Evangelista v. Black , 97 Ohio App. 390 ( 1953 )

With regard to Dr. English, a general practitioner, there is no evidence from which an inference of negligence proximately contributing to plaintiff's damage can be drawn, nor am I willing to concede that the negligence of a surgeon who may be recommended or whose advice may be obtained by a general practitioner may be imputed to the latter.

With regard to Dr. Black, an oral surgeon, the evidence discloses a poor result from his treatment in contrast with a favorable result of the second operation by the plastic surgeon. There is no evidence to indicate the standard of care which the defendant Black should have exercised. Cf. 162 A. L. R., 1275;Ewing v. Goode, 78 F. 442, 443.

A presumption of negligence is never indulged from the mere fact of injury, and the burden is on the plaintiff to prove the negligence of the defendant and that such negligence is a proximate cause of injury and damage. The plaintiff must show by a preponderance of the evidence that the defendant in the performance of his service either did some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would not have done under the same or similar circumstances, or that the defendant failed or omitted to do some particular thing or things which physicians and surgeons of ordinary care, skill and diligence would have done under the same or similar circumstances. Ault v. Hall, 119 Ohio St. 422,164 N.E. 518, 60 A. L. R., 128; Kuhn v. Banker, 133 Ohio St. 304, 13 N.E.2d 242, 115 A. L. R., 292. In the case ofBradshaw v. Wilson, 87 Ohio App. 319, 94 N.E.2d 706, it was held that in the absence of evidence to support the technical proposition that the reduction of the fracture was negligently performed, the judgment would have to be affirmed. The judgment was reversed upon the ground that there was sufficient evidence of neglect of the patient without expert medical testimony upon which to draw an inference of negligence.

In Hall v. Nagel, 139 Ohio St. 265, 39 N.E.2d 612, there was expert testimony that the break was of such a nature that it could have been set with good results in the usual and ordinary way. By way of contrast, in the instant case there is no showing that Dr. Black failed to pursue the usual and normal procedure in the reduction of the fracture.

The judgment should be affirmed.