[Cite as Heard v. Aultman Hosp., 2016-Ohio-1076.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


 EDLEESHA HEARD, BIOLOGICAL                         :   JUDGES:
 MOTHER AND LEGAL CUSTODIAN                         :
 OF NEHEMIAH HEARD                                  :   Hon. W. Scott Gwin, P.J.
                                                    :   Hon. William B. Hoffman, J.
                                                    :   Hon. Patricia A. Delaney, J.
        Plaintiff-Appellant                         :
                                                    :
 -vs-                                               :
                                                    :   Case No. 2015CA00141
                                                    :
 AULTMAN HOSPITAL, ET AL.                           :
                                                    :
                                                    :
        Defendants-Appellees                        :   OPINION


CHARACTER OF PROCEEDING:                                Appeal from the Stark County Court of
                                                        Common Pleas, Case No.
                                                        2013CV03174


JUDGMENT:                                               AFFIRMED



DATE OF JUDGMENT ENTRY:                                 March 14, 2016



APPEARANCES:

 For Plaintiff-Appellant:                               For Defendants-Appellees:

 SHIRLEY SMITH                                          RICHARD S. MILLIGAN
 1399 E. Western Reserve Road                           JENNA M. MCKEAN
 Suite 2                                                4684 Douglas Circle
 Poland, OH 44514                                       P.O. Box 35459
                                                        Canton, OH 44735
 TRACY A. LASLO
 325 E. Main St.
 Alliance, OH 44601
Stark County, Case No. 2015CA00141                                                       2

Delaney, J.

         {¶1} Plaintiff-Appellant Edleesha Heard, Biological Mother and Legal Custodian

of Nehemiah Heard appeals the July 6, 2015 judgment entry of the Stark County Court of

Common Pleas.

         {¶2} This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases. The rule provides in pertinent part the following:

         (E) Determination and judgment on appeal

         The appeal will be determined as provided by App. R. 11.1. It shall be

         sufficient compliance with App. R. 12(A) for the statement of the reason for

         the court's decision as to each error to be in brief and conclusionary form.

         The decision may be by judgment entry in which case it will not be published

         in any form.

         {¶3} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Association, 11 Ohio App.3d 158, 463 N.E.2d 655

(10th Dist.1983).

         {¶4} This appeal shall be considered in accordance with the aforementioned

rules.

                          FACTS AND PROCEDURAL HISTORY

         {¶5} On April 18, 2005, Nehemiah Heard underwent a tonsillectomy,

adenoidectomy, and bilateral tyniparostomy with tubes at Aultman Hospital. Nehemiah,
Stark County, Case No. 2015CA00141                                                     3


born on July 11, 2000, was four years old at the time of the surgery. Nehemiah had

previously been diagnosed with asthma.

      {¶6} Dr. Yvette Cho was the anesthesiologist assigned to the surgery. Debra

Howard and Patricia Sinar, Certified Registered Nurse Anesthetists, assisted with

anesthesiology during the surgery. Prior to the surgery, Dr. Cho obtained a ten milligram

per milliliter vial of morphine to be used for the surgery. The largest vial of morphine

available at Aultman Hospital is a ten milligram vial. Based on Nehemiah’s age, height,

and weight, the appropriate dosage of morphine was 1.5 milligrams. Dr. Cho or Howard

administered morphine to Nehemiah during the surgery and the dosage amount noted on

the anesthesia record was 1.5 milligrams. The waste of the remaining morphine was not

documented on the anesthesia record. Dr. Cho also brought fentanyl to possibly be used

during the surgery. The fentanyl was not used and the waste of the fentanyl was

documented on the anesthesia record.

      {¶7} Nehemiah was intubated for the surgery. His pulse oximetry monitoring his

oxygen level was noted in the anesthesia record as 100 or 99 throughout the surgery.

      {¶8} Nehemiah’s breathing tube was removed at 2:00 p.m. At 2:05 p.m., the

anesthesia record notes that Nehemiah had wet, sonorous respirations. He was placed

on an oxygen mask. At 2:25 p.m., Dr. Cho ordered the administration of 20 micrograms

of Narcan. Narcan is a drug that reverses the effects of morphine. Narcan was

administered to make Nehemiah less sleepy.

      {¶9} At 2:29 p.m., Nehemiah was transported from the operating table to the

patient bed in the Post Anesthesia Care Unit (“PACU”). The record states at that time

Nehemiah was awake and crying.
Stark County, Case No. 2015CA00141                                                      4


       {¶10} During Nehemiah’s recovery in the PACU, he continued to sleep for long

intervals and exhibit lethargy. He continued receiving oxygen through a mask. He was

given two albuterol aerosol breathing treatments and had chest x-rays taken. Nehemiah

was administered antibiotics. An order for post-operative administration of morphine

signed by Dr. Cindy Congeni was crossed out in the PACU record. After a pediatric

consult for Nehemiah’s continued postoperative lethargy, it was determined that

Nehemiah should be transferred to Akron Children’s Hospital. At 11:20 p.m., Nehemiah

was transferred to Akron Children’s Hospital.

       {¶11} Edleesha Heard, mother of Nehemiah, stated Nehemiah was in Akron

Children’s Hospital for almost a week. Ms. Heard was told by a physician with Akron

Children’s Hospital that Nehemiah had too much anesthesia. Ms. Heard stated that before

the surgery, Nehemiah had been potty trained since the age of two and a half. After the

surgery, Nehemiah had to wear diapers again. She noticed he could not feed himself. His

speech was slurred. Ms. Heard took Nehemiah to his pediatrician but Ms. Heard stated

the pediatrician did not do anything for the child. The record is silent as to whether Ms.

Heard sought further medical treatment for Nehemiah based on her observations after

the surgery.

       {¶12} Nehemiah started school at age five. In 2012, Nehemiah was in seventh

grade. Ms. Heard stated that at that time, Nehemiah needed assistance with dressing

and using the restroom. He received physical therapy at school for his legs. Ms. Heard

stated that Nehemiah could not read and did not know how to spell. Nehemiah’s school

records were not entered into the record.
Stark County, Case No. 2015CA00141                                                     5


      {¶13} Ms. Heard filed her original complaint for medical malpractice in 2011. The

complaint was voluntarily dismissed and refiled on December 11, 2013. In her complaint,

Ms. Heard alleged Nehemiah was injured as a result of negligence during the course of

his surgery on April 18, 2005. Ms. Heard alleged that Nehemiah was administered an

overdose of morphine resulting in Nehemiah suffering a hypoxic injury or respiratory

distress during the surgery. As a result of the negligence, Ms. Heard claimed Nehemiah

suffered debilitating brain damage. Ms. Heard further alleged the defendants were

negligent in providing care for Nehemiah after the surgery. Finally, she claimed the

defendants wrongfully altered his medical records.

      {¶14} Ms. Heard named as defendants Dr. Yvette Cho, Debra Howard, Dr. Cindy

Congeni, Ohio Hospital Based Physicians Corporation, and Aultman Hospital (hereinafter

“Aultman”).

      {¶15} Aultman filed its motion for summary judgment on May 15, 2015. Aultman

argued there was no genuine issue of material fact that Aultman administered the correct

dosage of morphine to Nehemiah. In support of its motion for summary judgment,

Aultman submitted the depositions of Dr. Steven Schechter (Ms. Heard’s neurology

expert), Katherine Koppenhaver (Ms. Heard’s handwriting expert), Dr. Cho, Debra

Howard, and Dr. Congeni.

      {¶16} Ms. Heard responded to the motion for summary judgment on June 19,

2015. In support of her motion for summary judgment, she included the depositions of the

parties. She also attached as exhibits E, F, and I which were the expert reports from Dr.

Schechter and Dr. Anthony F. Pizon (medical toxicologist). No deposition was taken of

Dr. Pizon.
Stark County, Case No. 2015CA00141                                                      6


      {¶17} Aultman responded to the motion for summary judgment. It also filed a

separate motion to strike Ms. Heard’s exhibits E, F, and I as unauthenticated pursuant to

Civ.R. 56.

      {¶18} On July 6, 2015, the trial court issued its judgment entry granting summary

judgment in favor of Aultman. The trial court dismissed the motion to strike as moot.

      {¶19} It is from this decision Ms. Heard now appeals.

                             ASSIGNMENTS OF ERROR

      {¶20} Ms. Heard raises three Assignment of Error:

      {¶21} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO DEFENDANTS-APPELLEES AS ISSUES OF FACT ABOUND SUCH THAT THE

HEREIN CASE WAS IMPROPERLY DENIED DETERMINATION BY JURY.

