[Cite as Kirk v. Ohio State Univ. Med. Ctr., 2011-Ohio-370.]

                                                         Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




MARY LEE KIRK

        Plaintiff

        v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER

        Defendant
        Case No. 2009-07881

Judge Joseph T. Clark

DECISION




        {¶ 1} On November 23, 2010, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(C).            On December 10, 2010, plaintiff filed a response.          On
December 29, 2010, the court held an oral hearing on the motion.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, 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. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the 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, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
        {¶ 4} This case arises out of a September 26, 2008 surgical procedure that was
performed by Vimal Narula, M.D., during which he replaced a biliary stent that had been
surgically implanted in plaintiff in 2007.             Plaintiff alleges that as a result of a
miscommunication between Dr. Narula and plaintiff’s treating physician, Elizabeth
Davies, M.D., Dr. Narula performed the “wrong surgery” by replacing, rather than
removing, the stent as Dr. Davies had ordered. According to plaintiff, Dr. Narula’s
negligence caused her to undergo a subsequent “unnecessary” surgery.                             Plaintiff
argues that her claims do not require expert testimony inasmuch as defendant’s
negligence constitutes conduct within the common experience and knowledge of
laypersons.1 The court disagrees.
        {¶ 5} “[P]roof of the recognized standards [of the medical community] must
necessarily be provided through expert testimony.” Bruni v. Tatsumi (1976), 46 Ohio
St.2d 127, 131-132. Furthermore, the issue of “whether the [defendant] has proceeded
in the treatment of a patient with the requisite standard of care and skill must ordinarily
be determined from the testimony of medical experts.”                     Id. at 130.      That expert
testimony must explain what a medical professional of ordinary skill, care, and diligence
in the same medical specialty would do in similar circumstances. Id.
        {¶ 6} The Tenth District Court of Appeals has observed that                     “relatively few
courts in Ohio have found the common knowledge exception applicable so as to obviate
the need for expert witness testimony on the malpractice issue.” Buerger v. Ohio Dept.
of Rehab. & Corr. (1989), 64 Ohio App.3d 394, 399.                       “The common knowledge
exception has a limited scope in a world of increasing medical complexity.”
Cunningham v. Children’s Hosp., Franklin App. No. 05AP-69, 2005-Ohio-4284, at ¶20,
citing Buerger at 399. However, the common knowledge exception has been applied
where the alleged negligence results from miscommunication between a doctor and
patient. Id. at ¶21 citing Schraffenberger v. Persinger, Malik & Haaf, M.D.s, Inc. (1996),



        1
         On December 18, 2009, the court issued an entry denying defendant’s motion to dismiss
wherein the court determined that plaintiff has asserted a “medical claim” as that term is defined in R.C.
2305.113(E). Plaintiff subsequently filed an affidavit of merit pursuant to Civ.R. 10(D)(2).
114 Ohio App.3d 263, 267 (applying the exception where a patient alleged that his
doctor negligently informed him that he was sterile following a vasectomy).
         {¶ 7} The negligence alleged by plaintiff does not involve merely a
miscommunication between plaintiff and Dr. Narula. Rather, plaintiff’s claim involves
the subsequent surgical procedure and Dr. Narula’s decision to replace the biliary stent,
a determination that necessarily required the exercise of professional skill and
judgment. In his deposition, Dr. Narula testified that he did not believe either that a
mistake had been made or that the wrong procedure had been performed during the
September 26, 2008 surgery.         (Dr. Narula Deposition, Page 34.)       Dr. Narula also
testified that he decided to replace the stent “because of sludge.”              (Dr. Narula
Deposition, Page 31.)
         {¶ 8} Even if the court were to accept plaintiff’s argument that the alleged
negligence involved a miscommunication between Drs. Narula and Davies and that
non-professionals could reasonably evaluate such a communication, the standard of
care required of a surgeon deciding whether to replace a partially obstructed stent is
clearly not within the comprehension of laypersons. Accordingly, the court finds that
plaintiff was required to present expert testimony regarding the applicable standard of
care, Dr. Narula’s failure to conform to that standard, and proximate causation.
         {¶ 9} The deposition of Dr. Narula states that at all times during his care and
treatment of plaintiff he acted within the applicable standard of care. Plaintiff has failed
to provide any evidence in support of her assertion that the replacement of the biliary
stent violated acceptable standards of care. Furthermore, plaintiff has not provided
defendant with an expert report pursuant to L.C.C.R. 7(E), which provides in relevant
part:
         {¶ 10} “Each trial attorney shall exchange with all other trial attorneys, in advance
of the trial, written reports of medical and expert witnesses expected to testify. The
parties shall submit expert reports in accordance with the schedule established by the
court.
         {¶ 11} “A party may not call an expert witness to testify unless a written report
has been procured from said witness. * * * The report of an expert must reflect his
opinions as to each issue on which the expert will testify.”
       {¶ 12} Civ.R. 56(E) provides, in part:
       {¶ 13} “When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or denials
of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided
in this rule, must set forth specific facts showing that there is a genuine issue for trial. If
the party does not so respond, summary judgment, if appropriate, shall be entered
against the party.”
       {¶ 14} “In the absence of an opposing affidavit of a qualified expert for the
plaintiff, a defendant-physician’s affidavit attesting to his compliance with the applicable
standard of care presents a legally sufficient basis upon which a court may enter
summary judgment in a medical malpractice action.” Ullmann v. Duffus, Franklin App.
No. 05AP-299 , 2005-Ohio-6060, ¶15 citing Cunningham, supra at ¶12; Marcum v.
Holzer Clinic, Inc., Gallia App. No. 03CA25, 2004-Ohio-4124, ¶19.
       {¶ 15} Based upon Dr. Narula’s undisputed testimony, and in consideration of
plaintiff’s failure to provide the court with any evidence showing that a genuine issue of
fact exists for trial, the court finds that defendant is entitled to judgment as a matter of
law. Accordingly, defendant’s motion for summary judgment shall be granted.




                                                Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




MARY LEE KIRK

      Plaintiff

      v.

THE OHIO STATE UNIVERSITY MEDICAL CENTER
        Defendant
        Case No. 2009-07881

Judge Joseph T. Clark

JUDGMENT ENTRY




          An oral hearing was conducted in this case upon defendant’s motion for
summary judgment.             For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.




                                             _____________________________________
                                             JOSEPH T. CLARK
                                             Judge

cc:


Brian M. Kneafsey, Jr.                           Justin F. Madden
Assistant Attorney General                       Thomas C. Merriman
150 East Gay Street, 18th Floor                  1360 West Ninth Street, Suite 200
Columbus, Ohio 43215-3130                        Cleveland, Ohio 44113-1254

AMR/cmd
Filed January 13, 2011
To S.C. reporter January 27, 2011
