COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72608 LILLIAN KATZ : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : MT. SINAI MEDICAL CENTER, ET AL. : OPINION : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court Case No. CV-303146 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiff-Appellant: Defendants-Appellees: MICHAEL SHAFRAN, ESQ. CHRISTINE S. REID, ESQ. 2000 Standard Building BRIAN D. SULLIVAN, ESQ. 1370 Ontario Street Reminger & Reminger Co., Cleveland, Ohio 44113 L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114 O'DONNELL, TERRENCE, J.: Lillian Katz appeals from a decision of the common pleas court granting summary judgment to the Mount Sinai Medical Center in connection with her claims alleging professional negligence of a nurse's aide arising out of a fall she sustained while a patient in the hospital's rehabilitation unit. After a thorough review of the record and the law applicable to this case, we have concluded Katz failed to meet her burden of going forward with evidence in connection with the summary judgment motion and therefore affirm the judgment of the trial court in this case. The record reveals that on August 31, 1994, Lillian Katz underwent a total knee replacement performed by Dr. Leb at the Mount Sinai Medical Center. Thereafter, she entered the hospital's rehabilitation unit, where the physician's transfer order, according to nurse Carolyn Constiner-Lieberman, the Program Director for the Sub-Acute Unit at Mount Sinai, stated for Katz to ambulate as tolerated, full weight bearing; upon her transfer, a nurse's aide assisting her instructed that she stand and get on a scale. While standing on the scale, her knee buckled and she went down, reopening her knee, which required a second surgery. Following that surgical repair of her knee, she returned to the rehabilitation unit of Mount Sinai and subsequently was discharged from the hospital on September 29, 1994. Thereafter, Katz filed this action alleging her injuries were caused by the combined negligence of Dr. Robert Leb and Mount Sinai and its employees and agents, claiming that they failed to use reasonable medical care at the time she stood on the scale. On July 26, 1996, Katz voluntarily dismissed Dr. Leb from the suit; and at its December 31, 1996 final pre-trial, the court ordered Katz to submit an expert report by March 10, 1997 and scheduled the case for jury trial on May 5, 1997. Thereafter, in April, 1997, Mount Sinai moved for summary judgment on the basis that Katz failed to present any expert reports addressing the standard of care issues. Katz filed a brief in opposition alleging a departure from the standard of care promulgated by the hospital and urging that Mount Sinai nurses Lieberman, Mays, and Cervante established it in their depositions. The trial court then granted summary judgment in favor of Mount Sinai, and Katz now appeals and raises the following assignments of error for our review: I. THE TRIAL COURT ERRED IN GRANTING THE SUMMARY JUDGMENT MOTION OF APPELLEE MT. SINAI HOSPITAL IN THAT APPELLANT WAS NOT REQUIRED TO SUBMIT AN EXPERT REPORT TO ESTABLISH THE REQUISITE STANDARD OF CARE. II. THE TRIAL COURT ERRED IN GRANTING THE SUMMARY JUDGMENT MOTION OF APPELLEE IN THAT MATERIAL ISSUES OF FACT EXIST AS TO WHETHER APPELLEE BREACHED ITS COMMON LAW DUTY TO EXERCISE REASONABLE CARE UNDER THE CIRCUMSTANCES. III. THE TRIAL COURT ABUSED ITS DISCRETION IN WEIGHING THE CREDIBILITY OF THE PLAINTIFF'S AFFIDAVIT TESTIMONY AND THEREBY CAUSED MATERIAL PREJUDICE TO APPELLANT. Katz now contends the trial court erred when it granted summary judgment to Mount Sinai, arguing that expert testimony is not required to meet her evidentiary burden, because her case -4- raises a matter of ordinary negligence rather than medical malpractice. Mount Sinai urges the trial court properly granted summary judgment, arguing that since Katz pled a case involving a breach of the standard of care by its agents and employees, expert testimony is required to establish the prevailing standard of care, a breach of that standard, and also that the negligence of the nurse's aide was the proximate cause of the patient's injury. The issue then presented for our consideration is whether the trial court correctly granted summary judgment in this case where Katz failed to provide expert testimony on the prevailing standard of care for a nurse's aide under like or similar circumstances. This court reviews the trial court's grant of summary judgment de novo. See Brown v. Scioto Bd. Of Commrs. (1993), 87 Ohio App.3d 704; Abbott v. Parma (1996), 112 Ohio App.3d 570. Civ.R. 56(C) sets forth the standard of review for cases involving summary judgment: * * * Summary judgment shall be rendered forthwith if the pleading, 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 summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. -5- Further, in Dresher v. Burt (1996), 75 Ohio St.3d 280, the court stated in relevant part at 293: * * * the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. * * * if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial * * *. The substantive issue here then concerns whether Katz has alleged a claim involving a matter of professional malpractice, which raises a question of medical judgment regarding the professional skill and care of a nurse's aide, or whether it involves ordinary negligence concerning conduct within the common knowledge and experience of jurors. In some jurisdictions, notably Michigan, the pleading is determinative of whether a patient who falls in a hospital has stated a cause of action for medical malpractice or one for ordinary negligence. See e.g., McLeod v. Plymouth Court Nursing Home(E.D. Mich. 1997), 957 F.Supp. 113, where the court stated in relevant part at 115: The law which will be applied to the case depends upon the theory actually pled when the same set of facts can support either of two distinct causes of action. * * * `The gravamen of an action is determined by reading the claim as a whole.' (Citations omitted). In McLeod, supra, the court defined medical malpractice as follows at 115: -6- * * * the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in light of the present state of medical science. That court further stated at 115: Where the parties dispute whether plaintiff has alleged malpractice or ordinary negligence, courts have attempted to ascertain whether the facts alleged present issues which are within the common knowledge and experience of the jury or, in the alternative, raise a question of medical judgment. The Ohio Supreme Court outlined a similar analysis in Berdyck v. Shinde (1993), 66 Ohio St.3d 573, stating in relevant part at 580-581: In a negligence action involving the professional skill and judgment of a nurse, expert testimony must be presented to establish the prevailing standard of care, a breach of that standard, and, that the nurse's negligence, if any, was the proximate cause of the patient's injury. * * * In a negligence action involving conduct within the common knowledge and experience of jurors, expert testimony is not required. * * * In this case, as the negligence action brought by Berdyck involves the professional skill and judgment of nurses employed by the hospital, expert testimony is required to prove the relevant standard of conduct. (Emphasis added; citations omitted). Further, in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, the court stated in relevant part at 131: Failure to establish the recognized standards of the medical community has been fatal to the presentation of a prima facie case of malpractice by the plaintiffs. (Citation omitted). -7- In this case, we recognize that the complaint filed by Katz alleged a breach of the standard of medical care in the community, and that the trial court ordered production of medical expert testimony on that issue, which Katz never produced. We further recognize that the deposition testimony of the Mount Sinai nurses suggests that when Katz arrived at the rehabilitation unit, members of the nursing staff knew that her physician had ordered her to ambulate as tolerated, full weight bearing. Thus, when the nurse's aide assisted Katz in obtaining her weight, she exercised some degree of professional skill and judgment in assessing Katz's ability to comply with the orders of the physician as written. This case, therefore, raises a claim involving professional malpractice rather than ordinary negligence, because it involves the professional skill, judgment, and care of the nurse's aide. Here, Katz failed to comply with the trial court's order to produce an expert report regarding the prevailing standard of care, breach of that standard, and that the negligence, if any, proximately caused Katz's injury, arguing that the standard of care for a nurse's aide is within the common knowledge and experience of the jury. However, without expert testimony, Katz could not establish the relevant standard of care or the hospital's negligence. She, therefore, failed to meet her burden of proof as articulated in Dresher, supra, and the court properly granted summary judgment in favor of Mount Sinai. Accordingly, these assignments of error are overruled, and we affirm that decision. Judgment affirmed. -8- -9- 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. JOSEPH J. NAHRA, P.J., and KENNETH A. ROCCO, J., CONCUR 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 .