      {¶22} “II. THE TRIAL COURT ERRED IN THAT THE TRIAL JUDGE

IMPROPERLY ASSUMED THE ROLE OF THE JURY IN MAKING DETERMINATIONS

OF FACTUAL DISAGREEMENTS.

      {¶23} “III. THE TRIAL COURT ERRED IN THAT THE TRIAL JUDGE

IMPROPERLY ASSUMED AND DETERMINED MEDICAL OUTCOMES BEYOND HIS

QUALIFICATIONS AND CONTRARY TO EXPERT REPORTS.”

                                       ANALYSIS

                      Summary Judgment Standard of Review

      {¶24} Ms. Heard’s three Assignments of Error concern the trial court’s judgment

entry granting Aultman’s motion for summary judgment. This court reviews summary

judgment rulings applying the same standards as the trial court: de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We afford the lower court's
Stark County, Case No. 2015CA00141                                                       7


decision no deference and independently review the record to determine whether

summary judgment is appropriate. Melling v. Scott, 8th Dist. Cuyahoga No. 103007, 2016-

Ohio-112, ¶ 20. We refer to Civ.R. 56(C) in reviewing a motion for summary judgment

which provides, in pertinent part:

       Summary judgment shall be rendered forthwith if the pleading, depositions,

       answers to interrogatories, written admissions, affidavits, transcripts of

       evidence in the pending case and written stipulations of fact, if any, timely

       filed in the action, show that there is no genuine issue as to any material

       fact and that the moving party is entitled to judgment as a matter of law. * *

       * A summary judgment shall not be rendered unless it appears from such

       evidence or stipulation and only from the evidence or stipulation, 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, such party being entitled to have the evidence or stipulation

       construed most strongly in the party's favor.

       {¶25} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element of

the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264

(1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest

on the allegations or denials in the pleadings, but must set forth “specific facts” by the

means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).
Stark County, Case No. 2015CA00141                                                      8


       {¶26} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

                                     Expert Reports

       {¶27} The first issue to be resolved is the scope of the Civ.R. 56 evidence upon

which the Court can render its decision whether there are genuine issues of material fact

for trial. In support of its motion for summary judgment, Aultman attached the deposition

of Dr. Steven Schechter. In response to the motion for summary judgment, Ms. Heard

attached the expert reports of Dr. Steven Schechter and Dr. Anthony Pizon. The expert

reports were not authenticated by affidavit. Aultman filed a motion to strike the expert

reports of Drs. Schechter and Pizon for Ms. Heard’s failure to comply with Civ.R. 56(C).

       {¶28} The Tenth District Court of Appeals addressed this issue in Gabriel v. Ohio

State Univ. Med. Ctr., 10th Dist. Franklin No. 14AP-870, 2015-Ohio-2661, ¶ 23. It held

that pursuant to Civ.R. 56(C),

       “ ‘documents submitted in opposition to a motion for summary judgment

       must be sworn, certified or authenticated by affidavit to be considered by

       the trial court in determining whether a genuine issue of material fact exists

       for trial.’ “ Rilley v. Brimfield, 11th Dist. No.2009–P–0036, 2010–Ohio–5181,

       ¶ 66, quoting Sintic v. Cvelbar, 11th Dist. No. 95–L–133 (July 5, 1996). The

       proper procedure for introducing evidentiary matter of a type not listed in

       Civ.R. 56(C) is to incorporate the material by reference into a properly

       framed affidavit. Martin v. Cent. Ohio Transit Auth., 70 Ohio App.3d 83, 89,
Stark County, Case No. 2015CA00141                                                     9

      590 N.E.2d 411 (10th Dist.1990), citing Biskupich v. Westbay Manor

      Nursing Home, 33 Ohio App.3d 220, 515 N.E.2d 632 (8th Dist.1986). The

      rule of law applies with equal weight to expert medical reports. See, e.g.,

      Smith v. Gold–Kaplan, 8th Dist. No. 100015, 2014–Ohio–1424, ¶ 23

      (because nonmoving party failed to incorporate a letter from her medical

      expert through a properly framed affidavit, the trial court properly

      disregarded the purported expert report in ruling on a motion for summary

      judgment); Toth v. United States Steel Corp., 9th Dist. No. 10CA009895,

      2012–Ohio–1390, ¶ 11 (in ruling on a motion for summary judgment, trial

      court could not consider expert report under Civ.R. 56(C) because it is not

      incorporated into an affidavit); Wallner v. Thorne, 189 Ohio App.3d 161, 937

      N.E.2d 1047, 2010–Ohio–2146, ¶ 18 (9th Dist.) (an unsigned expert's

      report, which was not incorporated into an affidavit or other sworn

      document, did not constitute proper Civ.R. 56(C) evidence); Garland v.

      Simon–Seymour, 11th Dist. No.2009–G–2897, 2009–Ohio–5762, ¶ 51 (an

      unsworn expert report is irrelevant for purposes of summary judgment);

      Cunningham v. Children's Hosp., 10th Dist. No. 05AP–69, 2005–Ohio–

      4284, ¶ 15 (medical expert's letter that is not incorporated into a properly

      framed affidavit does not fall within the types of evidence listed in Civ.R.

      56(C) and lacks any evidentiary value for purposes of a motion for summary

      judgment).

      {¶29} Accordingly, we will not consider the expert report of Dr. Pizon as allowable

evidence under Civ.R. 56(C). The deposition of Dr. Schechter submitted by Aultman,
Stark County, Case No. 2015CA00141                                                       10


which included his expert reports, may be considered in determining whether there is a

genuine issue of material fact for trial.

                                    Medical Negligence

       {¶30} It is well settled that, “in order to establish medical malpractice, it must be

shown by a preponderance of evidence that the injury complained of was caused by the

doing of some particular thing or things that a physician or surgeon of ordinary skill, care

and diligence would not have done under like or similar conditions or circumstances, or

by the failure or omission to do some particular thing or things that such a physician or

surgeon would have done under like or similar conditions and circumstances, and that

the injury complained of was the direct and proximate result of such doing or failing to do

some one or more of such particular things.” Bruni v. Tatsumi, 46 Ohio St.2d 127, 346

N.E.2d 673, 675 (1976), paragraph one of syllabus. Summarized, a prima facie case of

medical malpractice consists of a showing that: (1) the physician deviated from the

ordinary standard of care exercised by other physicians, i.e. the physician was negligent,

and (2) such deviation was the proximate cause of the patient's injury. Egleston v. Fell,

6th Dist. Lucas No. L–95–127, 1996 WL 50161, *2 (Feb. 9, 1996) citing Bruni, 46 Ohio

St.2d 127, 346 N.E.2d 673, paragraph one of syllabus.

       {¶31} In order to prevail in a medical malpractice claim, a plaintiff must

demonstrate through expert testimony that, among other things, the treatment provided

did not meet the prevailing standard of care and the failure to meet the standard of care

caused the patient's injury. Ramage v. Central Ohio Emergency Services, Inc., 64 Ohio

St.3d 97, 102, 1992–Ohio–109, 592 N.E.2d 828; Hoffman v. Davidson, 31 Ohio St.3d 60,

62, 508 N.E.2d 958 (1987). Proof of the recognized standards must necessarily be
Stark County, Case No. 2015CA00141                                                       11


provided through expert testimony. This expert must be qualified to express an opinion

concerning the specific standard of care that prevails in the medical community in which

the alleged malpractice took place, according to the body of law that has developed in

this area of evidence. Bruni at 131–132, 346 N.E.2d 673.

       {¶32} Ms. Heard asserts there are genuine issues of material fact for trial as to

whether Nehemiah was administered an overdose of morphine during or after the

surgery, causing him to suffer a hypoxic injury leading to brain damage. The Court has

reviewed all the Civ.R. 56(C) evidence in a light most favorable to Ms. Heard. Upon our

review, we determine that reasonable minds could only conclude there was no breach of

the standard of care by Aultman on April 18, 2005.

       {¶33} Nehemiah’s surgery took place in 2005. Every party and witness deposed

in this case testified he or she had no recollection of Nehemiah or the medical care given

to Nehemiah on April 18, 2005. The parties and witnesses relied solely on Nehemiah’s

medical records generated on April 18, 2005 in order to testify as to the events that

occurred on April 18, 2005.

       {¶34} The medical records show that Dr. Cho or Debra Howard administered 1.5

milligrams of morphine to Nehemiah during the surgery. Dr. Schechter, Ms. Heard’s

expert in neurology, testified 1.5 milligrams was the correct dosage of morphine for a child

of Nehemiah’s age and size. Ms. Heard argues Nehemiah was negligently administered

a dosage of 15 milligrams. A ten milligram vial is the maximum size of morphine available

at Aultman Hospital.

