[Cite as McHugh v. Fraser, 2019-Ohio-3733.]




            IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                JEFFERSON COUNTY

                                SHARON MCHUGH ET AL.,

                                      Plaintiffs-Appellants,

                                                  v.

                               DR. JAMES FRASER ET AL.,

                                    Defendants-Appellees.


                       OPINION AND JUDGMENT ENTRY
                                       Case No. 18 JE 0020


                                   Civil Appeal from the
                      Court of Common Pleas of Jefferson County, Ohio
                                   Case No. 17-CV-390

                                       BEFORE:
                Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.


                                              JUDGMENT:
                                                Affirmed.



 Atty. Lance Johnson, Atty. Alanna Klein, Atty. Andrew Hanna, 17325 Euclid Avenue,
 Suite 2078, Cleveland, Ohio 44112, for Plaintiffs-Appellants and

 Atty. Matthew Mullen, Atty. John Maxwell, Krugliak, Wilkins, Griffiths & Dougherty,
 158 North Broadway Street, New Philadelphia, Ohio 44663, for Defendants-
 Appellees.
                                                                                     –2–




                                         Dated:
                                   September 12, 2019

 Donofrio, J.

      {¶1}      Plaintiffs-appellants, Sharon McHugh, Charles McHugh, and Fleet Owners
Insurance Fund, appeal from a Jefferson County Common Pleas Court judgment granting
summary judgment in favor of defendant-appellee, James Fraser, D.D.S., on appellants’
dental malpractice claim.
      {¶2}      Appellee is a general dentist.    Appellant Sharon McHugh had been
appellee’s patient since 1985. Sharon suffered from periodontal disease. As a result of
her periodontal disease, appellee extracted two of Sharon’s teeth on March 14, 2016.
      {¶3}      On March 17, 2016, Sharon’s dog bit her. The bite broke the skin.
      {¶4}      The next day, March 18, Sharon felt ill with flu-like symptoms. The day
after that, March 19, Sharon’s husband, appellant Charles McHugh, noticed that Sharon’s
nose, ears, and lips were discolored. Sharon was still feeling ill. Charles took Sharon to
the emergency department at the local Trinity Hospital (Trinity) later that day. She was
diagnosed with a sepsis infection, renal failure, and thrombocytopenia.
      {¶5}      The treating physician at Trinity determined that Sharon should be
transported by helicopter to University of Pittsburgh Medical Center (UPMC). At UPMC,
Sharon was treated for the sepsis infection and other resulting conditions. She was
hospitalized for approximately one month before she was well enough to be released.
She was re-admitted to the hospital several more times through August 2016. As a result
of the infection, Sharon had to have her spleen removed along with part of her clavicle,
and several toes.
      {¶6}   On August 25, 2017, appellants filed a complaint against appellee for dental
malpractice, loss of consortium, and subrogation for medical claims paid. They attached
the affidavit of Doctor Sam Morhaim, a periodontist who opined appellee breached the
standard of care in treating Sharon.
      {¶7}      Appellee filed a motion for summary judgment. Appellee asserted that
appellants were unable to satisfy the element of proximate cause. He alleged that



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appellants’ expert was unable to offer an opinion in terms of medical probability that any
alleged negligence on his part caused Sharon’s illness. Therefore, appellee claimed that
he was entitled to judgment as a matter of law.
       {¶8}    In response, appellants asserted appellee’s own records demonstrated
that he failed to follow accepted dental practices in treating Sharon. They claimed a
genuine issue of material fact existed as to whether Sharon suffered from an infection at
the time appellee extracted her teeth or whether the infection developed later.
       {¶9}    The trial court granted appellee’s motion for summary judgment. The court
stated the key issue in the case was the cause of Sharon’s sepsis. It noted that appellants
claimed the sepsis was proximately caused by appellee’s negligent treatment while
appellee claimed the sepsis was caused by the dog bite. The court noted the hospital
records indicated that the dog bite was the cause of the sepsis. The court went on to find
that appellants’ expert was unable to give an opinion to a reasonable degree of dental
certainty that appellee’s negligent treatment proximately caused Sharon’s illness. It found
that appellants failed to provide any admissible evidence that would indicate appellee’s
negligence was the proximate cause of Sharon’s illness. Therefore, the court granted
appellee’s motion for summary judgment and dismissed the case.
       {¶10}   Appellants filed a timely notice of appeal on October 2, 2018. They now
raise five assignments of error.
       {¶11}   An appellate court reviews a summary judgment ruling de novo. Comer v.
Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus, we shall apply
the same test as the trial court in determining whether summary judgment was proper.
       {¶12}   A court may grant summary judgment only when (1) no genuine issue of
material fact exists; (2) the moving party is entitled to judgment as a matter of law; and
(3) the evidence can only produce a finding that is contrary to the non-moving party.
Mercer v. Halmbacher, 9th Dist. Summit No. 27799, 2015-Ohio-4167, ¶ 8; Civ.R. 56(C).
The initial burden is on the party moving for summary judgment to demonstrate the
absence of a genuine issue of material fact as to the essential elements of the case with
evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662
N.E.2d 264 (1996). A “material fact” depends on the substantive law of the claim being
litigated. Hoyt, Inc. v. Gordon & Assos., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088



Case No. 18 JE 0020
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(8th Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
         {¶13}   If the moving party meets its burden, the burden shifts to the non-moving
party to set forth specific facts to show that there is a genuine issue of material fact. Id.;
Civ.R. 56(E). “Trial courts should award summary judgment with caution, being careful
to resolve doubts and construe evidence in favor of the nonmoving party.”              Welco
Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993).
         {¶14}   Appellants’ first assignment of error states:

                 THE COURT ERRED IN CONSIDERING THE DOG BITE AS
         ADMISSIBLE EVIDENCE, UNDER RULE 56, OF AN ALTERNATIVE
         CAUSE OF PLAINTIFF-APPELLANT MRS. McHUGH’S INJURIES.

         {¶15}   Appellants argue that the trial court considered inadmissible evidence in
ruling on appellee’s summary judgment motion. Specifically, they assert the trial court
considered, when it should not have considered, (1) Sharon’s hospital records and (2)
defense counsel’s assertion that a dog bite proximately caused Sharon’s injuries.
Appellants go on to argue that appellee’s counsel forced their expert to accept as true the
hypothetical statement that the dog bite caused Sharon’s injuries. In sum, appellants
argue the trial court failed to construe the evidence in their favor as it was required to do.
         {¶16}   In ruling on a motion for summary judgment, the trial court shall grant
summary judgment 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.” Civ.R. 56(C). The court
may not consider any evidence or stipulation other than that set out in the rule. Civ.R.
56(C).
         {¶17}   First, appellants contend the trial court erred in considering Sharon’s
hospital records.
         {¶18}   Sharon’s hospital records were exhibits to her deposition, which she
identified. (S. McHugh Dep. Exs. E, F, G). Her records were also attached to Dr.
Morhaim’s report, which was included as an exhibit to his deposition. (Morhaim Dep. Ex.


Case No. 18 JE 0020
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C). Thus, Sharon’s hospital records were proper summary judgment evidence pursuant
to Civ.R. 56(C). As such, the trial court was permitted to consider them in ruling on the
summary judgment motion.
       {¶19}   Second, appellants contend the trial court erred in considering what they
call “defense counsel’s assertion” that a dog bite proximately caused Sharon’s sepsis
infection. Appellants, however, have mislabeled evidence of the dog bite by calling it an
“assertion” by defense counsel.
       {¶20} Sharon stated in her deposition that her dog bit her on March 16, 2016 at
approximately 4:00 p.m. (S. McHugh Dep. 36-38). She stated that she was trying to
prevent her dog from growling at her neighbor’s dog. (S. McHugh Dep. 37-38). She put
her hand down to push her dog out of the way and her dog bit her. (S. McHugh Dep. 37-
38). Sharon stated that her dog “barely bit” her but acknowledged that the bite broke the
skin. (S. McHugh Dep. 37). Sharon also reported the dog bite to hospital personnel when
she went to the emergency department at Trinity Hospital two days later. (S. McHugh
Dep. Ex. E). And her UPMC discharge papers indicate that her sepsis infection was
caused by “Bacterium with Capnocytophaga from dog bite.” (S. McHugh Dep. G).
       {¶21}   Given Sharon’s testimony regarding the dog bite and her medical records
referring to the dog bite, this evidence is not an “assertion by defense counsel” as
appellants categorize it. On the contrary, the evidence of the dog bite is proper summary
judgment evidence. Thus, the trial court did not err in considering it.
       {¶22}   Accordingly, appellants’ first assignment of error is without merit and is
overruled.
       {¶23}   Appellants’ second assignment of error states:

               IN APPLYING RULE 56, THE COURT ERRED BY FAILING TO
       FIND THAT PLAINTIFFS-APPELLANTS’ EXPERT PROVIDED AN
       ADMISSIBLE       OPINION      THAT      THE     DEFENDANT-APPELLEE’S
       NEGLIGENCE PROXIMATELY CAUSED MRS. McHUGH’S INJURIES.

       {¶24} Here appellants contend the trial court should have found that their expert
provided an admissible opinion to a reasonable degree of dental certainty that appellee’s
negligence proximately caused Sharon’s injuries. They contend they submitted credible


Case No. 18 JE 0020
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evidence that appellee’s failure to follow the standard of care either directly resulted in
Sharon’s sepsis or made her susceptible to contracting it. Appellants argue that their
expert’s report and deposition testimony, when viewed in their favor, created a genuine
issue of material fact for trial.
       {¶25} In order to establish a claim of dental malpractice, the plaintiff must prove
(1) the existing standard of care within the dental community, (2) a breach of that standard
of care by the defendant, and (3) proximate cause between the breach of standard of
care and the plaintiff’s injury. Tarellari v. Case W. Res. School of Dentistry, 8th Dist.
Cuyahoga No. 84892, 2005-Ohio-2327, ¶ 10.
       {¶26} When the plaintiff fails to present expert testimony that the defendant
physician/dentist breached the applicable standard of care and that the breach
constituted the direct and proximate cause of the plaintiff's injury, summary judgment in
favor of the defendant-physician is appropriate. Armeni v. Aromatorio, 7th Dist. Mahoning
No. 11 MA 48, 2012-Ohio-1500, ¶ 34.
       {¶27} In his deposition, appellants’ expert Dr. Morhaim acknowledged that
Sharon’s infection was caused by Capnocytophaga bacteria. (Morhaim Dep. 62). He
stated that this particular bacteria is associated with periodontal disease as well as being
a bacteria commonly found in dog saliva. (Morhaim Dep. 62).
       {¶28} Dr. Morhaim stated in his report that appellee fell below the standard of care
in seven different ways: (1) failing to use proper diagnostic tests prior to the extraction of
Sharon’s teeth; (2) failing to properly inform Sharon of all of the potential risks involved
with the tooth extraction; (3) failing to adequately treat the surrounding teeth; (4) failing to
properly document the treatment; (5) failing to discuss dental implants as a potential
treatment option; (6) failing to prescribe antibiotics to Sharon, which placed her in a “more
susceptible state” of developing a post-operative infection; and (7) failing to follow up with
Sharon after extracting her teeth. (Morhaim Dep. Ex. C, p. 13-23).
       {¶29} Dr. Morhaim concluded:         “It is my professional opinion, based upon a
reasonable degree of dental certainty that Dr. Fraser’s negligent and substandard care
may have acted as a contributing factor to Mrs. McHugh’s deteriorating medical
conditions.” (Emphasis added; Morhaim Dep. Ex. C, p. 3). The doctor’s final statement
in his report was that: “It is my professional opinion based upon my education, clinical



Case No. 18 JE 0020
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expertise, and twenty-eight years of experience in the dental field, that Dr. Frasers [sic.]
substandard care of Mrs. McHugh, may have acted as a contributing factor in her
developing a post-operative infection.” (Emphasis added; Morhaim Dep. Ex. C, p. 24).
       {¶30} At Dr. Morhaim’s deposition, appellee’s counsel went through each of the
above seven ways the doctor opined appellee breached the standard of care. As to each
one, counsel asked the doctor if that particular breach of the standard of care proximately
caused any damages to Sharon. As to breaches one through five and breach seven, Dr.
Morhaim stated that the breach of the standard of care did not proximately cause injury
to Sharon. (Morhaim Dep. 84-94). As to breach six, the failure to prescribe antibiotics,
the doctor’s response was somewhat uncertain. Dr. Morhaim opined that the standard of
care requires the dentist to prescribe antibiotics in connection with a tooth extraction when
the patient is suffering from periodontal disease. (Morhaim Dep. 94). But Dr. Morhaim
acknowledged that this a disputed opinion in dentistry. (Morhaim Dep. 95). He stated
that there are many well-respected dentists who believe antibiotics are over-prescribed
and who would not view the failure to prescribe them as falling below the standard of care.
(Morhaim Dep. 95).
       {¶31} Finally, Dr. Morhaim opined there “may have been an association” between
appellee’s care and Sharon’s medical problems. (Morhaim Dep. 98). But he agreed that
he was not giving an opinion “to a more likely than not to a reasonable degree of medical
certainty.” (Morhaim Dep. 98-99).
       {¶32} Also at Dr. Morhaim’s deposition, appellee’s counsel asked the doctor,
“Before I go any further, let me can [sic.] ask you directly, is it your opinion, to a reasonable
degree of dental certainty, that the care of Dr. Fraser approximately [sic.] caused the
sepsis that she was treated for?” (Morhaim Dep. 67-68). Dr. Morhaim replied:

       I don’t think I can say for sure that that happened. It would be irresponsible
       of me to say that. My words in my report, even after I received the additional
       materials sent to me, I think, is the best way to describe it. That my opinion
       based on a reasonable degree of dental certainty that there may have been
       an association between the breach of the standard of care in dentistry by
       Dr. Fraser’s treatment of Ms. McHugh. And what subsequently happened
       to her. But I cannot definitively say that two - - that one caused the other.


Case No. 18 JE 0020
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(Emphasis added; Morhaim Dep. 68). Counsel then asked the doctor, “You can’t even
say it is more likely than not; correct?” (Morhaim Dep. 68). To which Dr. Morhaim
responded, “Correct.” (Morhaim Dep. 68).
       {¶33}    Dr. Morhaim also agreed that the only conclusion that Sharon’s treating
doctors reached was that she developed sepsis as a result of a dog bite. (Morhaim Dep.
81).
       {¶34} The Ohio Supreme Court has stated that “an expert opinion relating to
whether the risk materialized and proximately caused injury should be framed in terms of
medical probability, not possibility.” White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio-
6238, 959 N.E.2d 1033, ¶ 39.
       {¶35} Moreover, the Sixth District recently discussed what is required of an
expert’s testimony in a medical/dental malpractice claim:

               In Ohio, an expert's testimony concerning proximate cause is
       admissible only where his or her opinions as to the causative event are
       expressed in terms of probability. Stinson v. England, 69 Ohio St.3d 451,
       455, 633 N.E.2d 532 (1994). “[A]n event is probable if there is a greater
       than fifty percent likelihood that it produced the occurrence at issue.” Id. “If
       an expert testifying as to causation fails to testify in terms of probability, the
       expert's testimony is incompetent.” Steinmetz v. Latva, 6th Dist. Erie No.
       E-02-025, 2003-Ohio-3455, 2003 WL 21500185, ¶ 21.

Harris-Miles v. Lakewood Hosp., 6th Dist. Erie No. E-17-023, 2018-Ohio-664, ¶ 17.
       {¶36} In Harris-Miles, the expert doctor was unable to state to reasonable degree
of medical certainty that the plaintiff would not have suffered an alveolar hemorrhage if a
steroid had been prescribed. Id. ¶ 18. The Sixth District found that the plaintiff was
required to present testimony that it was more likely than not that her injury would have
been prevented if the defendant would have prescribed a steroid. Id. at 21. The court
concluded that because the expert was unable to state to a reasonable degree of medical
probability that the failure to prescribe a steroid caused the plaintiff’s injury, the expert’s
testimony was incompetent and inadmissible. Id. at ¶ 22.             Consequently, the court
affirmed summary judgment in favor of the defendant.


Case No. 18 JE 0020
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       {¶37} In this case, Dr. Morhaim did not offer an admissible opinion to a
reasonable degree of dental certainty that appellee’s negligence proximately caused
Sharon’s injuries. Dr. Morhaim only opined that appellee’s negligence “may have” caused
Sharon’s injuries. Appellee’s counsel afforded the doctor numerous occasions to give an
opinion to reasonable degree of dental certainty as to the cause of the Sharon’s injuries,
but Dr. Morhaim stated unequivocally that he was unable to do so. He even stated he
could not find that it was “more likely than not” that appellee’s negligence caused Sharon’s
injuries. Moreover, even in his report, Dr. Morhaim was only able to opine that appellee’s
negligence “may have acted” as a contributing factor in Sharon developing the sepsis
infection. Thus, Dr. Morhaim was unable to offer an opinion as to whether it was probable
that appellee’s negligence caused Sharon’s injuries.
       {¶38} Based on the above, the trial court correctly concluded that Dr. Morhaim’s
testimony was legally deficient to raise a factual issue as to proximate cause.
       {¶39}    Accordingly, appellants’ second assignment of error is without merit and
is overruled.
       {¶40}    Appellants’ third assignment of error states:

                IN APPLYING RULE 56, THE COURT ERRED BY FAILING TO
       FIND     THAT     THE      ADMISSIBLE       EVIDENCE        CUMULATIVELY
       ESTABLISHED A MATERIAL ISSUE OF FACT REGARDING PROXIMATE
       CAUSE.

       {¶41}    In this assignment of error, appellants assert the trial court failed to
consider all of the evidence and construe it in their favor. Had it done so, appellants urge,
the court would have found that a genuine issue of material fact existed as to the
proximate cause of Sharon’s sepsis.
       {¶42} Dr. Morhaim’s report and deposition were the only evidentiary materials
appellants submitted to attempt to establish proximate cause. In his report, Dr. Morhaim
opined that appellee did not meet the standard of care.            (Morhaim Dep. Ex. C).
Significantly though, he still concluded that appellee’s alleged negligence “may have
acted” as a contributing factor to Sharon’s medical condition. (Morhaim Dep. Ex. C). And
in his deposition testimony, Dr. Morhaim repeatedly stated that he could not give an


Case No. 18 JE 0020
                                                                                     – 10 –


opinion that it was more likely than not that appellee’s alleged negligence caused
Sharon’s sepsis infection. (Morhaim Dep. 67-68, 98-99).
       {¶43} At oral argument, appellants argued the trial court should have considered
Dr. Morhaim’s affidavit of merit as evidence that appellee’s breach of the standard of care
caused Sharon’s injuries. Appellants attached Dr. Morhaim’s affidavit of merit to their
complaint wherein he averred that appellee breached the standard of care and that based
on a reasonable degree of medical certainty that breach was the proximate cause of
Sharon’s injuries.
       {¶44} The affidavit of merit that is required by Civ.R. 10(D)(2) to be attached to a
complaint for medical or dental malpractice is not actually evidence. “An affidavit of merit
is required to establish the adequacy of the complaint and shall not otherwise be
admissible as evidence or used for purposes of impeachment.” Civ.R. 10(D)(2)(d).
       {¶45} In addressing whether an affidavit of merit is proper summary judgment
evidence, the Second District has held:
       An affidavit of merit need not set out the recognized prevailing standard of care in
       the relevant medical community, how the defendant failed to meet the standard of
       care, or how that breach caused the plaintiff's injury. Accordingly, an affidavit of
       merit which includes only the bare assertions required by Civ.R. 10(D)(2)(a) can
       never constitute evidence of the type enunciated in Civ.R. 56(C) to support or
       oppose a motion for summary judgment.
White v. Summa Health Sys., 9th Dist. Summit No. 24283, 2008-Ohio-6790, ¶ 22. And
the Eight District has noted an affidavit used for purposes of avoiding summary judgment
must list the facts and not merely state final conclusory opinions on liability. Schura v.
Marymount Hosp., 8th Dist. Cuyahoga No. 94359, 2010-Ohio-5246, ¶ 28. When the
affidavit of merit contains only the bare allegations required by Civ.R. 10(D)(2), it is
insufficient to oppose summary judgment. Id.
       {¶46}   In this case, the affidavit of merit makes only bare allegations. There is no
reference at all to the facts of this case. Therefore, it was not proper evidence to oppose
summary judgment.
       {¶47} While trial courts must resolve doubts and construe evidence in favor of the
nonmoving party, summary judgment is nevertheless appropriate when the plaintiff fails



Case No. 18 JE 0020
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to produce evidence supporting an essential element of its claim. Welco Industries, 67
Ohio St.3d at 346. Without expert testimony indicating that appellee’s alleged negligence
more likely than not caused Sharon’s injuries, appellants cannot demonstrate a genuine
issue of material fact to preclude summary judgment.
      {¶48}    Accordingly, appellants’ third assignment of error is without merit and is
overruled.
      {¶49}    Appellants’ fourth assignment of error states:

              IN APPLYING RULE 56, THE COURT ERRED IN FAILING TO
      FIND THAT THIS IS A CASE WHERE PROXIMATE CAUSE IS SO
      APPARENT THAT EXPERT TESTIMONY TO ESTABLISH CAUSATION IS
      NOT NEEDED.

