[Cite as Miller v. MetroHealth Med. Ctr., 2017-Ohio-653.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104296



                                  HANSFORD MILLER
                                                            PLAINTIFF-APPELLANT

                                                     vs.


          METROHEALTH MEDICAL CENTER, ET AL.
                                                            DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-15-848117

        BEFORE: Kilbane, P.J., Stewart, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                           February 23, 2017
ATTORNEY FOR APPELLANT

George K. Simakis
George K. Simakis, L.L.C.
4186 Pearl Road
Cleveland, Ohio 44109-3337



ATTORNEYS FOR APPELLEE

Kris H. Treu
Y. Timothy Chai
Moscarino & Treu, L.L.P.
The Hanna Building
1422 Euclid Avenue - Suite 630
Cleveland, Ohio 44115
MARY EILEEN KILBANE, P.J.:

       {¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

       {¶2} Plaintiff-appellant, Hansford Miller (“Miller”), appeals from the trial court’s

decision granting summary judgment to defendants-appellees, MetroHealth Medical

Center (“MetroHealth”) and Dr. Paul Priebe, M.D. (“Dr. Priebe”), in Miller’s action for

medical malpractice and other claims.          For the reasons set forth below, we reverse and

remand for further proceedings consistent with this opinion.

       {¶3} In 2012, Miller, a patient of attending surgeon Dr. Priebe at MetroHealth, was

diagnosed with bilateral inguinal and umbilical hernias. On June 11, 2012, Dr. Priebe

performed surgery to repair the hernias.          Dr. Nathaniel Liu, M.D. (“Dr. Liu”) assisted

Dr. Priebe with the surgery.1 By June 16, 2012, Miller suffered a bowel obstruction.

Dr. Priebe performed a second surgery.              After this surgery, Miller experienced no

additional postoperative complications.

       {¶4} On July 9, 2015, Miller filed a complaint against Dr. Priebe and MetroHealth,

alleging medical malpractice and medical malpractice via agency in connection with Dr.

Priebe’s June 11, 2012 surgery. His complaint also included a battery cause of action

because of the lack of informed consent to the June 16, 2012 surgery.2 Dr. Priebe and


       1
        Miller did not name Dr. Liu as a party to this case.
       2
        Miller originally filed a malpractice claim against defendants in May 2013, but dismissed it
without prejudice in July 2014. See Miller v. MetroHealth Hosp., Cuyahoga C.P. No.
CV-13-806570.
MetroHealth denied liability. On September 9, 2015, the trial court issued an order

setting the dates for discovery, exchange of expert reports, and final pretrial and trial.

       {¶5} On October 8, 2015, MetroHealth and Dr. Priebe were granted leave to file a

motion for summary judgment on the battery claim, arguing that there was written

consent for both surgeries.    MetroHealth and Dr. Priebe were also granted leave to file

additional evidentiary materials in support of this motion on November 12, 2015.

       {¶6} On November 6, 2015, Miller filed a combined brief in opposition and contra

motion for summary judgment. Miller asserted that although he read and signed both

consent forms, he did not consent to Dr. Liu’s participation in the June 11, 2012 surgery

and he did not consent to Dr. Priebe performing the June 16, 2012 surgery. Miller also

asserted that defendants committed malpractice in connection with the June 11, 2012

surgery, and then performed a “cover up” surgery on June 16, 2012.

       {¶7} Two days later, on November 8, 2016, Miller filed a “motion for leave to file

plaintiff’s brief in opposition to defendants’ motion for summary judgment with affidavit

in support and plaintiff’s contra motion for summary judgment.” Miller asked the court

to disregard the November 6, 2015 combined brief and motion because of clerical errors.

Miller’s counsel explained to the trial court that he had attempted to file his brief in

opposition to defendants’ motion for summary judgment on November 5, 2015 but

“unexpectedly encountered technical equipment and PDF software failures which

prevented him from doing so. Finally, on November 6, 2015, counsel was able to file

[the document] however such was inadvertently incomplete[.]”         This document was also
incomplete, however, because it contained an excerpt from Miller’s deposition but did not

contain the supporting brief in opposition.

