Ronald Mitchell, et al. Paul, Minnesota for appellant James R. The district court errs by weighing evidence or making credibility determinations in deciding a summary-judgment motion. The defendant is not entitled to summary judgment when the plaintiff s evidence, if fully believed, would support a claim for relief.
Attorney s appearing for the Case James R. Williams, Belleville, IL, for appellant. Louis, MO, for respondent. John's Mercy Medical Center, for a "laser hair removal" procedure. Martha McEvoy, "Defendant" a registered nurse, performed the laser hair removal treatment on Plaintiff.
On July 31,Plaintiff filed a lawsuit in the St. Louis County Circuit Court, alleging that she sustained burns to her chin, neck and chest as a result of the laser hair removal treatment. Plaintiff alleged that the device used by Defendant was either defective or malfunctioned, which caused the burns to her chin, neck and chest.
She claimed that Defendant was negligent for 1 failing to test or inspect the laser hair removal device; 2 failing to observe the damage done by the defective laser device before the completion of the treatment; or 3 calibrating or damaging the laser device causing it to lose calibration prior to the Plaintiff's treatment.
She alleged that, as a result of Defendant's negligence, she was injured in that 1 she expended money for necessary medical care, treatment and services and will be required to expend more money in the future; 2 she experienced pain and suffering and will be reasonably certain to experience the same in the future; 3 she suffered a disfigurement as a result of the injury; 4 she suffered humiliation as a result of the scars from her injuries; and 5 she lost wages and will suffer an impairment of future earning capacity.
She alleged that she provided the laser hair removal treatment to Plaintiff "in the course and scope of her employment" with William Hart, M. Defendant also claimed that she provided the laser hair removal treatment to Plaintiff in the "ordinary course of her practice and profession as a registered nurse.
She reasoned that the statute of limitations, Section She attached a five paragraph supporting affidavit. Orthotic and Prosthetic Lab, Inc. Plaintiff argued that laser hair removal was not a health care service and that the five year statute of limitations applied.
Plaintiff filed three photographs of her injuries as an exhibit supporting her response. On January 8,the court heard argument and granted the motion to dismiss. On appeal, Plaintiff contends that the laser hair removal service was not a healthcare service, and therefore the trial court erred in dismissing this action because the medical malpractice statute of limitations is inapplicable to Plaintiff's claim.
Defendant responds that the laser hair removal treatment was a health care service, and Section Standard of Review Defendant filed a motion to dismiss Plaintiff's petition, and attached to the motion an affidavit containing facts outside the pleadings. Plaintiff filed a response to the motion, attaching three photos of her injuries.
Neither Plaintiff nor Defendant objected to the admission of facts outside the record. Defendant argues, and Plaintiff conceded at oral argument, that the motion to dismiss was converted to a motion for summary judgment under Rule Generally, a trial court must give notice to the parties that it is treating the matter as one for summary judgment.
Carroll Motor Company, S. However, notice by the trial court is not required when a party acquiesces in the trial court treating a motion to dismiss as a motion for summary judgment.
When both parties introduce evidence beyond the scope of the pleadings, the motion to dismiss is converted to a motion for summary judgment and the parties are charged with knowledge that the motion was so converted.
Here, both parties presented matters outside the pleadings to the trial court which were not excluded. Neither party objected to the introduction of this evidence and both parties agree that the motion was treated as a motion for summary judgment.
Our review of a grant of summary judgment is de novo. We will uphold the grant of summary judgment on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist.
We view the record in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record.
We accept as true facts contained in affidavits or otherwise in support of a party's motion unless contradicted by the non-moving party's response to the summary judgment motion.
Discussion Plaintiff contends that the trial court erred in dismissing the action because the medical malpractice statute of limitations is inapplicable to her claim. Plaintiff argues that the laser hair removal service provided by Defendant was not a "health care service" as contemplated by Section Defendant, on the other hand, claims that it was a health care service because she performed the procedure during the course of her employment with Dr.
All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of.
Plaintiff and Defendant cite to multiple cases to support their positions. John's Regional Health Center, Inc. Shalom Geriatric Center, S. However, none of these cases is on point.
It appears that the issue of whether laser hair removal is a health care service under the meaning of Section Our research has revealed that laser hair removal is wholly unregulated in Missouri.Fridays, Ohio] STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT SANDRA MITCHELL) CASE NO.
CA) PLAINTIFF-APPELLANT)) VS.) O P I N I O N) FRIDAYS, ET AL. On April 11, , appellant Sandra Mitchell was having dinner at appellee Friday's restaurant (hereinafter “Friday's”).
Appellant was eating a fried clam strip when she bit into a hard substance that she believed to be a piece of a clam shell. Answer to Clamming Up Because of Shell-ShockFACTSOn April 11, , Sandra Mitchell (appellant) was having dinner at Friday’s.
[cite as mitchell vetconnexx.coms, ohio] state of ohio, mahoning county in the court of appeals seventh district sandra mitchell) case no. ca) plaintiff-appellant). SANDRA MITCHELL, PLAINTIFF-APPELLANT VS. FRIDAYS, ET AL., DEFENDANTS-APPELLEES CASE NO.
CA Case Briefing 1. Parties: Identify the plaintiff and the defendant. a. SANDRA MITCHELL, PLAINTIFF-APPELLANT. Makower Abatte Guerra Wegner, et al Plaintiff - Appellant: SANDRA PLETOS and MITCHELL PLETOS Defendant - Appellee: MAKOWER ABATTE GUERRA WEGNER VOLLMER, JOHN FINKELMANN, ROGER PAPA, GIOVAN AGAZZI, CATERINA INTERDONATI, MIKE DESJARDINE, DANNY LANDA, KATIA AZIZ and KIMBERLY GUALDONI.