      {¶50}    Appellants assert here that it is undisputed that Sharon’s sepsis was
caused by a bacteria known as Capnocytophaga entering her bloodstream. They note
that this type of this bacteria is commonly found in the human mouth. Thus, they claim
expert testimony was not needed in this case to establish proximate cause. Appellants
go on to argue that appellee admitted to breaching the standard of care by failing to
prescribe antibiotics to Sharon in conjunction with her tooth extraction. At the least,
appellants contend, this evidence creates a genuine issue of material fact as to the
proximate cause of Sharon’s infection.
      {¶51}    As stated above, a dental malpractice plaintiff is required to present
evidence that the defendant breached the applicable standard of care and that the breach
proximately caused the plaintiff's injury. Tarellari, 2005-Ohio-2327, at ¶ 10. Generally,
expert testimony is required to prove these elements. But an exception to the rule
requiring expert testimony exists when the lack of skill or care of the defendant physician
is so apparent that it is within the comprehension of laymen and requires only common
knowledge and experience to understand it. Rogoff v. King, 91 Ohio App.3d 438, 445,
632 N.E.2d 977 (8th Dist.1993).
      {¶52}    Expert testimony was required in this case to establish proximate cause.
The bacteria Capnocytophaga is not something of which the average layperson would be
aware of. Likewise, it is not within a layperson’s common knowledge that this particular


Case No. 18 JE 0020
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type of bacteria is found both in a dog’s saliva and in a human’s oral cavity. Moreover,
the fact that this bacteria can cause a sepsis infection if it travels into the bloodstream is
not within a layperson’s common knowledge.
       {¶53}     In determining that a layperson would not be able to discern whether
leaving monofilament sutures and felt pledgets inside of the chest cavity constituted
negligence, this court observed: “This situation is different from those where a limb is
mistakenly amputated or where a large surgical instrument is left inside the patient. In
other words, it does not take an expert to discern that negligence occurs when the wrong
leg is amputated or a large forceps is left inside of a patient's abdomen.” Click v.
Georgopoulos, 7th Dist. Mahoning No. 08 MA 240, 2009-Ohio-6245, ¶ 26.
       {¶54} The same rationale applies in this case. The alleged negligence is not as
obvious as amputating the wrong leg or leaving a surgical instrument inside a patient.
Instead, it would take expert testimony to explain how appellee’s alleged negligence
resulted in Sharon’s injury.
       {¶55}     Accordingly, appellants’ fourth assignment of error is without merit and is
overruled.
       {¶56}     Appellants’ fifth assignment of error states:

                 THE COURT’S ENFORCEMENT OF THE STATE DENTAL
       LICENSING         SCHEME         VIOLATED         PLAINTIFFS-APPELLANTS’
       CONSTITUTIONAL RIGHT OF DUE PROCESS.

       {¶57}     In their final assignment of error, appellants argue that they have a right of
due process for their claims against appellee, who is regulated and licensed by the state
of Ohio to practice dentistry. They point out that R.C. 4715.141 requires licensed dentists
to complete 40 hours of bi-annual continuing dental education. Appellants note, however,
that the statute does not require that the continuing education be varied so that dentists
remain up to date on emerging dental information. They contend that Ohio’s licensing
requirements are unconstitutional and have deprived them of their day in court.
       {¶58} As appellee points out, appellants failed to raise these constitutional
arguments in their complaint and failed to serve the Ohio Attorney General with a copy of
the complaint.


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       {¶59} An appellant cannot raise an issue on appeal for the first time that could
have been raised and resolved in the trial court. Quick v. Jenkins, 7th Dist. Columbiana
No. 13 CO 4, 2013-Ohio-4371, ¶ 27. Issues not raised to the trial court are deemed
waived on appeal. Id. Therefore, appellants have waived this issue on appeal.
       {¶60}    Moreover, when any statute “is alleged to be unconstitutional, the attorney
general also shall be served with a copy of the complaint in the action or proceeding and
shall be heard.” R.C. 2721.12(A). When a party argues a statute is unconstitutional and
the party does not meet the provisions of R.C. 2721.12(A), courts lack subject matter
jurisdiction to determine the constitutionality of that particular statute. Mraz v. D & E
Counseling Ctr., 7th Dist. Carroll No. 01 CA 176, 2002-Ohio-5213, ¶ 11. Therefore, we
lack subject matter jurisdiction to address appellants’ arguments regarding the
constitutionality of the state dental licensing statutes.
       {¶61} Accordingly, appellants have waived this issue on appeal. Alternatively,
we are without subject matter jurisdiction to rule on appellants’ fifth assignment of error.
       {¶62}    For the reasons stated above, the trial court’s judgment is hereby affirmed.




Robb, J., concurs.
D’Apolito, J., concurs.




Case No. 18 JE 0020
[Cite as McHugh v. Fraser, 2019-Ohio-3733.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be taxed
 against the Appellant.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                      NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
