Donald A. Davis, Individually, and as Executor of the Estate of Monica P. Davis, et al. v. Mercy St. Vincent Medical Center, et al.
Court of Appeals No. L-21-1095
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: April 15, 2022
2022-Ohio-1266
Trial Court No. CI0201803398
* * * * *
Gary W. Osborne and Jack S. Leizerman, for appellants.
Taylor C. Knight and Erin Siebenhar Hess, for appellees Fayyaz H. Hashmi, M.D., Mercy Health North, LLC (fka) Mercy Health System- Northern Region and Mercy Medical Partners, Northern Region, LLC.
* * * * *
MAYLE, J.
{¶ 1} Plaintiffs-appellants, Donald Davis, Individually and as Executor of the Estate of Monica Davis, and Dustin Davis, appeal the April 22, 2021 judgment of the Lucas County Court of Common Pleas, granting motions for judgment on the pleadings, or alternatively, for summary judgment in favor of defendants-appellees, Mercy St. Vincent Medical Center, Fayyaz H. Hashmi, M.D., and Mercy Health North, LLC, fka Mercy Health System-Northern. For the following reasons, we reverse.
I. Background
{¶ 2} Monica Davis died on April 4, 2014, allegedly as the result of medical negligence committed on November 4, 2013, by Fayyaz Hashmi, M.D. and other health care providers. On May 4, 2015, after properly availing themselves of the additional 180 days to file suit under
{¶ 3} On July 30, 2019, appellees filed motions for judgment on the pleadings and for summary judgment. They argued that the four-year statute of repose for medical claims set forth in
{¶ 4} Over a year after the trial court denied appellees’ motions, on December 23, 2020, the Ohio Supreme Court decided Wilson v. Durrani, 164 Ohio St.3d. 419, 2020-Ohio-6827, 173 N.E.3d 448. In Wilson, the court held that “a plaintiff may [not] take advantage of Ohio‘s saving statute to refile a medical claim after the applicable one-year statute of limitations has expired if the four-year statute of repose for medical claims has also expired.” Id. at ¶ 1.
{¶ 5} Following the Ohio Supreme Court‘s decision in Wilson, appellees filed renewed motions for judgment on the pleadings or, alternatively, for summary judgment, and a motion for reconsideration of the trial court‘s September 17, 2019 judgment. On April 22, 2021, the trial court granted appellees’ motions for judgment on the pleadings or, alternatively, for summary judgment. Davis appealed. He assigns a single error for our review:
THE TRIAL COURT ERRED WHEN IT FOUND THAT THE OHIO MEDICAL MALPRACTICE STATUTE OF REPOSE,
R.C. 2305.113(C) ,APPLIES TO WRONGFUL DEATH CLAIMS.
II. Law and Analysis
{¶ 6} The issue in this case is whether a plaintiff may rely on Ohio‘s wrongful-death saving statute,
{¶ 7} Appellees respond that a wrongful-death claim predicated on alleged medical negligence is a “medical claim” that is subject to the four-year statute of repose set forth in
A. Standards of Review
{¶ 8} The trial court granted appellees’ motion for judgment on the pleadings or, alternatively, motions for summary judgment.
{¶ 9} Under
{¶ 10} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds
can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978), Civ.R. 56(C) .
{¶ 11} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact.
B. The Statutes at Issue
{¶ 12} Davis‘s complaint alleged claims for medical negligence, loss of consortium, and wrongful death. The statute of limitations for Davis‘s claims for medical negligence and loss of consortium is set forth in
{¶ 13}
(1) If a person making a medical claim * * *, in the exercise of reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within three years after the occurrence of the act or omission, but, in the exercise of reasonable care and diligence, discovers the injury resulting from that act or omission before the expiration of the four-year period specified in division (C)(1) of this section, the person may commence an action upon the claim not later than one year after the person discovers the injury resulting from that act or omission.
(2) If the alleged basis of a medical claim * * * is the occurrence of an act or omission that involves a foreign object
that is left in the body of the person making the claim, the person may commence an action upon the claim not later than one year after the person discovered the foreign object or not later than one year after the person, with reasonable care and diligence, should have discovered the foreign object.
{¶ 14} Davis‘s wrongful death claim was brought under Chapter
{¶ 15} Finally, for plaintiffs who file a complaint that “fails otherwise than upon the merits,”
In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of the reversal of the judgment or the plaintiff‘s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. This division applies to any claim asserted in any pleading by a defendant.
