JENNIFER ACKMAN, Personal Representative and Administrator of the Estate of Janet M. Sollmann, deceased, Plaintiff-Appellant, vs. MERCY HEALTH WEST HOSPITAL, LLC, et al., Defendants, and MUHAMMAD RIAZ AHMAD, M.D., and HOSPITALIST MEDICINE PHYSICIANS OF OHIO P.C., Defendants-Appellees.
APPEAL NO. C-220507
TRIAL NO. A-2000845
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 23, 2023
[Cite as Ackman v. Mercy Health West Hosp., L.L.C., 2023-Ohio-2075.]
Civil Appeal From: Hamilton County Court of Common Pleas. Judgment Appealed From Is: Affirmed. Colleen M. Hegge, F. Joseph Shiavone Co., LPA, and Frank Schiavone III, for Plaintiff-Appellant, Calderhead, Lockemeyer & Peschke Law Office, and Joshua F. DeBra, for Defendants-Appellees Muhammad Riaz Ahmad, M.D., and Hospitalist Medicine Physicians of Ohio, P.C.
{¶1} Plaintiff-appellant Jennifer Ackman, the personal representative and administrator of the estate of Janet M. Sollmann, appeals the trial court‘s entry of summary judgment dismissing defendants-appellees Muhammad Riaz Ahmad, M.D., (“Ahmad“) and Hospitalist Medicine Physicians of Ohio, P.C., (“Hospitalist“) for lack of proper service. For the following reasons, we affirm the trial court‘s judgment.
I. Facts and Procedure
{¶2} In February 2020, Ackman filed medical-malpractice and wrongful-death claims against several defendants, including Ahmad and Hospitalist. According to the complaint, Ahmad is an employee of Hospitalist and provided care for Janet Sollmann in April 2019 at Mercy Health West Hospital. Ackman tried to serve Ahmad through certified mail at a business address for Mercy Hospital on Kipling Avenue in Cincinnati, Ohio. But service failed because that hospital was demolished in 2015.
{¶3} In March 2020, Ahmad and Hospitalist answered Ackman‘s complaint, raising several defenses, including insufficient process and insufficient service of process under
{¶4} After some participation in the case, Ahmad and Hospitalist moved for summary judgment in June 2022, requesting that the court dismiss Ahmad and Hospitalist based on Ackman‘s failed service. The trial court granted summary judgment to Ahmad, finding no genuine issue of material fact. Specifically, the trial court ruled that Ahmad properly preserved his insufficient-process and insufficient-service-of-process defenses despite his active participation in the case. Because the case was never commenced against Ahmad within the statute of limitations and the
II. Law and Analysis
{¶5} Ackman challenges the trial court‘s grant of summary judgment in a single assignment of error. First, Ackman maintains that Ahmad‘s active participation in the case waived his service-based affirmative defenses. Second, Ackman contends that summary judgment is improper when an issue of fact exists involving the clerk of court‘s alleged failure to comply with {¶6} We review the trial court‘s grant of summary judgment de novo. Wright v. Mirza, 2017-Ohio-7183, 95 N.E.3d 1108, ¶ 5 (1st Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under {¶7} Under {¶8} In Gliozzo, the Ohio Supreme Court held that “when the affirmative defense of insufficiency of service of process is properly raised and properly preserved, a party‘s active participation in litigation of a case does not constitute waiver of that defense.” Id. at ¶ 11. And we are, of course, compelled to apply binding precedent from the Ohio Supreme Court. See State v. Hernandez, 2020-Ohio-5496, 163 N.E.3d 1175, ¶ 13 (1st Dist.). {¶9} Although a party may waive insufficiency of process, “[t]he only way in which a party can voluntarily submit to a court‘s jurisdiction, however, is by failing to raise the defense of insufficiency of service of process in a responsive pleading or by filing certain motions before any pleading.” Gliozzo at ¶ 13; see Pioneer Automotive v. Village Gate, 1st Dist. Hamilton No. C-210205, 2022-Ohio-1247, ¶ 10. In Gliozzo, the defendants “properly raised the affirmative defense of insufficiency of service of process by including it in their answer” and were therefore “free to seek dismissal of the case for insufficiency of service, even though they had also mounted a vigorous defense upon the merits.” Gliozzo at ¶ 12. {¶10} The parties agree that Ahmad was never served. And the record makes clear that Ahmad and Hospitalist answered Ackman‘s complaint, raising both insufficient process and insufficient service of process under {¶12} Next, Ackman argues that the Hamilton County Clerk of Courts failed to notify her counsel that service to Ahmad at the Kipling Avenue address failed. {¶13} But the civil rules “place[] responsibility on attorneys for verifying service.” Brookville Ents. v. Clarence J. Kessler Estate HCF Mgt., 2d Dist. Montgomery No. 29314, 2022-Ohio-1420, ¶ 30. Under {¶14} Ackman emphasizes the fact that she successfully served Hospitalist, through an agent, to argue that Ahmad had reasonable notice of the claims. {¶16} So too here. Ahmad acknowledged in his pleading and affidavit that Hospitalist is his employer. But like the defendant in Swinehart, Ahmad does not maintain an office at Hospitalist‘s business address. Instead, he works at “multiple Mercy facilities” in the Cincinnati area. Further, Hospitalist was served in Columbus, Ohio. And significantly, Ahmad was not identified on the certified mail envelope delivered to Hospitalist. Therefore, we conclude that serving Hospitalist was not done in a manner reasonably calculated to provide Ahmad notice of the claims. {¶17} The final issue raised by Ackman concerns the trial court‘s dismissal of Hospitalist. After the trial court granted summary judgment to Ahmad because the suit against him had never commenced, the trial court granted summary judgment for Hospitalist because the claims against Hospitalist “sound only in vicarious liability.” The court dismissed Ahmad and Hospitalist from the case. Ackman takes issue with the court‘s dismissal of Hospitalist, advancing two arguments. {¶18} First, Ackman argues that Hospitalist failed to substantively present a vicarious-liability argument in its summary-judgment motion. We disagree. ” ‘It is reversible error to award summary judgment on grounds not specified in the motion for summary judgment.’ ” State ex rel. Sawicki v. Court of Common Pleas, 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 27, quoting Patterson v. Ahmed, 176 Ohio App.3d 596, 2008-Ohio-362, 893 N.E.2d 198, ¶ 14 (6th Dist.). But Hospitalist maintained in its summary-judgment motion that all claims against it were premised vicariously on the liability of Ahmad. Hospitalist sufficiently raised the issue and Ahmad‘s affidavit supported its argument. See {¶19} Second, Ackman contends that her negligence claims were not premised on vicarious liability. Rather, she emphasizes her alleged negligence claim against Hospitalist individually. In response, Hospitalist argues that it cannot be held liable without a suit against one of its agents. {¶20} But Ackman‘s claim was a medical claim. Ackman titled her first claim “NEGLIGENCE” and maintained that Hospitalist failed to “exercise reasonable care and skill” when assessing, diagnosing, and treating Sollmann. While Ackman argues that she is raising ordinary negligence claims, ” ‘[m]alpractice by any other name still constitutes malpractice.’ ” Amadasu v. O‘Neal, 176 Ohio App.3d 217, 2008-Ohio-1730, 891 N.E.2d 802, ¶ 9 (1st Dist.), quoting Steinmetz v. Francis J. Lowry, D.D.S. & Assoc., 17 Ohio App.3d 116, 118, 477 N.E.2d 671 (1st Dist.1984), quoting Muir v. Hadler Real Estate Mgt. Co., 4 Ohio App.3d 89, 90, 446 N.E.2d 820 (10th Dist.1982). Indeed, “[i]t makes no difference whether the professional misconduct is founded in tort or contract, it still constitutes malpractice.” Steinmetz at 118, quoting Muir at 90, quoting Richardson v. Doe, 176 Ohio St. 370, 372, 199 N.E.2d 878 (1964). {¶21} The nature of Ackman‘s claim is significant because this court and others have held that “only individuals can be held directly liable for medical malpractice.” Henry v. Mandell-Brown, 1st Dist. Hamilton No. C-090752, 2010-Ohio-3832, ¶ 13. And ” ‘a hospital does not practice medicine and is incapable of committing malpractice.’ ” Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, ¶ 14, quoting Browning v. Burt, 66 Ohio St.3d 544, 556, 613 N.E.2d 993 (1993). Ackman alleged in her complaint that Hospitalist, along with Ahmad, failed to administer appropriate treatment and failed to conduct necessary scans of Sollmann. And Ackman identified Hospitalist as “a Professional Corporation * * * doing business in Hamilton County providing medical services.” But Hospitalist cannot be held directly liable to Ackman and she must proceed under a theory of vicarious liability. {¶22} But, as the trial court concluded, Ackman cannot prevail against Hospitalist under a theory of vicarious liability. When a medical claim premises the liability