Roberts v. Frasier

{¶ 34} I disagree. The trial court correctly noted that Roberts's own expert, Mark Landon, M.D., stated that Dr. Banias had met the standard of care in his treatment of Roberts. Lacking an expert, appellant sought to "misappropriate" (rely) upon Dr. Baha M. Sibai, an expert who had been named by a codefendant, Dr. Frasier. This came about some three-plus years into the original complaint of medical malpractice. This certainly can be likened to changing horses in the final stretch — a risky maneuver, to be sure, but allowable, since Dr. Sibai's name appeared on the witness list of a codefendant, Dr. Frasier, and appellant reserved the right to call defense experts. However, if you are going to change horses, find one that is able/willing to cross the finish line.

{¶ 35} The real difficulty for appellant, as the trial court correctly noted, is that the deposition testimony of Dr. Sibai fails to create a genuine issue of material fact establishing that any alleged malpractice by Dr. Banias proximately caused Mrs. Roberts's death.

{¶ 36} The majority concludes that it is clear that Dr. Sibai considered substandard care by Dr. Banias to have been the proximate cause of Mrs. Roberts's death. This is not clear, however, from his entire testimony. In fact, Dr. Sibai failed to provide any medical opinion within a reasonable degree of medical certainty or probability as to the proximate cause of Mrs. Roberts's death. Unless an expert expresses his or her opinion in terms of probability, the testimony shall be excluded as speculative. Shumaker v.Oliver B. Cannon Sons, Inc. (1986),28 Ohio St.3d 367, 28 OBR 429, 504 N.E.2d 44. Appellant failed to put forth competent evidence on the issue of proximate cause. It cannot simply be inferred. A thorough review of Dr. Sibai's deposition reveals that he was unable or unwilling to testify to a reasonable degree of medical certainty that any alleged breach of duty by Dr. Banias proximately caused Mrs. Roberts's death as a result of pulmonary edema.

{¶ 37} The testimony of Baha Sibai, M.D., codefendant Dr. Frasier's expert, is relied upon by appellant as the sole support for his opposition to Dr. Banias's motion. Dr. Sibai is not a pulmonary specialist, nor was he subject to examination by Dr. Banias's counsel, since his deposition was taken when Dr. Banias had been dismissed from the case.

{¶ 38} The testimony of Dr. Sibai is laden with instances in which either no facts are offered to support his criticisms or his understanding of those facts is not established:

{¶ 39} 1. Dr. Sibai speculate that the plaintiffs oxygen saturation level was 90-92, when it was actually 95-96.

{¶ 40} 2. Dr. Sibai testified that Dr. Siva told Dr. Banias, "Yes, you should come right now and assume the care of this patient," when there is no indication in the record that Dr. Siva said any such thing.

{¶ 41} 3. Dr. Sibai criticized the fact that Swan-Ganz catheterization and positive pressure breathing were not used by Dr. Banias, then admitted that that treatment might not have made a difference.

{¶ 42} 4. Dr. Sibai speculates as to whatmight have occurred had a pulmonary specialist been involved and, when asked to clarify his conclusion, said, "I don't want to speculate, but all I am saying is that I don't know whether somebody have [sic] done the right thing at that time what would have been the response."

{¶ 43} Speculation and inferences are not adequate to support plaintiffs claims against Dr. Banias. Dr. Sibai's testimony does not constitute competent opinion testimony, is little more than an inference on inference, and cannot be considered as having appropriate probative force.

{¶ 44} Appellant is required toestablish, through expert testimony, (a) the prevailing standard of care of doctors under similar circumstances, (b) the defendant doctor's deviation from that standard of care, and (c) that the deviation by the defendant doctor proximately caused the plaintiffs injuries. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 132, 75 O.O.2d 184, 346 N.E.2d 673, 677-678. More specifically, appellant must demonstrate that "the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions and 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" thereof. Id. at 127, 75 O.O.2d 184, 346 N.E.2d 673. Appellant has not done so, even construing the testimony of Dr. Sibai in a light most favorable to plaintiffs case.

{¶ 45} Dr. Sibai clearly did not adequately testify regarding proximate causation: in fact, he declined to do so. Jurors are not permitted to speculate concerning the prospects of success from a course of medical treatment without medical testimony concerning both the appropriate treatment and the probability of success, since these matters are not within the common knowledge of laypersons. Sweeney v. DeaconessHosp. of Cleveland, (Dec. 30, 1993), Cuyahoga Cty.App. Nos. 64349, 64357, 1993 WL 541589.

{¶ 46} I would affirm the trial court's grant of summary judgment.