In every civil action for wrongful death that is commenced or attempted to be commenced within the time specified by division (D)(1) or (D)(2)(c), (d), (e), (f), or (g) of section 2125.02 of the Revised Code, if a judgment for the plaintiff is reversed or the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new civil action for wrongful death within one year after the date of the reversal of the judgment or the plaintiff‘s failure otherwise than upon the merits or within the period specified by any of those divisions, whichever occurs later.
C. Wilson v. Durrani
{¶ 16} The trial court dismissed Davis‘s refiled complaint after the Ohio Supreme Court‘s December 23, 2020 decision in Wilson, 164 Ohio St.3d. 419, 2020-Ohio-6827, 173 N.E.3d 448. In Wilson, the court considered whether the general saving statute,
{¶ 17} In Wilson, two separate plaintiffs (Sand and Wilson) filed complaints in Butler County in March of 2013, and April of 2013, respectively, for injuries resulting
{¶ 18} Plaintiffs appealed the trial court judgment, arguing that the Ohio saving statute permitted them to refile their claims within one year after the voluntary dismissals. The First District Court of Appeals agreed and reversed the trial court judgment. It held that plaintiffs had timely refiled their claims under the saving statute, so the statute of repose did not bar their refiled claims.
{¶ 19} Defendants appealed to the Ohio Supreme Court. The court accepted their appeal to address “whether the saving statute permits the refiling of actions beyond the expiration of the medical statute of repose.” Wilson v. Durrani, 157 Ohio St.3d 1562, 2020-Ohio-313, 138 N.E.3d 1152. As described by the court, the question presented on appeal required it to consider “the interplay between three distinct types of statutes: (1) statutes of limitations, (2) statutes of repose, and (3) saving statutes.” Wilson, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, at ¶ 7.
{¶ 20} The court explained that “[a] statute of limitations establishes ‘a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).‘” Id. at ¶ 9, quoting Black‘s Law Dictionary 1707 (11th Ed.2019). A “[s]tatute[] of limitations emphasize[s] plaintiffs’ duty to diligently prosecute known claims.” Id. at ¶ 10, citing CTS Corp. v. Waldburger, 573 U.S. 1, 8, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014). It “operates on the remedy, not on the existence of the cause of action itself.” Id., citing Mominee v. Scherbarth, 28 Ohio St.3d 270, 290, 503 N.E.2d 717 (1986), fn. 17 (Douglas, J., concurring).
{¶ 21} The court explained that a statute of repose “bars ‘any suit that is brought after a specified time since the defendant acted * * * even if this period ends before the plaintiff has suffered a resulting injury.‘” Id. at ¶ 9, quoting Black‘s at 1707. A “[s]tatute[] of repose * * * emphasize[s] defendants’ entitlement to be free from liability after a legislatively determined time.” Id. at ¶ 10, citing CTS Corp. at 9. It bars the claim itself. Id., citing Treese v. Delaware, 95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th Dist.1994).
{¶ 22} Finally, the court explained, a saving statute extends the time in which a plaintiff may file an action. Generally, it “provide[s] that ‘where an action timely begun fails in some manner described in the statute, other than on the merits, another action may be brought within a stated period from such failure.‘” Id. at ¶ 9, quoting Annotation, 6 A.L.R.3d 1043 (1966). A saving statute “acts as an exception to the general bar of the statute of limitations.” Id., citing Chadwick v. Barba Lou, Inc., 69 Ohio St.2d 222, 232, 431 N.E.2d 660 (1982) (Krupansky, J., concurring in part and dissenting in part).
