COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72294 MARLENE ZARLINGA : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION ELMER LAMPERT, M.D. : : Defendant-Appellee : : : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 26, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-306713 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MICHAEL SHAFRAN Shafran & Assoc. Co., L.P.A. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: JOHN R. SCOTT BRIAN D. SULLIVAN Reminger & Reminger Co., L.P.A. 113 St. Clair Building - 7th Floor Cleveland, Ohio 44114 -2- O'DONNELL, P.J.: Marlene Zarlinga appeals from a common pleas court decision granting summary judgment in favor of Dr. Elmer Lampert, in connection with her claim of professional negligence resulting from his failure to inform her about the risks connected with her sphincterectomy surgery. For the reasons which follow, we conclude the court did not err in entering this judgment and therefore we affirm it. In 1995, Zarlinga consulted Lampert for treatment of anal fissures and learned she needed surgery to correct her difficulty. Prior to performing the sphincterectomy surgery, Lampert alleges he told Zarlinga about the risks associated with the procedure, including incontinence. Following the surgery, Zarlinga developed incontinence.As a result, she sued Lampert alleging he failed to use due care in performing the surgery and inform her of the known risks of the procedure. The parties later stipulated that Lampert performed the operation in a medically competent manner. Therefore, the issues presented to the court, which are now the subject of this appeal, concerned whether Lampert informed Zarlinga of the risk of incontinence as a result of the sphincterectomy surgery, and whether she would have had the surgery if she had been so informed. Lampert moved for summary judgment, attaching his deposition and affidavit, stating that he informed Zarlinga about the risk of -3- incontinence from the surgery, but that he does not recognize permanent incontinence as a material risk of the procedure because, after practicing twenty years and performing this operation approximately two thousand times, none of his patients have ever developed permanent incontinence. In Lampert's opinion, the actual risk of developing incontinence from the procedure is nonexistent in his hands, but only about two to three percent overall. Lampert also supported his motion for summary judgment with a portion of Zarlinga's deposition, in which she stated that she would have proceeded with the surgery as long as the risk of incontinence had been ten percent or less. In opposition to that motion, Zarlinga submitted a copy of Surgery of the Colon, Rectum and Anus, 1995, pages 265-66 and 345- 47, indicating the risk of incontinence from several different surgical procedures ranges from zero to thirty percent; she also offered a letter from Thomas B. Blake III, M.D., addressed to her counsel in which he maintained that Mrs. Zarlinga received appropriate care for the fissure and fistula but stated that both of these procedures carry a risk of incontinence and concluding that she should have been informed of the complications and risks prior to any surgical intervention. Blake's letter, however, did not express his opinion to a reasonable degree of medical certainty or probability. After considering the matter, the court granted summary judgment in favor of Lampert. Several days after the court ruled on the motion, Zarlinga filed an affidavit from Dr. Blake -4- describing the textbook as authoritative and accurate and stating he relies on it in making decisions regarding risks and complications of sphincterectomy and other colorectal surgeries. Nowhere, however, did Dr. Blake express his opinion regarding the risk of incontinence associated with sphincterectomy surgery to a reasonable degree of medical certainty or probability. Zarlinga now appeals from the grant of summary judgment and presents the following assignment of error for our consideration: THE TRIAL COURT ERRED IN GRANTING THE SUMMARY JUDGMENT MOTION OF APPELLEE IN THAT A MATERIAL ISSUE OF FACT EXISTS AS TO WHETHER APPELLANT WAS ADEQUATELY INFORMED OF THE RISK OF INCONTINENCE AS A RESULT OF THE RECTAL SURGERY PERFORMED BY APPELLEE, AND WHETHER A REASONABLE PERSON WOULD HAVE ATTACHED SIGNIFICANCE TO SUCH RISK IN THEIR DECISION TO HAVE THE SURGERY. Zarlinga argues the court erred in granting summary judgment because she believes she established a genuine issue of material fact as to whether Lampert informed her of the risk of incontinence from the sphincterectomy surgery and whether she would have undergone the surgery if she had been told of it. Lampert argues the court properly granted summary judgment because Zarlinga failed to establish either that incontinence is a material risk of the sphincterectomy surgery or that she would not have had the surgery if she had been informed of that risk. The issues then presented for our review concern whether Zarlinga established incontinence as a material risk of the surgery and if she had known about the risk of incontinence, whether she would have undergone the surgery. -5- In this regard, we recognize that Civ. R. 56 provides in part: * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A party seeking summary judgment bears the initial burden of demonstrating no genuine issues of material fact exist concerning as essential element of the opponent's case. Celotex Corp. V. Catrett(1987), 477 U.S. 317, 330; Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Once the moving party has satisfied this burden, the non-moving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111. Furthermore, in the context of a medical malpractice case, the Ohio Supreme Court has stated that in the absence of any opposing expert medical testimony, a treating physician's affidavit establishes the standard of care and his conformance thereto. Hoffman v. Davidson (1987), 31 Ohio St.3d 60, 62. Next, we consider the substantive law regarding the tort of lack of informed consent, which the Ohio Supreme Court described in its syllabus in Nickell v. Gonzalez (1985), 17 Ohio St.3d 136: The tort of lack of informed consent is established when: (a) The physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any; (b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and -6- (c) a reasonable person in the position of the patient would have decided against the therapy had the material risks and dangers inherent and incidental to treatment been disclosed to him or her prior to the therapy. Here, Lampert filed a motion for summary judgment, presented his affidavit and deposition regarding the risks associated with sphincterectomy surgery, and explained how he informs his patients about the risks of complications from the surgery. In response, Zarlinga presented her deposition, a letter from Dr. Blake, and copies of pages from a medical textbook she received from him. Although she later supplemented these pages with Blake's affidavit, we are not permitted to consider it because our review of summary judgment is limited to the contents of the record as it existed before the trial court. See App.R. 9(A) and City of Middletown v. Allen (1989), 63 Ohio App.3d 443, 449. Thus, our de novo review of the record in this case reveals Zarlinga failed to produce evidence to establish incontinence as a material risk of the sphincterectomy surgery because she offered no credible evidence to a reasonable degree of medical certainty or probability on that issue sufficient to rebut the affidavit and deposition testimony offered by Lampert. This, according to Wing v. Anchor Media, supra, became her burden, and she failed with respect to it. Thus, because she failed to meet the first part of the test to establish the tort of lack of informed consent as described in Nickell, supra, Zarlinga cannot prevail and the trial court correctly granted summary judgment in this case. Accordingly, we need not reach the remaining part of her argument. Therefore, her assignment of error is not well taken, and, in -7- accordance with the foregoing analysis, we affirm the order of the trial court. Judgment affirmed. -8- It is ordered that appellee recover of appellant 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. DIANE KARPINSKI, J., and JAMES D. SWEENEY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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 .