COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72824 TERESAE L. DESKINS : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : JAIME JARAMILLO, M.D., ET AL. : OPINION : Defendants-Appellees : : PER CURIAM Date of Announcement of Decision: OCTOBER 8, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 291722 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: For Defendant-Appellee Jaime Jaramillo, M.D. and JAMES R. GOLDBERG, ESQ. Jaime Jaramillo, M.D., Inc.: Weisman, Goldberg & Weisman Co., L.P.A. CHRISTOPHER M. ERNST, ESQ. 1600 Midland Building Weston, Hurd, Fallon, Paisley 101 Prospect Avenue, West & Howley Cleveland, Ohio 44115 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2241 [continued on next page] For Defendants-Appellees CLIFFORD C. MASCH, ESQ. John H. Nickels, M.D. and ROBERT D. WARNER, ESQ. Grace Hospital: Reminger & Reminger Co., L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114 -2- -3- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Plaintiff-appellant Teresae L. Deskins appeals from the summary judgment entered in favor of defendants-appellees Jaime Jaramillo, M.D., Jaime Jaramillo M.D., Inc., John H. Nickels, M.D. and Grace Hospital arising out of plaintiff's medical malpractice claims. Plaintiff claims that the trial court erred in holding that the plaintiff failed to produce expert testimony to support her claim and in not recognizing the validity of her res ipsa loquitur claim. We find no error and affirm. Plaintiff first consulted Dr. Jaramillo on September 26, 1992 complaining of heavy menstrual periods, cramps, pelvic pain and pressure over the pelvic area. Dr. Jaramillo examined her, diagnosed pelvic pain and uterine bleeding and scheduled a video laparoscopy and D & C. The surgery took place on October 8, 1992 at Grace Hospital. After plaintiff was anaesthetized by Dr. Nickels and put to sleep, she was prepped and placed in the lithotomy position for the laparoscopy by the operating room nurse. The operating room nurse, an employee of Grace Hospital, positioned her legs slightly upward and flexed, while resting in stirrups on the operating table. The plaintiff was positioned while Dr. Jaramillo was scrubbing. When Dr. Jaramillo arrived in the operating room, he noted that plaintiff was correctly positioned. The surgery was -4- completed without incident over a period of 15 minutes. Plaintiff was in the lithotomy position about 45 minutes. Plaintiff saw Dr. Jaramillo for a post-surgical follow-up visit on October 13, 1992. The day before this visit, plaintiff first complained about numbness in her left leg, from the groin to the knee. Dr. Jaramillo was unable to determine the cause of the numbness, and upon physical examination, everything appeared normal. Dr. Jaramillo suggested that the condition would improve over the next several days and scheduled plaintiff for a follow-up visit on November 10, 1992. Plaintiff did not keep that appointment. On October 8, 1993, plaintiff brought suit against the defendants alleging medical malpractice with regard to the defendants' care and treatment of plaintiff. Following plaintiff's failure to file an expert medical report, defendant Dr. Jaramillo filed for summary judgment. On November 3, 1994, plaintiff voluntarily dismissed her complaint. Plaintiff refiled her action on June 29, 1995. Depositions of the defendants were taken in April and June, 1996. On September 11, 1996, defendants Grace Hospital and Dr. Nickels filed a motion for summary judgment for plaintiff's failure to produce expert testimony to support her claim. Plaintiff was granted six extensions to file her opposing brief. On April 11, 1997, plaintiff filed a motion for leave to file an amended complaint to add, inter alia, a claim for res ipsa loquitur. Plaintiff filed a brief in opposition to the motion for -5- summary judgment on April 14, relying upon her newly asserted claim of res ipsa loquitur. Plaintiff attached as exhibits to her brief in opposition excerpts of the deposition testimony of Dr. Jaramillo, Dr. Nickels and Dolores Fricker, L.P.N., who assisted in the operating room. Plaintiff argued that her res ipsa loquitur claim relieved her of the need for expert testimony beyond that of Dr. Jaramillo, Dr. Nickels and Nurse Fricker. Dr. Jaramillo and his corporation filed their motion for summary judgment on April 14, 1997 also based on plaintiff's failure to produce expert testimony. Plaintiff filed an opposition attaching the same deposition excerpts referenced above. On June 9, 1997, the trial court granted defendants' motions for summary judgment on a half-sheet entry, noting that plaintiff has failed to produce expert testimony establishing the elements set forth in Bruni v. Tatsumi and her claim therefore fails. Plaintiff filed a timely notice of appeal. Plaintiff's sole assignment of error is set forth below. I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS- APPELLEES' MOTIONS FOR SUMMARY JUDGMENT ON THE GROUNDS THAT PLAINTIFF-APPELLANT HAS FAILED TO PRODUCE EXPERT TESTIMONY ESTABLISHING THE ELEMENTS SET FORTH IN BRUNI V. TATSUMI AND THE CLAIM THEREFORE FAILS. Plaintiff asserts that the trial court erred in granting summary judgment, arguing that the expert testimony by Dr. Jaramillo is sufficient to support his opinions and the application of the doctrine of res ipsa loquitur. (Applt's Brf. at 7). Plaintiff bases her appeal exclusively on the doctrine of res ipsa loquitur (Applt's Brf. at 7-10) rather than meeting the expert -6- medical testimony requirements of Bruni v. Tatsumi (1972), 46 Ohio St.2d 127, paragraph one of syllabus. Defendants concede that Dr. Jaramillo, in his deposition, rendered an opinion that the plaintiff had a femoral nerve injury that probably took place as a result of the positioning of the patient by the nurses. (Dr. Jaramillo Depo. at 28, 31). However, defendants argue that res ipsa loquitur does not apply because (1) defendants were not in exclusive control of the instrumentality of injury since plaintiff first complained of the numbness four days after the surgery; (2) plaintiff has alleged two separate and distinct causes of injury, inconsistent with res ipsa loquitur: Dr. Jaramillo`s surgery and the nurses' positioning; and (3) plaintiff offered no expert medical testimony from Dr. Jaramillo or otherwise that the injury would not have occurred if ordinary care had been observed by the nurses in positioning the patient. We find no merit to the first two defense arguments because (1) Dr. Jaramillo opined that the injury probably occurred as a result of the nurses' positioning of the patient, not something that happened four days later; and (2) res ipsa loquitur is not restricted to fact situations involving a single defendant but may be applied to multiple defendants [i.e. Dr. Jaramillo and the nurses] who collectively have exclusive control of the instrumentality, procedure or occurrence that caused the injury. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 207, However, we are compelled to agree from this record with defendants' third argument that there was no expert medical -7- evidence that the injury would not have occurred if ordinary care had been observed by the nurses in positioning the patient. For that reason, we find summary judgment was properly granted. To clearly appreciate the parties' arguments, it is necessary to refer to the equivocal nature of Dr. Jaramillo's deposition testimony in the following respects: Q. So when you come into the room, the patient is already in the lithotomy position in the stirrups? A. That is correct. Q. So would I be correct in stating that whatever happened during the placement of Ms. Deskins in these stirrups and in the lithotomy position, you weren't there and don't know anything that happened during that time? A. Yes. Q. Did anybody say anything to you when you came into the room, operating room at Ms. Deskins' surgery about having any difficulty getting her into the lithotomy position? A. No. Q. Did anybody say anything to you about having any problems with any of the parts of the gurney or anything, the arms or anything else? A. No. Q. When you came in the room, was Ms. Deskins ready for surgery in the lithotomy position, legs in the stirrups, ready for you to start operating? A. Yes. (Dr. Jaramillo Depo. at 14) Q. Were you able to make a determination [on her October 13 follow-up visit] as to what that problem was and what was causing it? -8- A. According to my examination, everything was normal, my physical examination, except for what she told me at the office visit. Q. Now, as far as what she told you about the numbness in the leg from the groin to the knee, did you ever determine what was causing that? A. No. Q. Did you recommend that she see another doctor? A. No. Q. Did you tell her that it would get better in a few days? A. Yes. (Dr. Jaramillo Depo. at 21). Q. Do you today know or have an opinion as to what complications or injury Ms. Deskins has or is complaining about in this lawsuit? MS. EPSTEIN: Objection. A. If I have an opinion about her complaints? Q. Yes. A. Yes, I do. Q. What is your opinion? A. That she has a femoral nerve injury. Q. Do you have an opinion as to how that was caused? MS. EPSTEIN: Objection. Go ahead. A. I have an opinion, yes. Q. What is your opinion? A. My opinion is that this type of an injury usually takes place when there is an abnormal position of the patient, and when the procedure takes a lot more than an hour, hour and-a-half. Takes a long time. -9- Q. Would I be correct that you said earlier that the patient being in the lithotomy position for 45 minutes would not be considered a long time? A. I cannot explain how that happened. I don't know. * * * Q. Is 45 minutes a usual length of time for a patient to be in that position? A. For my cases, yes. Q. Would it be your opinion, then, since the time seems to be usual, that this injury probably took place as a result of the positioning of the patient? MR. WARNER: Objection. He already indicated he can't explain how the injury occurred. Q. You can answer if you know. A. Yes. Q. Can you explain to me what you mean by the positioning of the patient causing the injury? In other words, do you know how the patient was positioned wrong? A. I can assume, but I don't know in this particular case. Q. When you came in to do the surgery, would I be correct you didn't notice that the patient was positioned incorrectly or wrong? A. The patient was positioned correctly when I walked in. * * * Q. Do you have an opinion as to whether the injury that we are talking about, being the femoral nerve damage, occurred during the surgery of October 8, 1992? MR. EPSTEIN: Objection. MR. GOLDBERG: Sure. You want to read that: -10- (Previous question read.) Q. Let me just make that a little easier. When you say the surgery, I'm including the preparation by putting her into stirrups