       [Cite as Armeni v. Aromatorio, 2012-Ohio-1500.]




                          STATE OF OHIO, MAHONING COUNTY

                                IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


ROBERT ARMENI, et al.,           )
                                 )                       CASE NO.   11 MA 48
    PLAINTIFFS-APPELLANTS,       )
                                 )
    - VS -                       )                       OPINION
                                 )
GEORGE AROMATORIO, M.D., et al., )
                                 )
    DEFENDANTS-APPELLEES.        )



CHARACTER OF PROCEEDINGS:                           Civil Appeal from Common Pleas Court,
                                                    Case No. 09CV4247.


JUDGMENT:                                           Affirmed.


APPEARANCES:
For Plaintiffs-Appellants:                          Attorney Mark Verkhlin
                                                    839 Southwestern Run
                                                    Youngstown, Ohio 44514


For Defendants-Appellees:                           Attorney Steven Hupp
                                                    Attorney Jennifer Becker
                                                    1300 East 9th Street, Suite 1950
                                                    Cleveland, Ohio 44114-1501


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                                    Dated: March 30, 2012
VUKOVICH, J.

       {¶1}   Plaintiffs-appellants Robert and Carol Armeni appeal the decision of the
Mahoning County Common Pleas Court, which granted summary judgment in favor of
defendants-appellees George Aromatorio, M.D. and Advanced Cardiology, Inc.
Appellants argue that their action was not based upon a medical claim and thus expert
testimony was not required.      However, appellants failed to oppose the motion for
summary judgment.       Moreover, appellants’ claims revolve wholly around acts or
omissions of a physician and nurses during a medical test, the unspecified acts and
omissions are not matters of common knowledge, and some evidence on the standard
of care, breach, and proximate cause was required in order to meet the nonmovant’s
reciprocal burden. For the following reasons, the judgment of the trial court is hereby
affirmed.
                              STATEMENT OF THE CASE
       {¶2}   Mr. Armeni underwent annual treadmill stress tests at Advanced
Cardiology (the heart center) starting in 2002. (Armeni Depo. at 13-16). On January
24, 2007, Mr. Armeni went to the heart center for his stress test with Dr. Aromatorio
supervising. During the test, he lost strength in his leg and fell. At one point, he said a
snap in his ankle caused him to fall; at another point, he said he did not know if the
snap happened before or after he fell. (Armeni Depo. at 28-30). Mr. Armeni went to a
podiatrist who advised him that he tore his Achilles tendon.          He then went to an
orthopedic surgeon who stated that he needed surgery on his ankle. (Armeni Depo. at
38).
       {¶3}   Mr. Armeni and his wife filed a complaint against the physician and the
heart center, who both sought dismissal based upon the failure to file a Civ.R. 10(D)
affidavit of merit. The Armenis then voluntarily dismissed their complaint, and refiled it
within the year. The refiled complaint posited the eight counts which they described
as: (1) premises liability for failure to warn an invitee of the incline of the treadmill; (2
& 3) negligent supervision of Mr. Armeni while on the treadmill; (4) negligent
supervision of employees; (5) negligence in interactions with Mr. Armeni; (6 & 7)
medical malpractice; and (8) loss of consortium.
       {¶4}    Again, the defendants sought dismissal for failure to file an affidavit of
merit under Civ.R. 10(D). In response, the Armenis dismissed the medical malpractice
claims in counts 6 and 7. The defendants replied that the entire case was based upon
a medical claim and thus the dismissal of counts 6 and 7 would not negate the need
for an affidavit of merit.
       {¶5}    On July 19, 2010, the trial court overruled the motion to dismiss. The
court opined that an affidavit of merit was no longer required because the medical
malpractice claims were being dismissed and that expert testimony was not required
to prove the remaining claims of negligence, premises liability, and negligent
supervision.
       {¶6}    On October 13, 2010, the defendants filed a motion for summary
judgment attaching Mr. Armeni’s deposition and the affidavit of Dr. Aromatorio. The
affidavit stated that the stress test was an inherently necessary part of Mr. Armeni’s
medical treatment. He stated that he personally supervised the test. He stated that
Mr. Armeni’s complaints of pain occurred during the normal operation of the treadmill
and that there was no malfunction. He disclosed that leg and foot injuries can occur in
the absence of negligence. Dr. Aromatorio concluded that he met the standard of care
in the treatment of Mr. Armeni, that he was not negligent in supervising or conducting