{¶ 23} The parties in Wilson agreed that plaintiffs’ claims were “medical claims” as defined in
{¶ 24} The court identified the saving statute relevant to the action as
{¶ 25} The court observed that under
{¶ 26} Plaintiffs argued that because they voluntarily dismissed their claims under
{¶ 27} The court sided with defendants. It stressed that
{¶ 28} Plaintiffs argued that for purposes of the statute of repose, when they refiled their claims within one year of voluntarily dismissing them, the new complaints “related back” to the dates they initially filed their original complaints. The court disagreed. It acknowledged that in Frysinger v. Leech, 32 Ohio St.3d 38, 512 N.E.2d 337 (1987), the court observed that “[w]here
{¶ 29} The court reasoned that because of the different purposes served by statutes of limitations and statutes of repose, “exceptions to a statute of repose require ‘a particular indication that the legislature did not intend the statute to provide complete repose but instead anticipated the extension of the statutory period under certain circumstances,’ as when the statute of repose itself contains an express exception.” Id. at ¶ 29. It observed that the legislature incorporated into
{¶ 30} As additional justification for the result it reached, the court observed that
{¶ 31} In sum, the court concluded that ”
{¶ 32} Wilson involved a medical claim involving a non-fatal injury to the patient. Davis has conceded that his medical claim and loss-of-consortium claim are barred under Wilson. This appeal concerns only Davis‘s wrongful-death claim.
{¶ 33} Appellees insist that Davis‘s wrongful death claim is a “medical claim.” Accordingly, they argue, it is subject to the four-year medical-claim statute of repose set forth in
{¶ 34} Davis argues that whether his claim is deemed to be a “medical claim” is “not determinative of the applicability of the wrongful death savings clause.” He emphasizes that Ohio has afforded special protections to wrongful death claimants that are not afforded to non-fatal bodily injury claimants. For example, the Ohio Constitution, Article I, Section 19(a) provides that the amount of compensation for a wrongful-death claim may not be limited by law. Moreover, the two claims have different statutes of limitation. Davis points out that the Ohio Supreme Court itself has acknowledged the distinct nature of such claims. See e.g., Koler v. St. Joseph Hosp., 69 Ohio St.2d 477, 432 N.E.2d 821 (1982), and Klema v. St. Elizabeth‘s Hosp. of Youngstown, 170 Ohio St. 519, 524, 166 N.E.2d 765 (1960).
{¶ 35} Davis emphasizes that unlike the medical-claim statute, the wrongful-death statute contains its own saving clause—
{¶ 36} Appellees acknowledge that the Wrongful Death Act contains its own saving statute,
{¶ 38}
{¶ 39} In Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291—which specifically did not address the applicability of the medical-claim statute of repose to wrongful-death claims (see ¶ 6, “the wrongful-death action is not before us“)—the Ohio Supreme Court summarized the policy reasons that support the statute of repose for medical claims. For one, it explained, “the statute of repose exists to give medical providers certainty with respect to the time within which a claim can be brought and a time after which they may be free from the fear of litigation.” Id. at ¶ 19. Additionally, it observed:
Forcing medical providers to defend against medical claims that occurred 10, 20, or 50 years before presents a host of litigation concerns,
including the risk that evidence is unavailable through the death or unknown whereabouts of witnesses, the possibility that pertinent documents were not retained, the likelihood that evidence would be untrustworthy due to faded memories, the potential
{40} But Davis correctly points out that wrongful-death claims-even those premised on negligent medical care-are treated differently than medical claims for non-fatal injuries.
{41} A “wrongful death action is a special statutory action which does not exist at common law.” Klema, 170 Ohio St. at 524, 166 N.E.2d 765. While a wrongful-death claim and the underlying injury claim originate from the same wrongful act, the two claims are entirely distinct. Id. at 521, citing St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U.S. 648, 658, 35 S.Ct. 704, 59 L.Ed. 1160 (1915). The underlying injury claim “is for the wrong to the injured person“; the wrongful death claim “is for the wrong to the beneficiaries * * *.” Id., quoting id. “One begins where the other ends * * *.” Id., quoting id.
{42} In Klema, the Supreme Court of Ohio considered whether the statute of limitations for medical malpractice, former
{43} As this court has recognized, consistent with Klema, ”
{44} In Smith, the decedent died on July 22, 2015, and on July 21, 2017, his estate filed a wrongful death action against a number of medical providers. The alleged acts of medical malpractice occurred in 2004. On motions to dismiss or for summary judgment, filed by the various medical providers, the trial court dismissed the
{45} On appeal, the estate argued that the trial court erred in applying the medical-malpractice statute of repose to bar a wrongful death action filed under
{46} The appellate court also specifically considered the estate‘s argument that Ohio‘s medical-claim statute of repose does not apply to wrongful-death actions because a wrongful-death action is subject to its own statute of limitations under
{47} In Mercer, 2021-Ohio-1576, 172 N.E.3d 1101, the patient was diagnosed with sacral chordoma on May 12, 2015. The patient and his spouse brought a medical-malpractice action on August 19, 2016, after learning that the mass on the patient‘s sacrum had been visible in a December 12, 2012 MRI. By the time it was diagnosed in 2015, the patient was no longer a surgical candidate. The patient died on February 29, 2020, and his estate filed an amended complaint on May 1, 2020, converting the medical-malpractice claim to one for wrongful death-seven years and four months after the conduct giving rise to the claim.
{48} Defendants moved for partial summary judgment and for judgment on the pleadings on the basis that plaintiffs’ wrongful-death claim was barred by the four-year statute of repose under
{49} On appeal, the court explained the distinction between statutes of limitations and statutes of repose. It acknowledged the policy reasons supporting the medical-claim statute of repose. It summarized the Ohio Supreme Court‘s decision in Wilson, 164 Ohio App.3d. 419, 2020-Ohio-6827, 173 N.E.3d 448. And it recognized that a claim for wrongful death is an independent cause of action governed by
{50} And most recently in Martin, 11th Dist. Lake No. 2021-L-046, 2021-Ohio-4614, the patient and her husband brought an action for medical malpractice on January 14, 2016, in connection with the defendants’ failure to diagnose her lung cancer during various examinations that occurred between 2011 and 2014, delaying her diagnosis until October of 2014. On May 11, 2017, plaintiffs voluntarily dismissed their complaint. The patient died on September 2, 2017. On May 10, 2018, her husband refiled the medical-malpractice claim, along with a wrongful-death claim.
{51} Defendants moved for summary judgment on both claims on the basis that they were time-barred under the four-year medical-claim statute of repose because the acts and omissions constituting the basis of the claims occurred before May 10, 2014. The plaintiff responded that the saving statute in
{52} Similar to the present case, while the matter was initially pending in the trial court, Wilson had not been decided by the Ohio Supreme Court. After that decision was released, defendants filed renewed motions for summary judgment. Plaintiff opposed the motion on the basis that motions for reconsideration were pending in Wilson, Wilson should be applied only prospectively, and application of the statute of repose to his wrongful-death claim would violate due process. He also requested additional time under
{53} The trial court in Martin granted the renewed motions for summary judgment in favor of defendants and dismissed both the medical-malpractice and wrongful-death claims. Plaintiff moved for reconsideration, then moved for relief from judgment based on revised opinions from his medical experts that would expand the period of time within which a diagnosis of the patient‘s lung cancer would have resulted in a greater-than-50-percent probability of survival. The trial court denied his motions.
{54} On appeal, plaintiff argued, inter alia, that “the trial court erred in applying the medical claims Statute of Repose to Plaintiff‘s wrongful death claim because it is not a ‘medical claim’ subject to that Statute of Repose.” Id. at ¶ 6. He argued that “because the statutes of limitations for medical claims and wrongful death claims are contained in different statutory sections, a wrongful death claim is not a
{55} The appellate court looked to the definition of “medical claim” contained in
{56} In sum, Smith, 2018-Ohio-2441, 114 N.E.3d 1224, Mercer, 2021-Ohio-1576, 172 N.E.3d 1101, and Martin all held that the medical-claim statute of repose applies to wrongful-death claims that arise from negligent medical care. But we disagree with these cases for several reasons.
{57} First,
{58} Second, if (as we recognized in Ottney, 6th Dist. Sandusky No. C.A. S-86-6, 1986 WL 15056, at *6), ”
{59} Importantly,
{60} Further to this point, we are aware of two statutes applicable to wrongful-death claims that exist outside the Wrongful Death Act itself-
{61} Third, our recognition of the wrongful-death claim as an action that is independent of a medical-malpractice claim leads us to a different conclusion that that reached in Mercer, 2021-Ohio-1576, 172 N.E.3d 1101. Mercer reasoned that the separateness of a wrongful-death claim illustrated that the amended complaint-though
{62} Finally, we disagree that because courts have held that the
{63} In sum, we conclude that the four-year medical-claim statute of repose is not applicable to wrongful-death actions predicated on negligent medical care. To the extent that other courts have held otherwise, we disagree with those cases. Accordingly, we find Davis‘s assignment of error well-taken.
