COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70975 ANN M. PALKER, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION HUNTINGTON NATIONAL BANK, : ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 17, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 292540 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANTS-APPELLEES: Reginald P. Trubey, Jr., Esq. John D. Latchney, Esq. 310 West Parkside Avenue Thomas R. Wolf, Esq. 750 Courthouse Square Reminger & Reminger Co., Cleveland, Ohio 44113 L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114-1273 -2- ROCCO, J.: In this action for dental malpractice, appellants Ann M. Palker and her father James L. Palker (hereinafter referred to in the singular) appeal from the trial court's judgment entry 1 rendered in favor of appellees Huntington National Bank and the estate of Alan W. Dubay, D.D.S., Inc. (hereinafter referred to in the singular). After the parties' opening statements were given at trial, the trial court granted appellee's motion for a directed verdict and denied appellant's motion to amend the complaint. This court has reviewed the record and finds the trial court committed no error in making its rulings; therefore, its order is affirmed. Appellant Ann Palker became a patient of Dr. Dubay's in March 1987. At that time, she was eleven years old. Appellant had achieved menarche at the age of eight. Dr. Dubay examined appellant and diagnosed that she had a "Class II Division I 2 malocclusion," i.e., her upper jaw protruded over her lower jaw, and her upper teeth tilted forward. Dr. Dubay told appellant he was "going to move [her] teeth so that they don't cut into the roof of *** [her] mouth." Appellant wore a "bite plate," i.e., a retainer for seven to eight months. Dr. Dubay then fitted her with braces. Dr. Dubay 1 Huntington National Bank is the executor of Dr. Dubay's estate. 2 Quoted material is taken from depositions filed with the trial court in preparation for trial. -3- also placed bands on her teeth in each quadrant and placed arch wires to them in an apparent attempt to reposition appellant's teeth. Appellant continued to have monthly check-ups during this time. In December 1989, Dr. Dubay informed appellant that her braces would probably be removed at her next visit. When appellant returned for her January 1990 appointment, however, she learned Dr. Dubay had recently died from brain cancer. Dr. Dubay's office staff referred appellant to another doctor for orthodontia. During her initial consultation with him, the doctor informed appellant she would have to wear the braces for two more years. In addition, he recommended she have jaw surgery to correct her malocclusion, since her lower mandible had not advanced. Appellant sought several other medical opinions thereafter. Finally, in May 1990, appellant presented herself to Dr. Laurie 3 Brightman. Prior to treating appellant, Dr. Brightman took cephalometric x-rays of appellant's face. Dr. Brightman then determined a treatment plan: she removed the old braces from appellant's teeth and replaced them with ones she preferred, sent appellant for consultation with two oral surgeons, and eventually scheduled appellant for jaw surgery. Appellant had lower mandibular advancement surgery in August 1991. 3 By the time of trial, Dr. Brightman had become Dr. Laurie Brightman-Gittess. Appellant indicated during discovery that Dr. Brightman would be testifying as her expert witness. -4- In July 1994, appellant became eighteen years old. In September 1994, appellant filed an action against appellees in the Cuyahoga County Court of Common Pleas. Appellant subsequently voluntarily dismissed her case pursuant to Civ.R. 41(A)(1)(a), but soon thereafter refiled her action in compliance with R.C. 2305.19. Appellant's complaint set forth two counts. The first stated appellant "was caused to undergo 4 surgery" for a "masticatory dysfunction" that she "would not have developed but for Dr. Alan W. Dubay's negligence and deviation from the acceptable standard of care." The second stated Dr. Dubay failed to disclose to appellant the "risks and damages" involved with respect to the orthodontic care he proposed and, further, those undisclosed risks and damages were the proximate cause of her injuries. Appellee filed an answer denying the pertinent allegations of the complaint and setting up several affirmative defenses. The case proceeded to trial on Friday, June 14, 1996. Prior to conducting voir dire, the trial court addressed appellee's motion in limine, which had been filed the previous day. Appellee sought to prevent Dr. Brightman from mentioning an opinion with regard to Dr. Dubay's record-keeping in her trial 5 testimony. The trial court reserved ruling on appellee's motion. 4 The language of appellant's complaint is quoted verbatim, including the bold typeface. 5 The testimony of Dr. Brightman was videotaped for trial on June 10, 1996. -5- After the jury was seated, the parties both gave their opening statements. The trial court, with the jury excused from the courtroom, then called an afternoon recess. The trial court noted on the record appellant had filed only that morning a motion for leave to amend the complaint. The trial court heard both parties' arguments on the matter; thereafter, it indicated it would review the record of the case with both motions under consideration. The trial court then dismissed the jury for the weekend. On Monday, June 17, 1996, appellee filed a written motion for a directed verdict. The trial court held a hearing on the record. At its conclusion, the trial court denied appellant's motion for leave to amend the complaint, granted appellee's motion for a directed verdict, and dismissed appellant's case with prejudice. Appellant has appealed from the foregoing judgment entry. She states the following as her sole assignment of error: THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S MOTION FOR A DIRECTED VERDICT Appellant presents several arguments with regard to her assignment of error. Initially, she contends the trial court committed reversible error by granting appellee's motion at the conclusion of the completion of opening statements but before she could present her evidence. The trial court granted appellee's motion pursuant to Civ.R. 50, which states in pertinent part: RULE 50. Motion for a directed verdict and for judgment notwithstanding the verdict -6- (A) Motion for directed verdict. (1) When made. A motion for a directed verdict may be made on the opening statement of the opponent, at the close of the opponent's evidence or at the close of all the evidence. * * * (3) Grounds. A motion for a directed verdict shall state the specific grounds therefor. (4) When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. * * * (E) Statement of basis of decision. When in a jury trial a court directs a verdict or grants judgment without or contrary to the verdict of the jury, the court shall state the basis for its decision in writing prior to or simultaneous with the entry of judgment. Such statement may be dictated into the record or included in the entry of judgment. Prior to addressing appellant's initial contention, this court is constrained to observe that there was a lengthy discussion on the record concerning appellee's motion for a directed verdict; at its conclusion, appellant failed to object to the trial court's action on any stated ground. Ordinarily, appellant's failure to object constitutes a waiver of any claimed error and precludes this court's review of the issue. See, e.g., Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207; Vistein v. Keeney (1990), 71 Ohio App.3d 92. -7- Appellant attempts, in a creative manner, to circumvent this 6 rule of law by invoking Civ.R. 46 asserting that since appellee filed its motion only after opening statements were already made, the issue of whether the trial court's action in granting it at that time was proper was preserved for review. In view of the weight of precedent which obligates appellant herself to call attention to what she believes is error, however, this court cannot read Civ.R. 46 as an excuse for appellant's solecism. Campbell v. Pritchard (1991), 73 Ohio App.3d 158; Vistein v. Keeney, supra. In any case, assume arguendo this issue is properly before this court, a review of the record reveals appellant was not prejudiced by the timing of the trial court's decision. Appellant was given an opportunity to respond to appellee's motion before the trial court rendered its decision. Id. It is true trial courts are admonished to exercise extreme caution in sustaining a motion for a directed verdict on the opening statement of counsel. Brinkmoeller v. Wilson (1975), 41 Ohio St.2d 223. See, also, Job v. Cleveland Dance Ctr. (1989), 62 Ohio App.3d 678; Howard v. Columbus Prod. Co. (1992), 82 Ohio App.3d 129; Sapp v. Stony Ridge Truck Tire (1992), 86 Ohio App.3d 6 Civ.R. 46 states: RULE 46. Exceptions unnecessary An exception at any stage or step of the case or matter is unnecessary to lay a foundation for review whenever a matter has been called to the attention of the court by objection, motion, or otherwise and the court has ruled thereon. (Emphasis added.) -8- 85. Nevertheless, courts have upheld directed verdicts granted on the opening statements of counsel when they are appropriate. Campbell v. Pritchard, supra. Furthermore, this court has previously determined that pursuant to Civ.R. 50(A), a trial court: *** has the inherent power to grant sua sponte a motion for a directed verdict ***. A trial court is vested with inherent and independent discretionary powers. If the court determines on its own that reasonable minds could come to but one conclusion upon the evidence submitted, then the court should be able to remove the issue from the jury ***. Gibbons v. Price (1986), 33 Ohio App.3d 4 at 12. (Emphasis added.) In this case, the trial court made it clear that in ruling on appellee's motion for a directed verdict, it had considered not only appellant's opening statement and her complaint, but the videotaped testimony which was to be presented at trial, the discovery depositions and appellant's expert witness' report. Thus, appellant's contentions that the trial court's decision was in error because she would have presented sufficient evidence to 7 overcome the motion are unavailing. In reviewing the propriety of the trial court's decision, it is axiomatic that appellee's motion for a directed verdict could be granted only when the court found that reasonable minds could come to but one conclusion and that conclusion was adverse to 7 Appellant argues the trial court should have considered the testimony of Dr. Arnstein, appellee's expert witness, prior to ruling on appellee's motion. However, appellant neither identified Dr. Arnstein as her own expert prior to trial nor proffered his testimony into the record in support of her opposition to appellee's motion. -9- appellant. Mitchell v. Cleveland Elec. Illuminating Co. (1987), 30 Ohio St.3d 92. A motion for a directed verdict examines the materiality of the evidence rather than the conclusions to be drawn from the evidence. [Citation omitted.] Thus, the court does not determine whether one version of the facts presented is more persuasive than another; it determines whether only one result can be reached under the theories of law presented in the complaint. Accordingly, a trial court must direct a verdict in favor of the defendant where there is no evidence tending to prove an essential element of the plaintiff's cause of action. Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App.3d 463. Appellant instituted an action for dental malpractice. She alleged her "masticatory disfunction" was caused by Dr. Dubay and that he failed to adequately inform her of the "risks" of his treatment. As the court stated in Steinmetz v. Francis J. Lowry, D.D.S. & Assoc. Inc. (1984), 17 Ohio App.3d 116: *** [P]roof of malpractice requires (1) evidence as to the recognized standard of the medical community and (2) a showing that the physician negligently departed from those standards in the treatment of the patient. Under Ohio law, the plaintiff in a medical malpractice case must establish, by expert testimony, the requisite standard of skill and care of physicians in the medical community, the negligent failure of the defendant to render treatment in conformity with the standard and the proximate causation of the plaintiff's damages by the defendant. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127 [75 O.O.2d 184]. The failure to establish the recognized standard of the medical community by expert testimony is fatal to a malpractice case. Id. The only exception to this rule is where the lack of skill or care of the physician is so apparent as to be within the comprehension of the layman. Moreover, expert medical testimony is required to establish the element of proximate cause. Shumaker v. Oliver B. Cannon & -10- Sons, Inc. (1986), 28 Ohio St.3d 367, cited with approval, Roberts v. Ohio Permanente Med. Group, Inc. (1996), 76 Ohio St.3d 483. A review of the record in this case compels the conclusion that appellant's evidence was insufficient to establish any of the elements of a dental malpractice claim. In her opening statement, appellant alluded to the following as the evidence she would present to support her cause of action: 1) Dr. Dubay started treating her in March 1987; 2) appellant was by that time eleven-years old; 3) a woman undergoes her greatest growth period just prior to the onset of menarche; 4) after that, for all practical purposes, there is no more growth; 5) where appellant first saw Dr. Dubay, her upper jaw was in a normal position but the lower jaw was seven millimeters "behind"; 6) only surgery would have completely corrected the problem; 7) Dr. Dubay placed braces on appellant's teeth; 8) the braces helped appellant's bite but did not help the lower jaw to grow; 9) Dr. Brightman stated she would have used a "headgear" appliance to assist appellant's lower jaw's growth, however, even that would not have helped to correct appellant's problem; 10) all of appellant's jaw growth had taken place before she began treating with Dr. Dubay; 11) Dr. Dubay died before he removed appellant's braces; and 12) when appellant began treating with Dr. Brightman, Dr. Brightman put braces on appellant's teeth for another year before surgery could be performed. Noticeably absent from the foregoing is any mention that Dr. Brightman could establish Dr. Dubay deviated from the acceptable -11- standard of dental care in his treatment of appellant, that Dr. Dubay's negligent care caused appellant to need jaw surgery, and that appellant would not have needed jaw surgery but for Dr. Dubay's substandard treatment. In spite of the inadequacies of appellant's opening statement, before directing a verdict in appellee's favor the trial court also took the time to review Dr. Brightman's trial testimony, Dr. Brightman's deposition testimony, and Dr. Brightman's "expert report" before coming to the conclusion that only one result could be reached on the evidence. The trial court accurately summarized appellant's evidence at the hearing, stating in pertinent part: THE COURT: *** I read this testimony over, and she says repeatedly herself, "I am not testifying as an expert witness." I disregarded that. I went over -- she doesn't indicate what the acceptable standard of care is with regard to the placing of (sic) the rendering of orthodontic treatment here, and she does not say how the doctor deviated to (sic) that, and she does not indicate an opinion to a degree of medical certainty. * * * THE COURT: She doesn't indicate a deviation there. She discussed having an orthodontic appliance put on, but then indicates that the Plaintiff had completed puberty at such a young age it probably -12- wouldn't have worked, and elsewhere she indicates, "Well, I probably would have tried doing that in order to just to (sic) avoid having to perform surgery on her." She can't indicate from her records whether or not surgery was discussed initially with the Plaintiff. Later on [Dr. Brightman] indicates, "I didn't discuss surgery with her initially." There are other things to do. So she doesn't indicate specifically X, Y, Z, is the standard of care. "Dr. Dubay deviated from the standard of care in the following manner, one, two, three, and I'm giving this opinion to a degree of medical probability." Under these circumstances, the trial court was justified in removing the issue of dental malpractice from the jury. See, e.g., Howard v. Columbus Prod. Co., supra; Stinson v. England (1994), 69 Ohio St.3d 451; Vistein v. Keeney, supra; cf., Quayle v. Varga (1975), 44 Ohio App.2d 108. Finally, appellant contends the trial court abused its discretion in denying her Civ.R. 15(B) motion to amend the complaint "to conform with the evidence." Appellant asserts that the experts' videotaped testimony raised the issue of "unnecessary care and treatment" rendered by Dr. Dubay to -13- 8 appellant. This court disagrees. Nowhere in Dr. Brightman's testimony does she indicate the treatment plan Dr. Dubay utilized was "unnecessary." Indeed, she testified Dr. Dubay's treatment "helped" appellant by opening up her bite and aligning her teeth. Moreover, Dr. Brightman stated that she also probably would have initially used a bite plate for appellant's problem, and that she also had placed braces on appellant's teeth, just as Dr. Dubay did. Cooper v. Grace Baptist Church of Columbus, Ohio, Inc. (1992), 81 Ohio App.3d 728; cf., Rinehart v. Toledo Blade Co. (1985), 21 Ohio App.3d 274. Furthermore, although appellant cites Hall v. Bunn (1984), 11 Ohio St.3d 118 in support of her contention, her reliance on it is unavailing. In Hall, the supreme court set forth the following test for review of the trial court's decision on this matter: Civ.R. 15(B) provides that in the event there is an objection to evidence on the ground that it is outside the pleadings, the court may allow the pleadings to be amended and in fact shall do so freely if the following criteria exist: (1) the presentation of the case's merits will be subserved thereby, and (2) the objecting party does not satisfy the court that admission of the evidence would prejudice him in maintaining his case upon the merits. 8 Interestingly, appellant sets forth the injury she says she suffered as a result of Dr. Dubay's unnecessary care and treatment in a footnote in her appellate brief. No doubt she felt compelled to do so because at trial appellant emphasized the new issue raised by the evidence was Dr. Dubay's "poor record- keeping." However, Dr. Brightman testified she could not even read large portions of his records, so she could give no opinion on whether or not he met the standard of care in making them. -14- Id. at 211. (Emphasis in original; underscoring added.) Assume arguendo Dr. Brightman's testimony was sufficient to raise the issue of unnecessary treatment, in view of the lack of evidence to support the required elements of her dental malpractice action, appellant failed to meet even the first criteria. Thus, the presentation of her case's merits would have been completely unaffected by any amendment of the complaint to include this new issue. Therefore, the trial court did not abuse its discretion in denying appellant's motion to amend. State ex rel. Evans v. Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41. Since a review of the record in this case reveals appellant failed either to state facts in her opening statement or to produce evidence sufficient to sustain a cause of action for dental malpractice, the trial court did not err in directing a verdict in appellee's favor. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66; Steinmetz v. Francis J. Lowry, D.D.S. & Assoc., Inc., supra; Vistein v. Keeney, supra; Job v. Cleveland Dance Ctr., supra. Accordingly, appellant's assignment of error is overruled. The judgment of the trial court is affirmed. -15- It is ordered that appellees recover of appellants their 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. JAMES D. SWEENEY, C. J., AND *AUGUST PRYATEL, J., CONCUR JUDGE KENNETH A. ROCCO *(Sitting by assignment: Judge August Pryatel, retired, of the 8th District Court of Appeals). N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .