COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68217 TOSHA HUDSON : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION MT. SINAI MEDICAL CENTER, : ET AL. : PER CURIAM : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 8, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 262801 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE MT. SINAI MEDICAL CENTER: William J. Novak Marc Groedel Peter C. Tucker Nancy F. Zavelson Rubenstein, Novak, Einbund Reminger & Reminger Co., L.P.A. Pavlik & Celebrezze The 113 St. Clair Building 270 Skylight Office Tower Cleveland, Ohio 44114-1273 1660 W. 2nd Street Tower City Center Cleveland, Ohio 44113-1498 FOR DEFENDANT-APPELLEE HAROLD FORD, M.D.: Michael T. Honohan 1400 Bank One Center Cleveland, Ohio 44114 -2- PER CURIAM: This appeal was filed and briefed as an accelerated case pursuant to App.R. 11.1 and Loc.App.R. 25. Plaintiff-appellant, Tosha Hudson, appeals from the dismissal of her medical malpractice complaint by the Court of Common Pleas of Cuyahoga County. A careful review of the record compels affirmance. Appellant filed her complaint in the trial court on December 14, 1993 against defendants-appellees, Mt. Sinai Medical Center ("Mt. Sinai") and Harold Ford, M.D. Appellant claimed that appellees' alleged negligence resulted in the permanent scarring of her face during her delivery on or about December 21, 1974. Furthermore, as a result of the alleged negligence, appellant incurred medical expenses, and endured and continues to endure great pain and suffering. The trial court granted, and subsequently vacated, Mt. Sinai's Civ.R. 41(B)(1) motion to dismiss appellant's complaint for failure to prosecute, i.e., failing to file expert reports as ordered by the trial court, and consequently failing to establish a prima facie case for medical malpractice. However, the trial court ultimately granted Mt. Sinai's September 27, 1994 renewed motion to dismiss for failure to prosecute on October 6, 1994, and Dr. Ford's similar motion of October 12, 1994, on November 1, 1994. Appellant now appeals, claiming as error that the trial court abused its discretion in dismissing her complaint. Specifically, she proposes that the standard of care at issue in this case concerns appellees' alleged laceration of her face, a -3- matter "clearly sufficiently obvious that non-professionals can reasonably evaluate the [appellees'] conduct." Appellant thus argues that expert reports were not required to prove her case for medical malpractice. Civ.R. 41(B)(1) reads as follows: (B)(1) Involuntary dismissal; effect thereof. (1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim. (Emphasis added.) The power of a trial court to dismiss a case pursuant to Civ.R. 41(B)(1) is within the sound discretion of the trial court. Gooslin v. Fortado (1992), 80 Ohio App.3d 373, 375; see, also, Ina v. George Fraam & Sons, Inc. (1993), 85 Ohio App.3d 229, 231. A dismissal for failure to prosecute will be overturned on appeal only when the trial court abused its discretion. Pembaur v. Leis (1982), 1 Ohio St.3d 89. An abuse of discretion occurs, e.g., when the trial court fails to consider less drastic alternatives to dismissal. Schreiner v. Karson (1977), 52 Ohio App.2d 219, 222-223; Gooslin, 3; see, also, Ina, 231. A plaintiff, in order to establish malpractice, must demonstrate by a preponderance of the evidence that the injury complained of was caused by a practice that a physician of ordinary skill, care, or diligence would not have employed, and that such practice directly and proximately caused plaintiff's injury. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, paragraph one of the syllabus. There is no presumption of malpractice from -4- the mere fact that the plaintiff sustained an injury. Ault v. Hall (1928), 119 Ohio St. 422, 420; see, also, Turner v. Children's Hosp., Inc. (1991), 76 Ohio App.3d 541. Rather, proof of malpractice requires evidence of the recognized standard of the medical community and that the physician negligently deviated from that standard. Bruni, 131. The issue of whether the physician employed the requisite care is generally demonstrated through expert testimony, unless the standard of care is sufficiently obvious "*** as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it ***." Id., 130; see, also, Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272. In the present case, appellant's complaint merely sets forth that appellees lacerated her face, causing her to endure pain and suffering and medical expenses. She does not even allege how she sustained the injury. The trial court ordered appellant to submit an expert report by date certain; Mt. Sinai moved to dismiss under Civ.R. 41(B)(1) when appellant failed to file the report; the trial court vacated the dismissal when appellant requested additional time to file the report; the additional time was granted, but appellant failed to file a report; Mt. Sinai and then Dr. Ford moved for dismissal when appellant failed to file the report. It was only then that appellant proposed that no expert reports were required in this case to prove medical malpractice. The Franklin County Court of Appeals recognized in Buerger v. Ohio Dept. of Rehab. & Corr. (1989), 64 Ohio App.3d 394, that -5- relatively few Ohio courts have applied the common knowledge exception expressed in Bruni. Id., 399. The court also observed that the common law exception seemed to be applied only when there was a gross inattention to the plaintiff's needs when it is apparent that the plaintiff required attention. Id., citing Jones v. Hawkes Hosp. of Mount Carmel (1964), 175 Ohio St. 503; Urdang v. Mahrer (App.1959), 81 Ohio Law Abs. 23, 158 N.E.2d 902; Wharton v. Long (App.1934), 18 Ohio Law Abs. 147; Annotation, Necessity of Expert Evidence to Support an Action for Malpractice Against a Physician or Surgeon (1962), 81 A.L.R.2d 597. We fail to find that appellant's claim herein could proceed without expert testimony. Compare, Jones v. Roche Laboratories (1992), 84 Ohio App.3d 135 (summary judgment proper when plaintiff fails to demonstrate existence of expert testimony relating standard of care in the medical community and a breach by defendant of his duty of care). As stated supra, the mere fact that appellant sustained an injury fails to amount to malpractice. Ault; compare, Ebsch v. Tanpnaichitr (1992), 81 Ohio App.3d 507 (summary judgment proper when plaintiffs failed to produce expert witness to establish recognized standard of care, and otherwise support malpractice claim with evidence, not mere allegations of malpractice). Since appellant failed to file an expert report as ordered by the trial court, the trial court did not abuse its discretion in granting the appellees' Civ.R. 41(B)(1) motions. Pembaur. Appellant's assignment of error is overruled. Judgment affirmed. -6- It is ordered that appellees recover of appellant its 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 Cuyahoga County 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. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .