Moore v. Mount Carmel Health Sys.

• Decision Date: 20 August 2020
• Docket Number: Nos. 2018-1233,2018-1479,s. 2018-1233
• Citation: 164 N.E.3d 376,162 Ohio St.3d 106
• Parties: MOORE, Conservator, Appellee, v. MOUNT CARMEL HEALTH SYSTEM, d.b.a. Mount Carmel St. Ann's Hospital et al., Appellants.
• Court: Ohio Supreme Court

162 Ohio St.3d 106

164 N.E.3d 376

MOORE, Conservator, Appellee,

v.MOUNT CARMEL HEALTH SYSTEM, d.b.a. Mount Carmel St. Ann's Hospital et al., Appellants.

Nos. 2018-1233

2018-1479

Supreme Court of Ohio.

Submitted November 13, 2019

Decided August 20, 2020.

Colley, Shroyer & Abraham Co., L.P.A., and David I. Shroyer, Columbus, for appellee.

Arnold, Todaro & Welch Co., L.P.A., and Grier D. Schaffer, Columbus, for appellant Mount Carmel Health, d.b.a. Mount Carmel St. Ann's Hospital.

Carpenter, Lipps & Leland, L.L.P., Theodore M. Munsell, Joel E. Sechler, Emily M. Vincent, and Michael H. Carpenter, Columbus, for appellants Eric Humphreys, M.D., and Central Ohio Anesthesia, Inc.

DeWine, J. {¶ 1} This case requires us to examine the interplay between Ohio's savings statute, R.C. 2305.19(A), and the provisions of Civ.R. 3(A) to determine whether an action is barred by the statute of limitations. The statute of limitations prohibits an action unless it is "commenced" prior to the expiration of the statute. Civ.R. 3(A) says that an action is "commenced" at the time it is filed if service is obtained within one year. The savings statute provides that when an action is dismissed other than on the merits, the plaintiff may refile the action within one year.

{¶ 2} Here, the plaintiff filed the action just before the expiration of the statute of limitations. The plaintiff did not obtain service within one year, however. Nor did he dismiss the action during that period. The question is whether the plaintiff can nevertheless rely upon the savings statute. We hold that he may not. Because the action was not commenced within the statute-of-limitations period, it fails. The savings statute cannot be used to revive the action.

Moore Files Suit One Day Prior to the Expiration of the Statute of Limitations

{¶ 3} Michael Moore filed a complaint alleging medical malpractice for injuries suffered by his son during a medical procedure that was performed on January 20, 2014. Moore sued multiple defendants, including Dr. Eric Humphreys, the anesthesiologist who treated his son; Mount Carmel St. Ann's Hospital ("Mount Carmel"), where the procedure was performed; and Central Ohio Anesthesia, Inc., the practice group with which Dr. Humphreys worked.

{¶ 4} The statute of limitations for medical claims is one year. R.C. 2305.113(A). That period may be extended if, before the expiration of the limitations period, the plaintiff gives written notice to the defendant that he intends to bring a claim. R.C. 2305.113(B)(1). In such event, the action may be commenced at any time within 180 days after the notice was given. Moore took advantage of this provision, extending his deadline to commence the action to July 7, 2015. He filed his complaint one day prior to this deadline, on July 6, 2015. Simultaneously, Moore requested service of the complaint and summons on all three defendants.

{¶ 5} Timely service was obtained on Central Ohio Anesthesia and Mount Carmel, but Moore failed to obtain service on Dr. Humphreys during the year following the filing of the complaint as required by Civ.R. 3(A). An attempt to serve Dr. Humphreys by certified mail at Mount Carmel was unsuccessful; Dr. Humphreys had retired and was no longer seeing patients at Mount Carmel or elsewhere.

{¶ 6} Mount Carmel filed an answer to the complaint and raised a statute-of-limitations defense and an insufficiency-of-service-of-process defense. Central Ohio Anesthesia and Dr. Humphreys jointly filed an answer and also raised those defenses.

Moore Serves Dr. Humphreys More Than One and a Half Years after Filing

{¶ 7} In February 2017, Central Ohio Anesthesia, Dr. Humphreys, and Mount Carmel all moved for summary judgment. They argued that Moore's claim against Dr. Humphreys was time-barred because Moore failed to serve him within Civ.R. 3(A)'s one-year commencement period. Mount Carmel and Central Ohio Anesthesia further asserted that because the claim against Dr. Humphreys was time-barred, they could not be vicariously liable. On March 2, 2017, Moore again issued instructions to the clerk to attempt personal service on Dr. Humphreys. Service was finally perfected on Dr. Humphreys at his residence on March 10, 2017.

{¶ 8} The trial court granted summary judgment in favor of all three defendants. The court found that the lawsuit against Dr. Humphreys was barred by the statute of limitations. It noted that under our precedent, Dr. Humphreys's participation in the case did not prevent him from raising the defense of insufficient service of process, citing Gliozzo v. Univ. Urologists , 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, ¶ 18. Although Moore had initially filed the lawsuit within the limitations period, he neither obtained service on Dr. Humphreys within one year as required by Civ.R. 3(A), nor did he dismiss his lawsuit during that time. Thus, the claim against Dr. Humphreys was not commenced prior to the expiration of the statute of limitations and was barred. As a consequence, the court ruled, "Dr. Humphreys is dismissed with prejudice from this lawsuit because plaintiff's claims against him are barred by the statute of limitations." And, concluding that Mount Carmel and Central Ohio Anesthesia could only be vicariously liable, the court found that any liability of both parties was "extinguished." The court thus granted summary judgment and entered final judgment in favor of Dr. Humphreys, Central Ohio Anesthesia, and Mount Carmel and against Moore "on the merits."

{¶ 9} Moore appealed. The Tenth District Court of Appeals reversed and held that the savings statute applied to Moore's claim against Dr. Humphreys. For the savings statute to apply, an action must fail other than on the merits and then the plaintiff must commence a new action within one year of that failure. R.C. 2305.19(A). Relying on Goolsby v. Anderson Concrete Corp. , 61 Ohio St.3d 549, 575 N.E.2d 801 (1991), the court of appeals construed Moore's instructions for service of process on March 2, 2017, as a voluntary dismissal of his action and a refiling of a new action against Dr. Humphreys by operation of law. The court further concluded that this dismissal by operation of law was a failure "otherwise than on the merits," even though the statute of limitations had expired. 2018-Ohio-2831, 117 N.E.3d 89, ¶ 2. Thus, it concluded that the savings statute allowed Moore an additional year to perfect service of his complaint, which was accomplished on March 10, 2017. Having determined that the claim against Dr. Humphreys was not time-barred, the court of appeals dismissed as moot Moore's remaining assignment of error, which argued that his claim against Central Ohio Anesthesia survived even if the claim against Dr. Humphreys was barred by the statute of limitations.

{¶ 10} The court of appeals acknowledged that several other courts of appeals have held Goolsby to be inapplicable in similar situations. See, e.g. , Anderson v. Borg-Warner Corp. , 8th Dist. Cuyahoga Nos. 80551 and 80926, 2003-Ohio-1500, 2003 WL 1561700 ; Bentley v. Miller , 9th Dist. Summit No. 25039, 2010-Ohio-2735, 2010 WL 2395546 ; Gibson v. Summers , 11th Dist. Portage No. 2008-P-0032, 2008-Ohio-6995, 2008 WL 5431195. Finding its decision to be in conflict with these cases, the court of appeals certified the following question to this court:

"Does the Ohio savings statute, R.C. 2305.19(A), apply to an action in which a plaintiff attempts, but fails to perfect service on the original complaint within one year pursuant to Civ.R. 3(A) ? If so, when a plaintiff files instructions for service after the Civ.R. 3(A) one-year period, does the request act as a dismissal by operation of law and also act as the refiling of an identical cause of action so as to allow the action to continue?"

154 Ohio St.3d 1436, 2018-Ohio-4732, 112 N.E.3d 922.

{¶ 11} Mount Carmel filed a discretionary appeal to this court, as did Dr. Humphreys and Central Ohio Anesthesia. They raised similar propositions of law, essentially asserting that once the applicable statute-of-limitations period expires, the savings statute cannot be used to revive a cause of action that was not timely commenced under Civ.R. 3(A). This court accepted both discretionary appeals and consolidated them with the certified-conflict case. 154 Ohio St.3d 1437, 2018-Ohio-4732, 112 N.E.3d 922.

{¶ 12} Before we begin our analysis, and to make all this easier to follow, we restate the pertinent dates below:

01/20/2014	Date of alleged injury
07/06/2015	Complaint filed
07/07/2015	Expiration of the statute of limitations
07/06/2016	Date by which service must be obtained to commence action under Civ.R. 3(A)
02/2017	Summary-judgment motions filed
03/02/2017	Instructions for service on Dr. Humphreys
03/10/2017	Service on Dr. Humphreys obtained

By Its Plain Terms, the Savings Statute Does Not Save Moore

{¶ 13} To resolve the question in front of us, we need to examine the statute of limitations, the commencement requirement in Civ.R. 3(A), and the savings statute, R.C. 2305.19(A).

{¶ 14} The applicable statute of limitations is R.C. 2305.113, which states that "an action upon a medical * * * claim shall be commenced within one year after the cause of action accrued." (Emphasis added.) R.C. 2305.113(A). Here, because Moore took advantage of the 180-day extension provided for in R.C. 2305.113(B)(1), he was required to "commence" his action by July 7, 2015.

{¶ 15} Civ.R. 3(A) determines when an action is commenced:

A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant, or upon an incorrectly named defendant whose name is later corrected pursuant to Civ.R. 15(C), or upon a defendant identified by a fictitious name whose name is later corrected pursuant to Civ.R. 15(D).

(Emphasis added.) See also R.C. 2305.17.

{¶ 16} The upshot of the aforementioned provisions is that to comply with the statute of limitations, an action must be "commenced" within the...