Davis v. Mercy St. Vincent Med. Ctr.

• Decision Date: 15 April 2022
• Docket Number: L-21-1095
• Parties: Donald A. DAVIS, Individually, and as Executor of the Estate of Monica P. Davis, et al., Appellants v. MERCY ST. VINCENT MEDICAL CENTER, et al., Appellees
• Court: Ohio Court of Appeals

190 N.E.3d 77

Donald A. DAVIS, Individually, and as Executor of the Estate of Monica P. Davis, et al., Appellants

v.MERCY ST. VINCENT MEDICAL CENTER, et al., Appellees

No. L-21-1095

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided: April 15, 2022

Gary W. Osborne and Jack S. Leizerman, Toledo, for appellants.

Julia Smith Wiley and Kayla L. Henderson, Toledo, for appellee Mercy St. Vincent Medical Center.

Taylor C. Knight, Toledo, and Erin Siebenhar Hess, Cleveland, for appellees Fayyaz H. Hashmi, M.D., Mercy Health North, LLC (fka) Mercy Health System-Northern Region and Mercy Medical Partners, Northern Region, LLC.

DECISION AND JUDGMENT

MAYLE, J.

{¶ 1} Plaintiffs-appellants, Donald Davis, Individually and as Executor of the Estate of Monica Davis, and Dustin Davis, appeal the April 22, 2021 judgment of the Lucas County Court of Common Pleas, granting motions for judgment on the pleadings, or alternatively, for summary judgment in favor of defendants-appellees, Mercy St. Vincent Medical Center, Fayyaz H. Hashmi, M.D., and Mercy Health North, LLC, fka Mercy Health System-Northern. For the following reasons, we reverse.

I. Background

{¶ 2} Monica Davis died on April 4, 2014, allegedly as the result of medical negligence committed on November 4, 2013, by Fayyaz Hashmi, M.D. and other health care providers. On May 4, 2015, after properly availing themselves of the additional 180 days to file suit under R.C. 2305.113(B), her husband and executor of her estate, Donald Davis, and her son, Dustin Davis (collectively, "Davis"), filed a complaint against Dr. Hashmi, his practice, Mercy St. Vincent Hospital, and others, alleging medical negligence, loss of consortium, and wrongful death. On August 21, 2017, after extensive discovery, Davis dismissed his claims against all defendants without prejudice under Civ.R. 41(A)(1)(a). He refiled the case on August 15, 2018—within one year of his voluntary dismissal without prejudice—against Dr. Hashmi, Mercy St. Vincent Hospital, Mercy Health North, LLC, fka Mercy Health System-Northern, and Mercy Medical Partners, Northern Region, LLC ("appellees").

{¶ 3} On July 30, 2019, appellees filed motions for judgment on the pleadings and for summary judgment. They argued that the four-year statute of repose for medical claims set forth in R.C. 2305.113(C) barred Davis's claims because he refiled his complaint more than four years after the allegedly negligent act giving rise to his claims. In a September 17, 2019 judgment, the trial court denied appellees’ motions because Davis had refiled his lawsuit within the one-year period set forth in Ohio's saving statute, R.C. 2305.19.

{¶ 4} Over a year after the trial court denied appellees’ motions, on December 23, 2020, the Ohio Supreme Court decided Wilson v. Durrani , 164 Ohio St.3d. 419, 2020-Ohio-6827, 173 N.E.3d 448. In Wilson, the court held that "a plaintiff may [not] take advantage of Ohio's saving statute to refile a medical claim after the applicable one-year statute of limitations has expired if the four-year statute of repose for medical claims has also expired." Id. at ¶ 1.

{¶ 5} Following the Ohio Supreme Court's decision in Wilson , appellees filed renewed motions for judgment on the pleadings or, alternatively, for summary judgment, and a motion for reconsideration of the trial court's September 17, 2019 judgment. On April 22, 2021, the trial court granted appellees’ motions for judgment on the pleadings or, alternatively, for summary judgment. Davis appealed. He assigns a single error for our review:

THE TRIAL COURT ERRED WHEN IT FOUND THAT THE OHIO MEDICAL MALPRACTICE STATUTE OF REPOSE, R.C. 2305.113(C),

APPLIES TO WRONGFUL DEATH CLAIMS.

