Grayson v. Cleveland Clinic Found.

• Decision Date: 19 May 2022
• Docket Number: 110684
• Citation: 2022 Ohio 1668
• Parties: ELIZABETH GRAYSON, ET AL., Plaintiffs-Appellants, v. CLEVELAND CLINIC FOUNDATION, ET AL., Defendants-Appellees.
• Court: Ohio Court of Appeals

2022-Ohio-1668

ELIZABETH GRAYSON, ET AL., Plaintiffs-Appellants, v. CLEVELAND CLINIC FOUNDATION, ET AL., Defendants-Appellees.

No. 110684

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 19, 2022

Civil Appeal from the Cuyahoga County Common Pleas Court Case No CV-21-943139

Bashein & Bashein Co., L.P.A., and William Craig Bashein Paul W. Flowers Co., Paul W. Flowers and Louis E. Grube, for appellants.

Reminger Co., L.P.A., Erin Siebenhar Hess, Brian D. Sullivan, and Jessica O. Hamad, for appellees.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

{¶1} Elizabeth ("Grayson") and Shaun Grayson (collectively "Graysons") appeal the dismissal of their action against Cleveland Clinic Foundation, Cleveland Clinic, Cleveland Clinic Akron General, Esther Rehmus, M.D. John Pedersen, M.D., and Mary Murray, M.D. (collectively "Cleveland Clinic"), as being time-barred under the four-year statute of repose enacted under R.C. 2305.113(C). For the following reasons, we affirm.

{¶ 2} The allegations in this case are sparse, with the complaint containing no allegations of operative facts beyond identification of the parties and two pertinent dates. In July 2014, Grayson underwent medical treatment furnished by Cleveland Clinic, but she did not discover a potential negligence claim until five years later. The Graysons alleged that the discovery was hindered by Cleveland Clinic's "negligent" or "intentional" failure to advise of the negligence in Grayson's care and treatment. No one has elaborated on those allegations that mostly consist of legal conclusions. Maternal Grandmother, ADMR v. Hamilton Cty. Dept. of Job & Family Servs., Slip Opinion No. 2021-Ohio-4096, ¶ 29 (in considering a complaint under Civ.R. 12, "unsupported legal conclusions are not entitled to any presumption of truth" and "speculation, unsupported by operative facts, is not enough to state a claim").^[1] Cleveland Clinic was allegedly served with a 180-day notice under R.C. 2305.113(B)(1) preceding the January 2021 filing of the complaint. Concurrent with the filing of the complaint, the Graysons also filed a motion for a 90-day extension of time to file the affidavit of merit as required under Civ.R. 10(D)(2)(b). No affidavit of merit was filed in the underlying action.

{¶ 3} In response to the complaint, Cleveland Clinic filed (1) a motion to stay discovery pending the production of the affidavit of merit that is required to support a well-pleaded complaint under Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 10, and Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 19; (2) an answer generally denying the allegations of the complaint and advancing affirmative defenses including the statute of repose set forth in R.C. 2305.113; and (3) a motion for judgment on the pleadings under Civ.R. 12(C) claiming that action was time-barred. The trial court dismissed the action based on the four-year statute of repose, expressly citing the time period as alleged in the complaint. Implicitly, the trial court rejected the Graysons' claims that the statute of repose for medical malpractice actions was unconstitutional as applied to the particular facts of the case.

{¶ 4} In this appeal, the Graysons advance two assignments of error: (1) that the trial court erred by granting the judgment on the pleadings in Cleveland Clinic's favor; and (2) that the trial court erred by ruling on the motion before permitting the Graysons the opportunity to conduct discovery to develop the factual record upon which their constitutional claims rest. Both assigned errors are related.

{¶ 5} Appellate review of a judgment on the pleadings is de novo. New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 8. Under Civ.R. 12(C), after construing all material allegations and all reasonable inferences drawn therefrom, if it appears beyond doubt that the nonmoving party can prove no set of facts that would entitle him or her to relief, dismissal is the appropriate remedy. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). Under Civ.R. 12(H)(2), a motion to dismiss for failure to state a claim upon which relief can be granted may be advanced in a motion for judgment on the pleadings. It is for this reason that a motion filed under Civ.R. 12(C) has been characterized as a "belated Civ.R. 12(B)(6)" motion. State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 592, 635 N.E.2d 26 (1994).

{¶ 6} Under Ohio law, the statute of limitations is an affirmative defense. Civ.R. 8(C). The statute of repose, similar to the statute of limitations, "presents a mixed question of law and fact; when a cause of action accrues is a question of fact, but in the absence of a factual issue, application of the limitations period is a question of law." Schmitz v. NCAA, 155 Ohio St.3d 389, 2018-Ohio-4391, 122 N.E.3d 80, ¶ 11, citing Wells v. C.J. Mahan Constr. Co., 10th Dist. Franklin Nos. 05AP-180 and 05AP-183, 2006-Ohio-1831, ¶ 25, citing Cyrus v. Henes, 89 Ohio App.3d 172, 175, 623 N.E.2d 1256 (9th Dist.1993), rev'd on other grounds, 70 Ohio St.3d 640, 640 N.E.2d 810 (1994). "[T]he difficulty of successfully asserting an affirmative defense in a Civ.R. 12(B)(6) motion to dismiss” had been “long recognized[.]” Schmitz at ¶ 41 (Kennedy, J., concurring in part).

{¶ 7} Affirmative defenses generally rely on consideration of evidence outside the complaint, and as a result, those defenses typically cannot be successfully raised in a Civ.R. 12(B)(6) motion. Schmitz at ¶ 41-42 (Kennedy, J., concurring in part), quoting Main v. Lima, 3d Dist. Allen No. 1-14-42, 2015-Ohio-2572, ¶ 14, and Savoy v. Univ. of Akron, 10th Dist. Franklin No. 11AP-183, 2012-Ohio-1962, ¶ 6-7 (noting that "the better procedure is to address affirmative defenses by way of a motion for summary judgment that will allow introduction of additional facts beyond the complaint"). "A motion to dismiss based upon a statute of limitations[, however] may be granted when the complaint shows conclusively on its face that the action is time-barred." (Emphasis added.) Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 433 N.E.2d 147 (1982), paragraph three of the syllabus; see also Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, ¶ 11. That same concept applies equally to cases implicating the statute of repose. It has been recognized, however, that a plaintiff is not required to plead with specificity to avoid application of the statute of limitations. Warren v. Estate of Durham, 9th Dist. Summit No. 25624, 2011-Ohio-6416, ¶ 6, citing Irvin v. Am. Gen. Fin., Inc., 5th Dist. Muskingum No. CT2004-0046, 2005-Ohio-3523, ¶ 29, fn. 11.

{¶ 8} In this case, there is no dispute that the Graysons filed the complaint six and one-half years after the conduct giving rise to the allegations of medical malpractice. Under R.C. 2305.113(C), "[n]o action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim" unless the person is within the age of minority or is of unsound mind. The action is time-barred unless (1) the person could not have discovered the occurrence of the act or omission within three years, but in the exercise of reasonable care and diligence or occurrence discovers the act or omission before the expiration of the four-year period; or (2) the claim involves a foreign object left in the person's body. R.C. 2305.113(D)(1)-(2). If the person commencing the action can demonstrate the later of either exception by clear and convincing evidence, the person has an additional year to file their claim from the date of discovery. Id.

{¶ 9} The sole question advanced in this case is whether on the face of a complaint that conclusively demonstrates that the action is time-barred under R.C. 2305.113(C), the legislative omission of a fraud exception renders the medical malpractice statute of repose unconstitutional as applied, or whether that plaintiff is entitled to discovery to produce evidence demonstrating the fraud before the trial court renders a decision on the constitutional question. We need not address whether discovery is necessary. In light of the allegations in the complaint, we must accept as true the allegation that a fraud in the omission was committed, irrespective of the lack of the particular factual allegations supporting that legal conclusion. Obtaining evidence demonstrating the fraud would only prove what must be assumed in light of the procedural posture of this case. As a result, our review in this case is limited to determining whether the plaintiffs action is time-barred based on R.C. 2305.113(C) or whether that provision is unconstitutional as applied to the Graysons. The answer to that legal question is one that we review de novo.

{¶ 10} A statute may be challenged as being facially unconstitutional, or unconstitutional as applied to the particular party. Simpkins v. Grace Brethren Church of Delaware, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 21, citing Arbino v. Johnson &amp Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 26. If there is no conceivable set of circumstances in which the statute would be valid, the statutory provision is facially unconstitutional. Id. "An as-applied challenge, on the other hand, alleges that application of the statute in a particular factual context is...