Ater ex rel. Ater v. Follrod, No. C2-00-934.
| Decision Date | 17 September 2002 |
| Docket Number | No. C2-00-934. |
| Parties | Wendell E. ATER II, a Minor By and Through his Mother and Next Friend Cheryl ATER, et al., Plaintiffs, v. Phyllis FOLLROD, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Harold Lee Thompson, H. Lee Thompson & Associates, Columbus, OH, Leslie Frank Weisbrod, David Robert Norton, Leanna Marchand, Dallas, TX, William A. Newman, Dallas, TX, Robert Joseph Byrne, Ohio Attorney General, Columbus, OH, for Plaintiffs.
Warren Michael Enders, Amy M. Fulmer-Stevenson, Reminger & Reminger, Co., L.P.A., Columbus, OH, William R. Thomas, William R. Thomas Co. LPA, Delaware, OH, for Defendants.
Plaintiff Wendell E. Ater II ("Wendell II"), and his parents, Cheryl and Wendell Ater, Jr., brought this medical malpractice action against Madison County Hospital and several of its employees ("Madison County Hospital defendants"), Dr. Hong Kim, Cheryl Ater's obstetrician, and Dr. Sooja Kim, Wendell II's pediatrician ("defendant doctors"), seeking to recover damages for injuries sustained by Wendell II in connection with his birth. Jurisdiction is based on diversity of citizenship. This matter is currently before the Court on several motions, all concerning the issue of whether Plaintiffs' claims are barred by the "double dismissal" rule and the doctrine of res judicata: (1) Madison County Hospital defendants' motion for summary judgment (Record at 40); (2, 3) Plaintiffs' motions for summary judgment on the res judicata defenses raised by defendant doctors and by the Madison County Hospital defendants (Record at 42 and 43); and (4) Defendant doctors' cross motion for summary judgment on the res judicata defense (Record at 49).
On August 30, 1995, Cheryl Ater, approximately thirty-two weeks pregnant with her third child, arrived at Madison County Hospital, reporting that her baby had not moved for two days. Her obstetrician, Dr. Hong Kim, conducted fetal heart monitoring and sent her home with instructions to return the following day. She returned to the hospital on August 31 1995 and was admitted. On September 1, 1995, she gave birth to a baby boy, Wendell II, by Cesarean section. When Wendell II was born, he had difficulty breathing and suffered from severe hypoxia. His pediatrician, Dr. Sooja Kim, eventually transferred him to Children's Hospital in Columbus.
Plaintiffs allege that Wendell II suffered from persistent fetal distress in the seventy-two hours prior to his birth and that, as a result of Defendants' negligence in managing Cheryl Ater's labor and delivery, Wendell II suffers from permanent brain damage and cerebral palsy. Plaintiffs have filed a total of four lawsuits seeking damages from the health care professionals who provided medical care during Mrs. Ater's pregnancy, labor, and delivery. The Court will label these, in chronological order, Ater I, Ater II, Ater III, and Ater IV.
On January 24, 1997, Wendell II, a minor, by and through his mother and next friend, Cheryl Ater, along with his parents, Wendell Ater, Jr. ("Wendell, Jr.") and Cheryl Ater, filed a medical malpractice suit in the Madison County Court of Common Pleas, Case No. 97CV-01-038 (hereafter "Ater I"). They named as defendants Madison OB-GYN, Inc., Hong Kim M.D., Sooja Kim, M.D., Madison County Hospital, Inc., Mark Garwood, D.O., Madison United Lab, Inc., J.C. Starr, M.D., and other John and Jane Does who allegedly provided negligent medical care to Cheryl Ater and Wendell II.
In Ater I, Wendell II alleged that Defendants fell below the standard of care by negligently: (1) conducting a pregnancy screening test on his mother, Cheryl Ater, and/or failing to properly interpret the pregnancy screening test; (2) administering Depo-Provera to Cheryl Ater when she was pregnant; (3) failing to properly follow-up and monitor the course of her pregnancy after it was discovered that she had received Depo-Provera while pregnant; and (4) failing to obtain Mrs. Ater's informed consent prior to administering Depo-Provera. Mr. and Mrs. Ater brought separate claims, seeking to recover for loss of services and companionship, severe emotional distress, and medical bills. .).
On July 15, 1999, Plaintiffs sought leave to amend their complaint. Plaintiffs contended that, through discovery, they had been able to determine the identity of additional nurse defendants. They sought to add Madison Pediatric, Inc., Ohio Hospital Insurance Co., and Madison County Hospital nurses Phyllis Follrod, Michelle Bierbaugh, and Carol Hackley as defendants. The proposed amended complaint contained additional allegations of negligence on the part of the health care providers and sought punitive damages. It also sought a declaration of rights and benefits under the hospital's insurance policy. .).
In response to the motion for leave to amend the complaint, Defendants argued that the declaratory judgment action concerning the insurance policy should be brought as a separate action. They also argued that it was too late for Plaintiffs to name nurses Follrod, Bierbaugh and Hackley as defendants because Ohio Rules of Civil Procedure 3 and 15 require that the complaint be amended within one year to substitute an individual for a "Jane Doe" defendant. Defendants also argued that to interject new parties into the litigation would cause substantial delay and duplication of effort. Finally, Defendants argued that there was no basis for punitive damages. .).
On August 20, 1999, the Madison County Court of Common Pleas, in a one page order, denied Plaintiffs' motion for leave to amend the complaint, finding that Plaintiffs had waited more than one year to substitute the nurse defendants for the Jane Doe defendants, and that the addition of such parties was therefore time-barred. The court also found that Plaintiffs' attempt to assert a claim for punitive damages six months after the case was assigned for trial was inappropriate. .).
Because the court denied Plaintiffs' motion for leave to amend the complaint in Ater I, Plaintiffs filed a second suit in the Madison County Court of Common Pleas. On August 31, 1999, Wendell II, a minor, by and through his parents, filed suit against nurses Phyllis Follrod, Michelle Bierbaugh, and Carol Hackley, the Board of Directors of Madison County Hospital, Inc., and other Jane and John Does that provided negligent medical care to him (hereafter "Ater II"). On September 22, 1999, this complaint was amended to include Hong Kim, M.D., and Madison County Hospital, Inc. as additional named defendants.
In Ater II, Case No. 99CV08-149, Wendell II alleged that Defendants fell below an acceptable standard of care by negligently: (1) administering oxytocin to Cheryl Ater; (2) failing to properly and timely recognize the acute signs of fetal distress hypoxia and communicate those signs so that Cheryl Ater's high risk pregnancy could be properly managed; and (3) failing to correctly interpret, document and communicate electronic fetal heart rate patterns, including failing to recognize ominous late decelerations. He also claimed that the nurses negligently failed to notify nursing medical management staff of nonreassuring fetal heart rate patterns, and that the hospital's supervisory personnel failed to adequately train and supervise the hospital nurses. In addition, Wendell II alleged that certain hospital personnel negligently interfered with, altered, or destroyed medical records, and that the hospital did not meet the minimum standards of care as set forth in Ohio Revised Code Chapter 3701. He also alleged that Defendants did not obtain Mrs. Ater's informed consent during the course of her medical treatment from August 30, 1995 through September 1, 1995 and fell below the standard of care required in the field of obstetrics and gynecology. .).
On August 31, 1999, Wendell Ater II, a minor, by and through his parents, along with Cheryl Ater and Wendell, Jr., also filed a declaratory judgment action in the Franklin County Court of Common Pleas, Case No. 99CVA08-7196 (hereafter "Ater III"). In connection with Ater I, Plaintiffs sought a declaration of rights and benefits under the insurance policy purchased by Madison County Hospital. .). Named defendants included Ohio Hospital Insurance Co., Madison County Hospital, Inc., the Madison County Hospital Board of Directors, Hong Kim, M.D., and Sooja Kim, M.D.
On December 13, 1999, Plaintiffs filed notices of voluntary dismissal "without prejudice" in Ater I, Ater II, and Ater III. .).
On August 15, 2000, Wendell II, by and through his mother and next friend, Cheryl Ater, along with Cheryl Ater and Wendell, Jr., filed the suit currently pending in this Court (hereafter "Ater IV"). They named as defendants Phyllis Follrod, Michelle Bierbaugh, Carol Hackley, LouAnne Adkins,1 Madison County Hospital, Inc. and its Board of Directors, and various hospital officials including: Gary Lehman, President; Michael Turner, Chief of Staff; Judy Pritt, Vice President of Patient Care; Judy Adams, Director of Nursing; and Bob Kirby, Director of Operations. Plaintiffs also again named Hong Kim, M.D. and Sooja Kim, M.D.
In the complaint, Plaintiffs noted that, pursuant to Ohio Revised Code § 2305.19, they had one year to refile the suits previously dismissed and that the statute of limitations was tolled during that period as to all d...
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