of an employer “solely on vicarious liability, the imputed liability hinges on the tortfeasor‘s relationship to the entity.” McQuade v. Mayfield Clinic, Inc., 2022-Ohio-785, 186 N.E.3d 278, ¶ 9 (1st Dist.), citing Dinges v. St. Luke‘s Hosp., 2012-Ohio-2422, 971 N.E.2d 1045, ¶ 45 (6th Dist.) (Yarbrough, J., concurring). Further ” ‘an entity may be vicariously liable for malpractice only when one or more of its principals {¶23} Consider Mandell-Brown, a medical-malpractice case where the patient‘s claims against the surgeon were dismissed as untimely under the statute of limitations. Mandell-Brown at ¶ 1. This court affirmed the trial court‘s dismissal of the surgery center as a defendant because “only individuals can be held directly liable for medical malpractice” and therefore “the respondeat superior claim against the surgery center could not survive the dismissal of the claims against Mandell-Brown.” Id. at ¶ 13-14. And following Mandell-Brown, we explained that there is “no room for vicarious liability for medical malpractice where a doctor cannot be found to be liable for malpractice.” Rush v. Univ. of Cincinnati Physicians, Inc., 2016-Ohio-947, 62 N.E.3d 583, ¶ 25 (1st Dist.). {¶24} In the end, Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714 (2007) requires us to hold that Ahmad‘s active participation in this case did not waive any service-based defenses. And Ackman‘s vicarious-liability claims against Hospitalist could not survive the dismissal of Ahmad. We overrule her assignment of error. {¶25} We overrule Ackman‘s single assignment of error and affirm the trial court‘s judgment. Judgment affirmed. WINKLER, J., concurs. {¶26} For those who would complain about our civil justice system as being too slow, too expensive, and too reliant on technicalities, this case is Exhibit A. While I agree with the majority‘s conclusion as correct under Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, I write separately to urge the Supreme Court of Ohio to revisit its holding in Gliozzo, or failing that, I would encourage the Rules Committee to remedy the matter. We should not allow rule interpretations such as that espoused by Gliozzo to turn {¶27} In 2007, the Ohio Supreme Court in Gliozzo held, “When the affirmative defense of insufficiency of process is properly raised and properly preserved [by including it in their answer, pursuant to {¶28} The origins of this holding trace back to 1984, when the Ohio Supreme Court issued its decision in First Bank of Marietta v. Cline, 12 Ohio St.3d 317, 466 N.E.2d 567 (1984). In Cline, defendants properly raised the defense of insufficient service of process in the first responsive pleading, but the case proceeded to trial. Only after all the evidence had been presented did the defense move to dismiss for insufficiency of service of process. The court held that failure to request a pretrial hearing on the issue did not constitute a waiver of the defense. Id. at 318. In making {¶29} It doesn‘t have to be this way. Consider the federal example. Nearly identical to Ohio‘s rule, {¶31} The court emphasized: “In finding forfeiture here, we do not imply that a defendant who believes he has been improperly served and insists upon proper service must raise the issue in a motion at the earliest possible moment upon pain of forfeiture. * * * [Defendant], however, waited until well after the 120-day period [to serve a defendant] expired to press his service defense in a motion and, in the meantime, took substantial steps to defend the case on the merits. Doing so forfeited his defense.” King at 661. Moreover, federal case law explains that ” ‘determining what constitutes waiver by conduct is more [an] art than a science * * * and there is no bright line rule.’ ” Boulger at 477, quoting State Auto Ins. Co. v. Thomas Landscaping & Constr., Inc., S.D. Ohio No. 2:09-cv-735, 2011 U.S. Dist. LEXIS 88176 (Aug. 9, 2011), and Pruco Life Ins. Co. v. Wilmington Trust Co., 616 F.Supp.2d 210, 216 (D.R.I.2009). A court “must consider all of the relevant circumstances in determining whether waiver by conduct has occurred.” Boulger at 477. Please note:Ahmad Did Not Waive Service-Related Defenses
An Attorney Carries The Ultimate Duty Of Verifying Service
Service Was Not Reasonably Calculated To Provide Ahmad Notice Of The Claims
III. Conclusion
BERGERON, P.J., concurs separately.
The court has recorded its entry on the date of the release of this opinion.