COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71341 DIANE HIGGINS, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION DANIEL MCDONNELL : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 15, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CP-CV-168180 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: BRUCE P. BOGART, ESQ. JAMES MCDONNELL, ESQ. 3659 Green Road, #104 936 Terminal Tower Cleveland, Ohio 44122 Cleveland, Ohio 44113 - 2 - DYKE, J.: Plaintiffs, Diane Higgins, Administratrix of the Estate of Anthony L. Higgins, Diane Higgins individually, and Ollice Higgins appeal from the judgment of the trial court rendered in favor of defendant Daniel P. McDonnell in plaintiffs' action for legal malpractice. For the reasons set forth below, we affirm. The record reflects that plaintiffs' decedent, Anthony Higgins, died on August 9, 1986, following a motor vehicle accident. It is undisputed that Anthony's eyes or corneas were removed without prior approval from his surviving family members. In addition, plaintiffs subsequently formed the belief that the removal was conducted approximately five hours before Anthony was pronounced dead at Fairview General Hospital. They then retained defendant to file a medical malpractice action against Fairview General Hospital, and other defendants. On July 1, 1987, defendant filed a medical malpractice action against Fairview General Hospital and other defendants on behalf of plaintiffs. The record further reflects that all of the defendants named in the medical malpractice action moved for summary judgment. Among the documentary evidence submitted in connection with the motions for summary judgment is an affidavit from Elizabeth K. Balraj, Coroner of Cuyahoga County which provided in relevant part as follows: 2. On the 9th day of August, 1986, the body of a 28- year-old white male, identified as Anthony Lee Higgins, was delivered to the office of the County Coroner, from Fairview General Hospital. - 3 - 3. History of the case and the autopsy performed by the office of the County Coroner indicated that Anthony Lee Higgins had died as a result of injuries sustained in a motorcycle - auto - parked unattended auto - fixed object accident, and that his death was accidental in nature. 4. Pursuant to Ohio Revised Code Section 2108.60(B), a county coroner who performs an autopsy pursuant to Sec. 313.13 may remove one or both corneas of a decedent under applicable circumstances. 5. The corneas of Anthony Lee Higgins were removed in the Coroner's office by representatives of the Cleveland Eye Bank, a local, charitable organization which assists in the pursuit of obtaining eyes or corneas of dying or deceased individuals for the purpose of transplanting them to persons who are suffering visual impairment. 6. At no time was I or any representative, employee or agent of the County Coroner's office apprised of, aware of, or did anyone possess knowledge of an objection to the removal ***. In addition, documents maintained by the Cleveland Eye Bank also indicate that the decedent's corneas were removed and that the procedure was conducted upon the decedent at the coroner's office on the day after he died. It is undisputed that defendant McDonnell did not file evidentiary material or a brief in opposition to these motions for summary judgment in the medical malpractice action. Judgment was rendered in favor of the defendants in the underlying action in September 1988. The record next reveals that plaintiffs sent McDonnell a letter discharging him on November 28, 1988. - 4 - On April 18, 1989, plaintiffs filed the instant action against McDonnell alleging that he "failed to prosecute the matter in a skillful and diligent manner and was negligent ***." On February 16, 1994, plaintiffs moved for partial summary judgment. On May 25, 1994, defendant filed a brief in opposition and alternative motion for summary judgment. On June 9, 1994, the trial court granted defendant's motion for summary judgment. This court subsequently reversed and remanded, holding that the trial court failed to afford plaintiffs thirty days within which to respond to defendant's motion for summary judgment in violation of Loc. R. 11(I) of the Court of Common Pleas of Cuyahoga County, General Division. See Higgins v. McDonnell (June 29, 1995), Cuyahoga App. No. 67547, unreported. Thereafter, on August 30, 1996, the trial court again entered summary judgment for defendant. Plaintiffs now appeal and assign a single error for our review. Plaintiffs' assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS BY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Within this assignment of error, plaintiffs maintain that there were genuine issues of material fact which precluded the entry of summary judgment for defendant. With regard to procedure, Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and - 5 - (3) it appears from the evidence that reasonable minds can come to but one con- clusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Turner v. Turner (1993), 67 Ohio St.3d 337, 340, citing Temple v. Wean, Inc. (1977), 50 Ohio St.2d 317, 327. Once summary judgment proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. See Civ.R. 56(E); Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-323; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. See, also, State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 449, wherein the Supreme Court stated: Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St.3d 510, 513, 651 N.E.2d 937, 940. When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.2d 48, 52, 567 N.E.2d 1027, 1031. In addition, Civ.R. 56(C) sets forth the following types of evidence which may be considered in connection with a motion for summary judgment: - 6 - "*** the pleading, depositions, answers to interro- gatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action ***." With regard to the substantive law, the essential elements of a claim of legal malpractice are (1) an attorney-client relation- ship giving rise to a duty; (2) breach of that duty; and (3) damages proximately caused by the breach. David v. Schwarzwald, Robiner, Wolf & Rock (1992), 79 Ohio App.3d 786, 798. In this instance, defendant McDonnell supported his motion for summary judgment with documentary evidence from Dr. Balraj and the Cleveland Eye Bank. This evidence demonstrated that the retrieval done in Anthony's case was performed at the coroner's office by representatives of the Cleveland Eye Bank on the day after Anthony was pronounced dead at the hospital, and not at the hospital prior to the official pronouncement of death. In addition, defendant presented evidence that the Cleveland Eye Bank certified to the coroner that the corneas were to be used for a transplant or medical research and that they were removed in good faith and without knowledge of objection from a family member. Thus, defendant asserted that the removal was not actionable pursuant to the law as it then existed under R.C. 2108.60. In opposition, plaintiffs presented the affidavits of Ollice and Diane Higgins. In relevant part, the affidavits indicated that defendant and the Higgins family met with Catharine Christiansen, Director of the Cleveland Eye Bank, at which time Christiansen admitted that the decedent's eyes, not his corneas, were removed on - 7 - the date of his death. Plaintiffs therefore maintained that since the decedent died on August 9, 1986, and his body was not taken to the coroner's office until August 10, 1986, defendant's documentary evidence could not be credited. In determining whether the evidence presented below presents a genuine issue of material fact, we must examine the merit of the underlying action from which this action derives. Accord Krahn v. Kinney (1989), 43 Ohio St.3d 103, 106. The record suggests that the underlying action which plaintiffs hired defendant to pursue against Fairview General Hospital et al. contemplated claims for: (1) improper treatment, based upon plaintiffs' conclusion that their decedent's eyes were removed at the hospital and prior to an official pronouncement of death; and (2) unauthorized organ removal. As to the first of these claims, removal prior to death, defendant's documentary evidence demonstrated that the removal occurred at the coroner's office after Anthony had died. Opposing evidence on this point does indicates that Diane and Ollice Higgins observed the decedent being brought into a surgical room prior to the pronouncement of death. We have no documents, within the evidentiary requirements of Civ.R. 56(C), however, which create a genuine issue of material fact as to whether the removal was actually accomplished prior to death. Thus, from the record presented herein, plaintiffs would not have prevailed in this intended claim in the underlying action. Summary judgment was - 8 - therefore properly rendered in favor of defendant McDonnell as to this claim. As to the second intended claim of the underlying action, unauthorized removal, defendant's evidence demonstrated that there was no prior consent for the removal but that it was not actionable pursuant to the law as it then existed under R.C. Chapter 2108. Specifically, defendant notes that R.C. 2108.60 provides in relevant part as follows: (B) A county coroner who performs an autopsy *** may remove one or both corneas of the decedent, or a coroner may authorize a deputy coroner, physician or surgeon licensed pursuant to section 4731.14 of the Revised Code, embalmer authorized under section 2108.071 [2108.07.1] of the Revised Code to enucleate eyes, or eye technician to remove one or both corneas of a decedent whose body is the subject of an autopsy performed pursuant to section 313.13 of the Revised Code, if all of the following apply: (1) The corneas are not necessary for the successful completion of the autopsy or for evidence. (2) An eye bank official has requested the removal of corneas and certified to the coroner in writing that the corneas will be used only for corneal transplants or other medical or medical research purposes; (3) The removal of the corneas and gift to the eye bank do not alter a gift made by decedent or any other person authorized under this chapter to an agency or organization other than the eye bank; (4) The coroner, at the time he removes or auth- orizes the removal of the corneas, has no knowledge of an objection to the removal by any of the following: [family members]. * * * (C) Any person who acts in good faith under this section and without knowledge of an objection, as described in division (B)(4) of this section, to the - 9 - removal of corneas is not liable in any civil or criminal action based on the removal. In opposition, plaintiffs have focused upon the lack of prior consent for the removal. Plaintiffs presented no evidence to create a genuine issue of material fact as to whether the removal was undertaken without good faith or with prior knowledge of an objection from a family member. Thus, by application of Revised Code Chapter 2108, as it existed at the time of Anthony's death, we must conclude that summary judgment was properly granted to defendant McDonnell as to this proposed claim in the underlying action. Moreover, in a decision rendered in 1989, and not reversed until 1991, or well after defendant was discharged by plaintiffs, removals undertaken in connection with R.C. 2108.60 did not state a claim under 42 U.S.C. Section 1983. See Brotherton v. Cleveland (S.D. Ohio 1989), 733 F. Supp. 56, reversed (C.A.6, 1991), 923 F.2d 477. At this juncture, however, we feel that it would be appro- priate to address the former law as it existed at the time of Anthony's death. Prior to 1991, the statutory law regarding the donation of eyes and corneas did not require that when a hospital sends a body to the coroner's office it must also send a completed certificate of request for an anatomical gift. See Brotherton v. Cleveland (1991), 76 Ohio App.3d 601, 603. Effective March 27, 1991, however, the legislature changed R.C. 2108.021 to provide that when an organ donation is requested, the hospital - 10 - administrator shall complete a certificate of request which details the request and whether it was granted. Id. We believe that the lack of a requirement for such certificate under the prior law invited litigation, such as that giving rise to the instant matter, in light of our accepted notions of informed consent and the knowing, voluntary donation of organs. Notwithstanding the good faith of eye bank officials and the benefits of donation, some surviving family members undoubtedly experienced shock and anguish where removal was undertaken pursuant to statutory authority and without their prior consent and approval. As was noted in Brotherton v. Cleveland (S.D. Ohio 1989), 733 F. Supp. 56, 60: Permitting the disfigurement of a loved one's body, even for the noble cause of donating organs or tissues to others, is a personal decision that should be left to the decedent during life or the next-of-kin after death. Mutilation of a decedent's remains despite expressed instructions to the contrary is certain to intensify the grief, shock, and horror normally experienced by the family at the time of such loss. Although the amendment to R.C. 2108.021 came too late to guide the actions undertaken in this matter, and to prevent the harm suffered by this grieving family, it may assist other families, who, like plaintiffs, must deal with the untimely and tragic loss of their loved ones. Affirmed. - 11 - It is ordered that appellee recover of appellants his 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 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. PORTER, P.J., AND NAHRA, J., CONCUR ANN DYKE JUDGE 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 of decision by the .