U7-24o0 DEC CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO VINCENT TURNER. Appellants, Appellees

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1 IN THE SUPREME COURT OF OHIO VINCENT TURNER Appellants, V. WOOSTER COMMUNITY HOSPITAL, et al. Appellees U7-24o0 On Appeal from the Wayne County Court of Appeals, Ninth Appellate District Court of Appeals Case No. 07-CA-0064 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT VINCENT TURNER Re: Journal Entry of November 9, 2007 Martin S. Delahunty III # Elk and Elk Co. Ltd Parkland Blvd., Suite 100 Mayfield Heights, Ohio (440) ; Fax (440) Attorneys for Plaintiff-Appellant Wooster Community Hospital Gregory Rossi, Esq. # Hanna, Campbell & Powell 3737 Embassy Parkway, Suite 100 Akron, OH (330) ; Fax (330) (216) ; Fax (216) Attorneyfor Defendant-Appellee Wooster Community Hospital DEC CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS Paee EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS... 3 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW... 4 Proposition of Law No. 1: 1. A COURT OF APPEALS ABUSES ITS DISCRETION WHEN IT DISMISSES AN APPEAL FOR APPELLANT'S FAILURE TO TIMELY FILE HIS MERIT BRIEF WHERE THERE IS NO SHOWING OF AN INTENTIONAL DISREGARD FOR PROCEDURE...4 CONCLUSION... 5 PROOF OF SERVICE... 6 APPENDIX Appx. Pa Decision and Journal Entry of the Wayne County Court of Appeals (November 9, 2007)... A

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC AND GREAT GENERAL INTEREST The Wayne County Court of Appeals has unjustly refused to hear an appeal of right because the Appellant inadvertently failed to file his Merit Brief timely. The Appellant's brief was originally due on October 22, 2007, but due to complications related to their recent move, the notice of filing the record was misdirected. Appellant's counsel explained the situation to the Ninth District in a Motion for Extension that was filed on November 1, That motion was denied and the appeal was dismissed, as more fully set forth in the Ninth District's judgment entry attached hereto as Appendix A. By refusing to grant Appellant's Motion for extension, and subsequently dismissing the appeal, the Ninth District has divested the Appellant of his right to appeal and abused its discretion. Such actions are contrary to the right of due process afforded to him by the Ohio and United States Constitutions. Accordingly, this Court, should exercise jurisdiction over this matter and remand the case back to the Ninth District with instructions to decide this matter on its merits. 1

4 STATEMENT OF THE CASE AND FACTS This case involves a medical malpractice claim. In the case at bar, the Plaintiff-Appellant's expert opined that a Demoral overdose was the proximate cause of Gardinia Turner's death. The only issue of material fact which remained, therefore, was whether a deviation of the standard of care caused that overdose. In his deposition, the decedent's treating physician, James Hessler, M.D., a qualified expert on the applicable standard of care herein, testified that if his order for 25 to 50 milligrams of Demerol every two hours had been followed, then one would not expect to find an abnormally high level of that drug in the patient's system. Assuming that Gardinia Tumer died from a Demoral overdose, which is an established issue in this case, then it perfectly permissible under Morgan v. Children's Hospital(1985), 18 Ohio St. 3d 185, for Dr. Hessler to conclude that but for a disregard of his orders, and thus a breach of the standard of care, Gardinia Turner would not have been found to have abnormally high levels of Demoral in her system. If his orders been followed, Gardinia Turner would still be with us today. The trial court incorrectly ruled that the doctrine of res ipsa loquitor is inapplicable herein. That ruling flatly contradicts this Court's controlling authority set forth in Morgan, where this court held that a) a trial court can adapt res ipsa loquitur to malpractice by requiring expert testimony that the injury bespeaks negligence; and b) a court may not refuse as a matter of law to instruct on the doctrine of res ipsa loquitur merely upon the basis that the defendant's evidence sufficiently rebuts the making of such an inference. By the action of the Ninth District Court of Appeals, this legal issue will not be heard on its merits. The misdirection of the court's App. R. I 1(B) notice evinced no disregard for the rules of procedure or for the rights of the Appellee, and the Court below abused its discretion by dismissing 2

5 the appeal. Moreover, for an intermediate court of appeals to dismiss an appeal before hearing it on the merits destroys the single appeal of right that due process requires for a civil claimant. Therefore, Appellant's submit that a discretionary dismissal by an intermediate court of appeals, which adjudicates the case with finality, but without hearing the merits of the case, is itself subject to an appeal of right. STATEMENT OF FACTS Gardinia Turner was being treated by Dr. James Hessler for a sleep apnea condition. As a result of her condition, Dr. Hessler recommended a tonsillectomy, which was performed at Wooster Community Hospital by Dr. Hessler. Subsequent to that surgery Ms. Turner suffered some respiratory problems and was transferred to the intensive care unit. Dr. Hessler ordered 25 to 50 milligrams of the drug Demerol every two hours to control pain. Ms. Turner received the first six doses of the drug without any problem. Within two minutes of the seventh dose, however, Ms. Turner experienced severe respiratory distress and went into complete respiratory failure. During the code, she was unable to be respirated. She did swell, but Plaintiff-Appellant's expert has opined that this resulted from the medicals staffls efforts to push air into the lungs which instead traveled into the subcontanious tissue around the body. The dispute between the two parties is that the Defendant-Appellee contends that Ms. Tumer died from an anaphylactic reaction, whereas the Plaintiff-Appellant contends that she died from a Demerol overdose. In support of the Plaintiff-Appellant's position is the coroner's report which shows levels of Meperidine (Demerol) in excess of five times the high end of the therapeutic level. In his deposition, Dr. Hessler testified that if his order for 25 to 50 milligrams of Demoral every two hours had been followed, then Ms. Turner would not have overdosed from the Demoral. 3