       {¶8} On November 9, 2015, the trial court issued two journal entries stating:

       The docket entry stating motion filed for plaintiff’s brief in opposition is
       stricken. This is not a motion, it is a brief in opposition to the pending
       motion. The docket entry containing the deposition testimony filed
       11/8/15 is also stricken, it is not a motion, it is an exhibit. The plaintiff’s
       motion for leave to file its brief in opposition instanter due to e-filing
       problems with the clerk’s office is granted. The response is deemed timely
       filed. Dates and orders remain in effect. Notice issued.

       Clarification for the docket; the partial motion for summary judgment
       remains pending and the court is in receipt of the response. Notice issued.

       {¶9} On November 12, 2015, the trial court granted MetroHealth and Dr. Priebe

leave to file a reply brief with additional evidentiary materials instanter.    By the next

day, November 13, 2015, Miller was still apparently experiencing difficulties with

e-filing and, as he informed this appellate panel, he filed his affidavit in support of his

brief in opposition to summary judgment and contra motion for summary judgment

through conventional “over the counter filing” of the written document and also served a

courtesy copy on the court.

       {¶10} On November 15, 2015, a Sunday, the trial court issued an order noting that

Miller had not obtained leave of court to file his contra motion for summary judgment.

The trial court struck both Miller’s contra motion for summary judgment and his brief in

opposition, then gave Miller “leave to 11/16/15 to file [his] brief in opposition to the

motion for summary judgment only.” Miller failed to file his brief in opposition by that
date, and on November 29, 2015, the trial court granted defendants summary judgment on

the battery (lack of consent) claim.

       {¶11} In January 2016, defendants were granted leave to file a motion for

summary judgment on the medical malpractice claims.        Defendants presented evidence

that Miller’s medical expert, Dr. Michael Wingate, M.D. (“Dr. Wingate”), advised the

parties during deposition that he would not testify as to medical negligence, including the

standard of care for the surgeries, breach of the standard, and proximate cause.    Instead,

Dr. Wingate testified solely as to the issue of lack of informed consent in connection with

both surgeries. Further, defendants argued that, despite plaintiff’s claims to the contrary,

Miller’s signed consent forms demonstrate that he consented to Dr. Priebe performing the

second surgery, the risks and benefits of the surgeries were explained to him, and he was

also advised of alternative treatments.

       {¶12} In opposition, Miller insisted that Dr. Wingate’s opinions, along with Dr.

Priebe’s deposition testimony regarding the dangers presented from a bowel obstruction,

were sufficient to create a jury question as to medical negligence and lack of informed

consent. On March 1, 2016, the trial court granted defendants summary judgment on the

medical malpractice claims.

       {¶13} Miller now appeals, assigning the following three errors for our review:

                                 Assignment of Error One

       The Trial Court erred when it struck Appellant’s Brief in Opposition to
       Appellees’ Motion for Partial Summary Judgment (battery claim) because
       the aforementioned Brief in Opposition was struck on the basis of format
       only, the aforementioned Brief in Opposition was previously accepted by
      the trial court, Appellees did not move to strike the aforementioned Brief in
      Opposition, and the very brief leave granted by the trial court to refile the
      aforementioned Brief in Opposition was unreasonable and an abuse of
      discretion.

                                Assignment of Error Two

      The Trial Court erred when it granted Appellees’ Motion for Partial
      Summary Judgment (battery claim) because Appellant did not consent to
      receiving medical care and treatment from Appellee Paul Priebe, M.D., on
      or about June 16, 2012.

                               Assignment of Error Three

      The Trial Court erred when it granted Appellees’          Motion for Partial

      Summary Judgment (medical malpractice claim) because Appellant’s

      medical expert, Michael Wingate, M.D. had rendered expert opinions in

      favor of Appellant’s medical malpractice claim.

