Merritt v. Deaconess Hospital

357 N.E.2d 65, 48 Ohio Misc. 7, 2 Ohio Op. 3d 245, 1975 Ohio Misc. LEXIS 119
CourtCourt of Common Pleas of Ohio, Hamilton County
DecidedJune 20, 1975
DocketNo. A740121
StatusPublished
Cited by2 cases

This text of 357 N.E.2d 65 (Merritt v. Deaconess Hospital) is published on Counsel Stack Legal Research, covering Court of Common Pleas of Ohio, Hamilton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Merritt v. Deaconess Hospital, 357 N.E.2d 65, 48 Ohio Misc. 7, 2 Ohio Op. 3d 245, 1975 Ohio Misc. LEXIS 119 (Ohio Super. Ct. 1975).

Opinion

Black, J.

Plaintiff sues for injury to her eyes allegedly the result of the combined negligence of the defendants or the negligence of any one of them, which she claims occurred, during the course of a surgical procedure in January, 1973. In her complaint filed in. January, 1974, she sues the hospital, the anesthesiologist, and a physician. The physician named in her complaint was Dr. Giles A. De-Coursey, .but he was dismissed from the case, with prej-. udiee, on November 26, 1974, upon proof (1) that he died [8]*8in May, 1973, and (2) that he had neither performed the operation nor ever entered inte any professional relationship with plaintiff. Plaintiff was aware on December 9, 1974, when her deposition was taken in this case that the operating physician was Dr. Neil DeCoursey. However, since the dismissal of Dr. Giles A. DeCoursey, no action has been taken by plaintiff to name Dr. Neil DeCoursey. As a result, there are only two defendants in this lawsuit: the hospital and the anesthesiologist.

Although defendants have filed two other motions, the motion for summary judgment filed on behalf of defendant Charles F. Kiefer, M. D. (the anesthesiologist), was submitted to the court on the basis of the pleadings, two depositions, plaintiff’s answers to the hospital’s interrogatories, and the affidavit of the executor of the estate of Dr. Giles A. DeCoursey, as well as the memoranda of counsel and informal oral argument.

Under these circumstances, the court must restrict its consideration to the pleadings, the depositions, the answers to interrogatories and the affidavit. Civ. E. 56 (E) states, in part:

“* * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

The appropriateness of rendering summary judgment depends upon three tests: whether there is a genuine issue as to any material fact; whether the moving party is entitled to judgment as a matter of law; and whether reasonable minds can come to but one conclusion and that conclusion is adverse to the plaintiff, who is entitled to have the evidence construed most strongly in her favor.

On January 11, 1973, plaintiff underwent a bilateral subtotal thyroidectomy performed by Dr. Neil DeCoursey (not a party) at Deaconess Hospital, with defendant Dr. [9]*9Charles F. Kiefer as anesthesiologist. The specific’ surgery was successful. As she regained her consciousness after the operation in the recovery room, plaintiff felt a sharp pain in her right eye. Her left eye was affected temporarily, hut her right eye continues to he troublesome. She states her eyesight is adversely affected.

While plaintiff makes general allegations of negligence against the defendants, she does not allege any specific acts or omissions as specific negligence on the part of either or both of the defendants. She offers no expert testimony to substantiate her general charges of negligence.

The following answers by plaintiff to interrogatories propounded by defendant Deaconess Hospital will illustrate the nature and posture of plaintiff’s claim:

Interrogatory. 10. As to each and every expert witness to be called on behalf of the plaintiff in this action, state:

(a) The subject matter on which the expert is to testify at trial;
Answer: I don’t know
(b) The substance of the facts and opinions on which the expert is to testify at trial; - -
Answer: I don’t know
(e) A summary of the grounds for each opinion to which the expert is to testify at trial;
Answer: I don’t know
(d) The name and address of each and every witness to be called on behalf of the plaintiff.
Answer: I don’t know
' Interrogatory: 11. State whether or not oral or written statements have been solicited from any medical expert by plaintiff or counsel for plaintiff who has not been identified in the answers to prior interrogatories and whom plaintiff does not plan to call as an expert witness at trial, and, if so, state the name and address of each person from whom such an opinion was solicited.
Answer: Dr. Cyril Schrimpf, 180 McMillan, Cincinnati, OH, Dr. Joseph Levin, 7079 Colerain Avenue, Cincinnati, OH
[10]*10Interrogatory: 16. For each item of ophthalmic damage indicated in .the answer to the preceding interrogatory, state.: . • .
(a) ..The extent to which it is permanent;
.Answer: I don’t know as to right eye yet.
(b) The manner in which it was determined that there was ophthalmic damage and (if applicable) that it was permanent; ■■
Answer•: Dr. Joseph Levin checking on. .my eye in hospital and later .. .
Dr. Cyril Schrimpf later after Dr, J, Levin Myself after coming put of the recovery room
(c);;The person or persons who . determined .that there was ophthalmic damage and (if applicable) that it was permanent; •. . .....
Answer: Dr. Joseph Levin, Dr. Cyril Schrimpf, Myself
(d) At what point in time it was determined that there was ophthalmic damage and (if applicable) that it was permanent;
Answer: Approximately 3 hrs. after the operation, recovery room
{e) The maimer in which the alleged. negligence of Deaconess Hospital allegedly caused such ophthalmic damage, ... ....■,
Answer: I don’t know

The “evidence” indicates that the source of the- difficulty- with plaintiff’s eyes was a viral corneal infection. There is absolutely nothing in the “evidence” which con-necte the infection, directly or indirectly,., with any act or failure to act. on the part of either or both, of the two defendants. . .. ...

• , This status of the “evidence” means that the plaintiff must rely on the doctrine of res ipsa, loquitur, as is .conceded -by plaintiff1’s counsel. . But this “evidence”, does' npt constitute a sufficient foundation, uppn which to build cause of action.

“generally, the doctrine of - res ipsa loquitur is not applicable in malpractice actions in which its. claimed applicability is based solely upon the fact that the treatment [11]*11was unsuccessful or terminated with poor Oí unfortunate results.” Oberlin v. Friedman (1965), 5 Ohio St. 2d 1, paragraph three o£ the syllabus. A physician is not an insurer or guarantor of the results to he anticipated in ¿’given surgical'procedure. Bowers v. Santee (1919), 99 Ohio St. 361. A presumption of negligence is never indulged from the mere fact of injury, and the burden remains- bn plaintiff to prove defendant’s negligence as a proximate cause of injury. Ault v. Hall (1928), 119 Ohio St. 422.

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Cite This Page — Counsel Stack

Bluebook (online)
357 N.E.2d 65, 48 Ohio Misc. 7, 2 Ohio Op. 3d 245, 1975 Ohio Misc. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merritt-v-deaconess-hospital-ohctcomplhamilt-1975.