Stuck v. Miami Valley Hosp.
| Decision Date | 17 January 2020 |
| Docket Number | No. 28233,28233 |
| Parties | John H. STUCK, Executor of the Estate of David Stuck, Plaintiff-Appellant Cross-Appellee v. MIAMI VALLEY HOSPITAL, et al., Defendants-Appellees Cross-Appellants |
| Court | Ohio Court of Appeals |
DWIGHT D. BRANNON, Atty. Reg. No. 0021657, and MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142, 130 West Second Street, Suite 900, Dayton, Ohio 45402, Attorneys for Plaintiff-Appellant and Cross-Appellee, John H. Stuck, Executor
NEIL F. FREUND, Atty. Reg. No. 0012183, and SHANNON K. BOCKELMAN, Atty. Reg. No. 0082590, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402, Attorneys for Defendants-Appellees/Cross-Appellants Miami Valley Hospital and Premier Health Partners
SUSAN BLASIK-MILLER, Atty. Reg. No. 0005248 and ROBERT N. SNYDER, Atty. Reg. No. 0030556, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402, Attorneys for Defendants-Appellees/Cross-Appellants Travis Perry, M.D., Kelli Huesman, P.A., and Comprehensive Burn and Wound Specialists
{¶ 1} The estate of David M. Stuck1 appeals from the trial court's grant of partial summary judgment against Stuck on the third cause of action set forth in his complaint against Miami Valley Hospital, Premier Health Partners, Erik Weise, M.D., Dayton Physicians, LLC, Travis L. Perry, M.D., Kelli Huesman, P.A., Comprehensive Burn and Wound
Specialists, and other defendants. Also pending before us are the cross-appeals of Miami Valley Hospital, Premier Health Partners, Perry, Huesman, and Comprehensive Burn and Wound Specialists, as well as those parties' motions to strike certain attachments to Stuck's appellate brief.
{¶ 2} For the reasons that follow, the motions to strike are granted in part and denied in part, Stuck's appeal and the cross-appeals are without merit, and the judgment of the trial court will be affirmed.
{¶ 3} Miami Valley Hospital ("MVH") is a Dayton, Ohio medical facility operated by Premier Health Partners ("PHP"). On January 21, 2013, David M. Stuck underwent surgery at MVH for a recurrence of renal cell carcinoma
. Erik Weise, M.D., a urologist practicing with Dayton Physicians, LLC ("Dayton Physicians"), performed Stuck's surgery.
{¶ 4} While he remained at MVH in the days following surgery, Stuck manifested at least one pressure ulcer
in the area of his buttocks and coccyx, which ulcer(s) allegedly worsened over the course of his hospital stay. According to Stuck, Weise requested that Travis L. Perry, M.D., a general surgeon practicing with Comprehensive Burn and Wound Specialists ("CBWS"), consult with Stuck for treatment of the ulcer(s). Perry, physician's assistant Kelli Huesman of CBWS, and other unnamed health care providers purportedly participated in Stuck's treatment through his discharge date of February 13, 2013.
{¶ 5} On February 21, 2013, Stuck was readmitted to MVH after presenting to the emergency room with "sepsis, Stage 4 decubitus ulcers
, and suspected ischiorectal abscess and/or cellulitus." (Doc. #1, ¶ 30). Stuck allegedly sustained severe and permanent injuries and incurred substantial and ongoing medical expenses due to medical conditions that developed following his January 2013 surgery, and he purportedly required treatment for years thereafter.2
{¶ 6} After voluntarily dismissing pursuant to Civ.R. 41(A) a complaint filed in 2014,3 Stuck re-filed a complaint in the Montgomery County Court of Common Pleas, setting forth causes of action for medical negligence, declaratory relief, and a variety of other claims. (Doc. #1). MVH, PHP, Weise, Dayton Physicians, Perry, Huesman, and CBWS (collectively, "the Medical Defendants") were among those named as defendants in that lawsuit.
{¶ 7} Following substantial discovery and other pretrial proceedings, three groups of the Medical Defendants filed separate motions for partial summary judgment as to Stuck's third cause of action, which requested declaratory relief regarding "hospital acquired conditions." See Docs. #75 (by MVH and PHP); #76 (by Perry, Huesman, and CBWS); #78 (by Weise and Dayton Physicians). Specifically, that third cause of action sought a declaratory finding that the occurrence of health conditions categorized as "Never Events" and/or "Hospital Acquired Conditions" constituted negligence per se and/or warranted imposing strict liability. (Doc. #1, ¶ 42). Alternatively, the third cause of action sought a declaration that the occurrence of "Never Events" and/or "Hospital Acquired Conditions" warranted applying the doctrine of res ipsa loquitur and eliminating the causation element of a negligence claim. (Id. at ¶ 43-44). In requesting judgment in their favor, the Medical Defendants argued that Stuck's third cause of action was not supported by existing law and was contrary to federal law.
{¶ 8} On November 28, 2018, the trial court entered partial summary judgment against Stuck on his third cause of action and "dismissed" that cause of action. (Doc. #104, p. 9). Pursuant to Civ.R. 54(B), the trial court certified that no just cause existed for delaying any appeal.
{¶ 9} Stuck's appeal from that judgment raises this single assignment of error: "The trial court committed reversible error by granting partial summary judgment as to [Stuck's] cause of action for declaratory judgment regarding never events."
{¶ 10} MVH and PHP, and separately, Perry, Huesman, and CBWS, filed cross-appeals challenging the trial court's certification of its November 28, 2018 decision as a final, appealable order. This Court denied the Cross-Appellants' motions to dismiss Stuck's appeal on that basis, but noted that such denial was "distinct from, and does not necessarily resolve, the issue that Appellees may raise in their cross-appeals about the propriety of the trial court's certification pursuant to Civ.R. 54(B)." (Decision and Entry, April 29, 2019). The cross-appeals therefore remain pending.
{¶ 11} Also pending are the same Cross-Appellants' motions to strike certain appendices to Stuck's appellate brief. Because those motions may affect the materials before us as to Stuck's appeal, we will address the motions to strike before considering Stuck's assignment of error.
{¶ 12} The appellate briefs filed by MVH, PHP, Perry, Huesman, and CBWS contain no arguments directed toward the Civ.R. 54(B) certification that was the subject of their cross-appeals. Accordingly, the analysis set forth in our April 29, 2019 decision denying those parties' motion to dismiss Stuck's appeal also fully addresses the merits of their cross-appeals. The cross-appeals of MVH, PHP, Perry, Huesman, and CBWS are without merit.
{¶ 13} MVH, PHP, Perry, Huesman, and CBWS assert that most of the documents attached as appendices to Stuck's appellate brief do not appear in the trial court record. Accordingly, they ask this Court to strike Appendix 1, 2 and 3 (copies of decisions on motions in limine in unrelated common pleas court cases); Appendix 4 (an unauthenticated copy of an "anonymous" document that bears the printed words "Premier Health" and purports to set forth a "policy" regarding patient wound
care); Appendix 5 A-M (a series of photographs that appear to depict David Stuck's wound on various dates between March 8 and July 26, 2013); Appendix 6-C (purporting to be an excerpt from a transcript of the videotaped deposition of Greg Sanchez)4 ; Appendix 7 (an unauthenticated copy of what purports to be a "booklet" produced by the Centers for Medicare and Medicaid Services regarding "Medicare Fraud & Abuse"); and Appendix 8, 9, 10, and 11 (unauthenticated copies of what appear to be published articles about policy regarding "hospital-acquired conditions").
{¶ 14} "It is ‘a bedrock principle of appellate practice in Ohio * * * that an appeals court is limited to the record of the proceedings at trial.’ " State v. Morris , 2d Dist. Montgomery Nos. 26949, 2016-Ohio-7417, 2016 WL 6160194, ¶ 2, quoting Morgan v. Eads , 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13. "A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter." State v. Ishmail , 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. Further, pursuant to App.R. 16(E), the unnecessary attachment of legal authority available through online sources is "disfavored" and "discouraged."
{¶ 15} Stuck's response clarifies that the photographs included in Appendix 5 to his brief were presented as exhibits to Perry's written deposition filed with the trial court on January 22, 2018. As those photographs do appear within the trial court record, the motions to strike Appendix 5 are denied. With regard to Appendix 4, we previously rejected Stuck's request to expand the record on appeal in order to include that document. (See Decision and Entry, September 3, 2019). The motions to strike Appendix 4 are granted. Because Sanchez's deposition transcript, from which Appendix 6-C was derived, does not appear on the trial court docket as having been filed in this case, the motion to strike that excerpt also is granted.
{¶ 16} While Stuck characterizes the remainder of the challenged appendices as "legal authority" rather than evidentiary exhibits, that characterization does not necessarily justify their inclusion as attachments to his appellate brief. The decision appearing as Appendix 1 has been assigned a Westlaw citation; as stated above, App.R. 16(E) discourages the attachment of decisions so reported. Still, given that the decisions in Appendix 2 and 3 apparently are not reported "through online legal research databases," see App.R. 16(E), none of the first three appendices will be stricken.
{¶ 17} We are not persuaded that the remaining appendices constitute "legal authority" within...
To continue reading
Request your trial
-
State ex rel. Jones v. Bd. of Educ. of Dayton Pub. Sch.
...paragraph one of the syllabus. Accord Morgan v. Eads , 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13 ; Stuck v. Miami Valley Hosp. , 2020-Ohio-129, 141 N.E.3d 290, ¶ 14 (2d Dist.).{¶ 67} When the trial discussed the second prong of R.C. 121.22(I)(2)(a), it also commented that "o......
-
Hoke v. Miami Valley Hosp.
...malpractice cases require evidence about whether a defendant doctor did or did not satisfy the standard of care. Stuck v. Miami Valley Hospital, 2020-Ohio-129, 141 N.E.3d 290, ¶ 24-25 (2d Dist.). {¶ 43} As for this court's opinion in Witzmann, 2d Dist. Montgomery No. 23352, 2011-Ohio-379, w......