6 The Defendant-Appellees moved for summary judgment, relying upon inapposite and antiquated case law for the proposition that an alternative theory of causation, other than a defendant's negligence, precludes the application of res ipsa loquitor. For the reasons more fully set forth below, this argument has expressly been rejected by this Court in Morgan v. Children's Hospital (1985), 18 Ohio St. 3d 185, which held that a) a trial court can adapt res ipsa loquitur to malpractice by requiring expert testimony that the injury bespeaks negligence; and b) a court may not refuse as a matter of law to instruct on the doctrine of res ipsa loquitur merely upon the basis that the defendant's evidence sufficiently rebuts the making of such an inference. An Appeal to the Ninth District Court of Appeals timely followed, but due to the inadvertant failure of Appellant to file his merit brief timely, the appeal was dismissed. That dismissal constitutes the basis of this appeal. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. 1: 1. A COURT OF APPEALS ABUSES ITS DISCRETION WHEN IT DISMISSES AN APPEAL FOR APPELLANT'S FAILURE TO TIMELY FILE HIS MERIT BRIEF WHERE THERE IS NO SHOWING OF AN INTENTIONAL DISREGARD FOR PROCEDURE The Ninth District Court of Appeals abused its discretion when it dismissed Appellant's appeal due to an inadvertent procedural oversight. Every litigant in Ohio is entitled to an appeal as of right *** by filing a notice of appeal * * * within the time allowed ***." *** It is well-established that every injured party "shall have remedy by due course of law, and shall have justice administered without denial or delay." Section 16, Article I, Ohio Constitution. Moldovan v. Cuyahoga County Welfare Dep't ( 1986), 25 Ohio St. 3d 293, 295, quoting Bosco v.. 4

7 Euclid (1974), 38 Ohio App. 2d 40, It is fundamental to our system, under both the federal and state constitutions, that one appeal of right of a j udicial disposition of a cause is required for procedural due process. There is absolutely no reason why this principle does not apply equally to a dismissal made by an intermediate court of appeals. The alternative is for a lower court to have unfettered discretion to arbitrarily dismiss perfected appeals, with only the limited opportunity for review that is allowed by this Court's discretion. It cannot be denied that discretionary review is-obviously, and necessarily-far less available than a review of right. But if this cause is found to have been destroyed by the circumstances described, fairness would require one review of right of the lower court's action. CONCLUSION For the reasons discussed above, this case raises a significant constitutional question. The Appellants request that this Court grant jurisdiction and allow this case so that the important issues presented in this case will be reviewed on the merits. Respectfully submitted, MARTIN S. DELAHUNTY, ESQ. PETER D. TRASKA, ESQ. ELK & ELK CO., Ltd 6105 Parkland Boulevard Mayfield Heights, Ohio (440) COUNSEL FOR APPELLANT, Vincent Turner 5

8 PROOF OF SERVICE I hereby certify that a copy of this Notice of Appeal was sent by First Class U.S. mail to Counsel for Appellees on December 21, 2007: Gregory Rossi, Esq. Hanna, Campbell & Powell 3737 Embassy Parkway, Suite 100 Akron, OH Attorney for Defendant-Appellee Wooster Community Hospital 1VIARTIN"S. DELAHUNTY, ESQ. PETER D. TRASKA, ESQ. COUNSEL FOR APPELLANT, Vincent Turner 6

9 APPENDIX I. Decision and Journal Entry of the Wayne County Court of Appeals (November 9, 2007)

10 I STATE OF OHIO } IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE },: y _': ^ gtl^, D;^'"'.1GT ' -, VINCENT TURNER CO'+i '"r: ci No. 07CA0064 Annellant Z^^ ^ImIil V. WOOSTER COMMUNITY HOPSITAL, et al., Appellee JOURNAL ENTRY On October 30, 2007, appellee moved to dismiss this appeal for appellant's failure to file a brief. Appellant's brief was due on October 22, On November 1, 2007, appellant filed a motion requesting a twenty-day extension from October 22, 2007, in which to file the brief. Counsel for appellant states that the notice of filing the record was received but was misdirected during the law firm's recent move. The motion for an extension is denied. The appeal is dismissed. Costs are taxed to the appellant. The clerk of courts is ordered to mail a notice of entry of this judgment to the parties and make a notation of the mailing in the docket, pursuant to App.R. 30, and to provide a certified copy of the order to the clerk of the trial court. The clerk of the trial court is ordered to provide a copy of this order to the judge who presided over the trial court action. c^,aqy-^ ^ ^^ ^' J ;.^G Judge EXHIBIT 14

11 TIM NEAL, CLERK WAYNE COUNTY COMMON PLEAS COURT 107 W. LIBERTY ST., P O BOX 507, WOOSTER, OHIO Phone: (330) Fax: (330) NINTH DISTRICT COURT OF APPEALS November 9, 2007 CASE NO.: CAPTION: FILING: 07-CA-0064 VINCENT TURNER JOURNAL ENTRY: VS. APPELLANT'S MOTION FOR WOOSTER COMMUNITY EXTENSION DENIED.. APPEAL HOSPITAL ET AL IS DISMISSED...

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 YVONNE HORSEY, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : THE CHESTER COUNTY HOSPITAL, : WALEED S. SHALABY, M.D., AND : JENNIFER