Jenkins v. Karl HC, L.L.C.

[Cite as Jenkins v. Karl HC, L.L.C., 2020-Ohio-1137.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
William Jenkins, :
Plaintiff-Appellant, : No. 19AP-572
(C.P.C. No. 17CV-7371)
v. :
(REGULAR CALENDAR)
Karl HC, LLC d.b.a. Villa Angela :
Care Center et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on March 26, 2020
On brief: Percy Squire Co., LLC, and Percy Squire, for
appellant.
On brief: Tucker Ellis LLP, Susan M. Audey, Ernest W.
Auciello, Jr., and Jane F. Warner, for appellee Karl HC, LLC,
d.b.a. Villa Angela Care Central. Argued: Susan M. Audey.
On brief: Reminger Co., L.P.A., David H. Krause, and
Melvin J. Davis, for appellee Thomas McEldowney, D.O.
Argued: Melvin J. Davis.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, William Jenkins, appeals from a decision and entry of the
Franklin County Court of Common Pleas granting the motions for summary judgment of
defendants-appellees, Karl HC, LLC and Thomas McEldowney, D.O. For the following
reasons, we affirm.
No. 19AP-572 2
I. Facts and Procedural History
{¶ 2} Karl HC owns and operates a nursing home doing business as Villa Angela
Care Center, providing skilled nursing care to its residents. From 2014 to 2015, Jenkins
was a resident at Villa Angela, where he was under the treatment of Dr. McEldowney and
other unnamed defendants. In December 2014, Jenkins received treatment outside of Villa
Angela for wounds on his lower extremities. Following that treatment, Jenkins returned to
Villa Angela, and he alleged that the wounds on his legs developed and worsened as a result
of appellees' failure to adhere to the wound care orders of his outside treating physician,
Dr. Anthony Cozzolino. Eventually, the condition of the wounds deteriorated to the point
that Jenkins had his leg amputated.
{¶ 3} On August 16, 2017, Jenkins filed a complaint against Villa Angela, Dr.
McEldowney, and unnamed plaintiffs for what he deemed their "medical malpractice
and/or nursing negligence" as a result of the wound care they provided him, resulting in
surgical procedures and amputation of his leg. (Compl. at ¶ 17.) After the trial court granted
his request for an extension of time to file an affidavit of merit, Jenkins eventually
supported his complaint with an affidavit of merit from Dr. Anthony Williams.
{¶ 4} Through the course of discovery, Jenkins identified Dr. Cozzolino, his
treating podiatrist, as his wound care expert witness. In his deposition, Dr. Cozzolino
testified that the care Villa Angela rendered to Jenkins was not a direct and proximate cause
of Jenkins' leg amputation. He further testified that he was unable to say that any injury
"causally" happened to Jenkins as a result of the care rendered by the Villa Angela staff
because "at the time [Jenkins] switched facilities, he was actually doing well." (Cozzolino
Dep. at 154.)
{¶ 5} On April 9, 2019, Dr. McEldowney filed a motion for summary judgment.
Karl HC filed its own motion for summary judgment on April 11, 2019. Appellees argued
in their separate motions for summary judgment that because Jenkins had failed to provide
expert testimony to support his claim that the care he received at Villa Angela led to his
worsening leg wounds and subsequent amputation, appellees were entitled to judgment in
their favor. Jenkins opposed the motion, arguing that his claim did not require expert
testimony because it was a claim for "ordinary negligence" rather than a medical claim.
(Plaintiff's Memo. in Opp. at 5.) Along with his memorandum in opposition to appellees'
No. 19AP-572 3
motions for summary judgment, Jenkins filed his own affidavit in which he asserted his
injuries were caused by the actions of Villa Angela and Dr. McEldowney.
{¶ 6} In a July 29, 2019 decision and entry, the trial court granted the motions for
summary judgment of Karl HC and Dr. McEldowney. Specifically, the trial court found that
Jenkins' claim "is clearly a medical malpractice claim, not a simple negligence claim."
(Decision & Entry at 2.) The trial court found that Jenkins could not rely on his own
affidavit to create an issue of fact regarding his medical claims, and it noted that much of
Jenkins' affidavit relied on hearsay. Thus, the trial court found that Jenkins pointed to no
Civ.R. 56 evidence to support his claim that either appellees breached a standard of care or
that there was proximate cause between the medical negligence and Jenkins' injury. The
trial court entered judgment in favor of appellees. Jenkins timely appeals.
II. Assignment of Error
{¶ 7} Jenkins assigns the following error for our review:
The trial court erred when it concluded that expert testimony
was required to overcome Defendants' motion for summary
judgment.
III. Standard of Review and Applicable Law
{¶ 8} An appellate court reviews summary judgment under a de novo standard.
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio
Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is appropriate
only when the moving party demonstrates (1) no genuine issue of material fact exists,
(2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds
could 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 entitled to have the evidence
most strongly construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997).
{¶ 9} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case; the
No. 19AP-572 4
moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
affirmatively demonstrating that the nonmoving party has no evidence to support the
nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the
moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with
specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430;
Civ.R. 56(E).
IV. Analysis
{¶ 10} In his sole assignment of error, Jenkins argues the trial court erred in
granting appellees' motions for summary judgment. More specifically, Jenkins asserts the
trial court erroneously concluded that expert testimony was required to create a genuine
issue of material fact sufficient to overcome appellees' motions for summary judgment.
{¶ 11} In order to establish a claim of medical negligence, a plaintiff must show
(1) the existence of a standard of care recognized within the medical community, (2) the
breach of that standard of care by defendant, and (3) proximate cause between the breach
of the standard of care and the injury. Adams v. Kurz, 10th Dist. No. 09AP-1081, 2010-
Ohio-2776, ¶ 11, citing Williams v. Lo, 10th Dist. No. 07AP-949, 2008-Ohio-2804, ¶ 11.
Additionally, "[e]xpert testimony is necessary to prove the elements of medical malpractice
'whenever those elements are beyond the common knowledge and understanding of the
jury.' " Id., quoting Williams at ¶ 11, citing Campbell v. Ohio State Univ. Med. Ctr., 10th
Dist. No. 04AP-96, 2004-Ohio-6072, ¶ 10. If the moving party produces expert testimony
in support of its motion for summary judgment, the nonmoving party can only overcome
summary judgment by submitting contrary expert testimony " 'unless the standard of care
is so obvious that non-experts can reasonably evaluate the defendant's conduct.' " Adams
at ¶ 11, quoting Williams at ¶ 11.
{¶ 12} Both in response to appellees' motions for summary judgment in the trial
court and on appeal, Jenkins asserts he did not need to present contrary expert witness
testimony in order to overcome appellees' motions for summary judgment. He argues both
that his claim is one of ordinary negligence, not medical negligence, and that it presents a
matter of common knowledge and experience that does not require expert testimony. In
support, Jenkins relies on the "common knowledge exception" to the requirement of expert
No. 19AP-572 5
testimony in medical negligence cases, wherein "no expert testimony is required to
establish a medical malpractice claim when the defendant's lack of skill or care is so
apparent as to be within the comprehension of laymen, and requires only common
knowledge and experience for an understanding of it." Cunningham v. Children's Hosp.,
10th Dist. No. 05AP-69, 2005-Ohio-4284, ¶ 19, citing Bruni v. Tatsumi, 46 Ohio St.2d 127,
130 (1976).
{¶ 13} We do not agree with Jenkins' attempts to recast his complaint to cure the
deficiencies in his opposition to appellees' motions for summary judgment. Instead, we
agree with appellees that Jenkins' claim can be construed only as a medical negligence
claim. Indeed, in his complaint, Jenkins specifically alleges appellees "deviated from the
standard of care that a reasonable physician would have exercised" and that appellees "fell
below the acceptable standards of medical care." (Complaint, ¶ 20, R. 755.) See, e.g., Amos
v. Van Aman, 10th Dist. No. 19AP-164, 2019-Ohio-5324, ¶ 9 (noting a plaintiff's supposed
claims for battery and negligence that arose out of injuries she allegedly sustained during
surgery "arose out of medical treatment, and thus, constitute medical claims"). We also
note that Jenkins demonstrated his understanding that he was alleging a medical claim by
filing an affidavit of merit in support of his claim as required by Civ.R. 10(D)(2)(a).
{¶ 14} Moreover, as to Jenkins argument that the "common knowledge exception"
would apply here to obviate the need for him to produce contrary expert testimony to
overcome appellees' motion for summary judgment, we are mindful that "[t]he common
knowledge exception has a limited scope in a world of increasing medical complexity."
Cunningham at ¶ 20, 21 (noting application of the common knowledge exception is
typically applicable "in cases dealing with gross inattention during patient care or
miscommunication with a patient"), citing Buerger v. Ohio Dept. of Rehab. & Corr., 64
Ohio App.3d 394, 399 (10th Dist.1989). Here, Jenkins alleges appellees failed to adhere to
wound care orders of his treating physician, that his wounds worsened because of appellees,
and that appellees conduct caused him to undergo additional surgeries. Because Jenkins'
allegations of negligence relate directly to appellees' professional skill and judgment, these
matters are not within the common knowledge and experience of laymen. Cunningham at
¶ 23. Therefore, we conclude the standard of care required for the treatment of wound care,
and whether a breach of such standard of care could lead to amputation, are matters "not
No. 19AP-572 6
sufficiently obvious that nonprofessionals could reasonably evaluate the [appellees']
conduct," and, thus, expert testimony is required to establish the appropriate standard of
care and any proximate cause of Jenkins' injuries. Cunningham at ¶ 22, citing Wright v.
Hamilton, 141 Ohio App.3d 296, 302 (12th Dist.2001).
{¶ 15} Thus, having determined that Jenkins' claim was for medical negligence, we
further find appellees that satisfied their initial burden under Civ.R. 56 to show that Jenkins
has no evidence to support his claim. Specifically, appellees relied on the expert testimony
of Dr. Cozzolino, Jenkins' treating physician, that he could not say there was any causal link
between the care Jenkins received at Villa Angela and his injuries. Jenkins points to no
contrary expert testimony to overcome appellees' motions for summary judgment. Thus,
we agree with the trial court that there remains no genuine issue of material fact on the
elements of Jenkins' medical negligence claim. Accordingly, the trial court did not err in
granting appellees' motions for summary judgment. We overrule Jenkins' sole assignment
of error.
V. Disposition
{¶ 16} Based on the foregoing reasons, the trial court did not err in granting
appellees' motions for summary judgment. Having overruled Jenkins' sole assignment of
error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and NELSON, JJ., concur.