and getting her into the lithotomy position and your surgery then afterwards. MS. EPSTEIN: Objection. A. My opinion would be that, you know, that femoral nerve injury wasn't caused by my surgery, per se. The other reason would be the positioning. Q. So would I be correct in saying that your opinion is that the femoral nerve injury came from the positioning of the patient? A. Yes. Q. And you indicated I believe that the positioning was done by the nurses. MR. WARNER: Objection. A. Yes. (Dr. Jaramillo Depo. at 27-31). Q. I think you have also indicated that how the exact injury occurred, you said you really don't know, is that correct? MS. EPSTEIN: Objection A. Yes. Q. And specifically, you do not have any specific criticisms of the nursing staff at Grace Hospital, do you? A. No. (Dr. Jaramillo Depo. at 45). To warrant the application of res ipsa loquitur, a plaintiff must adduce evidence in support of two conclusions: 1. that the instrumentality causing the injury was, at the time of the injury or at the time -11- of the creation of the condition causing the injury, under the exclusive control of the defendant; and 2. that the injury occurred under such circumstances that in the ordinary course of events, it would not have occurred if ordinary care had been observed. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 203; Morgan v. Children's Hospital (1985), 18 Ohio St.3d 185, 188; Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66-67. On the second requirement, we are guided by this Court's analysis in Johnson v. Hammond (1988), 47 Ohio App.3d 125, 127 as follows: We do not agree with plaintiffs' contention that the doctrine of res ipsa loquitur relieves them of their burden of presenting expert medical testimony on the requisite standard of care and skill. The plaintiffs must present evidence to show that the injury would not have occurred in the ordinary course of events if ordinary care had been observed before an instruction on res ipsa loquitur would be justified. This showing necessarily requires expert evidence on the ordinary procedures in performing a circumcision. The same principles were stated in Anderson v. Motta (1991), 73 Ohio App.3d 1, 3 where the court commented in pertinent part as follows regarding the application of the doctrine of res ipsa loquitur in a medical malpractice case. The application of res ipsa loquitur in a medical malpractice case, except where the negligence is apparent to a layman, requires expert medical testimony that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. See Morgan v. Children's Hospital (1985), 18 Ohio St.3d 185, 18 OBR 253, 480 N.E.2d 464; Oberlin v. Friedman (1965), 5 Ohio St.2d 1, 34 O.O.2d 1, 213 N.E.2d 168. This was what was -12- done in the case on which plaintiff relies, Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 560 N.E.2d 165. Followed and quoted with approval in Mary Lou Coleman, mother and natural guardian of Kevin Coleman v. Mullins, M.D. (July 16, 1997), Scioto App. No. 96 CA 2462, unreported at 19-20. See also Mahan v. Bethesda Hosp. (1992), 84 Ohio App.3d 520, 524. Contrary to the foregoing authorities, we find no evidence from Dr. Jaramillo's deposition or otherwise in the record to show that a femoral nerve injury would not have occurred in the ordinary course of events if the nurses had exercised ordinary care in positioning the patient. Indeed Dr. Jaramillo testified that when he walked in for the surgery the patient was positioned correctly ; he didn't really know how the injury occurred; and had no criticism of the nurses. (Jaramillo Depo. 29, 45). He gave no evidence on the nurses' customary standard of care in positioning patients for the procedure in question. The only case which plaintiff cites is clearly distinguishable and supports the conclusion we reach herein. In Wiley v. Gibson (1990), 70 Ohio App.3d 463, the court held res ipsa loquitur applicable against a dentist who administered an anesthetic by needle into plaintiff's jaw. The plaintiff immediately felt a sharp stabbing pain in his ear and developed an increased heart rate, an involuntary back-and-forth movement of his tongue, and numbness of mouth and tongue. Id. 464. Plaintiff suffered permanent paresthesia of the his right face and tongue. With -13- respect to the second part of the res ipsa doctrine, the court stated: With respect to the remaining aspect of the doctrine, the plaintiff offered the deposition of an expert who explained the proper procedure for administering an injection of anesthetic along the mandible. The expert further testified that the only way to create permanent damage to the trigeminal nerve, resulting in paresthesia of the face and tongue, is by improper technique in the injection of the nerve with a needle. We hold that this testimony is sufficient to meet the second requirement for the application of res ipsa loquitur, that the injury would not, under the circumstances, have occurred had ordinary care been observed. Id.At 465. No similar evidence is contained in the instant case. We find defendants' motions for summary judgment were properly granted. Plaintiff's sole assignment of error is overruled. Judgment affirmed. -14- 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 Court of Common Pleas 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 M. PORTER, PRESIDING JUDGE JOHN T. PATTON, JUDGE LEO M. SPELLACY, 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 .