COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67035 PERRY WALKER : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION ST. VINCENT CHARITY HOSPITAL, : ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-243626 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: PERRY WALKER, Pro Se 125 East 156th Street #908 Cleveland, Ohio 44110 For Defendant-Appellees BRUCE G. RINKER St. Vincent Charity Hosp.: 1240 Standard Building Cleveland, Ohio 44113 For Defendant-Appellees JOSEPH E. HERBERT Audley M. Mackel, M.D. & KENNETH A. MALLERNEE Timothy Stephens, M.D.: DOUGLAS G. LEAK JOHN A. SIMON Jacobson, Maynard, Tuschman & Kalur 1001 Lakeside Avenue, Suite 1600 Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: Plaintiff Perry Walker was admitted to St. Vincent Charity Hospital June 23, 1990, with a fracture of the left tibia and a blood alcohol level of .558. Four days later, when plaintiff's system was cleared of intoxicants, Dr. Audley Mackel performed surgery on plaintiff for open reduction and internal fixation with plate and screws of the tibial fracture. Subsequent to plaintiff's release from the hospital, he received follow-up care from St. Vincent's out-patient orthopedic clinic until November, 1991. On November 14, 1991, the date of plaintiff's final visit, Dr. Stephens recommended plaintiff undergo surgery to remove the screws and plate inserted during surgery. Dr. Stephens stated, by way of an affidavit, that the surgery was "purely elective and not a procedure which required immediate attention or one in which injury would result if not performed." (See, Affidavit of Dr. Stephens). Plaintiff claims the recommended operation, scheduled for December 10, 1991, was cancelled by Dr. Stephens and never performed by him. This surgery was ultimately performed by the Cleveland Clinic in June, 1992. Perry Walker, filed suit pro se against defendants St. Vincent Charity Hospital, Dr. Audley Mackel, and Dr. Timothy Stephens, claiming medical malpractice and medical abandonment for failure to perform the December 10, 1991 surgery. - 3 - Defendants Mackel and Stephens both filed motions for summary judgment with supporting affidavits which claimed they did not deviate from standards of medical care. Thereafter, hospital also moved for summary judgment, arguing that Walker had failed to present a prima facie case of medical malpractice since he never presented a medical expert to support this claim. The trial court granted summary judgment for all defendants and plaintiff then timely filed this pro se appeal from that action. I, III, and IV. Plaintiff's first, third, and fourth assignments of error share a common basis in law and fact and, therefore, will be addressed together. Plaintiff's first assignment of error contends: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN RULING THAT PLAINTIFF NEEDED A MEDICAL EXPERT TO ESTABLISH A MEDICAL CLAIM OF ABANDONMENT. Plaintiff's third assignment of error contends: THE TRIAL COURT ERRED IN REFUSING TO STRIKE THE FALSE AFFIDAVIT OF DR. STEPHENS ATTACHED TO MOTION FOR SUMMARY JUDGMENT. Plaintiff's fourth assignment of error contends: - 4 - THE TRIAL COURT ERRED IN REFUSING TO STRIKE THE FALSE AFFIDAVIT OF DR. MACKEL ATTACHED TO MOTION FOR SUMMARY JUDGMENT. Plaintiff's chief complaint against both St. Vincent Charity Hospital and Dr. Timothy L. Stephens is the failure to provide him continued care. He argues that the absence of expert testimony is not fatal to a case of abandonment and cites Jones v. Hawks Hospital of Mt. Carmel (1964), 175 Ohio St. 503, which he claims stands for that proposition. St. Vincent Charity Hospital claims that since plaintiff offered no expert medical testimony, he fails in proof of a prima facie case of negligence. Our issue, then, is what does the law require for a plaintiff to prove a case of medical abandonment. The claim of abandonment relies upon the elements of negligence because the claimant's burden is to establish by a preponderance of evidence the existence of a duty on the part of the hospital or the doctor, breach of that duty, proximate cause, and resultant injury or damage. The law is well settled that a claim for medical negligence must be supported by expert medical testimony concerning a defendant's failure to meet professional standards of care in the medical community. See Moskovitz v. Mt. Sinai Medical Center, (1994), 69 Ohio St.3d 638, 665. Since the plaintiff failed to produce an expert, he was unable to establish a prima facie case of negligence and the trial court properly granted the defendant Hospital's motion for summary judgment. - 5 - Plaintiff further alleges the trial court should have granted motions to strike certain paragraphs in the affidavits of the defendants Stephens and Mackel because he claims the statements are false. Each doctor maintains the veracity of the statements. In Wing v. Anchor Media (1991), 59 Ohio St.3d 108, the Supreme Court stated in paragraph three of the syllabus: "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Here, plaintiff not only failed to establish a prima facie case of negligence, but also failed to comply with the judicially mandated obligation to produce evidence in response to a motion for summary judgment. We find therefore that none of these assignments of error are well taken. II. Plaintiff's second assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT HOSPITAL'S MOTION FOR SUMMARY JUDGEMENT IN RULING THAT THE DOCTORS WERE INDEPENDENT CONTRACTORS. Plaintiff argues that he relied on the reputation of the hospital when he sought care at St. Vincent Charity Hospital. Citing Clark v. Southview Hospital (1994), 68 Ohio St.3d 435, he - 6 - maintains the hospital is liable for any negligence of independent contractors. Based on the failure of plaintiff to establish a prima facie case of negligence, as to either of the physicians or the hospital as discussed herein, we do not reach the issue of the hospital's liability for independent contractors. Our conclusion is dispositive of the case. V. Plaintiff's fifth assignment of error contends: THE TRIAL COURT ERRED IN GRANTING DEFENDANT DR. MACKEL'S MOTION FOR SUMMARY JUDGMENT IN RULING THAT THE MEDICAL CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS. Plaintiff's argument on the applicable statute of limitations is immaterial to this case since plaintiff failed to establish his case. This assignment is without merit. We find no merit to any of plaintiff's assigned errors. We further find the trial court properly granted the motions for summary judgment and affirm for the reasons outlined. Judgment affirmed. - 7 - It is ordered that appellee(s) recover of appellant(s) 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. SPELLACY, P.J., NUGENT, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .