Scott v. Buckeye Physical Medicine & Rehab-Gahanna, L.L.C.

Citation: 2022 Ohio 1866Docket: 21AP-317

Court: Ohio Court of Appeals; June 2, 2022; Ohio; State Appellate Court

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In Scott v. Buckeye Physical Medicine, the Ohio Court of Appeals addressed an appeal involving allegations of chiropractic malpractice that occurred in February 2017. The plaintiffs, Brian Scott and his minor daughter K.S., filed suit against Buckeye Physical Medicine, chiropractor Daniel W. Reed, and nurse Cindy A. Sutantio, claiming negligent injury to K.S. After voluntarily dismissing the case in May 2018, Scott refiled in May 2019, with a modified case schedule that included various deadlines. By May 2021, despite having relevant medical records since fall 2018, the plaintiffs could not identify an expert witness to support their claims. Consequently, the trial court granted summary judgment in favor of the defendants due to the plaintiffs' failure to provide essential evidence. The court affirmed that it did not abuse its discretion in adhering to the litigation schedule. The plaintiffs' late motion to amend the case schedule, citing delays in defendants' discovery responses, was made shortly before critical deadlines, coinciding with the defendants' motions for summary judgment. The court noted the plaintiffs' arguments for additional time lacked merit, leading to the affirmation of the lower court's decision.

The Scotts did not adequately respond to summary judgment motions filed by defendants, only making vague references in their Reply regarding amendments to the case schedule. The trial court waited approximately two months before notifying the parties of a hearing concerning postponement and summary judgment motions. The Notice indicated that the Scotts alleged that two shots given to K.S. in early 2017 caused her sciatica due to improper drug administration and negligence by the chiropractor and nurse, with Buckeye Physical Medicine held liable under respondeat superior. The trial court noted that expert testimony was necessary to establish standard of care and causation, yet the Scotts failed to disclose any expert witnesses by the January 15, 2021 deadline.

Defendants moved for summary judgment, citing the absence of expert testimony required to present the case to a jury. Although the Scotts sought more time to identify an expert, nothing was filed to indicate they had done so. During a May 13, 2021 hearing, the Scotts' counsel acknowledged the critical need for an expert, admitting that without one, their case would fail. The court expressed concern over the lack of progress and noted the lengthy delays in the proceedings. The Scotts' reluctance to hire an expert without complete information was cited, but the court emphasized that it was unusual for a case to proceed without at least a tentative expert lined up by that stage.

Ultimately, on May 14, 2021, the trial court denied the Scotts' motion to modify the case schedule and granted summary judgment to the defendants, citing the Scotts' failure to identify any expert witnesses and the approaching trial date.

The trial court emphasized that the plaintiffs failed to identify any potential expert witnesses essential for their case, despite the long-standing need for expert testimony. The complete medical records from Buckeye Physical Medicine, including Dr. Reed's notes, were available to the plaintiffs since October 2018, alongside K.S.'s own testimony regarding her treatment in 2017. However, even after years, the plaintiffs did not present any expert opinion, leading to the conclusion that no qualified doctor could meet the expert testimony requirements under Evid. R. 601(E) and R. 702. The court dismissed the case on May 25, 2021, after three years, highlighting the defendants' right to closure on the allegations. 

On appeal, the Scotts argued that the trial court abused its discretion by denying their request for additional time to conduct discovery and obtain an expert report after receiving late responses from the defendants. They contended that the defense's motions for summary judgment effectively transformed their request into a motion for continuance under Civil Rule 56(F). Although the Scotts filed their motion before the summary judgment motions, they did not provide the necessary affidavit explaining their inability to respond as required by the rule. The trial court found their motion reasonable but noted that mere requests for postponement were insufficient without substantiating evidence. The Scotts had access to relevant medical records for years and received full discovery in December 2020, shortly before their motion to amend. They had previously agreed to a final scheduling order that required them to identify witnesses by January 15, 2021, without presenting any expert by the March 2021 deadlines. The court found no merit in the Scotts' arguments regarding the expert’s ability to opine on Buckeye Physical Medicine's liability without adequate records or testimony.

Derivative liability for the Scotts hinges on proving that a doctor or nurse breached the standard of care, resulting in harm to K.S. This necessitates expert testimony, which the Scotts failed to secure. Without such testimony, any evaluation of training by Buckeye Physical Medicine is irrelevant. The need for expert evidence was evident from the start, intensified by the scheduling order, summary judgment motions, and the notice for the motions hearing. The trial court retains discretion to grant or deny continuances, evaluated through an Unger balancing test that considers factors such as the length of delays, previous continuances, inconvenience to parties, legitimacy of reasons for delay, and the movant's contribution to the situation. The Scotts requested a three-month extension after missing a witness identification deadline without prior motions for extension. Given these circumstances, the trial court did not abuse its discretion in denying the Scotts’ late motion for additional time to find an expert witness. Despite delaying the hearing until mid-May 2021, the Scotts still had not secured an expert just weeks before the dispositive motion date. Consequently, the court overruled the Scotts' assignment of error and affirmed the judgment of the Franklin County Court of Common Pleas. DORRIAN and MENTEL, JJ., concur. NELSON, J., retired, is assigned to active duty under the Ohio Constitution, Article IV, Section 6(C).