Estate of Gardner v. KransEstate of Gardner v. Krans
This cause was heard upon the appeal, the record, and the briefs.
For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed.
Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under
The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under
Enter upon the journal of the court on 7/15/2026 per order of the court.
By:_______________________
Judge
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 15, 2026
Rittgers Rittgers and Nakajima, Joseph W. Shea, III, and Stuart W. Penrose, for Plaintiff-Appellant,
Perez & Morris LLC and Elizabeth E. Baer, for Defendant-Appellee.
{¶1} Loretta Gardner sued Dr. Mary Beasley, alleging that Dr. Beasley misread an MRI, missing a brain tumor. Dr. Beasley moved for summary judgment arguing that the one-year medical malpractice statute of limitations barred Gardner‘s claim. The trial court granted the motion. Gardner now appeals. Because we agree that Ohio‘s tolling statute does not apply to a nonresident, that the 180-day letter was not sent to Dr. Beasley, and that the trial court did not abuse its discretion in denying Civ.R. 56 discovery after the motion for summary judgment was filed, we affirm the trial court‘s judgment.
I. Factual and Procedural History
{¶2} Gardner underwent an MRI on April 7, 2022, at Mercy Fairfield Hospital (“Mercy Hospital“). Dr. Beasley, a radiologist, read the MRI. Dr. Beasley did not detect any signs of a tumor. On August 6, 2022, Gardner received another MRI at a different hospital. A new doctor read this MRI and found a malignant tumor. On August 29, 2022, Gardner met with her primary care physician to discuss the results and the cancer diagnosis.
{¶3} On August 3, 2023, Gardner mailed a 180-day extension letter to Mercy Hospital pursuant to
{¶4} Dr. Beasley works for the Columbus Radiology Corporation, an Ohio Corporation, and lives in Kentucky. Dr. Beasley is contracted to Mercy Hospital in Cincinnati to read MRIs, which she does remotely. Dr. Beasley works entirely from her Kentucky home.
{¶5} Gardner filed her complaint on January 23, 2024. Gardner sued Dr.
{¶6} Dr. Beasley moved for summary judgment. In her motion for summary judgment, she argued that Gardner was outside of the one-year statute of limitations for medical negligence claims. Dr. Beasley submitted a signed affidavit stating that she was never employed by Mercy Hospital, nor did she maintain her residence, office, business, or professional practice there. Dr. Beasley stated in her affidavit that she is employed by Columbus Radiology Corp. and was contracted out to Mercy Hospital. The last time she was present in Ohio was for her training with Columbus Radiology Corp. in 2020. She also stated in her affidavit that she has lived at her current residence in Kentucky since 2020.
{¶7} Gardner responded to Dr. Beasley‘s motion for summary judgment. First, Gardner argued that under
{¶8} The trial court denied Dr. Beasley‘s motion with no explanation. One week later, a new judge was assigned to the case. Dr. Beasley promptly filed a motion to reconsider. In the interlude, Dr. Beasley filed a motion to strike the attorney affidavit, which the court granted. The trial court also granted the motion for
{¶9} Gardner requested to depose Dr. Beasley to gain evidence of Dr. Beasley‘s alleged purposeful concealment outside of Ohio. Gardner asserted that Dr. Beasley hid herself to avoid service of this lawsuit. The court denied this motion for additional discovery. The trial court reasoned that because Gardner had not completed the deposition prior to the previous motion for summary judgment, it would be inappropriate to allow the deposition for the motion for reconsideration.
{¶10} In September of 2024, Gardner passed away. The trial court substituted Gardner‘s Estate (“Gardner“) as the plaintiff and counsel moved to amend the complaint. Counsel sought to add a wrongful death claim. The court granted “plaintiff‘s motion to amend her complaint for the sole purpose of adding the decedent‘s estate and executrix as a party.”1
{¶11} The court ultimately granted Dr. Beasley‘s motion for summary judgment. The trial court explained that Dr. Beasley never personally received the 180-day letter. Additionally, the trial court found that the tolling statute did not apply to Dr. Beasley as a Kentucky resident, so Gardner exceeded the statute of limitations. Gardner timely appealed bringing three assignments of error.
II. Analysis
{¶12} In her first assignment of error, Gardner argues that Dr. Beasley‘s absence from Ohio saves her claim. In her second assignment of error, she argues that the 180-day letter was properly delivered. Both points support her argument that the trial court should not have granted summary judgment based on the one-year statute
A. First Assignment of Error
{¶13} We review a grant of summary judgment de novo. Al Neyer, LLC v. Westfield Ins. Co., 2020-Ohio-5417, ¶ 13 (1st Dist.). Under
{¶14} Under the first assignment of error, we review the trial court‘s ruling that the tolling statute in
when a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action . . . does not begin to run until the person comes into the state[.]
{¶15} The Supreme Court of the United States was very clear that the out of state provision is “repugnant to the Commerce Clause” when applied against a
{¶16} The Commerce Clause grants Congress the power “‘[t]o regulate Commerce . . . among the several States.‘” Id., quoting
{¶17} The Supreme Court addressed
{¶18} The Supreme Court of the United States has been clear. A plaintiff cannot use the tolling statute against a nonresident defendant. Id. at 751.
{¶19} To allow the tolling statute to apply to an out of state defendant would subject that defendant to continuous liability and the statute of limitations would never run. See Ruble v. Ream, 2003-Ohio-5969, ¶ 24 (4th Dist.). In Ruble, the Fourth District affirmed the trial court‘s ruling that found in favor of a nonresident defendant. Id. at ¶ 1. The Ruble plaintiff attempted to use
{¶20} Gardner asserts that Dr. Beasley has been absent from Ohio since she read the MRI in 2022. While this is true, it is because Dr. Beasley does not live in Ohio. She is not a resident of Ohio.2
{¶21} Gardner attempts to save her claim by pointing to Kennedy, 2024-Ohio-5565. In Kennedy, the Ohio Supreme Court stated, “The tolling statute applies with equal force to both residents and nonresidents of Ohio.” Id. at ¶ 18, citing Johnson v. Rhodes, 89 Ohio St.3d 540, 542 (2000). In Kennedy, the defendant doctor was a former resident of Ohio. Id. at ¶ 5. The doctor lived in Ohio when treating the plaintiff
{¶22} Kennedy differs from the instant case. Dr. Beasley was not an Ohio resident when she treated Gardner. Though Kennedy says, “The tolling statute applies with equal force to both residents and nonresidents of Ohio[,]” that quote concerns a former resident of Ohio who provided treatment in Ohio and then moved from Ohio. See id. at ¶ 18, citing Johnson at 542. We cannot view Kennedy in a vacuum nor can we extend the rationale to a Kentucky resident who never resided in Ohio.
{¶23} Our holding squares with Bendix, Hyde, and Ruble. In each of those cases, a nonresident of Ohio, who was not a resident of Ohio when the cause accrued, could not be subject to unlimited liability due to the tolling statute. The same is true here.
{¶24} We overrule Gardner‘s first assignment of error.
B. Second Assignment of Error
{¶25} In her second assignment of error, Gardner asserts that Dr. Beasley received the 180-day letter because Mercy Hospital was her “professional place of practice.”
{¶26} Gardner never sent the 180-day letter to Dr. Beasley‘s home, employer, or the address on file with the state medical board. Gardner argues, alternatively, that Mercy Hospital is Dr. Beasley‘s place of professional practice. Ohio courts have yet to interpret what a place of professional practice is.
{¶27} Dr. Beasley asks this court to look to Marotto v. Ohio State Univ. Med. Ctr., 2014-Ohio-4549 (10th Dist.). In Marotto, a doctor had privileges at the hospital in question just as Dr. Beasley had privileges at Mercy Hospital. Id. at ¶ 29. The Tenth District held that those privileges did not create an employee/employer relationship between the doctor and the hospital. Id. Dr. Beasley argues if her privileges do not create an employment relationship, then Mercy Hospital cannot be her professional place of business.
{¶28} Gardner asks us to adopt a “commonsense” approach. Gardner asserts that she sent the letter “to the only one of the four addresses that could be known or discovered since the defendant concealed her whereabouts by refusing . . . to provide [a] residence address to the State Medical Board of Ohio within 30 days of any change.”
{¶29} However, Gardner served Dr. Beasley at her home in Kentucky on July 10, 2024. Gardner managed to discover that address. Additionally, Gardner states in her brief that Dr. Beasley‘s address was not up to date with the Ohio Medical Board nor was it complete. The record before us does not establish that such address is not up to date, nor do we know how Gardner determined it was not up to date. But Dr. Beasley had all the address requirements on file with the Ohio Medical Board. Whether it is current or not is irrelevant. Additionally, Dr. Beasley has the same amount of information publicly listed with the Ohio Medical Board as any other doctor. Gardner could have taken the appropriate steps to acquire the full address and send the 180-day letter to that address. Gardner would have satisfied the requirements of
{¶30} Case law does not provide an answer to what is a place of professional
{¶31} Gardner failed to serve Dr. Beasley the 180-day letter at her residence, professional place of practice, employer, or the address on file with the state medical board.3 Gardner‘s failed attempt to deliver the 180-day letter did not extend the statute of limitations and therefore the complaint was untimely.
{¶32} Accordingly, we overrule Gardner‘s second assignment of error.
C. Third Assignment of Error
{¶33} Lastly, Gardner argues that the trial court erred when it denied Gardner‘s request to depose Dr. Beasley. We review a trial court‘s decision on discovery matters for an abuse of discretion. State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children & Family Servs., 2006-Ohio-4574, ¶ 9. “‘An abuse of discretion connotes an unreasonable, arbitrary, or unconscionable attitude.‘” Id., quoting State ex rel. Stewart v. State Emp. Relations Bd., 2006-Ohio-661, ¶ 10.
{¶34} “An appellate court will reverse a trial court‘s decision that extinguishes a party‘s right to discovery where its decision is improvident and affects the discovering party‘s substantial rights.” Queen City Cleaning, LLC v. I74 Wired, LLC, 2024-Ohio-1761, ¶ 14 (1st Dist.), citing Mauzy v. Kelly Servs., 75 Ohio St.3d 578, 592 (1996). In Queen City Cleaning, LLC, we held it was not an abuse of discretion for the trial court to deny a
{¶35} Here, the trial court did not allow Gardner to depose Dr. Beasley when the motion for reconsideration was pending. The trial court reasoned that Gardner had not attempted to depose Dr. Beasley before the parties filed their original motions. Gardner did not need to depose Dr. Beasley to support Gardner‘s original opposition. The court did not allow additional briefing, so it decided depositions could wait until after the court ruled on the motion for summary judgment. Gardner argues that the court did not allow her to conduct
{¶36} Gardner argues further that because the trial court struck her attorney‘s affidavit, she could not support her claim without a deposition. The attorney‘s affidavit provided unauthenticated screenshots, which Gardner also attached to her opposition to summary judgment. In her response to Gardner‘s opposition to summary judgment, Dr. Beasley argued that the screenshots in Gardner‘s opposition brief were inadmissible. That prompted the plaintiff‘s attorney to submit an affidavit where he attempted to authenticate the screenshots. Dr. Beasley immediately moved to strike the affidavit. Even still, Gardner did not seek to depose Dr. Beasley until after the trial court granted Dr. Beasley‘s motion for reconsideration. The trial court subsequently struck the attorney‘s affidavit.
{¶37} After the affidavit was struck, Gardner moved for
The Defendant has moved for a reconsideration of her Civ.R. 56 motion which was denied by the Court.
Virtually no discovery has taken place. There are several factual items needed to be known for the Court to decide the request. There is a question of concealment, the decedent‘s brain function (she died from brain cancer and became impaired before her death) and other items of discovery to be acquired. Since the underlying question is answered by the discovery of these and other important items of fact, the Plaintiff requests time to conduct the proper discovery[.]
{¶38} Though Gardner asserts “[v]irtually no discovery has taken place,” that was not an issue for Gardner when she responded to Dr. Beasley‘s first motion for summary judgment. Additionally, the issue of concealment is irrelevant because that concerns the tolling statute. Gardner may not use the tolling statute against Dr. Beasley. As for Gardner‘s brain function, that was never an issue in the motion for summary judgment.
{¶39} Gardner has failed to “support [her] motion with an affidavit [or] articulate any factual basis in that motion why [she] could not present sufficient documentary evidence at the summary-judgment hearing.” See Queen City Cleaning, LLC, 2024-Ohio-1761, at ¶ 15 (1st Dist.). Gardner failed to present an argument in her
{¶40} We overrule Gardner‘s third assignment of error.
III. Conclusion
{¶41} When a remote nonresident physician is practicing medicine outside of
Judgment affirmed.
CROUSE, P.J., and BOCK, J., concur.