[Cite as Thacker v. Day, 2013-Ohio-187.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

KIMBERLY A. THACKER                                :

        Plaintiff-Appellant                        :            C.A. CASE NO.       25265

v.                                                 :            T.C. NO.   10CV8368

MARK W. DAY, D.O., et al.                          :             (Civil appeal from
                                                                 Common Pleas Court)
        Defendants-Appellees                       :

                                                   :

                                           ..........

                                           OPINION

                         Rendered on the    25th       day of     January , 2013.

                                           ..........

JONATHAN HOLLINGSWORTH, Atty. Reg. No. 0022976, 137 N. Main Street, Suite
1002, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellant

KAREN L. CLOUSE, Atty. Reg. No. 0037294 and MARYELLEN C. SPIRITO, Atty. Reg.
No. 0007617 and PATRICK F. SMITH, Atty. Reg. No. 0024997, 2075 Marble Cliff Office
Park, Columbus, Ohio 43215
       Attorneys for Defendants-Appellees, Mark W. Day, D.O. and Generations &
       Gynecology, Inc., fka Springboro Obstetrics & Gynecology, Inc.

CHARLES F. SHANE, Atty. Reg. No. 0062494 and HOWARD P. KRISHER, Atty. Reg.
    No. 0009088 and KIRSTIE N. YOUNG, Atty. Reg. No. 0084007 400 PNC Center, 6
    N. Main       Street, Dayton, Ohio 45402
    Attorneys for Defendants-Appellees, Lynn M. Powers, D.O. and Southview Medical
                       Center

                                        ..........

DONOVAN, J.

         {¶ 1}   Plaintiff-appellant Kimberley A. Thacker (hereinafter “Thacker”) appeals

the judgment of the Montgomery County Court of Common Pleas, General Division,

sustaining the motion for summary judgment of defendant-appellee Dr. Mark W. Day, D.O.

(hereinafter “Dr. Day”) in a written decision issued on May 30, 2012. Thacker filed a

timely notice of appeal with this Court on June 28, 2012.

         {¶ 2}   The record establishes that Thacker first came under the care and

supervision of Dr. Day on April 23, 2007. At that time, Dr. Day was the Medical Director

of Residency and care provider at Southview Women’s Care, a clinic operated by Southview

Hospital. Prior to her interaction with Dr. Day, Thacker had an extensive surgical history

consisting of numerous abdominal and pelvic operative procedures, including a total

abdominal hysterectomy and a right salpingo-oopherectomy (removal of the right ovary and

tube).

         {¶ 3}   Upon her arrival at Southview Hospital on April 23, 2007, Thacker suffered

from a confirmed left ovarian cyst and complained of abdominal/pelvic pain and distention.

In order to correct her condition, Dr. Day planned to operate on Thacker and remove her left

cystic ovary and tube (left-salpingo-oopherectomy). Ultimately, on May 7, 2007, Dr. Day

performed a left-salpingo-oopherectomy, as well as lysis of adhesions involving Thacker’s

pelvis and bowel (enterolysis).    Adhesions are essentially scar tissue which can cause

abdominal and pelvic structures to adhere to one another, in turn causing pain and

discomfort. The lysis of adhesions performed by Dr. Day involved the cutting away of the
                                                                                          3

scar tissue around Thacker’s abdominal region and pelvis. Because he was worried about

the risk of adhesions considering her prior surgical history, Dr. Day asked general surgeon,

Dr. Andrew Gabriel, to be on standby during the May 7, 2007, procedure in case his

assistance was needed. As it turned out, Dr. Day was able to perform the multi-faceted

operation without requiring any assistance from Dr. Gabriel.

       {¶ 4}   Following the May 7, 2007, procedure, Thacker developed a painful blood

clot in her rectal area. On May 30, 2007, Dr. Day performed surgery on Thacker to remove

the blood clot. During the surgery, an incidental perforation of Thacker’s bladder occurred

but was corrected during the operation by a urologist contacted by Dr. Day.

       {¶ 5}   Throughout the remainder of 2007 and into 2008, Thacker complained of

continuing abdominal pain. Dr. Day stated in his deposition that he believed her pain was

caused by intra-pelvic and intra-abdominal adhesions he observed during the initial surgery

he performed on May 7, 2007. As a result, Dr. Day formulated a surgery plan to perform

additional lysis of Thacker’s adhesions. In order to accomplish this goal, Dr. Day obtained

a consult from Dr. Gabriel’s general surgery resident, Dr. Reichert, regarding the proposed

surgery.   Dr. Day also consulted with a vascular surgeon, Dr. Mark Gazall, before

performing the second lysis of adhesions on Thacker. Additionally, the record establishes

that Dr. Gabriel was on standby at the request of Dr. Day during the surgery which was

performed on June 30, 2008.

       {¶ 6}   Approximately five weeks later on August 11, 2008, Dr. Day diagnosed

Thacker with three fistulas during a routine post-operative visit. A fistula is an abnormal

duct or passage from an abscess, cavity, or hollow organ to the body surface or another
                                                                                           4

hollow organ. The fistulas that developed were to the vaginal canal, the bladder, and the

skin. The fistulas to the vaginal canal and bladder healed on their own, but the skin fistula

required long-term medical attention, ultimately resulting in surgical treatment at the

Cleveland Clinic.

       {¶ 7}    On October 20, 2010, Thacker filed a complaint alleging medical

malpractice against Dr. Day and his practice, Generations Obstetrics & Gynecology,

formerly known as Springboro Obstetrics & Gynecology, Inc., as well as Southview Medical

Center and Dr. Lynn Powers. It appears that Thacker’s claim of medical malpractice is only

raised in connection with the surgery performed by Dr. Day on June 30, 2008. After the

parties engaged in significant discovery and depositions were concluded, all defendants,

including Dr. Day, moved for summary judgment against Thacker. On May 30, 2012, the

trial court issued a decision granting summary judgment in favor of all of the defendants.

The trial court concluded that the record failed to set forth any expert testimony that a

deviation from the standard of care by Dr. Day was the cause of Thacker’s injuries.

       {¶ 8}    It is from this judgment that Thacker now appeals, but only in regards to Dr.

Day, Generations Obstetrics & Gynecology, and Southview Medical Center. Thacker is not

appealing the trial court’s judgment in favor of Dr. Powers.

       {¶ 9}    Thacker’s first assignment of error is as follows:

       {¶ 10} “THE TRIAL COURT ERRED WHEN IT DETERMINED THAT NO

GENUINE ISSUE OF MATERIAL FACT EXISTED FOR TRIAL WITH RESPECT TO

THE ‘CAUSATION’ ELEMENT OF PLAINTIFF-APPELLANT’S CLAIM AGAINST

DEFENDANT-APPELLEE DR. DAY (I.E., WHEN IT DETERMINED, AS A MATTER
                                                                                             5

OF LAW, THAT DR. DAY’S CONDUCT DID NOT PROXIMATELY CAUSE THE

HARM SUFFERED BY PLAINTIFF).”

       {¶ 11} We review a summary judgment de novo by independently reviewing the

judgment, without deference to the trial court's determination. Koos v. Cent. Ohio Cellular,

Inc., 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994), citing Brown v. Scioto Cty.

Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). We apply the

same standard as the trial court and must affirm the judgment if any grounds the movant

raised in the trial court support it. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42, 654

N.E.2d 1327 (9th Dist.1995).

       {¶ 12} Pursuant to Civ.R. 56(C), 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." Accordingly, summary judgment is appropriate

only under the following circumstances: (1) no genuine issue of material fact remains to be

litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the

evidence most strongly in favor of the non-moving party, reasonable minds can come to but

one conclusion, that conclusion being adverse to the non-moving party. Harless v. Willis

Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). Because summary

judgment is a procedural device to terminate litigation, courts should award it cautiously

after resolving all doubts in favor of the non-moving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358-59, 604 N.E.2d 138 (1992), quoting Norris v. Ohio Std. Oil Co., 70
                                                                                              6

Ohio St.2d 1, 2, 433 N.E.2d 615 (1982).

       {¶ 13} When a party moves for summary judgment on the ground that the

non-moving party cannot prove its case, the movant bears the initial responsibility of

informing the trial court of the basis for the motion and identifying those portions of the

record that demonstrate the absence of a genuine issue of material fact on an essential

element of the non-moving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662

N.E.2d 264 (1996). If the moving party meets its initial burden, the non-movant must set

forth specific facts demonstrating a genuine issue for trial. Id. at 293.

       {¶ 14} In her first assignment, Thacker contends that the trial court erred when it

found that she presented insufficient expert testimony to establish that Dr. Day’s alleged

negligence in performing the lysis of adhesions surgery on June 30, 2008, proximately

caused the fistulas she suffered approximately five weeks after the surgery.

       {¶ 15} To succeed on a malpractice claim, a plaintiff must demonstrate through

expert testimony that the physician’s conduct fell below the “prevailing standard of care.”

Ramage v. Central Ohio Emergency Servs., 64 Oho St.3d 97, 102, 592 N.E.2d 828 (1992).

