DiMarzio v. Norch ( 2021 )

[Cite as DiMarzio v. Norch, 2021-Ohio-592.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JAMES DIMARZIO, ET AL. : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiffs-Appellants : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ELENA K. NORCH, M.D., ET AL. : Case No. 2020CA00117
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2018CV01983
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 4, 2021
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
SIDNEY N. FREEMAN BEVERLY A. SANDACZ
12370 Cleveland Avenue, NW W. BRADFORD LONGBRAKE
P.O. Box 867 DOUGLAS G. LEAK
Uniontown, OH 44685 3737 Embassy Parkway
Suite 100
Akron, OH 44333
Stark County, Case No. 2020CA00117 2
Wise, Earle, J.
{¶ 1} Plaintiffs-Appellants, James DiMarzio and Pamela Ohman-DiMarzio,
appeal the July 27, 2020 judgment entry of the Court of Common Pleas of Stark County,
Ohio, granting summary judgment to Defendants-Appellees, Elena K. Norch, M.D. and
E.K. Norch, Inc.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellee Dr. Norch is appellant James DiMarzio's family physician. Either
in 2014 or 2016, appellant advised appellee of a lesion on his left shoulder. During the
April 2016 visit, appellee determined the lesion was likely a sebaceous cyst. In
November 2016, appellant saw a surgeon, Michael McCormack, M.D., for a consultation
regarding the cyst. Dr. McCormack removed the lesion which was found to be a
melanoma.
{¶ 3} In March 2018, appellant was diagnosed with a metastatic lesion in his
right front parietal lobe. Appellant underwent two procedures, one in March by Mark
Hoeprich, M.D., and one in April by Dr. Khayyat. Pathology indicated that the brain
tumor was a metastatic lesion from the melanoma.
{¶ 4} On October 11, 2018, appellant, together with his wife, filed a complaint
against appellee and her corporation, alleging medical malpractice in failing to "properly
diagnose and treat a left arm skin neoplasm" which deviated from the standard of care.
As a result, appellant James DiMarzio experienced "great pain, suffering, medical
expense, and loss of income."
{¶ 5} On January 2, 2020, appellees filed a motion for summary judgment,
claiming appellants failed to establish a prima facie claim for medical negligence. By
Stark County, Case No. 2020CA00117 3
judgment entry filed July 27, 2020, the trial court agreed and granted the motion, finding
appellants failed to establish causation and the loss of chance doctrine did not apply.
{¶ 6} Appellants filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 7} "THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANTS,
BY GRANTING APPELLEE'S SUMMARY JUDGMENT MOTION, WHEN IT FOUND
THAT THE CROSS-EXAMINATION BY DR. NORCH IN DEPOSITION OF
PLAINTIFFS' EXPERTS FAILED TO RAISE FACTUAL ISSUES FOR RESOLUTION
BY THE JURY AT TRIAL."
I
{¶ 8} In their sole assignment of error, appellants claim the trial court erred in
granting summary judgment to appellees. We disagree.
{¶ 9} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St. 3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any
material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is
Stark County, Case No. 2020CA00117 4
made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St. 3d 509, 511,
628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50
Ohio St. 2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
{¶ 10} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35, 506 N.E.2d 212 (1987).
{¶ 11} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.
15CA56, 2015-Ohio-4444, ¶ 13:
It is well established the party seeking summary judgment bears
the burden of demonstrating that no issues of material fact exist for trial.
Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S. Ct. 2548, 91
L. Ed. 2d 265 (1986). The standard for granting summary judgment is
delineated in Dresher v. Burt (1996), 75 Ohio St. 3d 280 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 that
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 the nonmoving party has no evidence to prove its
case. Rather, the moving party must be able to specifically point to some
Stark County, Case No. 2020CA00117 5
evidence of the type listed in Civ.R. 56(C) which affirmatively
demonstrates 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 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." The record on summary judgment must be viewed
in the light most favorable to the opposing party. Williams v. First United
Church of Christ (1974), 37 Ohio St. 2d 150.
{¶ 12} Appellants alleged appellee "failed to properly diagnose and treat a left
arm skin neoplasm" which deviated from the standard of care. As a result, appellant
James DiMarzio experienced "great pain, suffering, medical expense, and loss of
income."
{¶ 13} In Kester v. Brakel, 10th Dist. Franklin No. 06AP-253, 2007-Ohio-495, ¶
26-27, our colleagues from the Tenth District stated the following:
In order to establish medical malpractice, the plaintiff must prove by
a preponderance of the evidence that the injury complained of was
proximately caused by medical care or treatment that fell below the
recognized standards of medical care in the community. Bruni v. Tatsumi
(1976), 46 Ohio St. 2d 127, 131-132. The failure to prove that the
Stark County, Case No. 2020CA00117 6
recognized standards of the medical community were not met or to prove
that the failure to meet those minimum standards proximately caused the
injury is fatal to a claim of medical malpractice.
Because the standards of the medical community are not common
knowledge, the general rule is that the plaintiff must prove causation
through expert medical testimony. Roberts v. Ohio Permanente Medical
Group, Inc. (1996), 76 Ohio St. 3d 483.
{¶ 14} At some point, appellant advised appellee of a lesion on his left shoulder.
Appellant claims it was in 2014 and appellee claims it was in 2016. The trial court noted
this factual dispute was not relevant. During the April 2016 visit, appellee determined
the lesion was likely a sebaceous cyst and encouraged him to follow up with her if it
continued to bother him. Approximately four months later, appellee saw appellant
again, and again appellee told him to follow up with her if the cyst was still bothering
him.
{¶ 15} In November 2016, appellant saw Dr. McCormack who removed the lesion
which was found to be a melanoma.
{¶ 16} In March 2018, appellant was diagnosed with a metastatic lesion in his
right front parietal lobe. Appellant underwent two procedures, one in March by Dr.
Hoeprich, and one in April by Dr. Khayyat. Pathology indicated that the brain tumor was
a metastatic lesion from the melanoma.
{¶ 17} In its July 27, 2020 judgment entry granting summary judgment to
appellees, the trial court concluded the following: "Plaintiffs fail to meet the standard
necessary to establish a prima facie case that Defendants' negligence proximately
Stark County, Case No. 2020CA00117 7
caused the Plaintiffs' injuries. None of the Plaintiffs' three expert witnesses can
establish the requisite causal link."
{¶ 18} Appellants presented deposition testimony from three experts, William
Hulesch, M.D., Scott McGee, M.D., and Dr. Hoeprich.
{¶ 19} Dr. Hulesch, certified in family practice, testified as to the standard of care,
but did not render an opinion on causation. Hulesch depo. at 87-88, 95-96. He
specifically withdrew a prior opinion on causation. Id. at 95-96.
{¶ 20} Dr. McGee, appellant's treating oncologist, testified he was "given a
request to provide an opinion on survival rates based on the tumor stage for cutaneous
melanoma." McGee depo. at 9. He did not offer any standard of care opinions, did not
opine when appellant became metastatic, and did not testify to causation. Id. at 10, 58,
68-69.
{¶ 21} Dr. Hoeprich, appellant's neurosurgeon, testified that generally, earlier
diagnosis of a melanoma leads to a better prognosis, but he did not speak to appellant
specifically. He did not testify to causation. Hoeprich depo. at 66-69.
{¶ 22} Given the evidence presented for summary judgment purposes, we
concur with the trial court's conclusion that appellants failed "to establish a prima facie
case that Defendants' negligence proximately caused the Plaintiffs' injuries."
{¶ 23} Appellants further argued "loss of chance doctrine" "which provides an
exception to the traditional standard of proximate causation in medical-malpractice
actions." Natoli v. Massillon Community Hospital, 179 Ohio App. 3d 783, 2008-Ohio-
6258, 903 N.E.2d 1226, ¶ 12 (5th Dist.). "Instead of being required to prove with
reasonable probability that defendant's tortious conduct proximately caused injury or
death, the plaintiff, who was already suffering from some disease or disorder at the time
Stark County, Case No. 2020CA00117 8
the malpractice occurred, can recover for his or her 'lost chance' even though the
possibility of survival or recovery is less than probable." Roberts v. Ohio Permanente
Medical Group, Inc., 76 Ohio St. 3d 483, 485, 668 N.E.2d 480 (1996). "[T]he loss-of-
chance doctrine permits an injured plaintiff to recover for the loss of a less than 50-
percent chance of recovery or survival resulting from medical malpractice." McDermott
v. Tweel, 151 Ohio App. 3d 763, 2003-Ohio-885, 786 N.E.2d 67, ¶ 41 (10th Dist.). The
doctrine is "not applicable when the plaintiff demonstrates a more than even chance of a
full recovery with proper diagnosis and treatment." Fehrenbach v. O'Malley, 1st Dist.
Hamilton No. C-040128, 2005-Ohio-5554, ¶ 43.
{¶ 24} Dr. McGee, appellant's treating oncologist, testified at the time of the
melanoma diagnosis in 2016, appellant's ten year survival rate was 75 percent if the
melanoma showed surface ulceration and 83 percent if it did not. McGee depo. at 28-
32. He did not know if the melanoma was ulcerated or not. Id. at 31.
{¶ 25} In its July 27, 2020 judgment entry, the trial court concluded appellant
"had a greater than even chance of survival, which means the loss of chance doctrine is
not available to him in order to bypass the traditional method of proving proximate
cause in a medical malpractice case."
{¶ 26} Given the evidence presented for summary judgment purposes, we
concur with the trial court's conclusion.
{¶ 27} Upon review, we find the trial court did not err in granting summary
judgment to appellees.
{¶ 28} The sole assignment of error is denied.
Stark County, Case No. 2020CA00117 9
{¶ 29} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Baldwin, P.J. and
Wise, John, J. concur.
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