II. Law and Analysis

{¶ 6} The issue in this case is whether a plaintiff may rely on Ohio's wrongful-death saving statute, R.C. 2125.04, to refile a wrongful-death claim predicated on medical negligence within one year of voluntarily dismissing his original complaint without prejudice but more than four years after the allegedly negligent act occurred—i.e., after the statute of repose for filing a "medical claim" has expired. Davis argues that where a wrongful-death claim is timely-filed to begin with, is dismissed without prejudice, and is refiled within one year of dismissal under the wrongful-death saving statute, that claim is not barred by the medical-claim statute of repose.

{¶ 7} Appellees respond that a wrongful-death claim predicated on alleged medical negligence is a "medical claim" that is subject to the four-year statute of repose set forth in R.C. 2305.113(C) ; the statute of repose may be tolled only as specified in R.C. 2305.113(C). They argue that the general saving statute and the wrongful-death saving statute are operatively identical, so Wilson applies with equal force to actions refiled under the wrongful-death saving statute. Appellees point us to other Ohio cases that hold that the four-year medical-claim statute of repose applies to wrongful-death actions arising from negligent medical care.

A. Standards of Review

{¶ 8} The trial court granted appellees’ motion for judgment on the pleadings or, alternatively, motions for summary judgment.

{¶ 9} Under Civ.R. 12(C), "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." In considering a Civ.R. 12(C) motion, the trial court may review only "the complaint and the answer as well as any material incorporated by reference or attached as exhibits to those pleadings." Walker v. City of Toledo , 2017-Ohio-416, 84 N.E.3d 216, ¶ 19 (6th Dist.). Employing the same standard as a Civ.R. 12(B)(6) motion for failure to state a claim upon which relief may be granted, the trial court must construe as true the material allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party. Id. at ¶ 18, citing McMullian v. Borean , 167 Ohio App.3d 777, 2006-Ohio-3867, 857 N.E.2d 180, ¶ 7 (6th Dist.) ; Ohio Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act, 147 Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, ¶ 10, citing Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18. If it appears from the pleadings and the materials incorporated by reference or attached as exhibits that the nonmoving party can prove no set of facts entitling it to relief, the trial court may dismiss the plaintiff's claims under Civ.R. 12(C). Ohio Manufacturers’ Assn. at ¶ 10. We review the trial court's judgment de novo. Reister v. Gardner , 164 Ohio St.3d 546, 2020-Ohio-5484, 174 N.E.3d 713, ¶ 17.

{¶ 10} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978), Civ.R. 56(C).

{¶ 11} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler , 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E) ; Riley v. Montgomery , 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A "material" fact is one which would affect the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999) ; Needham v. Provident Bank , 110 Ohio App.3d 817, 826, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. The Statutes at Issue

{¶ 12} Davis's complaint alleged claims for medical negligence, loss of consortium, and wrongful death. The statute of limitations for Davis's claims for medical negligence and loss of consortium is set forth in R.C. 2305.113(A). It provides that "an action upon a medical * * * claim shall be commenced within one year after the cause of action accrued." Under R.C. 2305.113(B)(1), if, before the expiration of the one-year period, a plaintiff provides the defendant written notice that he is considering bringing an action, he may extend the statute of limitations by 180 days from the time proper notice is given. See Szwarga v. Riverside Methodist Hosp., 2014-Ohio-4943, 23 N.E.3d 260, ¶ 8 (10th Dist.).

{¶ 13} R.C. 2305.113(C) sets forth a four-year statute of repose for medical claims. It provides that "[e]xcept as to persons within the age of minority or of unsound mind," and except as provided in R.C. 2305.113(D), "[n]o action upon a medical * * * claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim." R.C. 2305.113(C)(1). "If an action upon a medical * * * claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim, then, any action upon that claim is barred." R.C. 2305.113(C)(2). R.C. 2305.113(D) sets forth two exceptions to the statute of repose:

(1) If a person making a medical

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