“Whether negligence exists is determined by the relevant standard of conduct for the

physician. That standard is proved through expert testimony.” Berdyck v. Shinde, 66 Ohio

St.3d 573, 579, 613 N.E.2d 1014 (1993), citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 346

N.E.2d 673 (1976). Bruni also requires expert testimony on the issue of causation.

       {¶ 16} Under Ohio Law, in order to present a prima facie claim of medical

malpractice, a plaintiff must establish: 1) the standard of care, as generally shown through

expert testimony; 2) the failure of the defendant to meet the requisite standard of care; and 3)
                                                                                           7

a direct causal connection between the medically negligent act and the injury sustained.

Bruni v. Tatsumi, 46 Ohio St.2d 127, ¶ 1 of the syllabus. “[P]hysicians are said to owe

patients a legal duty to use recognized standards of professional knowledge and skill.” Ryne

v. Garvey, 87 Ohio App.3d 145, 155, 621 N.E.2d 1320 (2d Dist.1993). A plaintiff proves a

breach of duty by showing that the physician failed to act in accordance with those

established norms. Id.

       {¶ 17} In the instant case, Thacker’s sole medical expert was John C. Evanko, M.D.

 Dr. Evanko testified in the area of standard of care and causation. Dr. Evanko was

deposed by the defendants on March 8, 2012. In preparation for his deposition, Dr. Evanko

testified that he reviewed Thacker’s relevant medical records, as well as the deposition of

Dr. Day. Dr. Evanko testified that Dr. Day deviated from the standard of care by failing to

have a general surgeon perform the June 30, 2008 surgery, rather than Dr. Day, an

obstetrician/gynecologist. Dr. Evanko further testified that other than performing the June

30, 2008, surgery himself, Dr. Day did not deviate from the standard of care in any way.

       {¶ 18} We note, however, that the record establishes that Dr. Evanko did not opine

that the June 30, 2008, surgery should not have been performed, only that it should have

been performed by a general surgeon. On this point, Dr. Evanko testified as follows:

       Defense Counsel: Okay. So the point I’m trying to make is, it’s not the fact

       surgery was done, it’s the fact that you believe the surgery on June 30, 2008

       should have been done by a general surgeon instead of an OB-GYN?

       Dr. Evanko: Yes. That’s where the deviation from the standard of care

       occurred. And again, I know I’m not supposed to go on, but the thing is, a
                                                                                         8

       general surgeon operates on the bowel all the time.              So perhaps the

       technique would have been a little more meticulous or fine or what have you.

        A gynecologist does perform lysis of adhesions, but not to the degree or the

       extent or have that experience of working with the bowels all the time.

       General surgeons, all they operate is on bowels.          So that’s why I think

       they’re the best trained or the best skilled at taking care of this condition.

       {¶ 19} Regarding whether he agreed with Dr. Day’s diagnosis which led to the June

30, 2008, surgery, Dr. Evanko testified as follows:

       Defense Counsel: Do you have an opinion that [Thacker] was experiencing

       the pain and nausea, whatever her symptoms were at the time, from

       something other than adhesions?

       Dr. Evanko: From the records, no. I believe from what I read from [Dr.

       Day’s] notes he felt adhesions were the cause of that, and that’s why he felt

       the surgery was indicated and he planned to perform the surgery.

       Q: Right. And do you think he was wrong in feeling that the adhesions were

       causing her problems?

       A: I believe this is a classic presentation of someone with multiple bowel

                               adhesions who has a lot of pain, discomfort. *** I

                               would have thought of the same thing.

       ***

       Q: Okay. And there’s nothing in the record that indicates that Dr. Day in

       terms of his technique and how he did it, that he [didn’t] lyse the adhesions
                                                                                          9

       reasonably or appropriately; correct?

       A: There’s nothing in his dictation that would say that.

       Q: Okay. His dictation seems to be that his lysis of adhesions, the pelvic and

       abdominal adhesions, were done in a reasonable and appropriate way;

       correct?

       A: Yes, according to his dictation.

       {¶ 20} With respect to the issue of causation, Dr. Evanko offered the following

testimony:

       Defense Counsel: Okay. And I’m assuming that just because she developed

       the fistulas, you cannot say that [Dr. Day’s] technique was inappropriate or

       incorrect; true?

       Dr. Evanko: I can’t say that.

             ***

       Q: Okay. And as a result of that bowel surgeon not being there, you believe

       these fistulas developed, that’s the reason that the fistulas developed?

       A: I don’t believe that.

