Moore v. Mount Carmel Health Sys.
| Decision Date | 17 July 2018 |
| Docket Number | No. 2017APE-10-754,2017APE-10-754 |
| Citation | 117 N.E.3d 89,2018 Ohio 2831 |
| Parties | Michael MOORE, Conservator of the Person and Estate of Justin T. Moore, Plaintiff-Appellant v. MOUNT CARMEL HEALTH SYSTEM dba Mount Carmel St. Ann's Hospital, et al., Defendants-Appellees |
| Court | Ohio Court of Appeals |
{¶ 1} In this case, Plaintiff-Appellant Michael Moore, Conservator of the Person and Estate of Justin T. Moore ("Moore") appeals from a judgment dismissing his claims against Defendants-Appellees Mount Carmel Health System dba Mount Carmel St. Ann's Hospital ("Mount Carmel"), Central Ohio Anesthesia, Inc. ("COA"), and Eric Humphreys, M.D. According to Moore, the trial court erred by failing to apply the savings statute when the original complaint failed otherwise than on the merits and Moore's request for service on Dr. Humphreys acted as a refiling of the complaint within one year of the failure. For the same reason, Moore contends that the trial court also erred in dismissing the vicarious liability claims against Mount Carmel and COA. Finally, Moore maintains that the trial court erred in dismissing his respondeat superior claims against COA because Dr. Humphreys was an employee, not a partner or co-owner of COA.
{¶ 2} For the reasons discussed below, we conclude that Moore's request for service of the complaint was, by operation of law, a dismissal and refiling of the complaint, and was a failure otherwise than on the merits. The trial court, therefore, erred in failing to apply the savings statute. Based on this error, the trial court also erred in dismissing the vicarious liability claims against COA and Mount Carmel. We further conclude that in light of these errors, whether the trial court erred in its conclusion about Dr. Humphreys's status as an employee of COA is moot. Accordingly, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings.
{¶ 3} This case arose from the Appellees' medical treatment of Justin Moore ("Justin") in December 2013 and January 2014. According to the complaint, Justin received medical care from Dr. Wesley Forgue, the Dialysis Center of North Columbus, The Little Clinic, and two nurses during December 2013 through January 2014. The complaint further alleged that these parties failed to properly treat Justin when he presented for treatment of a cough and during hemodialysis, which caused Justin to be transferred on an emergency basis to Mouth Carmel on January 20, 2014. In addition, the complaint alleged that when Justin was treated at Mount Carmel on January 20, 2014, Dr. Humphreys and others failed to properly and timely perform endotracheal intubation, which resulted in hypoxia, cardiac and respiratory arrest, and a permanent anoxic brain injury. These events, in turn, allegedly caused Justin permanent injury, including loss of his ability to walk and care for himself, impairment of his speech and communication ability, and other debilitating injuries.
{¶ 4} On July 10, 2014, the Cuyahoga County Probate Court appointed Moore conservator of Justin's person and estate. Moore subsequently filed a pro se medical malpractice action against Mount Carmel, COA, Dr. Humphreys, Dr. Wesley Forgue, the Dialysis Center of North Columbus, The Little Clinic, and two nurses who had treated Justin before his admission to Mount Carmel. COA was the medical practice that employed Dr. Humphreys.
{¶ 5} The malpractice action was filed on July 6, 2015, and Moore brought the action in his capacity as Justin's conservator, and on Justin's behalf. On the same day, Moore requested service of process by certified mail on various defendants, including Mount Carmel, COA, and Dr. Humphreys. The address for Dr. Humphreys was listed as Mt. Carmel St. Ann's Hospital, 500 South Cleveland Avenue, Westerville, Ohio, 43081. In contrast, COA's service address was listed in care of its statutory agent, David A Perdzock, at 3100 Adena Point Court, Columbus, Ohio, 43221. On July 16, 2015, the clerk of courts filed a notice indicating that service on Dr. Humphreys was complete.
{¶ 6} Previously, on July 6, 2015, Moore had filed a motion for a 90-day extension of time to file an affidavit of merit. Ultimately, on July 23, 2015, the trial court granted an extension of time to September 1, 2015. In its decision, the trial court commented that an issue might exist regarding Moore's ability to represent himself, since he was not a lawyer. However, the court also said that nothing needed to be done concerning this point until September 1, 2015, when the affidavit of merit was due. See Doc. # 43, p. 2.
{¶ 7} On July 30, 2015, attorneys from Carpenter and Lipps, LLP, filed notices of appearance on behalf of COA and Dr. Humphreys. On the same day, these attorneys filed answers on behalf of COA and Dr. Humphreys. The answers denied that Dr. Humphrey was an employee of Mount Carmel. The answers also stated: "Admit Central Ohio Anesthesia, Inc., is an entity through which its physicians and staff provide anesthesia services, and at all times Eric Humphreys, M.D. was an employee of Central Ohio Anesthesia." Doc. # 50 and Doc. # 51, p. 2, paragraph 4.
{¶ 8} The answers also stated as defenses that Moore was not a proper party and lacked proper standing to bring the lawsuit, that the complaint failed for insufficiency of process and/or insufficiency of service of process, and that the complaint might be barred in whole or in part by the statute of limitations. Id. at pp. 2-3, paragraphs 13, 15, and 16.
{¶ 9} On August 3, 2015, the clerk of courts filed an envelope, along with the July 23, 2015 order, which indicated that mail had been returned and that the order had not been served on Dr. Humphreys. This was the court order concerning the affidavit of merit that had been sent to Dr. Humphreys at the Mount Carmel address. The envelope stated "Return to Sender Not at this Address." Doc. # 52.
{¶ 10} On September 1, 2015, an attorney (David Shroyer) filed a notice of appearance on Moore's behalf. On the same day, Moore asked for an extension of time to file affidavits of merit. Moore noted that he had filed an affidavit of merit from a specialist in anesthesiology and critical care regarding Dr. Humphreys and other agents and employees of Mount Carmel, but needed more time for affidavits concerning the remaining defendants like the dialysis clinic. No further affidavits of merit were filed, and on January 18, 2016, Moore dismissed The Little Clinic, Emily Sinay, FNP-BC, and Nicole Drauhuschak, RN, FNP, pursuant to Civ.R. 41(A)(1)(a), without prejudice. On February 18, 2016, Moore also dismissed Dr. Forgue and the Dialysis Center without prejudice, pursuant to Civ.R. 41(A)(1)(a). The only remaining defendants at that time were Mount Carmel, COA, and Dr. Humphreys. Subsequently, in October 2016, Moore took the deposition of Dr. Humphreys, which revealed that Dr. Humphreys had retired from practice in December 2014.
{¶ 11} On January 23, 2017, COA and Dr. Humphreys filed a motion to continue the jury trial, which had been set for July 3, 2017, and the court granted the motion. The court then set a final pretrial for October 5, 2017, and a jury trial for October 10, 2017.
{¶ 12} Subsequently, on February 27, 2017, Dr. Humphrey and COA filed a motion for summary judgment, contending that the action was barred because Moore failed to serve Dr. Humphreys within one year of the filing of the complaint. Mount Carmel also filed a motion for summary judgment on February 28, 2017, arguing that no vicarious liability attached to the hospital because Dr. Humphrey was not an employee and had not been timely served. In addition, Mount Carmel alleged that Moore, as conservator, lacked legal capacity to file the action and the claims were now time-barred.
{¶ 13} On March 2, 2017, Moore filed a request for personal service of the complaint to be filed on Dr. Humphreys at Mount Carmel; another request was filed on March 9, 2017, asking that Moore be served by certified mail at two other addresses, one in Westerville, Ohio, and the other in Centerburg, Ohio. Service was completed by a process server on March 10, 2017, and by certified mail on March 14, 2017. See Doc. # 186 and Doc. # 221.
{¶ 14} Dr. Humphrey and COA filed another motion for summary judgment on March 8, 2017, contending that Moore had engaged in the unauthorized practice of law when he filed suit, causing the complaint to be a nullity. Like Mount Carmel, Dr. Humphrey and COA argued that this meant that Moore had failed to file an action within the appropriate limitations period. On March 13, 2017, Dr. Humphreys and COA filed an additional motion for summary judgment based on the same grounds previously asserted, and added a contention that Moore failed to give them sufficient notice to extend the statute of limitations for medical malpractice actions.
{¶ 15} Moore filed responses to the motions for summary judgment and also asked the court for a continuance to conduct additional discovery.
{¶ 16} After further memoranda were filed, the trial court issued a decision on September 26, 2017, granting Appellees' motions for summary judgment and dismissing the case with prejudice. The court concluded that service was not properly made on Dr. Humphreys until March 2017, and that the savings statute in R.C. 2305.19 did not apply.
{¶ 17} Additionally, the court held that Mount Carmel could not be held liable because Dr. Humphreys was not an employee and the expiration of the statute of limitations against Dr. Humphreys extinguished any secondary liability of the hospital.
{¶ 18} Finally, the court rejected Moore's claims against COA on two grounds. The first ground was that if no action could be maintained against Dr. Humphreys, COA would not be liable on the basis of respondeat superior. The court's second ground was that, even if claims could be brought against an employer for the acts of...
To continue reading
Request your trial
-
Moore v. Mount Carmel Health Sys.
...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 acc......
-
Moore v. Mount Carmel Health Sys.
...treated Justin before his admission to Mount Carmel. COA was the medical practice that employed Dr. Humphreys. Moore v. Mt. Carmel Health Sys. , 2018-Ohio-2831, 117 N.E.3d 89, ¶ 3-4 (10th Dist.), reversed by 2020-Ohio-4113, 164 N.E.3d 376.{¶ 3} Moore later dismissed various defendants witho......