.
Plaintiff-appellant Hansford Miller appeals from the trial
court's decision granting partial summary judgment in
favor of defendants-appellees, MetroHealth Medical Center
("MetroHealth") and Paul Priebe, M.D.
(collectively, "appellees") on Miller's medical
battery claim. For the reasons that follow, we affirm the
trial court's judgment.
and Procedural Background
In 2012, Miller sought treatment for abdominal pain with Dr.
Priebe at MetroHealth. Dr. Priebe diagnosed Miller with a
bilateral inguinal and umbilical hernia and recommended
surgery to repair the hernia. Miller executed a written
consent form, consenting to the surgery (the "June 11,
2012 consent form"). On June 11, 2012, Dr. Priebe
performed the surgery, using a mesh implant to repair the
hernia. Nathaniel_Liu, M.D., assisted Dr. Priebe with the
surgery (the "June 11, 2012 surgery" or the
Miller was discharged on June 12, 2012. After Miller returned
home, he began experiencing complications from the surgery.
On June 16, 2012, he returned to MetroHealth complaining of
severe abdominal pain. He underwent a second surgery on June
17, 2017 (the "June 17, 2012 surgery" or the
"second surgery"). Dr. Priebe performed the second
surgery. The second surgery was successful and Miller
experienced no additional postoperative
Miller contends that, prior to the second surgery, he told
several MetroHealth employees that he did not want Dr. Priebe
to perform the second surgery. Nevertheless, he executed a
written consent form, indicating his consent to
"[e]xploration and ventral hernia repair with mesh"
to be performed by Dr. Priebe.
Miller filed suit against MetroHealth and Dr. Priebe in May
2013. In July 2014, he voluntarily dismissed his complaint. A
year later, Miller re-filed his action against Dr. Priebe and
MetroHealth asserting claims of "negligence- medical
malpractice" related to the June 11, 2012 surgery and a
battery claim based on lack of consent to the June 17, 2012
surgery. Miller alleged that Miller had breached the
"acceptable standard of medical care" by failing to
properly implant the mesh in the first surgery and claimed
that he had specifically instructed MetroHealth staff, prior
to his second surgery, that he did not want Dr. Priebe
performing that surgery. Appellees filed answers denying
liability and asserting various affirmative defenses.
In June 2017, appellees filed a motion for partial summary
judgment on the battery claim, arguing that it "has no
basis under Ohio law" because Miller gave written
consent for the surgery. In support of their motion,
appellees submitted excerpts from Miller's deposition and
a copy of the June 16, 2012 consent form signed by Miller.
Miller opposed the motion, asserting that although he had
executed the consent form, he did not, in fact, consent to
Dr. Priebe performing the second surgery. He contended that
in his testimony that he verbally informed MetroHealth that
he did not want Dr. Priebe to perform the second surgery and
that he was unaware that what he signed was a consent form
for the second surgery. That, along with the testimony of his
expert, Michael Wingate, M.D., that Miller did not consent to
the second surgery created genuine issues of material fact
for trial on the battery claim according to Miller. In
support of his opposition, Miller attached excerpts from his
deposition, a copy of the consent form for the second surgery
and affidavits executed by himself and his expert.
On July 18, 2017, the trial court granted defendant's
motion for partial summary judgment on the battery claim,
entered judgment on that claim and certified the matter for
immediate appeal under Civ.R. 54(B), indicating that there
was "no just cause for delay." Miller appealed,
raising the following sole assignment of error for review:
The Trial Court erred when in granted Appellees' Motion
for Partial Summary Judgment (battery claim) because
Appellant did not consent to receiving medical care and
treatment from Appellee Paul Priebe, M.D. on or about June
16, 2012 as evidenced by Appellant's Affidavit,
Appellant's deposition testimony and expert Affidavit.
We review summary judgment rulings de novo, applying the same
standard as the trial court. Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We accord
no deference to the trial court's decision and conduct an
independent review of the record to determine whether summary
judgment is appropriate.
Under Civ.R. 56, summary judgment is appropriate when no
genuine issue as to any material fact exists and, viewing the
evidence most strongly in favor of the nonmoving party,
reasonable minds can reach only one conclusion that is
adverse to the nonmoving party, entitling the moving party to
judgment as a matter of law.
On a motion for summary judgment, the moving party carries an
initial burden of identifying specific facts in the record
that demonstrate his or her entitlement to summary judgment.
Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662
N.E.2d 264 (1996). If the moving party fails to meet this
burden, summary judgment is not appropriate; if the moving
party meets this burden, the nonmoving party has the
reciprocal burden to point to evidence of specific facts in
the record demonstrating the existence of a genuine issue of
material fact for trial. Id. at 293. Summary
judgment is appropriate if the nonmoving party fails to meet
this burden. Id.
"Although courts are cautioned to construe the evidence
in favor of the nonmoving party, summary judgment is not to
be discouraged where a non-movant fails to respond with
evidence supporting the essentials of his claim."
Mayhew v. Massey,2017-Ohio-1016, 86 N.E.3d 758,
¶ 11 (7th Dist), citing Leibreich v. A.J. Refrig.,
Inc.,67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993).
Civ.R. 56 must be applied in a manner that balances the right
of the nonmoving party to have a jury try claims that are
adequately based in fact with the right of the moving party
to demonstrate, prior to trial, that ...