       {¶35} Ms. Heard argues that based on the alleged overdose of morphine,

Nehemiah suffered a hypoxic injury during the surgery. Nehemiah was intubated during
Stark County, Case No. 2015CA00141                                                   12


the surgery and was monitored by Dr. Cho or Debra Howard. The medical records show

Nehemiah’s pulse oximetry, which measured his oxygen saturation, was at 100 or 99

during the surgery.

      {¶36} Ms. Heard points to Aultman’s use of Narcan to demonstrate Aultman’s

overdose of morphine to Nehemiah. At 2:00 p.m., Nehemiah was awake enough after the

surgery to be extubated. Dr. Cho testified she ordered the administration of 20

micrograms of Narcan at 2:25 p.m. to try to make Nehemiah less sleepy. Narcan can be

used to reverse the side effects of morphine. Dr. James Toohey, pharmacist with Aultman

Hospital, testified that even if 15 milligrams of morphine were administered, 20

micrograms of Narcan would reverse the effects.

      {¶37} Ms. Heard argues Nehemiah may have been administered morphine post-

operatively. The medical records show that Dr. Congeni, the anesthesiologist on call

during Nehemiah’s post-operative care, testified morphine was ordered to be

discontinued for Nehemiah because he was given Narcan. The Aultman PACU nurses

who cared for Nehemiah on April 18, 2005 testified that based on their reading of the

medical records, no morphine was administered to Nehemiah post-operatively.

      {¶38} The medical records in this case create no genuine issue of material fact

that Aultman failed to monitor or respond to Nehemiah during his post-operative recovery

from surgery. While in the PACU, Nehemiah was placed on oxygen, received two

breathing treatments, had chest x-rays taken, and was given antibiotics. The records

show that Aultman tried to remove him from oxygen, but his oxygen saturation levels went

down on room air. When it was determined that Nehemiah was not recovering as

expected, Aultman transferred Nehemiah to Akron Children’s Hospital for further
Stark County, Case No. 2015CA00141                                                     13


treatment. There are no records in this case as to the treatment Nehemiah received at

Akron Children’s Hospital.

       {¶39} In this case, reasonable minds could only conclude the Civ.R. 56(C)

evidence creates no genuine issue of material fact that Aultman deviated from the

ordinary standard of care exercised by other physicians, i.e. the physician was negligent,

and such deviation was the proximate cause of Nehemiah’s injury. Aultman is entitled to

judgment as a matter of law on Ms. Heard’s claims for medical negligence.

                                  Negligence Per Se

       {¶40} Ms. Heard alleged in her complaint that Aultman was negligent per se for

altering or falsifying Nehemiah’s medical records. She alleges there is a genuine issue of

material fact whether the medical records show Nehemiah was administered 1.5

milligrams of morphine or 15 milligrams of morphine.

       {¶41} Upon our review, the medical records and testimony demonstrate no

genuine issue of material fact that Aultman administered Nehemiah 1.5 milligrams of

morphine on April 18, 2005.

                    Vicarious Liability – Negligent Credentialing

       {¶42} Ms. Heard alleged in her complaint that Ohio Hospital Based Physicians

Corporation was vicariously liable for the medical negligence of Dr. Cho, Dr. Congeni,

and Debra Howard. Ms. Heard further alleges Aultman Hospital was liable for negligently

credentialing based on the medical negligence of Dr. Cho, Dr. Congeni, and Debra

Howard.
Stark County, Case No. 2015CA00141                                                    14


       {¶43} Based on our finding that Aultman is entitled to judgment as a matter of law

as to Ms. Heard’s claim for medical negligence, we find Aultman is entitled to judgment

as to Ms. Heard’s claims for vicarious liability and negligent credentialing.

                           Loss of Consortium – Punitive Damages

       {¶44} Loss of consortium is a derivative claim. Because Aultman is entitled to

judgment as a matter of law as to Ms. Heard’s claims, the claim for loss of consortium

must fail.

       {¶45} For those same reasons, Ms. Heard’s claim for punitive damages cannot

survive based on our decision there is no genuine issue of material fact that Aultman did

not engage in medical negligence on April 18, 2005.

                                      CONCLUSION

       {¶46} Accordingly, Ms. Heard’s three Assignments of Error are overruled.

       {¶47} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.
