Everhart v. Coshocton Cnty. Mem'l Hosp.

• Decision Date: 03 March 2022
• Docket Number: 21AP-74
• Parties: Machelle EVERHART, Individually and as Administrator of the Estate of Todd Everhart, Deceased, Plaintiff-Appellant, v. COSHOCTON COUNTY MEMORIAL HOSPITAL et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

186 N.E.3d 232

Machelle EVERHART, Individually and as Administrator of the Estate of Todd Everhart, Deceased, Plaintiff-Appellant,

v.COSHOCTON COUNTY MEMORIAL HOSPITAL et al., Defendants-Appellees.

No. 21AP-74

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 3, 2022

On brief: Colley, Shroyer & Abraham Co. LPA, David I. Shroyer, Columbus, for appellant. Argued: David I. Shroyer.

On brief: Reminger Co., L.P.A., David H. Krause, and Thomas N. Spyker, Columbus, for appellee Joseph J. Mendiola, M.D. Argued: Thomas N. Spyker.

On brief: Poling Law, Frederick A. Sewards, and Patrick F. Smith, Columbus, for appellee Mohamed Hamza, M.D.

On brief: Poling Law, Brant Poling, Cleveland, and Zachary R. Hoover, for appellees Coshocton County Memorial Hospital and Medical Services of Coshocton, Inc.

DECISION

MENTEL, J.

{¶ 1} Plaintiff-appellant, Machelle Everhart, individually and as the administrator of the estate of Todd Everhart, deceased, appeals from the January 26, 2021 decision of the Franklin County Court of Common Pleas granting the motion of defendant-appellee, Joseph J. Mendiola, M.D., for judgment on the pleadings based on the four-year statute of repose set forth in R.C. 2305.113(C).

{¶ 2} For the reasons that follow, we reverse.

I. FACTS AND PROCEDURAL HISTORY

{¶ 3} The underlying facts of this case were discussed extensively in Everhart v. Coshocton Cty. Mem. Hosp. , 10th Dist. No. 12AP-75, 2013-Ohio-2210, 2013 WL 2394858 (" Everhart I "). Briefly, appellant is a widow and administrator for the estate of her late husband, Todd Everhart. On December 21, 2003, Mr. Everhart was in an automobile accident and transported to the emergency room at Coshocton County Memorial Hospital ("Coshocton Hospital"). According to appellant, Drs. Rajendra Patel and Mohamed Hamza treated Mr. Everhart. Chest x-rays

were ordered on Mr. Everhart at that time. Mr. Everhart was later transported by Life Flight from Coshocton Hospital to The Ohio State University Emergency Department ("Ohio State"). At Ohio State, new x-rays were taken of Mr. Everhart. Appellant alleged the chest x-rays showed opacity in the lung that required additional follow-up treatment to rule out malignancy. Mr. Everhart recovered from the injuries sustained in the automobile accident and was discharged from the hospital.

{¶ 4} On August 11, 2006, nearly three years after the automobile accident, Mr. Everhart presented at Coshocton Hospital. Mr. Everhart obtained a CT scan

, which revealed masses on the right lung that were later diagnosed as advanced stage lung cancer. Mr. Everhart passed away on October 28, 2006.

{¶ 5} On January 25, 2008, appellant filed the initial complaint alleging causes of action for medical malpractice¹ and wrongful death against Coshocton Hospital and several physicians. Appellant argued Coshocton Hospital and physicians deviated from the standard of medical care by failing to send, receive, or act on Mr. Everhart's x-ray films and radiology report as to the lung opacity. On October 2, 2008, Dr. Hamza filed a motion for summary judgment arguing that there was no physician-patient relationship with Mr. Everhart and, therefore, Dr. Hamza did not owe him a duty of care.² Appellant requested additional time to conduct discovery before responding to the motion. Appellant ultimately filed a memorandum in opposition with an affidavit by Dr. Harlan D. Meyer. Dr. Meyer stated that Dr. Hamza had a duty to review reports that are distributed to him, regardless of whether he saw the patient. On April 21, 2010, the trial court granted Dr. Hamza's motion for summary judgment. Appellant filed a motion for reconsideration of the trial court's decision on August 25, 2011. On January 3, 2012, the trial court denied appellant's motion for reconsideration but issued a nunc pro tunc entry as to the April 21, 2010 decision and entry granting summary judgment with Civ.R. 54(B) certification.

{¶ 6} On May 30, 2013, this court reversed the trial court's decision finding it erred granting summary judgment in favor of Dr. Hamza and remanded the case for further proceedings as there was a genuine issue of material fact whether Dr. Hamza received the x-rays and read the radiology report and, therefore, whether a physician-patient relationship existed between the parties. Everhart I at ¶ 1.

{¶ 7} In September 2017, appellees sought leave to file motions for judgment on the pleadings based on the Supreme Court of Ohio's decision in Antoon v. Cleveland Clinic Found. , 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974. Appellees argued that appellant's claims were precluded by the four-year statute of repose under R.C. 2305.113(C). Appellant opposed the motions for leave contending that the statute of repose argument was waived as the defense was not asserted in the appellees’ answers. Appellees proceeded to request leave to amend their answers in order to add statute of repose as an affirmative defense. On November 30, 2017, the trial court stayed the case based on Coshocton Hospital initiating bankruptcy proceedings. The case was reinstated on April 3, 2019. (May 16, 2019 Nunc Pro Tunc Entry.)

{¶ 8} The trial court granted appellees’ motions for leave to file amended answers and motions for leave to file motions for judgment on the pleadings on August 25 and August 27, 2020, respectively. On September 4, 2020, Dr. Mendiola filed a motion for judgment on the pleadings arguing that appellant's wrongful death cause of action was a medical claim and, therefore, barred by the four-year statute of repose set forth in R.C. 2305.113(C). A memorandum in opposition was filed on September 16, 2020. A reply was filed on September 23, 2020.

{¶ 9} On September 15, 2020, appellant filed a motion for leave to file a third amended complaint. The motion was opposed by Coshocton Hospital and Dr. Mendiola on September 21 and September 23, 2020, respectively. A reply brief was filed on September 28, 2020. The trial court denied appellant's motion for leave to amend on December 11, 2020. On January 26, 2021, the trial court granted Dr. Mendiola's motion for judgment on the pleadings finding that appellant's wrongful death claim was a medical claim under R.C. 2305.113(E) and, thus, barred by the statute of repose.³

{¶ 10} Appellant filed a timely appeal.

II. ASSIGNMENTS OF ERROR

{¶ 11} Appellant assigned the following as trial court error:

[1.] The trial court erred when it applied the statute of repose for medical claims to a statutory wrongful death claim.

[2.] The trial court erred by denying Everhart leave to file a Third Amended Complaint.

III. LEGAL ANALYSIS

A. Appellant's First Assignment of Error

{¶ 12} In appellant's first assignment of error, she argues the trial court erred when it applied the statute of repose for medical claims to a statutory wrongful death claim.⁴

1. Standard of Review

{¶ 13} A motion for judgment on the pleadings under Civ.R. 12(C) "has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted." Easter v. Complete Gen. Constr. Co. , 10th Dist. No. 06AP-763, 2007-Ohio-1297, 2007 WL 853337, ¶ 8, citing Whaley v. Franklin Cty. Bd. of Commrs. , 92 Ohio St.3d 574, 581, 752 N.E.2d 267 (2001). As set forth in 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." The moving party is entitled to judgment on the pleadings when, after construing all the material assertions in the complaint as true and considering all reasonable inferences in favor of the nonmoving party, the moving party is entitled to judgment as a matter of law. Welther v. Plageman , 10th Dist. No. 19AP-774, 2021-Ohio-713, 2021 WL 929899, ¶ 6, citing Zhelezny v. Olesh , 10th Dist. No. 12AP-681, 2013-Ohio-4337, 2013 WL 5450882, ¶ 8. "A motion for judgment on the pleadings is specifically intended for resolving questions of law." Easter at ¶ 9, citing Friends of Ferguson v. Ohio Elections Comm. , 117 Ohio App.3d 332, 334, 690 N.E.2d 601 (10th Dist.1997). Appellate review of a motion for judgment on the pleadings under Civ.R. 12(C) is de novo. Kamnikar v. Fiorita , 10th Dist. No. 16AP-736, 2017-Ohio-5605, 2017 WL 2817467, ¶ 35.

2. Wrongful Death Statute, R.C. 2125.01.

{¶ 14} Ohio first enacted a wrongful death statute in 1851. Karr v. Sixt , 146 Ohio St. 527, 67 N.E.2d 331 (1946), paragraph one of the syllabus, citing 13 Ohio Jurisprudence, 384, Section 33. Prior to its enactment, there was no such statutory basis for the cause of action under Ohio law. Id. Currently, a cause of action for wrongful death is governed by R.C. 2125. Pursuant to R.C. 2125.01, a wrongful death claim occurs:

When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances which make it aggravated murder, murder, or manslaughter. When the action is against such administrator or executor, the damages recovered shall be a valid claim against the estate of such deceased person. No action for the wrongful death of a person may be maintained against the owner or lessee of the real property upon which the death occurred if the cause of the death was the violent unprovoked act of a party other than the owner, lessee, or a person under the control of the owner or lessee, unless the acts or omissions of the owner, lessee, or person under the control of the owner or lessee constitute gross negligence.

When death is caused by a wrongful act, neglect, or default in another state or foreign country, for which a right to maintain an action and recover damages is given by

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