       {¶ 21} Thus, the relevant question is whether the fact that Dr. Day failed to have a

general surgeon perform the surgery, equates with a conclusion that there is a direct causal

connection between the failure to utilize a general surgeon and the injury sustained. On the

issue of causation, Dr. Evanko testified as follows:

       Defense Counsel: Okay. But you can’t –

       Dr. Evanko: If that clarifies it.
                                                                                           10

       Defense Counsel: It does. But you can’t say to a reasonable probability that

       if a general surgeon had done this surgery the fistulas would not have

       developed, true?

       A: Correct.

       {¶ 22} We also note that additional questions were asked of Dr. Evanko regarding

whether Dr. Day could have met the standard of care if he performed the June 30, 2008,

surgery and not a general surgeon:

       Q: And I want to go back and make sure of one more thing. I want you to

       assume that a surgeon who knew this patient, a general surgeon who had

       taken care of this patient before was asked to do a surgical consult for this

       lysis of adhesions, did a surgical consult, and was on standby at the time of

       this surgery, would that meet the standard of care if Dr. Day had all that?

       A: Yes, I believe that would have met the standard of care.

       {¶ 23} From the above testimony provided during his deposition, it is clear that Dr.

Evanko did not testify that the alleged deviation from the standard of care, failing to have a

general surgeon perform the June 30, 2008, surgery, directly and proximately caused

Thacker’s fistulas to occur.     Dr. Evanko only connected the surgery itself with the

occurrence of the fistulas, not any negligent conduct by Dr.Day in the performance of the

surgery that caused the fistulas to develop. “At a minimum, the trier of fact must be provided

with evidence that the injury was more likely than not caused by [the] defendant’s

negligence.” Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367, 369, 504

N.E.2d 44 (1986). In the instant case, Dr. Evanko did not testify that Dr. Day’s negligence
                                                                                          11

“more likely than not” caused Thacker’s injuries. Rather, Dr. Evanko testified only that the

fistulas were connected to, or initiated by, the surgery. Moreover, Dr. Evanko testified that

the fistulas could have occurred even if the standard of care had been met and a general

surgeon had performed the surgery.

       Defense Counsel: And again, you can’t say to a probability that this could

       have happened even if a general surgeon had lysed these adhesions;

       correct?

       Dr. Evanko: This could have happened, correct.

       {¶ 24} In her brief, Thacker makes a number of unsupported allegations regarding

her assertion that Dr. Day’s decision to perform the surgery on June 30, 2008, fell below the

standard of care. We note that Thacker attempts to criticize Dr. Day by questioning his

decision to perform the June 30, 2008, surgery at all. Dr. Evanko, however, testified that

the purpose of the surgery was to remove the abdominal and pelvic adhesions and to

alleviate the pain that Thacker complained of at the time.        Significantly, Dr. Evanko

specifically testified that he “would have done the same thing.” Thacker also asserts that

Dr. Day negligently cut her bowel during the June 30, 2008, surgery which led directly to the

formation of the fistulas. Dr. Evanko, however, testified that there was no evidence in the

record that Dr. Day cut or perforated Thacker’s bowels during the surgery. The testimony

of Dr. Evanko merely establishes that the surgery performed by Dr. Day on June 30, 2008,

and the occurrence of the fistulas were “connected.” Significantly, Dr. Evanko’s testimony

does not meet the causation requirement of medical negligence. As noted by the trial court,

“[t]he fact that the surgery caused the fistulas does not mean that Dr. Day’s performance of
                                                                                            12

the surgery himself as opposed to a general surgeon, which in Dr. Evanko’s opinion would

have met the standard of care, was the cause of the fistulas.”

        {¶ 25} Additionally, we note that the record establishes that a general surgeon was

consulted prior to the surgery and that a general surgeon was on standby for the surgery.

Dr. Evanko testified that this “met” Dr. Day’s standard of care. In this instance, Thacker

attempts to argue that Dr. Day ignored the conditions proposed by Dr. Reichert, the general

surgery resident under the supervision of Dr. Gabriel. Specifically, Thacker asserts that on

consult, Dr. Reichert essentially suggested that Dr. Day wait to perform the surgery until

further discussions could be held with the general surgery department, but Dr. Day went

ahead and performed the surgery anyway. This assertion is not supported by the record.

The record establishes that because Thacker’s deep vein thrombosis was a concern to the

general surgeons, surgery was, in fact, delayed from February of 2008 until June of 2008,

when a separate vascular surgery consult was obtained from Dr. Gazall. Moreover, the

record establishes that Dr. Day continued to consult with the general surgeons up to and

including the day of surgery.