{64} Under
{65} In order to qualify for certification to the Supreme Court of Ohio pursuant to
First, the certifying court must find that its judgment is in conflict with the judgment of a court of appeals of another district and the asserted conflict must be “upon the same question.” Second, the alleged conflict must be on a rule of law-not facts. Third, the journal entry or opinion of the certifying court must clearly set forth the rule of law which the certifying court contends is in conflict with the judgment on the same question by other district courts of appeals. Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
{66} We find that our holding today is in conflict with the Third District‘s decision in Smith 2018-Ohio-2441, 114 N.E.3d 1224; the Fifth District‘s decision in Mercer, 2021-Ohio-1576, 172 N.E.3d 1101; and the Eleventh District‘s decision in Martin, 11th Dist. Lake No. 2021-L-046, 2021-Ohio-4614. Accordingly we certify the record in this case for review and final determination to the Supreme Court of Ohio on the following issue:
Is the four-year medical-claim statute of repose set forth in R.C. 2305.113(C) inapplicable to wrongful-death actions predicated on negligent medical care?
{67} The parties are directed to
III. Conclusion
{68} A wrongful-death action is a special statutory action subject to the provisions contained within the wrongful-death statutes themselves. The Wrongful Death Act contains no statute of repose applicable to actions predicated on claims of medical negligence-the only statute of repose contained in the Wrongful Death Act pertains to actions arising from product-liability claims. Moreover, unlike other statutory provisions such as
{69} We reverse the April 22, 2021 judgment of the Lucas County Court of Common Pleas and sua sponte certify the record in this case for review and final determination to the Supreme Court of Ohio on the issue of whether the four-year medical-claim statute of repose set forth in
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Christine E. Mayle, J.
Gene A. Zmuda, J.
CONCUR.
Thomas J. Osowik, J.
DISSENTS, IN PART, AND CONCURS, IN PART.
OSOWIK, J.
{70} I agree with the majority opinion that the narrow question before us is whether the
{71} Three Ohio appellate courts have found Ohio‘s medical malpractice statute of repose precludes a wrongful death action if the case is derived from a medical claim. See Smith v. Wyandot Mem. Hosp., 2018-Ohio-2441, 114 N.E.3d 1224 (3d Dist.); Fletcher v. Univ. Hosps. of Cleveland, 172 Ohio App.3d 153, 2007-Ohio-2778, 873 N.E.2d 365 (8th Dist.), rev‘d on other grounds, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147; Mercer v. Keane, 2021-Ohio-1576, 172 N.E.3d 1101 (5th Dist.). I agree with the opinions of these
{72} The Supreme Court of Ohio has also provided some insight in Wilson v. Durrani where it held:
R.C. 2305.113(C) is a true statute of repose that, except as expressly stated inR.C. 2305.113(C) and (D), clearly and unambiguously precludes the commencement of a medical claim more than four years after the occurrence of the alleged act or omission that forms the basis of the claim. Expiration of the statute of repose precludes the commencement, pursuant to the saving statute, of a claim that has previously failed otherwise than on the merits in a prior action. Had the General Assembly intended the saving statute to provide an extension of the medical statute of repose, it would have expressly said so inR.C. 2305.113(C) , as it did inR.C. 2305.10(C) , the statute of repose that governs product-liability claims. Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, ¶ 38, reconsideration granted on an issue not raised here, 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 580.
{73} Appellants’ August 15, 2018 complaint alleges: (1) the medical negligence of the defendants arose from a medical procedure on the decedent on November 4, 2013, (2) the decedent died on April 4, 2014 as a result of the negligent medical care received on November 4, 2013, and (3) “This case was originally filed on May 4, 2015, dismissed as to these defendants on August 21, 2017, and is refiled pursuant to
{74} Despite appellants’ attempt to recast this case as a purely wrongful-death claim subject only to the wrongful-death savings statute under
{75} I would affirm the judgment of the trial court in this case. The act from which the four-year medical statute of repose runs is the November 4, 2013 surgery, which makes the August 15, 2018 complaint untimely. Without the November 4, 2013 medical procedure, there is no intervening act to create the independent cause alleged for the decedent‘s death on April 4, 2014. A material element of a wrongful death claim for which appellants have the burden to prove is, “the death of a person * * * caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, * * *.”
{76} For those reasons, my opinion diverges from the majority and I would respectfully dissent. However, since the majority opinion conflicts with the opinions of the Third, Fifth and Eighth Districts, I would agree that this case be certified to
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.