Howard v. HCR Manorcare, Inc.

• Decision Date: 23 March 2018
• Docket Number: Nos. 2016–CA–75,2017–CA–16,s. 2016–CA–75
• Citation: 2018 Ohio 1053,99 N.E.3d 429
• Parties: David HOWARD, Individually and on behalf of the Wrongful Death Beneficiaries of Donald Lee Howard, Plaintiff–Appellee/Cross–Appellant v. HCR MANORCARE, INC., Heartland Employment Services, LLC, HCR Manor Care Services, LLC and Heartland of Springfield, Ohio, LLC, Defendants–Appellants/Cross–Appellees
• Court: Ohio Court of Appeals

99 N.E.3d 429

2018 Ohio 1053

David HOWARD, Individually and on behalf of the Wrongful Death Beneficiaries of Donald Lee Howard, Plaintiff–Appellee/Cross–Appellant

v.HCR MANORCARE, INC., Heartland Employment Services, LLC, HCR Manor Care Services, LLC and Heartland of Springfield, Ohio, LLC, Defendants–Appellants/Cross–Appellees

Nos. 2016–CA–75

2017–CA–16

Court of Appeals of Ohio, Second District, Clark County.

Rendered on March 23, 2018

MICHAEL J. FULLER, JR., Atty. Reg. No. 0090250, D. BRYANT CHAFFIN, Atty. Reg. No. 0090249, 97 Elias Whiddon Road, Hattiesburg, Mississippi 39402, Attorneys for Plaintiff–Appellee/Cross–Appellant

ROBERT M. ANSPACH, Atty. Reg. No. 0017263, MARK D. MEEKS, Atty. Reg. No. 0040495, J. RANDALL ENGWERT, Atty. Reg. No. 0070746, JOSEPH S. CENTER, Atty. Reg. No. 0092570, 300 Madison Avenue, Suite 1600, Toledo, Ohio 43604, Attorneys for Defendants–Appellants/Cross–Appellees

OPINION

WELBAUM, P.J.

{¶ 1} In this case, Defendants–Appellants, HCR ManorCare, Inc., HCR Manor Care Services, LLC, Heartland Employment Services, LLC, and Heartland of Springfield, Ohio, LLC (collectively, "HCR" or "corporate defendants") appeal from a jury verdict rendered in favor of Plaintiff–Appellee/Cross–Appellant, David Howard, individually and on behalf of the wrongful death beneficiaries of Donald Lee Howard ("Howard"). According to HCR, the trial court erred by failing to grant HCR's motion for judgment on the pleadings on the wrongful death claims, by submitting an improper jury form, by failing to cure prejudicial statements of Howard's counsel during closing argument, and in instructing the jury.

{¶ 2} As was noted, Howard filed a cross-appeal. Howard contends that the trial court erred in granting HCR's motion for judgment on the pleadings concerning three survival claims, and by denying Howard's motion for pre-judgment interest.

{¶ 3} We conclude that the trial court did not err in denying HCR's motion for judgment on the pleadings, as HCR admitted liability for the wrongful death, and any alleged error concerning defects in Howard's Civ.R. 10(D)(2) affidavit is irrelevant. By admitting liability, HCR waived any error and is precluded from raising this error on appeal. Furthermore, compliance with Civ.R. 10(D)(2) does not pertain to a court's subject matter jurisdiction and can be waived.

{¶ 4} We further conclude that HCR is precluded from raising issues regarding the jury interrogatories and verdict form, as HCR told the court its instructions were correct. Even if this issue were considered on a plain error basis, there was no error that would warrant reversal. The trial court also did not err in failing to include an instruction on negligence and proximate cause, as there was no basis for this instruction. In addition, the trial court did not err in failing to give a curative instruction during Howard's closing argument. Howard's argument was not prejudicial, and a curative instruction was not required for one isolated comment that Howard's counsel immediately corrected.

{¶ 5} Concerning Howard's cross-assignments of error, the trial court did err in granting a motion for judgment on the pleadings in connection with Howard's survival claims (Counts One, Three, and Four of the Second Amended Complaint). Based on the content of the pleadings, the HCR corporate defendants were not medical providers and the survival claims were also not "medical claims" for purposes of R.C. 2305.113(E)(3).

{¶ 6} Finally, the trial court did not abuse its discretion when it refused to give Howard a continuance to conduct discovery in connection with his motion for prejudgment interest. Howard would have been well aware of his right to conduct discovery, but failed to even mention discovery until the day before the scheduled non-oral evidentiary hearing. Accordingly, the judgment of the trial court will be affirmed in part and reversed in part, and will remanded for further proceedings solely on the survival claims (Counts One, Three, and Four of the Second Amended Complaint).