       Order Striking Brief in Opposition/Miller’s Motion for Summary Judgment

      {¶14} In his first assignment of error, Miller complains that the trial court erred in

refusing to permit him to file his “brief in opposition to defendants’ motion for summary

judgment and [his] contra motion for summary judgment” as a single document, and in

striking this document from the record. He also complains that, although the trial court

issued another order on November 15, 2015, allowing him to file a brief in opposition to

defendants’ motion for summary judgment, this order, issued on a Sunday, unreasonably

gave him a single day in which to do so.

      {¶15} We note that a trial court has discretion in managing its docket, setting case

schedules and imposing discovery sanctions for violations of court rules and scheduling
orders.     Sonis v. Rasner, 2015-Ohio-3028, 39 N.E.3d 871, ¶ 70 (8th Dist.), citing Nakoff

v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 1996-Ohio-159, 662 N.E.2d 1, syllabus. We

review a court’s ruling on a motion to strike for an abuse of discretion.             Ruple v.

Midwest Equip. Co., 8th Dist. Cuyahoga No. 95726, 2011-Ohio-2923, ¶ 5; Root v. PCC

Airfoils, Inc., 8th Dist.

Cuyahoga Nos. 73149, 73150, 73402, 73403, 73404, 1998 Ohio App. LEXIS 4652 (Oct.

1, 1988).

          {¶16} The record reveals that the trial court set a trial date on September 3, 2015.

At that point, the parties were required to obtain leave of court before filing motions for

summary judgment. Civ.R. 56(B). MetroHealth was granted leave to file its partial

motion for summary judgment on October 8, 2015. On November 6, 2015, Miller filed

a combined brief in opposition and contra motion for summary judgment. Two days

later, Miller filed a “motion for leave to file plaintiff’s brief in opposition to defendants’

motion for summary judgment with affidavit in support and plaintiff’s contra motion for

summary judgment.”          Miller’s counsel explained to the trial court that he had attempted

to file his brief in opposition to defendants’ motion for summary judgment on November

5, 2015, but “unexpectedly encountered technical equipment and PDF software failures

which prevented him from doing so.” Although Miller asked the court to strike his brief

and contra motion filed on November 6, 2015, he was not able to file a proper

replacement brief as the November 8, 2015 brief was incomplete.
       {¶17} On November 9, 2015, the trial court issued a journal entry striking the

documents that Miller filed on November 8, 2016. On November 12, 2015, the trial

court granted MetroHealth and Dr. Priebe leave to file a reply brief with additional

evidentiary materials instanter.    On November 13, 2015, Miller’s counsel was still

apparently experiencing difficulties with e-filing so he filed an affidavit in support of his

brief in opposition and contra motion for summary judgment through conventional “over

the counter filing” of the written document and also served a courtesy copy on the court.

Two days after that, on Sunday November 15, 2015, the court issued an order striking

both Miller’s brief in opposition to defendants’ motion for summary judgment and his

contra motion for summary judgment.       The court then gave Miller “leave to 11/16/15 to

file [his] brief in opposition to the motion for summary judgment only.” Miller did not

meet that deadline.

       {¶18} From the foregoing, we conclude that the trial court acted unreasonably in

issuing the November 15, 2015 order striking both Miller’s brief in opposition and contra

motion for summary judgment. Miller clearly advised the trial court of the difficulties

that he faced in e-filing and in complying with the court’s orders.   He clearly made many

good faith attempts to place his arguments in opposition to defendants’ motion before the

court, and tried on several different occasions to comply with the court’s orders. We

conclude that the court should have simply striken the improper portions of Miller’s

documents without striking the documents in their entirety.             Moreover, it is a

fundamental tenet of judicial review in Ohio that courts should decide cases on the merits
rather than technicalities.       See Previte v. Piunno, 187 Ohio App.3d 761,

2010-Ohio-1747, 933 N.E.2d 1127, ¶ 9 (8th Dist.).

       {¶19} The first assignment of error is well taken.

                                       Battery Claim

       {¶20} In the second assignment of error, Miller asserts that the trial court erred in

granting defendants’ motion for partial summary judgment on the battery claim because

there is a genuine issue of material fact as to whether he consented to Dr. Priebe

performing the June 16, 2012 surgery.