the test, and that Mr. Armeni would have sustained his injury regardless of the
administration of the stress test.
       {¶7}    In the attached deposition, Mr. Armeni related that the belt revved up and
“was going real fast” and the next thing he knew, he fell. (Armeni Depo. at 26). He
first stated that did not remember if the treadmill increased speed during the test. (Id.
at 16). He later answered that the treadmill sped up while he was undergoing the test.
(Id. at 26). However, considering his prior answers, it remained unclear if he meant
that it changed speeds during the test or if merely increased speed as it started. He
could not recall if he had to run to keep up with the speed of the treadmill and could
not answer whether he fell because he could not keep up. (Depo. at 27-28). Mr.
Armeni also testified twice at deposition that he did not remember if the treadmill
inclined during the test. (Armeni Depo. at 16, 26).
       {¶8}   The defendants’ motion for summary judgment noted that their motion to
dismiss was denied based upon the pleadings but that the summary judgment motion
was based upon the facts within the summary judgment material submitted.             The
motion then urged that the injuries fell directly within the definition of a medical claim
as Mr. Armeni was a patient, a medical test was necessary, and he was being
administered the medical test during the injury. The defendants reviewed multiple
cases on the topic and concluded that this was not an ordinary negligence case. Thus,
the motion continued, expert testimony was required to establish a prima facie case
concerning the standard of care, the existence of a breach, and whether that breach
proximately caused the injury.
       {¶9}   When the Armenis failed to oppose the summary judgment motion, the
defendants filed a December 3, 2010 brief in further support of their request for
summary judgment. They pointed out that the opposition was due on October 27,
2010 pursuant to Mah. Cty. Loc.R. 6(A)(2) and that no extension had been requested.
On December 21, 2010, the defendants filed proposed findings of fact and conclusions
of law regarding their summary judgment motion.
       {¶10} The defendants then filed a motion to strike a proposed judgment entry
put forward by the Armenis. The defendants state that the proposed entry incorrectly
stated that Mr. Armeni testified that no physician was present for the stress test when
in fact he testified that he heard the nurses say that the doctor entered the room and
he knew there was a man in the room whom he presumed was the doctor. (Armeni
Depo. at 23-24). The defendants reiterated that the Armenis did not respond to their
motion for summary judgment and pointed out that the physician’s affidavit remained
unrebutted. Apparently, the Armenis sent this proposed entry to the defendant but
never ended up filing it. See Docket 24-31. Thus, it is not before us.
       {¶11} On February 17, 2011, still without receiving any opposition from the
Armenis, the trial court granted summary judgment in favor of the defendants. The
court noted that the motion was unopposed. The court found that the facts in the
deposition and affidavit show that this is not an ordinary negligence case but rather the
injury is a medical claim. Thus, the court concluded, the Armenis failed to establish a
prima facie case of medical negligence because they failed to produce expert
testimony on duty, breach, and proximate cause.
         {¶12} The Armenis (hereinafter appellants) filed timely notice of appeal. See
App.R. 4(A) (appeal must be filed thirty days from service of the notice of judgment in
a civil case where service is not made within three days as per division (B) of Civ.R.
58).
                               ASSIGNMENT OF ERROR
         {¶13} Appellants set forth one assignment of error:
         {¶14} “THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENT TO APPELLEES SINCE QUESTIONS OF MATERIAL FACT AS TO THE
DUTY AND NEGLIGENCE OF APPELLEES ARE PRESENT, AS APPELLEES
FAILED TO SHOW THAT SUMMARY JUDGMENT WAS PROPER PURSUANT TO
CIV.R. 56.”
         {¶15} Summary judgment can be granted only where there remains no genuine
issue of material fact for trial and where, after construing the evidence most strongly in
favor of the nonmovant, reasonable minds can only conclude that the moving party is
entitled to judgment as a matter of law. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-
3455, 850 N.E.2d 47, ¶ 10, citing Civ.R. 56(C). The burden of showing that there is no
genuine issue of material fact initially falls upon the party who files for summary
judgment. Id., citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996).
         {¶16} Thereafter, the nonmovant may not rest upon mere allegations or denials
of the party's pleadings but must respond by setting forth specific facts showing that
there is a genuine issue for trial. Id., citing Civ.R. 56(E). “If the party does not so
respond, summary judgment, if appropriate, shall be entered against the party.” Civ.R.
56(E).     Although courts are cautioned to construe the evidence in favor of the
nonmoving party, summary judgment is not to be discouraged where a nonmovant
fails to respond with evidence supporting the essentials of his claim. Leibreich v. A.J.
Refrigeration, Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993).
         {¶17} As for evidence, the defendants produced the physician’s affidavit stating
that leg and foot injuries can occur during a stress test, the treadmill did not
malfunction, he met the standard of care, and he was not negligent in supervising or
conducting the test. A doctor's own affidavit can be considered in determining whether
the standard of care was met at the summary judgment stage.             See Hoffman v.
Davidson, 31 Ohio St.3d 60, 61, 508 N.E.2d 958 (1987).            The defendants also
submitted Mr. Armeni’s deposition. However, as will be further explored infra, this did
not establish negligence. In fact, the deposition established that he did not even know
if his first claim, regarding an inclining treadmill, was true.
       {¶18} In beginning our analysis, we begin with the most obvious failure:
appellants did not oppose the motion for summary judgment and cannot rest on the
mere allegations in the pleadings. See Dresher, 75 Ohio St.3d at 293. Rather, the
nonmovant must respond and attach summary judgment materials or cite to those
already in the record.       Appellants had plenty of time and opportunity to file an
opposition motion or an extension and did not do so. As aforementioned, the motion
for summary judgment was filed on October 13, 2010, the defendant’s pointed out the
failure to respond on December 3, 2010, the defendant’s filed proposed findings and
conclusion on December 21, 2010, and the court did not grant summary judgment until
February 17, 2011. However, appellants filed nothing, which is in contravention of
Civ.R. 56(E).
       {¶19} Moreover, as the defendants pointed out, the denial of their motion to
dismiss was based upon the bare pleadings; however, their motion for summary
judgment was based upon the facts of the case as developed in discovery and
presented to the court by the defendant’s submission of Mr. Armeni’s deposition and
the physician’s affidavit.    As can be seen from this evidence, appellant’s injury is
based upon allegations of medical malpractice. Even though he purportedly dismissed
his medical malpractice claims in order to avoid filing an affidavit of merit, the facts
developed demonstrate that his claims all revolve around whether the medical test
was properly administered.
       {¶20} The defendants characterize the claims as medical based upon R.C.
2305.113, which is a statute of limitations. This statute defines a medical claim as:
       {¶21} “any claim that is asserted in any civil action against a physician,
podiatrist, hospital, home, or residential facility, against any employee or agent of a
physician, podiatrist, hospital, home, or residential facility, or against a licensed
practical nurse, registered nurse, advanced practice nurse, physical therapist,
physician assistant, emergency medical technician-basic, emergency medical
technician-intermediate, or emergency medical technician-paramedic, and that arises
out of the medical diagnosis, care, or treatment of any person.              ‘Medical claim’
includes the following:
       {¶22} “(a) Derivative claims for relief that arise from the medical diagnosis,
care, or treatment of a person;
       {¶23} “(b) Claims that arise out of the medical diagnosis, care, or treatment of
any person and to which either of the following applies:
       {¶24} “(i) The claim results from acts or omissions in providing medical care.
       {¶25} “(ii) The claim results from the hiring, training, supervision, retention, or
termination of caregivers providing medical diagnosis, care, or treatment.”              R.C.
2305.113(E)(3).
       {¶26} This definition is also used in Civ.R. 10(D)(2)(a) for purposes of
ascertaining whether an affidavit of merit is required to be filed with a complaint. In
interpreting this law, the Supreme Court has held that merely transporting a patient
from his hospital room to his physical therapy involves a medical claim. Rome v.
Flower Mem. Hosp., 70 Ohio St.3d 14, 16, 63 N.E.2d 1239 (1994). Here, the patient’s
injury allegedly occurred during the actual administration of the test.
       {¶27} Still, the statute of limitations is not at issue in the case before us and the
affidavit of merit stage is over.1 Thus, although it could assist in determining whether
appellant’s claim are essentially ones of medical negligence, an analysis on what
constitutes a medical claim under a certain statute of limitations is not wholly
determinative.
       {¶28} In any event, the analysis to be set forth infra establishes why evidence
of the standard of care, breach, and proximate cause was required at the summary
judgment stage (without regard to what constitutes a medical claim for purposes of a
statute of limitations).   The central question here is whether any evidence was
presented to meet the nonmovant’s burden and whether expert testimony was


