COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74907 LOUISE CSIZMADIA, ETC., Plaintiff-appellant JOURNAL ENTRY vs. AND METROHEALTH MEDICAL CENTER, ET AL., OPINION Defendants-appellees DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 23, 1999 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-327912 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: WALTER P. BUBNA, ESQ. 5700 Pearl Road Suite 304 Cleveland, Ohio 44129 For defendants-appellees: RICHARD A. VADNAL, ESQ. REMINGER & REMINGER 113 St. Clair Bldg. Suite 700 Cleveland, Ohio 44114 -2- KARPINSKI, J.: Plaintiff-appellant (hereafter plaintiff ) appeals from an order granting summary judgment in favor of defendants-appellees MetroHealth Medical Center and various individually-named employees or agents (hereafter collectively referred to as defendants ). We conclude that the defendants did not satisfy their initial burden to identify those portions of the record which supported their grounds to obtain judgment as a matter of law. Accordingly, we reverse the judgment and remand the matter for further proceedings. The record before us reflects that the plaintiff filed this medical negligence action on January 24, 1997. The complaint arises out of the stillborn death of infant Julius on June 22, 1994.1 The plaintiff's complaint alleges that the defendants provided substandard medical care that resulted in the stillbirth. On February 11, 1998, the defendants moved for summary judgment, without any supporting evidentiary materials. On April 3, 1998, the defendants moved for leave to file a second motion for summary judgment. Attached to this motion as exhibits were photocopies of unauthenticated medical opinions the plaintiff had received which reportedly did not find any medical negligence. Defendants did not submit any other evidentiary materials pursuant to Civ.R. 56(C) to show that the plaintiff had no competent evidentiary support for these claims. The plaintiff opposed the defendants' motions on June 4, 1998, attaching her husband's and 1The plaintiff previously filed an action, but voluntarily dismissed that complaint. This is the re-filed action. -3- her own affidavits, which contended that the defendants' employees were negligent in their care and treatment. The defendants replied to the plaintiff's response on June 12, 1998, but still offered no evidentiary materials to show the defendants were entitled to judgment as a matter of law. The trial court granted the defendants' motion for summary judgment on June 19, 1998, and the plaintiff appealed that ruling. The plaintiff's assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT. THERE WAS A GENUINE ISSUE OF MATERIAL FACT SINCE PLAINTIFF-APPELLANT FILED AN AFFIDAVIT AND DEFENDANTS FILED NO AFFIDAVITS OR OTHER DOCUMENTS UNDER RULE 56(C). Because the defendants failed to sustain their initial summary judgment burden, we sustain the plaintiff's assignment of error. Summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. To obtain a summary judgment under Civ.R. 56(C), the moving party bears the initial responsibility of informing the court of the basis for the motion and identifying those portions of the record which support the requested judgment. Vahila v. Hall (1997), 77 Ohio St.3d 421, 430. If the moving party discharges this initial burden, the party against whom the motion -4- is made then bears a reciprocal burden of specificity to oppose the motion. Id. See, also, Mitseff v. Wheeler (1988), 38 Ohio St.3d 112. This court reviews the trial court's judgment de novo and uses the same standard that the trial court applies under Civ.R. 56(C). See Renner v. Derin Acquisition Corp. (1996), 111 Ohio App.3d 326, 333; N. Coast Cable L.P. v. Hanneman (1994), 98 Ohio App.3d 434, 440. Civ.R. 56(C) is particular in identifying the documents that may be considered in summary judgment motion practice. They include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action ***. 2 Because summary judgment must be awarded with caution, see Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2, we consider only those factual assertions that were supported in accordance with Civ.R. 56(C). In this case, the defendants' motions for summary judgment contended that the plaintiff had no evidence to support the contention that the defendants' care and treatment fell below the accepted standard of care. In Vahila v. Hall, supra, the court's majority opinion observed: [A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of 2At the time this case was pending below, Civ.R. 56(C) allowed transcripts of evidence in the pending case. A 1999 amendment deleted that restriction. -5- material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, 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 fails to satisfy its initial burden, the motion for summary judgment must be denied. However, 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 and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id., 77 Ohio St.3d at 429 (italics in original; bold emphasis added)(quoting plurality opinion in Dresher v. Burt (1996), 75 Ohio St.3d 280, 293). In the case at bar, the defendants did not carry their initial summary judgment burden inasmuch as they did not present evidence of the type listed in Civ.R. 56(C) demonstrating that the plaintiff had no competent evidence to support these claims. The defendants' first motion for summary judgment did not have any documentary evidence in support; their second motion for summary judgment attached photocopies of unauthenticated medical reports. On this record, the defendants failed to discharge their initial burden because they failed to identify those portions of the record which support the requested judgment. It may be that the plaintiff will not be able to maintain this case without critical expert testimony, but the defendants' summary judgment motion practice did not obligate the plaintiff to come forward with that evidence. -6- The plaintiff's assignment of error is sustained. The judgment is reversed and the cause is remanded for further proceedings. -7- This cause is reversed and remanded. It is, therefore, ordered that appellant recover of appellees her costs herein taxed. It is ordered that a special mandate be sent to said 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. TIMOTHY E. McMONAGLE, J., CONCURS; TERRENCE O'DONNELL, P.J., DISSENTS (SEE DISSENTING OPINION). DIANE KARPINSKI 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74907 