I. Facts and Course of Proceedings

{¶ 7} In April 2014, Howard filed a complaint, individually and on behalf of the wrongful death beneficiaries of Donald Lee Howard ("Donald"), alleging that Donald had suffered injuries and wrongful death while he was a nursing home resident at Heartland of Springfield between December 11, 2011 and April 5, 2012. The named defendants included HCR, the local administrator of the nursing home, and various defendants labeled "John Does 1 through 10" and "Unidentified Entities 1 through 10."

{¶ 8} The complaint contained claims for negligence for lethal and non-lethal injuries, medical malpractice, malice, fraud, breach of fiduciary duty, and premises liability. Attached to the complaint was a request for an extension of time to file an affidavit of merit pursuant to Civ.R. 10(D)(2)(b), and the court subsequently granted Howard a 90–day extension of time.

{¶ 9} According to the complaint, HCR ManorCare Inc. was in the business of operating nursing homes, with a home office in Toledo, Ohio. HCR ManorCare Services, LLC, Heartland Employment Services, LLC, and Heartland of Springfield, LLC, were corporations engaged in custodial and personal care of the elderly. Some of these corporations were Ohio corporations and some were incorporated in Delaware, but Toledo, Ohio was their principal place of business.¹

{¶ 10} In June 2014, Howard filed a first amended complaint containing the same claims. Howard attached the affidavit of a geriatric nurse practitioner and registered nurse, who expressed various opinions about deviations from the standard of care by the nursing home and its personnel. After filing an answer to the amended complaint, HCR filed a motion to dismiss and a motion for summary judgment.

{¶ 11} The motion contended that Counts One, Three, Four, Six, Nine, Ten, and Eleven were medical claims under R.C. 2305.113(E)(3), and were subject to a one-year statute of limitations that had expired on April 5, 2013, nearly a year before the complaint was filed. In addition, HCR contended that Count Eight, which stated a claim for punitive damages, failed as a matter of law. On October 15, 2014, the trial court agreed with HCR, and dismissed these counts. The court then set a November 2014 pre-trial on the remaining claims (Counts Two, Five, and Seven).

{¶ 12} Howard filed a notice of appeal from this decision, but his appeal was dismissed for lack of a final appealable order. In late May 2015, HCR filed a motion for judgment on the pleadings, arguing that Howard's 10(D)(2) affidavit was defective because the nurse was unqualified to render an opinion regarding the cause of death. In June 2015, the trial court overruled HCR's motion for judgment on the pleadings.

{¶ 13} In January 2016, the court granted Howard's request to file a second amended complaint to add survival claims for corporate negligence, nursing home negligence, and administrator negligence. Howard then filed a second amended complaint containing six counts, which included both survival and wrongful death claims. This was followed on March 16, 2016, by HCR's motion for judgment on the pleadings. In the motion, HCR again argued that the claims in Counts One, Three, and Four for non-lethal injuries were barred by the statute of limitations because they were "medical claims." HCR also filed an answer to the second amended complaint the following day.

{¶ 14} A jury trial was scheduled for April 5, 2016. On March 28, 2016, HCR filed an "omnibus" motion in limine, seeking to limit testimony about many items, including medical diagnosis or causation opinions of Howard's nursing expert. HCR also asked the court to limit damages pursuant to R.C. 2323.42 and to bifurcate the trial under R.C. 2315.21. On March 31, 2016, the trial court granted HCR's motion for judgment on the pleadings, again finding that the claims for non-lethal injuries were medical claims that had been filed outside the statute of limitations in R.C. 2305.113(A).

{¶ 15} On the same day, HCR filed a motion for summary judgment as to allegations seeking punitive damages. This was based on the deposition of Howard's medical expert, Dr. Fannin, who had testified to various bases of liability of HCR for Donald's death, including neglect and failure to perform a proper evaluation. According to HCR, these deficiencies in care did not support the standard required to submit the issue of punitive damages to a jury. The trial court concluded that the motion would be held in abeyance pending the outcome of the compensatory damages portion of the case.

{¶ 16} On April 5, 2016, the parties appeared in court for the scheduled jury trial. Prior to trial, the court presented its ruling on all outstanding motions, including HCR's motion in limine, which was overruled in part and sustained in part. The court also dismissed the nursing home administrator from the action. As the court attempted to bring the jurors into the courtroom, HCR's counsel told the court that HCR wanted to place an admission into the record. The admission, which had not been previously disclosed to the trial court or counsel, was that HCR would admit liability for Donald's wrongful death, leaving damages as the only issue left for decision.

{¶ 17} After accepting the admission, the court continued the trial, and also let Howard file a memorandum concerning how the admission affected Howard's survival claims, which Howard still contended should be allowed. In late May 2016, the court overruled Howard's motion as it related to the survival claims. The court concluded that even though HCR had adopted inconsistent positions concerning whether the corporate defendants were medical providers, the court would follow its understanding of the law, which indicated that these defendants were medical providers under R.C. 2305.113(E)(3).

{¶ 18} On September 27 and 28, 2016, the case was tried before a jury on the issue of damages only. After a brief deliberation, the jury...