Estate of Sherman v. Millhon

• Decision Date: 15 June 1995
• Docket Number: No. 94APE11-1648,94APE11-1648
• Citation: 104 Ohio App.3d 614,662 N.E.2d 1098
• Parties: ESTATE OF SHERMAN, Appellant, v. MILLHON et al., Appellees. *
• Court: Ohio Court of Appeals

Page 614

104 Ohio App.3d 614

662 N.E.2d 1098

ESTATE OF SHERMAN, Appellant, v. MILLHON et al., Appellees. ^*

No. 94APE11-1648.

Court of Appeals of Ohio Tenth District, Franklin County.

Decided June 15, 1995.

Leeseberg, Maloon, Schulman & Valentine and Jeffrey L. Maloon, Columbus, for appellant.

Reminger & Reminger Co., L.P.A., and Mark E. Defossez, Columbus, for appellees William A. Millhon, M.D., and W.F. Millhon Medical Clinic, Inc.

Jacobson, Maynard, Tuschman & Kalur Co., L.P.A., and David C. Calderhead, Columbus, for appellees Dan R. McFarland, M.D., and Dan R. McFarland, M.D., Inc.

PETREE, Judge.

This is a timely appeal by plaintiff, Jean E. Sherman, widow of Zane F. Sherman and executor of his estate, from a judgment of the Franklin County Court of Common Pleas, granting the motion for judgment on the pleadings pursuant to Civ.R. 12(C) filed by defendants, William A. Millhon, M.D., and W.F. Millhon Clinic, Inc., and the motion to dismiss pursuant to Civ.R. 12(B)(6) filed by defendants Dan R. McFarland, M.D., and Dan R. McFarland, M.D., Inc. ¹

On July 22, 1993, plaintiff filed a complaint against defendants alleging that plaintiff's husband died as a result of defendants' alleged medical malpractice. The complaint averred that in July 1988, decedent consulted Dr. Millhon for a routine physical examination. Thereafter, Dr. Millhon ordered certain diagnostic procedures, including a posterior-anterior chest x-ray, which was interpreted as normal by Dr. McFarland, a radiologist and employee of defendant Dr. Millhon. Two years later, in June 1990, a C.T. scan of decedent's chest revealed two abnormal masses diagnosed as lung cancer, which had spread to other parts of decedent's body. Although decedent underwent extensive chemotherapy, he subsequently died as a result of the cancer.

In the complaint, plaintiff asserted claims against defendants for medical malpractice and wrongful death arising from their alleged failure to diagnose decedent's lung cancer at the time of the routine physical examination in July 1988, two years before the cancer was discovered. Plaintiff's medical experts expressed the opinion that decedent would have had a forty percent chance of survival had he received proper and timely medical care.

On July 21, 1994, Dr. Millhon filed, pursuant to Civ.R. 12(C), a motion for judgment on the pleadings, arguing that because plaintiff's complaint failed to allege that decedent lost a greater than fifty percent chance of survival as a result of defendants' alleged negligence, under the standard set forth by the Supreme Court of Ohio in Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97, defendants were entitled to judgment on the pleadings as a matter of law.

On August 11, 1994, Dr. McFarland filed, pursuant to Civ.R. 12(B)(6), a motion to dismiss for failure to state a claim upon which relief can be granted. In the motion, Dr. McFarland first contended that this matter was fully resolved in a prior court action and thus, plaintiff was precluded from relitigating the same cause and issues based upon the doctrines of res judicata, collateral estoppel and/or the "law of the case." Dr. McFarland also contended that because plaintiff's complaint failed to allege at least a fifty-one percent probability of survival, plaintiff had failed to state a claim upon which can be granted.

In support of his res judicata /collateral estoppel/"law of the case" argument, Dr. McFarland attached several exhibits to the motion, including a complaint filed by plaintiff in the Franklin County Court of Common Pleas in May 1990, which named Dr. Millhon and Dr. McFarland as defendants and also raised the issues raised in this case; a copy of the decision filed in the Franklin County Court of Common Pleas on December 23, 1991, granting judgment for defendants on the basis that plaintiff's complaint failed to demonstrate a greater than fifty percent chance of survival had decedent's lung cancer been diagnosed in a more timely manner; and a copy of the decision filed in this court on June 16, 1992, affirming the trial court's decision. On September 13, 1994, the trial court granted Dr. Millhon's motion for judgment on the pleadings, finding that the "loss of a chance of survival has not been recognized as a basis of recovery when a Plaintiff cannot prove at least a 51 percent probability of survival, but for the negligence of the Defendants." Although the trial court stated that it rendered its decision "[w]ithout considering the res judicata and collateral estoppel issues," the court went on to state that it "incorporates the Decisions of Judge Crawford in Sherman, supra, and the Court of Appeals in Sherman v. Millhon (June 16, 1992), Franklin App. No. 92AP-89, unreported , herein" and notes that "pursuant to the 'doctrine of law of the case,' the Court is also bound by the previous decision of the Court of Appeals in Sherman, supra." On September 28, 1994, the trial court granted Dr. McFarland's motion to dismiss "for the reasons set forth in this court's decision of September 13, 1994."

On appeal, plaintiff asserts a single assignment of error for review:

"The trial court erred in granting judgment on the pleadings to Defendants-Appellees as the Complaint filed on behalf of Plaintiff-Appellant set forth a valid cause of action premised on the loss of chance doctrine."

Before addressing plaintiff's argument regarding the merits of the instant action, we must first examine the manner in which the trial court granted Dr. Millhon's motion for judgment on the pleadings and Dr. McFarland's motion to dismiss.

As previously noted, Dr. McFarland filed a motion to dismiss pursuant to Civ.R. 12(B)(6), arguing, at least in part, that this matter had been fully and finally resolved in a prior court action and, thus, plaintiff was precluded from relitigating the same cause and issues based upon the doctrines of res judicata, collateral estoppel and/or the "law of the case." Dr. Millhon's motion for judgment on the pleadings was not based on these doctrines. The trial court indicated that both motions were granted for the reasons set forth in the court's September 13, 1994 decision. Although the trial court, in that decision, attempted to sidestep the res judicata and collateral estoppel issue, it incorporated the prior decisions of both the common pleas court and this court into its decision. Further, the trial court noted that it was bound by the previous decision of this court pursuant to the "law of the case" doctrine.

"In resolving a Civ.R. 12(B)(6) motion, a court is confined to the averments set forth in the complaint." Shockey v. Wilkinson (1994), 96 Ohio App.3d 91, 94, 644 N.E.2d 686, 688. Further, pursuant to Civ.R. 12(C), a trial court may consider only the statements contained in the pleadings, and may not consider any evidentiary materials. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 63 O.O.2d 262, 297 N.E.2d 113; Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 402, 594 N.E.2d 60, 61. "The affirmative defense of res judicata is not properly raised in a Civ.R. 12(B)(6) motion because it requires reference to materials outside the complaint (i.e., the previous action upon which the defense is based) and, therefore, is a matter which should be raised on summary judgment." Nelson v. Pleasant (1991), 73 Ohio App.3d 479, 482, 597 N.E.2d 1137, 1139. Furthermore, since a motion for judgment on the pleadings has been characterized as nothing more than a belated Civ.R. 12(B)(6) motion, the same standards of review apply to both motions. Id.

Upon review of the trial court's decision, however, it is clear that the court considered matters beyond the face of the complaint in granting Dr. Millhon's motion for judgment on the pleadings and Dr. McFarland's motion to dismiss. Specifically, the court refers to the "Decisions of Judge Crawford in Sherman, supra, and the Court of Appeals in Sherman v. Millhon " which are attached to Dr. McFarland's motion to dismiss. The court also notes that pursuant to the "law of the case" doctrine, it is bound by the previous decision of this court. As the face of plaintiff's complaint does not refer to any prior court proceeding, the consideration of the prior judgments attached to Dr. McFarland's motion to dismiss clearly violated the standard of review under both Civ.R. 12(B)(6) and 12(C).

Civ.R. 12(B) provides, in pertinent part:

"When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56 * * *."

Thus, pursuant to Civ.R. 12(B)(6), the trial court may convert a motion to dismiss into a motion for summary judgment where matters outside the pleadings are contained in the motion and are not excluded by the court. Stephens v. Boothby (1974), 40 Ohio App.2d 197, 199, 69 O.O.2d 189, 190, 318 N.E.2d 535, 536-537. However, only if the court converts the motion to one for summary judgment pursuant to Civ.R. 12 may the court go beyond the averments in the complaint. Petrey v. Simon (1983), 4 Ohio St.3d 154, 4 OBR 396, 447 N.E.2d 1285. However, when a court converts a motion to dismiss to one for summary judgment, it must notify all parties. Federated Dept. Stores, Inc. v. Lindley (1987), 30 Ohio St.3d 135, 137, 30 OBR 447, 448-449, 507 N.E.2d 1114, 1116. The record in the instant case does not reflect such a conversion by the trial court and, therefore, the court was confined to the averments of the complaint and could not utilize the documents attached to Dr. McFarland's motion to dismiss.

Although the court below erred in reviewing the prior judgment in granting defendants' motions,...