LOUISE CSIZMADIA, etc. : : DISSENTING Plaintiff-Appellant : : OPINION vs. : : METROHEALTH MEDICAL CENTER, et al. : : Defendant-Appellees : : DATE: DECEMBER 23, 1999 TERRENCE O'DONNELL, P.J., DISSENTING: I respectfully dissent from the conclusion reached by the majority in this case. Here, Louise Csizmadia appeals from an order of the common pleas court granting summary judgment in favor of Metrohealth Medical Center, thereby denying her claim of wrongful death arising from delivery of her stillborn son after receiving treatment at the medical center. The history of the case reveals that on June 11, 1994, Metrohealth treated Louise for injuries she sustained in a motor vehicle accident and admitted her for observation due to her pregnancy. The medical records indicated a normal fetal heart tone and no vaginal bleeding. Metrohealth subsequently released Louise and informed her that she and the baby appeared healthy. The record further reveals that on June 21, 1994, Louise returned to Metrohealth, complaining of heavy vaginal bleeding. Her complaint alleges that the staff informed her that they would perform a stress test and then a Cesarean Section, however, later -2- that afternoon, Metrohealth discharged Louise. On the following morning, Louise awoke with heavier bleeding and contractions, called 9-1-1 and arrived at Metrohealth, in the process of delivering her baby. She delivered her baby, Julius Csizmadia, Jr., stillborn. Louise filed a complaint alleging that Metrohealth's failure to hospitalize her, administer a stress test, induce labor, perform a Cesarian Section and continuously record the fetal heart monitor, directly and proximately caused Julius' death. In response, Metrohealth moved for summary judgment, alleging that Louise failed to produce any expert evidence to support a claim of negligence or wrongful death and therefore, arguing that she could not sustain her claims. Thereafter, the court entered an order giving her leave until March 13, 1998 to produce expert reports and advising that failure to do so would result in a dismissal with prejudice. On April 3, 1998, Metrohealth filed a second summary judgment motion and in support, submitted two medical reports which had been obtained from Louise's counsel. In the first medical report, Dr. Jerome McTague stated that in his opinion, Metrohealth did not violate the standard of care for emergency medicine. In the second report, Dr. Arthur Ollendorff stated that Metrohealth, in treating Louise, followed a conservative manner after a motor vehicle accident, which is within the standard of care. He further stated that because Louise refused to allow an autopsy to be performed, and because the exact cause of the stillbirth cannot be determined, it is impossible to determine any medical liability. -3- In Louise's response to Metrohealth's motion for summary judgment, she submitted the affidavits of herself and her husband, Julius Csizmadia. In her affidavit, Louise stated that she is the mother and administratrix of the estate of Julius Csizmadia, Jr., that Metrohealth failed to perform a stress test on June 21, 1994, that Metrohealth's statement that her stress test produced a negative result is untrue, and that Metrohealth and its personnel involved in her care were negligent. In his affidavit, Julius stated that he is the father of Julius Csizmadia, Jr., that he accompanied Louise to Metrohealth on June 21, 1994 because she experienced vaginal bleeding, and that Metrohealth failed to perform a stress test on Louise. The court granted summary judgment in favor of Metrohealth on June 19, 1998. Louise now appeals and brings one assignment of error for review. It states: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. THERE WAS A GENUINE ISSUE OF MATERIAL FACT SINCE PLAINTIFF-APPELLANT FILED AN AFFIDAVIT AND DEFENDANTS FILED NO AFFIDAVITS OR OTHER DOCUMENTS UNDER RULE 56(C). Here, Louise maintains that the court erred in granting summary judgment in favor of Metrohealth because it failed to support its motion with affidavits or other evidence listed in Civ.R. 56(C) to establish a lack of genuine issues of material fact and that it is entitled to judgment as a matter of law. Metrohealth maintains the court properly granted summary judgment because Louise failed to produce any expert testimony -4- establishing that the medical treatment she received fell below the recognized standard of care. The issue here then, concerns whether the court correctly determined that Metrohealth is entitled to judgment as a matter of law on these facts in this case. Review of a trial court's entry of summary judgment is de novo; in reaching a decision, an appellate court applies the same test as does the trial court. Maust v. Bank One Columbus (1992), 83 Ohio App.3d 103, 107, 614 N.E.2d 765. In this regard, Civ.R. 56(C) provides: *** 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. Further, the court in Dresher v. Burt (1996), 75 Ohio St.3d 280, the court stated at 293: * * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. * * * If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. I have considered the substantive law of medical malpractice in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, wherein the court stated in its syllabus: In order to establish medical malpractice, it must be shown by a preponderance of the evidence that the injury complained of was caused by the doing of some particular -5- thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things. The court went on to state: Failure to establish the recognized standards of the medical community [is] fatal to the presentation of a prima facie case of malpractice. * * * Proof of the recognized standards must necessarily be provided through expert testimony. In this case, the record reflects that Metrohealth moved for summary judgment on the basis that Louise failed to submit an expert report establishing a prima facie case of negligence against Dr. Britsch, Dr. Hancock-Stewart, Dr. Collins, J. Hunter, R.N., or Metrohealth Medical Center. In support of its motion, Metrohealth filed reports from Dr. McTague and Dr. Ollendorff, which had been obtained through discovery from Csizmadia, and which concluded that there had not been a breach of the standard of care. Since Csizmadia failed to present evidence in accordance with Bruni, the trial court correctly considered the medical expert evidence attached to the motion for summary judgment and properly granted .