       1
       An affidavit of merit could not have been used to oppose summary judgment in any event.
Ramos v. Khawli, 181 Ohio App.3d 176, 2009-Ohio-798, 908 N.E.2d 495, ¶86.
required to avoid summary judgment, which deals with whether the plaintiff’s claim
involves medical negligence beyond the knowledge of a layperson.
       {¶29} All of the acts or omissions alleged here dealt with the administration of a
medical test that was prescribed to appellant on a yearly basis. Appellant cannot
avoid the requirements for medical malpractice cases by the label he places on a
claim. For instance, he labels one claim a bare premises liability action. However,
appellant was not a mere business invitee permitted to use a treadmill if he wished to.
Rather, the treadmill was being used as a medical device during heart monitoring. In
any event, the physician’s affidavit shows that the treadmill was working properly. No
evidence shows otherwise. Appellant’s complaint mentioned the treadmill inclining.
However, his deposition states that he does not recall if it inclined, and he presented
no summary judgment evidence to establish this fact or to establish that he was not
warned that it may incline.
       {¶30} Appellant’s claims of negligent supervision of the nurses, negligent
supervision of his walking, and general negligence are all based upon his claim that
his medical test was not supervised properly. This is a direct allegation of medical
malpractice. No duties or breaches thereof, besides that of a physician, heart center,
and nurses to their patient, have been supported here.
       {¶31} A medical malpractice plaintiff must establish the standard of care within
the medical community, that the defendant breached that standard, and that the
breach proximately caused the injury. See Bruni v. Tatsumi, 46 Ohio St.2d 127, 346
N.E.2d 673 (1976) (the injury was proximately caused by the doing of some particular
thing that a physician of ordinary skill, care and diligence would not have done under
similar conditions or by the failure to do some particular thing that such a physician
would have done under similar conditions).
       {¶32} When these elements are beyond the common knowledge and
understanding of the fact-finder, expert testimony must be offered to prove the claim.
Id. at 131–132. The same is true with respect to nurses. Ramage v. Central Ohio
Emergency Services, Inc., 64 Ohio St.3d 97, 102, 592 N.E.2d 828 (1992). The same
is true of negligent supervision claims. Wright v. Univ. Hosp. of Cleveland, 55 Ohio
App.3d 227, 232, 563 N.E.2d 361 (1989). We cannot infer that the stress test should
have been performed differently here based merely upon the fact that Mr. Armeni
suffered a torn tendon in his ankle.
       {¶33} Notably, any allegation of negligence remains unspecified. In fact, as
they did not file an opposition to summary judgment, they did not even argue below
that the standard, breach, and cause were within the knowledge realm of an ordinary
person, and thus, they waive any such claim here. See White v. Summa Health Syst.,
9th Dist. No. 24283, 2008-Ohio-6790, ¶ 24.
       {¶34} Where the plaintiff fails to present expert testimony that a physician
breached the applicable standard of care and that the breach constituted the direct
and proximate cause of the plaintiff's injury, a court may enter summary judgment in
favor of the defendant-physician.       Click v. Georgopoulos, 7th Dist. No. 08MA240,
2009–Ohio–6245, ¶ 29-30. See also Korreckt v. Ohio Health, 10th Dist. No. 10AP-
819, 2011-Ohio-3082, ¶ 12; Hitch v. Thomas, 6th Dist. No. L-09-1292, 2010-Ohio-
3630, ¶ 47; Nye v. Ellis, 5th Dist. No. 09-CA-80, 2010-Ohio-1462, ¶ 38; Taylor v.
McCullough-Hyde Memorial Hosp., 116 Ohio App.3d 595, 599-600, 588 N.E.2d 1028
(12th Dist. 1996).
       {¶35} Here, there is no indication that a reasonable physician would have
supervised the test differently than the physician did in this case, and this was not
shown to be a matter of common knowledge.             There is no summary judgment
evidence that Mr. Armeni would not have torn his tendon had the nurses or the
physician done something differently. There is no evidence that any act that was
performed contrary to ordinary medical standards or that a procedure was omitted that
would have been performed by a physician of ordinary skill. To the contrary, the
evidence in the form of the physician’s unrebutted affidavit demonstrated that he met
the standard of care during his treatment of Mr. Armeni and that he was not negligent
in supervising and conducting the test. As such, the Armenis failed to meet their
reciprocal burden of setting forth summary judgment materials to show a genuine
issue of material fact remains for trial.
      {¶36} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
DeGenaro, J., concurs.