       {¶21} In light of our disposition of the first assignment of error, this assignment of

error is moot and will not be addressed.   App.R. 12(A)(1)(c).

                                   Medical Malpractice

       {¶22} In his third assignment of error, Miller asserts that the trial court erred in

awarding summary judgment to MetroHealth and Dr. Priebe on his medical malpractice

claim. In January 2016, the trial court granted MetroHealth and Dr. Priebe leave to file

summary judgment on Miller’s medical malpractice claim, after the deposition of Miller’s

expert, Dr. Wingate.    This was two months after the trial court granted defendants

summary judgment on Miller’s battery claim.

       {¶23} We review an appeal from summary judgment under a de novo standard of

review.   Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671

N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706

N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,
369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the

appropriate test as follows:

       Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
       no genuine issue of material fact, (2) the moving party is entitled to
       judgment as a matter of law, and (3) reasonable minds can come to but one
       conclusion and that conclusion is adverse to the nonmoving party, said party
       being entitled to have the evidence construed most strongly in his favor.
       Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d
       1196, paragraph three of the syllabus. The party moving for summary
       judgment bears the burden of showing that there is no genuine issue of
       material fact and that it is entitled to judgment as a matter of law. Dresher
       v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264.

       {¶24} Once the moving party satisfies its burden, the nonmoving 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.”   Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio

St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of

the nonmoving party.           Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359,

1992-Ohio-95, 604 N.E.2d 138.

       {¶25} In a medical malpractice case, the 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. Bruni v. Tatsumi, 46 Ohio St.2d 127, 346

N.E.2d 673 (1976), paragraph one of the syllabus (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).      The Bruni court went
on to state that proof of the recognized standards of care ordinarily must be provided

through expert testimony. Id. at 131-132.     The trial court may enter summary judgment

in favor of the defendant-physician if 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. Kinasz v. Diplomat Healthcare, 8th

Dist. Cuyahoga No. 103758, 2016-Ohio-2949, ¶ 20.

       {¶26} During Dr.Wingate’s deposition, Dr. Wingate retracted some of his earlier

statements that Dr. Priebe’s surgery techniques violated the standard of care.        While

Miller’s expert, Dr. Wingate, did retract some of his previous opinions, he did not retract

his statement that Dr. Priebe violated the standard of care when he failed to obtain

informed consent from Miller. Dr. Wingate also did not retract his statement that Miller

would have died “from organ strangulation” as a complication of the June 11, 2012

procedure, and Dr. Priebe likewise acknowledged that Miller experienced this dangerous

complication following that surgery.

       {¶27}   We are mindful that when reviewing motions for summary judgments,

doubts must be resolved in favor of the nonmoving party. Murphy 65 Ohio St.3d at

358-359, 1992-Ohio-95, 604 N.E.2d 138. When reviewing the evidence in the instant

case, we find that it is sufficient to demonstrate a genuine issue of fact for trial with

respect to the medical malpractice claim.

       {¶28} Therefore, the third assignment of error is sustained.
       {¶29} Judgment reversed and the matter is remanded for further proceedings

consistent with this opinion.

       It is ordered that appellant recover from appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

MELODY J. STEWART, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS (SEE SEPARATE CONCURRING OPINION)


SEAN C. GALLAGHER, J., CONCURRING:

       {¶30} I concur with the judgment and analysis of the majority.      I write separately

to balance our decision to reverse in light of a trial judge’s right to manage that judge’s

docket.   This is an experienced trial judge who runs a very efficient docket.              I

understand the trial court’s desire to apply a strict procedural ruling to these facts.

Nevertheless, our judgment to reverse is based on the belief that where problems with

something like electronic filing are present and known and the party’s argument was at

some point properly before the court, it is better that the matter be decided on the merits
instead of applying a strict application of a procedural rule.     Here, the court struck all

filed documents and only provided a day for the party to refile the stricken material in the

proper form.   It is for that reason that I fully agree with the majority’s decision.