        {¶ 26} Upon review, we conclude that the trial court did not err when it granted

summary judgment in favor of Dr. Day and Generations Obstetrics and Gynecology. From

the record it is clear that the testimony provided by plaintiff’s expert, Dr. Evanko, failed to

demonstrate that there is evidence from which reasonable minds could find in Thacker’s

favor on the element of causation with respect to the surgery of June 30, 2008. Thacker

failed to adduce any evidence that Dr. Day’s alleged negligence was the proximate cause of

the fistulas.
                                                                                            13

        {¶ 27} Thacker’s first assignment of error is overruled.

        {¶ 28} Thacker’s second assignment of error is as follows:

        {¶ 29} “THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER THE

‘LOSS OF CHANCE’ THEORY.”

        {¶ 30} In her second and final assignment of error, Thacker argues that the trial

court erred when it failed to consider the “loss of chance” theory of recovery before granting

summary judgment in favor of all defendants. It is undisputed, however, that Thacker failed

to raise this argument before the trial court. It is axiomatic that an appellate court will not

consider legal arguments raised on appeal for the first time. State v. Skilwies, 2d Dist.

Montgomery No. 17077, 1999 WL 6507 (January 8, 1999), citing Mark v. Mellott Mfg. Co.,

Inc., 106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th Dist.1995). Thus, we must conclude

that Thacker waived this argument by failing to raise it in the trial court.

        {¶ 31} Thacker’s second and final assignment of error is overruled.

        {¶ 32} All of Thacker’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                          ..........

HALL, J., concurs.

FROELICH, J., concurring:

        {¶ 33} This is much more of a procedural case concerning summary judgment than

a malpractice case.     The trial court said: “To the extent Plaintiff’s Complaint alleges that

the Defendants were negligent in connection with the prior surgeries prior to the June 30,

2008, summary judgment is granted in all of the Defendants’ favor in this regard.” (sic,
                                                                                            14

Decision, pg. 6)

        {¶ 34} Concerning the June 30 surgery, the trial court found “that there is no

evidence from which reasonable minds could find that any alleged deviation from the

standard of care caused the injury complained of . . . [thus] the court need not address

whether there is a genuine issue whether Dr. Day deviated from the standard of care.”

(Decision, pg. 9). In its conclusion, the court found “that there is no evidence from which

reasonable minds could find in plaintiff’s favor on the element of causation.” (Decision, pg.

15).

        {¶ 35} The matter on appeal is, therefore, the court’s holding that, even assuming

negligence on June 30, Dr. Day met his initial summary judgment motion burden and the

plaintiff did not rebut it.

        {¶ 36} There was no evidentiary material before the trial court tending to prove that

any alleged negligence by Dr. Day was the proximate cause of the injury. Even if the

surgeries were the proximate cause of the injuries, which, at least, is a genuine issue, the

plaintiff at trial must show more than a post hoc ergo propter hoc relationship;1 but rather

that the doctor committed negligence in the surgery and that the negligence (i.e., not just the

surgery) was the proximate cause of the injuries.

        {¶ 37} To meet his initial burden, Dr. Day did not present affirmative evidence that

any alleged negligence failed to proximately cause the injuries; rather, he submitted evidence

that the plaintiff’s sole expert would not be able to demonstrate a proximate relationship

           1
          Something more than “a relatively strained temporal nexus. . .” Howard
   v. Bobby D. Thompson, Inc., 2d Dist. Montgomery No. 24357, 2011-Ohio-3503,
   ¶ 53.
                                                                                            15

between the alleged negligence and the injury.

        {¶ 38} The legal question is whether a summary judgment movant meets his initial

burden by demonstrating through plaintiff’s expert that the plaintiff does not have sufficient

evidence to create a genuine issue of material fact - or does the movant have to supply

affirmative evidence that there is no proximate cause (i.e., showing affirmatively that the

plaintiff has insufficient evidence to create a genuine issue of material fact versus showing

affirmatively that defendant-movant has evidence that the plaintiff will not be able to meet

its trial burden).

        {¶ 39} “The burden may be satisfied by presenting affirmative evidence that negates

an element of the non-movant’s claim or by demonstrating ‘an absence of evidence to

support the non-moving party’s case.’ ” (Emphasis added). The Lubrizol Corp. v. Natl.

Union Fire Ins. Co., 200 Fed. Appx. 555 (6th Cir. 2006), *3, following Ohio law and citing

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

        {¶ 40} I agree with the majority that the testimony of the sole expert of the plaintiff

demonstrated the absence of evidence to support the plaintiff’s case.

                                         ..........

Copies mailed to:

Jonathan Hollingsworth
Karen L. Clouse
Maryellen C. Spirito
Patrick F. Smith
Charles F. Shane
Howard P. Krisher
Kirstie N. Young
Hon. Dennis J. Langer
