ELIZABETH CONKIN, as guardian for ZELMA ANDERSON, Plaintiff-Appellant, vs. CHS-OHIO VALLEY, INC., d.b.a. GLENCARE CENTER, Defendant-Appellee.
APPEAL NO. C-110660
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 22, 2012
[Cite as Conkin v. CHS-Ohio Valley, Inc., 2012-Ohio-2816.]
TRIAL NO. A-1104723; Civil Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Reversed and Cause Remanded
Ulmer & Berne, LLP, Frederic X. Shadley and Jason P. Conte for Plaintiff-Appellant,
Reminger Attorneys at Law, Danny Merril Newman, Jr., and Michael M. Mahon for Defendant-Appellee.
Please note: This case has been removed from the accelerated calendar.
{¶1} The issue presented for our review is whether the trial court erred in dismissing the complaint of Elizabeth Conkin, guardian for Zelma Anderson, as time-barred by the one-year statute of limitations set forth in
FACTS
{¶1} Seventy-year old Zelma Anderson was a resident at defendant-appellee CHS-Ohio Valley, Inc., d.b.a. Glencare Center nursing home. Conkin claims that Anderson, who was confined to a wheelchair, required the assistance of at least two people when being transferred from her wheelchair into a device called a “Hoyer lift.” Conkin asserts that a Glencare employee, identified as “Jane Doe,” acted alone when transferring Anderson into the Hoyer lift so that Anderson could shower. As a result, Conkin alleges that Anderson either fell or was dropped, and was seriously injured. Conkin also alleges that Doe failed to report Anderson‘s fall and that Anderson therefore did not receive immediate treatment for her injuries.
{¶2} Eighteen months after this incident, Conkin, as guardian for Anderson, sued Glencare and Doe alleging negligence, negligent training, violation of resident‘s rights under
{¶3} Appellate review of the trial court‘s decision is de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. We must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). A complaint may be dismissed under
“MEDICAL CLAIM”
{¶4} In pertinent part,
{¶5} It is not disputed that Glencare qualifies as a “home” under {¶6} There are two leading cases that address this issue—Browning v. Burt, 66 Ohio St.3d 544, 613 N.E.2d 993 (1993) and Rome v. Flower Mem. Hosp., 70 Ohio St.3d 14, 635 N.E.2d 1239 (1994). In Browning, the Ohio Supreme Court held that “care” as used in a prior but analogous version of {¶7} In Rome, the Ohio Supreme Court addressed the circumstances under which the allegedly negligent use of medical equipment is considered a “medical claim.” Rome involved two consolidated cases. In the first, plaintiff Rome, who was scheduled for x-rays at the defendant hospital, was injured when she was incorrectly strapped onto an x-ray table by a hospital intern. In the second case, plaintiff Eager, a hospital patient, was injured when the wheelchair he was riding in collapsed while he was being taken to physician-ordered physical therapy. The court held that both cases involved “medical claims.” In Rome‘s case, the court determined that the act of securing Rome on a table for an x-ray constituted “medical diagnosis, care, or treatment” because it was “ancillary to and an inherently necessary part of the administration of the x-ray procedure which was ordered to identify and alleviate her medical complaints.” Rome at 16. As to Eager, the court held that because the wheelchair “transport arose out of Eager‘s physical therapy treatment,” Eager‘s injury was a result of his “care or treatment.” Id. at 17. In both cases, the court noted {¶8} Thus, to determine whether the use of medical equipment constitutes “care” under {¶9} In this case, the complaint alleges that Anderson sustained serious injury when she was improperly transferred from her wheelchair into a Hoyer lift. We note that the complaint failed to state why Anderson was being transferred. But Conkin and Glencare have both acknowledged in their appellate briefs and at oral argument that Anderson asserts that she was being moved so that she could shower. We therefore consider this fact in our analysis. See Haney v. Law, 1st Dist. No. C-070313, 2008-Ohio-1843. {¶10} Accepting these facts as true and drawing all reasonable inferences in favor of Conkin, we hold that Conkin‘s claims, as pled, are not “medical claims.” Even if the Hoyer lift was used for the alleviation of problems associated with Anderson‘s range of motion, there is no indication at this point in the proceedings that the use of the Hoyer lift was an inherent part of a medical procedure or that it {¶11} Our holding is consistent with cases from other appellate districts. See Hill v. Wadsworth-Rittman Area Hosp., 185 Ohio App.3d 788, 2009-Ohio-5421, 925 N.E.2d 1012 (9th Dist.) (no medical claim where plaintiff was injured while getting out of a wheelchair while being discharged from defendant hospital because she was not injured in the course of a test or treatment, nor was the wheelchair escort ancillary to or an inherently necessary part of any test or treatment.); Balascoe v. St. Elizabeth Hosp. Med. Ctr., 110 Ohio App.3d 83, 673 N.E.2d 651 (7th Dist.1996) (no medical claim where emergency room patient left bed on her own accord to use the restroom and slipped and fell on a piece of plastic because the injury did not arise from her medical care or treatment.); see, also, Summers v. Midwest Allergy Associates, 10th Dist. No. 02AP-280, 2002-Ohio-7357; Tayerle v. Hergenroeder, 11th Dist. No. 98-G-2195, 1999 Ohio App. LEXIS 5931 (Dec. 10, 1999). {¶12} We sustain Conkin‘s sole assignment of error and hold that the claims, as pled, do not constitute “medical claims” as defined in Judgment reversed and cause remanded. SUNDERMANN, P.J., and FISCHER, J., concur. Please note:Test for Use of Medical Equipment as “Care”
Anderson‘s Case
CONCLUSION