Wick v. Lorain Manor, Inc.
2014 Ohio 4329
Ohio Ct. App.2014Background
- Bruce Wick, executor of Josephine Wick's estate, sues for medical malpractice and wrongful death arising from care at Main Street Care Center and related services.
- Dec 2007: Josephine Wick, age 90, injured; transported reportedly with a 6.5-hour delay; dies Jan 2, 2008.
- Defendants include Lorain Manor, Inc. and Lorain Manor Co., Ltd. (Main Street Care Center), Adult Comfort Care Services, Inc., and Physicians Ambulance Service, Inc. with two EMTs.
- Civil action filed June 24, 2011 in Lorain County; Wick sought extensions to file affidavits of merit; court granted extensions.
- Defendants move to dismiss under Civ.R. 12(B)(6) arguing insufficient affidavits of merit and statute of limitations/savings statute issues; court dismisses November 2012.
- Appellate court reverses, finding error regarding the savings statute applicability and cure period for deficient affidavits; remanded for proceedings consistent with opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the savings statute bars Wick's claims | Wick argues the savings statute allows refiling after time-barred dismissal. | Defendants contend Wick used savings statute once already; second filing is barred. | The court erred in dismissing on this basis; insufficient record to conclusively show prior savings-statute use. |
| Whether affidavits of merit were required and sufficient | Affidavits read together satisfy Civ.R. 10(D)(2)(a). | Affidavits deficient as to Lorain Manor and EMT defendants; not cured. | Affidavits were insufficient for certain defendants; court erred in sua sponte dismissing without cure opportunity. |
| Whether the trial court erred by not allowing time to cure defects | Civ.R. 10(D)(2)(e) requires time to cure defective affidavits. | Cure provisions do not apply since extensions were for initial filing only. | Court erred by not granting a cure period; remanded to allow cure or refile as appropriate. |
| Whether Physicians Ambulance Service, Inc. affidavits of merit were required | All medically-related claims against ambulance personnel require affidavits. | Ambulance service itself is not a listed medical-provider under Civ.R. 10(D)(2)(a). | Affidavits were not required for Physicians Ambulance Service, Inc.; issue limited to whether affidavit requirement applied to that entity. |
Key Cases Cited
- Internal Periodical Distrib. v. Bizmart, Inc., 95 Ohio St.3d 452 (Ohio 2002) (savings statute governs refiling after dismissal for failure on merits)
- Herbert v. Farmer, 2014-Ohio-877 (12th Dist. Warren) (two-part test for savings statute applicability)
- Thomas v. Freeman, 79 Ohio St.3d 221 (Ohio 1997) (savings statute may be used only once)
- Jarina v. Fairview Hosp., 2008-Ohio-6846 (8th Dist. Cuyahoga) (court must allow cure of defective affidavits under Civ.R. 10(D)(2)(e))
- Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491 (Ohio 2006) (dismissal may be based on facially time-barred complaint)
- O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (Ohio 1975) (standard for dismissal under Civ.R. 12(B)(6))
- Fletcher v. Univ. Hosp. of Cleveland, 120 Ohio St.3d 167 (Ohio 2008) (affidavits of merit required to deter frivolous medical-malpractice claims)
- Harris v. Pro-Lawn Landscaping, Inc., 2012-Ohio-498 (8th Dist. Cuyahoga) (considerations when ruling on statute of limitations and savings statute)
- Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491 (Ohio 2006) (concerning facially time-barred actions and pleading requirements)