COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73763 JOHNNY C. CANTY : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION AFFORDABLE CHIROPRACTIC, et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT DECEMBER 17, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-328879 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: RICHARD H. DRUCKER, ESQ. 12301 Larchmere Blvd. Cleveland, Ohio 44120 For Defendants-Appellees: VICTORIA L. VANCE, ESQ. SUSAN v. BELANGER, ESQ. Arter & Hadden 925 Euclid Avenue 1100 Huntington Building Cleveland, Ohio 44115-1475 JOHN Z. SZABO, ESQ. 5432 Mayfield Road, Suite 103 Cleveland, Ohio 44124 PATRICIA ANN BLACKMON, A.J.: Appellant Johnny Canty appeals a decision by the trial court granting summary judgment in favor of appellees Affordable -2- Chiropractic Clinics, Adam Rutkowski, D.C., John Strom, D.C., Peoples Chiropractic, Inc., and Dove Healthcare, Inc. in his medical malpractice action. Canty assigns the following error for our review: I. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF THE APPELLEES WHERE APPELLEES FAILED TO PRESENT EVIDENCE, INCLUDING PLEADINGS, DEPOSITIONS, ANSWERS TO INTERROGATORIES, WRITTEN ADMISSIONS, AND AFFIDAVITS, THAT ESTABLISHED THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AND THAT THEY WAS (sic) ENTITLED TO JUDGMENT AS A MATTER OF LAW PURSUANT TO RULE 56(C) OF THE OHIO RULES OF CIVIL PROCEDURE. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On January 26, 1997, Johnny Canty filed a medical malpractice action against Affordable Chiropractic Clinics aka Peoples Chiropractic Clinic aka Dove Healthcare, Inc., Adam Rutkowski, D.C., John Strom, D.C., Richard Mulcahy, D.C., and Daniel Kaplan, D.C. Canty was treated by Strom, Rutkowski, Kaplan, and Mulcahy, chiropractors employed by Affordable Chiropractic Center, after a September 1, 1992 workplace accident left him with numbness and weakness in his hands. Canty sought $500,000 in damages. On April 21, 1997, Affordable Chiropractic Clinics, Rutkowski, and Strom filed an answer denying Canty's malpractice claim of complaint. They also alleged that Affordable Chiropractic Clinic was a d.b.a. and not a legal entity capable of hiring, employing, suing, or being sued. They further alleged that Richard Mulcahy -3- and Daniel Kaplan were no longer working with or otherwise affiliated with the answering defendants. A case management conference was held on June 24, 1997. In an entry journalized June 26, 1997, the trial court ordered Canty to provide his expert report to the defendants by July 23, 1997. The defendants were ordered to identify their expert and provide a report to Canty by September 23, 1997. On September 15, 1997, Rutkowski and Strom moved for summary judgment on Canty's complaint, alleging that he failed to respond to discovery or produce an expert report with information about the standard of care in the chiropractic community. Rutkowski and Strom argued that expert testimony was required to establish the standard of care recognized by the chiropractic community and to establish that deviation from that standard proximately caused Canty's injury. On September 19, 1997, Peoples Chiropractic Inc. and Dove Healthcare Inc. also filed for summary judgment adopting the brief, arguments, law and conclusion of the summary judgment motion filed by Rutkowski and Strom. Canty did not respond to the summary judgment motions. The trial court granted the motions on November 25, 1997. On December 1, 1997, Canty filed a Civ.R. 41(A) notice of voluntary dismissal of the defendants without prejudice. On December 26, 1997, Canty filed a notice of appeal challenging the trial court's granting of the defendants' motions for summary judgment. Before addressing the merits of this appeal, we must resolve the impact of Canty's December 1, 1997 dismissal of the -4- defendants without prejudice. Although the dismissal did not specifically list which defendants were being dismissed, we interpret it as a dismissal of Richard Mulcahy and Daniel Kaplan, two chiropractors named as defendants in Canty's complaint who did not join in the summary judgment motions filed by the other defendants. Such an interpretation is reasonable in light of Canty's subsequent decision to appeal the trial court's grant of summary judgment and allows us to proceed to determine this case on its merits. In his assignment of error, Canty challenges the trial court's decision to grant summary judgment in favor of the defendants. Summary judgment may be granted only if no genuine issue of material fact exists. Civ.R. 56(C). Our standard of review for summary judgment is the same as that of the trial court. Consequently, we review cases de novo. Brown v. Scioto Cty Bd of Commrs. (1993), 87 Ohio App.3d 704, citing Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, appeal dismissed (1988), 39 Ohio St.3d 710. In applying the de novo standard, we review the trial court's decision independently and without deference to the trial court's determination. Id. at 711. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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, that party being -5- entitled to have the evidence construed most strongly in its favor. Brown, supra, citing Bostic v. Connor (1988), 37 Ohio St.3d 144, 146; cf., also State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14; Civ.R. 56(C). The burden of showing no genuine issue as to any material of fact is on the party who requested the summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520. However, the non-moving party has the initial burden of showing a genuine issue of material fact for trial. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. See Dresher v. Burt, supra at 295, (limiting syllabus 3 of Wing v. Anchor Media, Ltd. Of Texas (1991), 59 Ohio St.3d 108.) An issue is genuine only if the evidence is such that a reasonable jury could find for the non-movant. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242. In order to obtain summary judgment on the ground that Canty could not prove its case, the defendants had to state the basis for their motion and demonstrate the absence of a genuine issue of material fact on an essential element of Canty's claim. Dresher at 293. In this case, the defendants alleged that Canty failed to produce expert testimony to support his malpractice claim. Such expert testimony is required in malpractice cases in Ohio in order to establish the applicable standards of care. See Barbee v. Finerty(1995), 100 Ohio App.3d 466, 470, discretionary appeal not allowed (1995), 72 Ohio St.3d 1530; Hubbard v. Laurelwood Hosp. -6- (1993), 85 Ohio App.3d 607, 614, appeal dismissed (1993), 67 Ohio St.3d 1450; Morris v. Children's Hospital Medical Ctr. (1991), 73 Ohio App.3d 437, 444; Robb v. Community Mut. Ins. Co. (1989), 63 Ohio App.3d 803, 806. Establishing the applicable standard of care by expert testimony has been held to be essential to presenting a prima facie malpractice claim. Grote v. J. S. Mayer & Co., Inc. (1990), 59 Ohio App.3d 44, 45-46. Because Canty failed to meet this burden, summary judgment was properly entered against him. See Dresher at 293. Canty's assignment of error is overruled. Judgment affirmed. It is ordered that appellees recover of appellant 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 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. Exceptions. JOHN T. PATTON, J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .