ERWIN, ADMR., APPELLEE, v. BRYAN ET AL.; SWOGER ET AL., APPELLANTS.
No. 2009-0580
Supreme Court of Ohio
Submitted January 12, 2010—Decided May 25, 2010
125 Ohio St.3d 519, 2010-Ohio-2202
O‘DONNELL, J.
{¶ 1}
{¶ 2}
{¶ 3} Rather, Cora attempted to use
{¶ 4} To construe the rule to allow the use of placeholders for unidentified defendants would eliminate the statute of limitations for every cause of action. That is not the purpose of
{¶ 5} For these reasons, the judgment of the court of appeals is reversed, and the judgment of the trial court granting summary judgment in favor of Swoger and UIMS is reinstated.
Facts and Procedural History
{¶ 6} On June 29, 2004, 52-year-old Russell Erwin awoke after midnight appearing feverish and disoriented, and he began to convulse. His wife, Cora, called 9-1-1. Paramedics responded, found Erwin unconscious, and transported him to Union Hospital, where he entered the intensive care unit (“ICU“) as a patient of Joseph E. Bryan, M.D., who was on call at the hospital at that time. Because Erwin remained unconscious and seizing, Bryan ordered him sedated.
{¶ 7} Bryan also sought a consultation by William V. Swoger, D.O., to evaluate Erwin‘s intermittent airway obstruction, and, in his report, Bryan noted that
{¶ 8} Swoger inserted a breathing tube for Erwin because of the upper airway obstruction, which Swoger believed had been caused by the sedation and Erwin‘s unresponsiveness. Cora, a housekeeping employee at the hospital, recognized Swoger and observed him caring for her husband. On the basis of his examination and his discussion with Bryan, Swoger diagnosed Erwin as suffering from acute respiratory failure. His report concluded: “Critical care time was 80 minutes. Thanks for allowing [me] to participate in his care. I will follow him in the ICU setting and give further advice as warranted.”
{¶ 9} Bryan continued to treat Erwin for alcohol-withdrawal syndrome, and as hospital staff ceased sedating him, Erwin regained consciousness, and the breathing tube was removed. When Erwin‘s condition improved, Paul W. McFadden, M.D., his family doctor, assumed responsibility for his care. McFadden discharged Erwin from the hospital on July 6, 2004, and prepared a report in which he indicated a diagnosis of seizures secondary to alcohol withdrawal. In his report, McFadden noted that “Dr. Swoger was consulted who assisted in helping manage the respirator.”
{¶ 10} While recovering at home the next week, Erwin continued to experience fatigue and complained of nausea. On July 15, 2004, his wife heard a loud noise coming from another room and discovered Erwin convulsing on the floor. She called 9-1-1, but when paramedics arrived, they found him unresponsive and without a pulse. They transported him to Union Hospital, where attempts at resuscitation proved unsuccessful. Cora alleges that an autopsy revealed a massive and fatal pulmonary thromboembolism with evidence of both recent and organizing peripheral thromboemboli.
{¶ 11} On July 10, 2006, a few days before the expiration of the statute of limitations for wrongful death, Cora, individually and as administrator of her husband‘s estate, filed a complaint against Bryan, his professional corporation, the Union Hospital Association, “John Doe, M.D. No. 1 through 5 (whose real names and addresses are unknown at the time of filing this Complaint despite Plaintiffs’ Best and Reasonable Efforts to Ascertain Same),” and the professional corporations of each John Doe, M.D., alleging that the medical providers negligently failed to timely diagnose and treat Erwin for the pulmonary embolism, resulting in his death. Significantly, no John Doe defendant was personally served with a summons containing the words “name unknown” before the expiration of the statute of limitations.
{¶ 12} On September 21, 2006, Cora received the Union Hospital medical records. In his deposition on February 7, 2007, Bryan revealed that he had
{¶ 13} Thereafter, on June 29, 2007, Cora moved to amend her complaint to substitute Swoger and UIMS, for John Doe, M.D., and John Doe, M.D., Professional Corporation, asserting that she had only recently learned of Swoger‘s role in her husband‘s care during the discovery deposition of Bryan. She served the summons and complaint on Swoger and UIMS on June 29, 2007.
{¶ 14} The trial court granted leave to amend the complaint, and Cora filed an amended complaint. A week later, she filed an affidavit of Joseph Caprini, M.D., who averred that he had reviewed Erwin‘s medical records and that in his professional opinion Union Hospital, Bryan, and Swoger breached the standard of care and caused the alleged injuries.
{¶ 15} The trial court entered summary judgment in favor of Swoger and UIMS, finding that the claims were time-barred and that
{¶ 16} On appeal, the Fifth District Court of Appeals reversed, holding that a plaintiff who is unaware of the culpability of a particular person at the time of filing the complaint may rely on
{¶ 17} Swoger and UIMS appealed that decision to this court, contending that Cora‘s first amended complaint does not relate back to the filing of the original complaint and is therefore barred by the two-year statute of limitations for wrongful-death actions. They further contend that
{¶ 18} In this court, Cora maintains that the first amended complaint naming Swoger and UIMS relates back to her timely filed original complaint. She asserts that a plaintiff does not know the name of a defendant for purposes of
{¶ 19} Cora and amicus curiae Ohio State Bar Association suggest that a contrary holding will result in every health-care provider mentioned in a patient‘s medical records being named in medical-malpractice actions. However, pursuant to
{¶ 20} Accordingly, in this case, we focus our attention on the use of
Amendment Where the Name of a Defendant is Unknown
{¶ 21}
{¶ 22} As we explained in State ex rel. Law Office of Montgomery Cty. Pub. Defender v. Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23, “To interpret court rules, this court applies general principles of statutory construction. * * * Therefore, we must read undefined words or phrases in context and then construe them according to rules of grammar and common usage.” If a court rule is unambiguous, we apply it as written. State ex rel. Potts v. Comm. on Continuing Legal Edn. (2001), 93 Ohio St.3d 452, 456, 755 N.E.2d 886.
{¶ 23} According to its unambiguous language,
{¶ 24} We previously construed
{¶ 25} Our holding in Varno has been superseded on other grounds by an amendment to
summons does not contain the words “name unknown” and is not personally
{¶ 26} The construction of
{¶ 27} In promulgating
{¶ 28} Notably, the Modern Courts Amendment of 1968, Section 5(B), Article IV, Ohio Constitution, empowers this court to create rules of practice and procedure for the courts of this state. As we explained in Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872,
{¶ 29} The existence and duration of a statute of limitations for a cause of action constitutes an issue of public policy for resolution by the legislative branch of government as a matter of substantive law. See Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 22; Howard v. Allen (1972), 30 Ohio St.2d 130, 137, 59 O.O.2d 148, 283 N.E.2d 167, quoting Chase Securities Corp. v. Donaldson (1945), 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628; see also State v. Slatter (1981), 66 Ohio St.2d 452, 455, 20 O.O.3d 383, 423 N.E.2d 100, fn. 4 (an “indicant of substantive law is the magnitude of the change in public policy found in a rule or statute“). Cf. State v. Hughes (1975), 41 Ohio St.2d 208, 70 O.O.2d 395, 324 N.E.2d 731, syllabus (invalidating court rule enlarging prosecution‘s statutory right of appeal).
{¶ 30} We cannot, through a court rule, alter the General Assembly‘s policy preferences on matters of substantive law, and
{¶ 31} Accordingly, a plaintiff may use
Application of Civ.R. 15(D)
{¶ 32} The complaint here does not satisfy the requirements of
{¶ 33} First, Cora knew Swoger‘s name at the time she filed the original complaint by virtue of her employment at Union Hospital, and she recognized him when he provided care to her husband. She also knew that her husband‘s death may have resulted from malpractice, her duty to investigate the identity of alleged tortfeasors arose at that time, and the two-year statute of limitations for wrongful-death actions controls the timeliness of the discovery of Swoger‘s alleged culpability. Notably, Caprini, the expert who examined records for Cora, averred that his review of the medical records supported his opinion that Swoger acted negligently. Because Cora knew Swoger‘s name, she did not have the option to designate him as a John Doe defendant in the original complaint, notwithstanding the fact that she had not identified him as being responsible for her husband‘s death.
{¶ 34} Second, even if Cora had not known the names of Swoger or his professional corporation, UIMS, the original complaint did not provide a description that sufficiently identified either so that personal service could be obtained upon the filing of the complaint, as the rule directs. Cora brought this action using the generic description of a doctor licensed in Ohio, whose actions caused her husband‘s death, and that doctor‘s professional corporation. She therefore did not identify an individual or entity that could be personally served with the summons as contemplated by
{¶ 35} Accordingly, because she failed to comply with
{¶ 36} Lastly, we have considered the views of our dissenting colleague and examined the authority on which he relies, Chief Justice Celebrezze‘s dissenting opinion in Varno. A careful reading of that dissent reveals that Chief Justice Celebrezze‘s view comports with our interpretation of the Rules of Civil Procedure. Notably, Chief Justice Celebrezze stated the following in his dissent:
{¶ 37} “I agree that
{¶ 38} Thus, the former chief justice has squarely anticipated the issue presented in this case and recognized that
{¶ 39} However, recognizing that a claimant may not be able to identify all culpable parties at the time of filing a complaint, we point out that nothing in our opinion should be construed to prevent amendment of a timely filed complaint before the expiration of the statute of limitations. See
Conclusion
{¶ 40} A claimant may use
{¶ 41} The appellate court decision did not account for the requirements of this rule. Accordingly, that judgment is reversed, and the judgment of the trial court is reinstated.
Judgment accordingly.
LUNDBERG STRATTON, O‘CONNOR, LANZINGER, and GRENDELL, JJ., concur.
PFEIFER, J., dissents.
BROWN, C.J., not participating.
DIANE V. GRENDELL, J., of the Eleventh Appellate District, sitting for CUPP, J.
PFEIFER, J., dissenting.
{¶ 42} “In this case appellant unquestionably filed the complaint within the applicable statute of limitations. The complaint was later amended to include the correctly identified defendants but was nevertheless served within one year after the original complaint was filed on the defendants originally named and those initially described as unknown. Appellees received the exact same notice they would have received had appellant correctly named them in the original caption and then served them within the time provided for service in
{¶ 43} “I believe the majority‘s hypertechnical reading of our Civil Rules, to require service on unknown defendants within the statute of limitations, is unjustified, as such a construction imposes a greater hardship on a plaintiff who can not identify a defendant than on a plaintiff who can identify him.
{¶ 44} I can‘t offer a more coherent or concise explanation of why the court is as wrong today as it was in 1985. I dissent.
Paul W. Flowers Co., L.P.A., and Paul W. Flowers; and Becker & Mishkind Co., L.P.A., Ronald Margolis, and Jessica A. Perse, for appellee.
Hanna, Campbell & Powell, L.L.P., and Rocco D. Potenza, for appellants.
Marianna Brown Bettman, William K. Weisenberg, and Eugene P. Whetzel, urging affirmance for amicus curiae Ohio State Bar Association.
Rourke & Blumenthal, L.L.P., Jonathan K. Stoudt, and Michael J. Rourke, urging affirmance for amicus curiae Ohio Association for Justice.
Bricker & Eckler, L.L.P., Anne Marie Sferra, and Bridget Purdue Riddell, urging reversal for amici curiae Ohio State Medical Association, Ohio Hospital Association, and Ohio Osteopathic Association.