Evans v. S. Ohio Med. Ctr.

• Decision Date: 04 May 1995
• Docket Number: No. 94CA2244,94CA2244
• Parties: EVANS, Exr., Appellant, v. SOUTHERN OHIO MEDICAL CENTER et al.; Hempstead Manor, Appellee.
• Court: Ohio Court of Appeals

Page 250

103 Ohio App.3d 250

659 N.E.2d 326

EVANS, Exr., Appellant, v. SOUTHERN OHIO MEDICAL CENTER et al.; Hempstead Manor, Appellee.

No. 94CA2244.

Court of Appeals of Ohio,

Fourth District, Scioto County.

Decided May 4, 1995.

Kimble, Stevens, Young, Clark & Rodeheffer, Roger L. Clark and Margaret Apel-Miller, Portsmouth, for appellant.

Bannon, Howland & Dever and Robert E. Dever, Portsmouth, for appellee.

HARSHA, Judge.

This appeal arises from a decision by the Scioto County Court of Common Pleas finding that appellant's claims against appellee Hempstead Manor were barred by the statute of limitations. The record reveals the following facts.

In June 1992, Eleanora Richards fell at her home and was taken to Scioto Memorial Hospital. While at the hospital, Richards injured her elbow and Dr. Marchyn performed surgery on it to correct the problem. Several days later, Richards was released from the hospital, but she reinjured her elbow while being helped into her automobile. As a result, Dr. Marchyn again operated on Richards's elbow. Several days later, Richards was released from the hospital and admitted to Hempstead Manor, the appellee in this appeal.

On August 3, 1992, Richards suffered a fall at Hempstead Manor. Approximately two days later, she was again taken to Dr. Marchyn's office, and when the bandage was removed from her elbow, there was evidence of a severe infection in her arm. Richards was then returned to Hempstead Manor, but the condition of her arm and her overall health evidently deteriorated. However, Hempstead Manor did not contact Richards's physicians or return her to Scioto Memorial Hospital until August 9, 1992. After being admitted to the hospital, her condition seemed to improve, but on August 12, 1992, Richards died.

On February 4, 1994, Karen Sue Evans, as executor of the estate of Eleanora Richards, filed a complaint in the Scioto County Court of Common Pleas alleging medical malpractice and wrongful death against Southern Ohio Medical Center (Scioto Memorial Hospital) and Dr. Duane J. Marchyn. Appellant also filed a negligence and wrongful death action against Hempstead Manor, on the grounds that it negligently failed to obtain medical treatment for Richards in a timely fashion. This appeal involves only the claims against Hempstead Manor.

On August 11, 1993, Hempstead Manor received notice of appellant's intent to sue pursuant to R.C. 2305.11(B)(1), extending the time within which to file medical claims by one hundred eighty days. On February 4, 1994, appellant filed her complaint against Hempstead Manor and the other defendants. On March 1, 1994, Hempstead Manor filed a motion for summary judgment arguing that appellant's claims were barred by the statute of limitations. ¹ On May 4, 1994, the trial court agreed and granted summary judgment in favor of Hempstead Manor, finding no just cause for delay for the entry of final judgment.

Appellant then filed this appeal, alleging the following assignment of error:

"Assignment of error # 1: The trial court committed reversible error in granting Hempstead Manor's motion for summary judgment inasmuch as there is a genuine issue of material fact, said defendant is not entitled to judgment as a matter of law, and construing the evidence most strongly in favor of the plaintiff/appellant, reasonable minds can come to more than one conclusion."

In reviewing a summary judgment, the lower court and the appellate court utilize the same standard, i.e., we review the judgment independently and without deference to the trial court's determination. Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411, 413-414. Summary judgment is appropriate when the following have been established: (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, that party being entitled to have the evidence construed most strongly in its favor. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 883-884; cf. State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14, 577 N.E.2d 352, 353-354; Civ.R. 56(C). The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801. Additionally, a motion for summary judgment forces the nonmoving party to produce evidence on any issue (1) for which that party bears the burden of production at trial, and (2) for which the moving party has met its initial burden. See Stewart v. B.F. Goodrich Co. (1993), 89 Ohio App.3d 35, 623 N.E.2d 591, and Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus.

The only issue before us is whether the trial court properly found that appellant's claims against Hempstead Manor are barred by the statute of limitations. Hempstead Manor argues that because it is a hospital as defined in R.C. 2305.11(D)(1), the claim against it is subject to the one-year statute of limitations for medical malpractice claims in R.C. 2305.11(B). Appellant argues, on the other hand, that Hempstead Manor is actually a nursing home, and thus the claim against it is an ordinary negligence claim subject to the two-year statute of limitations found in R.C. 2305.10.

We begin our analysis by noting that when negligence or medical malpractice results in the death of a victim, two distinct causes of action arise. The first is a wrongful death action brought on behalf of the surviving spouse and next-of-kin, and the second is a malpractice or personal injury action, enforced by either the injured person or a representative of the injured person in a survival action. See R.C. 2125.02; Thompson v. Wing (1994), 70 Ohio St.3d 176, 179, 637 N.E.2d 917, 919-920. Wrongful death claims accrue upon the death of the decedent, and are subject to a two-year statute of limitations. See R.C. 2125.02(B). As a result, even when a plaintiff fails to file a negligence action or a malpractice action within the applicable statute of limitations, the wrongful death claim is not time-barred as long as it is filed within two years after the decedent's death. See Koler v. St. Joseph Hosp. (1982), 69 Ohio St.2d 477, 23 O.O.3d 413, 432 N.E.2d 821; Brosse v. Cumming (1984), 20 Ohio App.3d 260, 20 OBR 322, 485 N.E.2d 803; Heck v. Thiem Corp. (Dec. 13, 1994), Columbiana App. No. 93-C-55, unreported, 1994 WL 705001. Consequently, the wrongful death claim in this case is not time-barred. The only remaining issue is whether the underlying negligence/survival claim was filed within the proper statute of limitations. ²

As stated earlier, the trial court granted summary judgment to Hempstead Manor finding that the malpractice claim against it was not filed within the one-year statute of limitations set forth in R.C. 2305.11(B). R.C. 2305.11(B)(1) provides that all medical malpractice actions must be commenced within one year after the cause of action accrues. R.C. 2305.11(D)(3) defines a medical claim as:

" 'Medical claim' means any claim that is asserted in any civil action against a physician, podiatrist, or hospital, against any employee or agent of a physician, podiatrist, or hospital, or against a registered nurse or physical therapist, and that arises out of the medical diagnosis, care, or treatment of any person. * * * " (Emphasis added.)

As stated...