TONI EWING, Individually and as Executrix of the Estate of Shirley Ewing, and as Personal Representative of her Next of Kin and Beneficiares v. UC HEALTH, and UNIVERSITY OF CINCINNATI MEDICAL CENTER, LLC, and JOHN AND/OR JANE DOE #1, et al.
APPEAL NO. C-210390
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 27, 2022
2022-Ohio-2560
TRIAL NO. A-1801959. Civil Appeal From: Hamilton County Court of Common Pleas. Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Cause Remanded.
Marlene Penny Manes, for Plaintiff-Appellant,
Frost Brown Todd, LLC, Bill J. Paliobeis and Douglas R. Dennis, for Defendants-Appellees.
ZAYAS, Presiding Judge.
{¶1} Plaintiff-appellant Toni Ewing (“Ewing“), individually and as executrix of the estate of Shirley Ewing and as personal representative of her next of kin and beneficiaries, appeals the judgment of the Hamilton County Court of Common Pleas, which granted the motion for judgment on the pleadings of defendants-appellees UC
Factual and Procedural History
{¶2} On April 16, 2018, Ewing, the adult daughter of Shirley Ewing, filed a complaint against defendants, among others, alleging three causes of action: a survivorship claim, a wrongful-death claim, and an “emotional harm” claim. The complaint asserted that the action was filed within 180 days of the written notice given to defendants pursuant to
there were deviations from accepted standards of care which resulted in harm and compensable damages to Shirley Ewing, in amounts later to be determined, including but not limited to a fracture of her leg, failure to timely recognize said fracture, surgery, placement of a rod and pins, additional pain, suffering, mental anguish, emotional distress, additional expenses, * * * and shortening of life expectancy * * *.
{¶3} The complaint further asserted that Shirley passed away on March 25, 2014, and contended that her death was accelerated and wrongful as a result of such deviations in care. The “emotional harm” claim was brought by Ewing in her individual capacity and alleged that Ewing suffered “emotional harm” as the result of being the one who discovered her mother‘s broken leg and “other damages” during the hospitalization.
{¶4} Defendants filed a motion for judgment on the pleadings on May 8, 2019, arguing that Ewing‘s complaint was barred by the medical-claim statute of repose set forth in
{¶5} Ewing timely filed a notice of appeal on July 20, 2021. She now raises a single assignment of error for our review, arguing that the trial court erred in granting defendants’ motion for judgment on the pleadings and dismissing all her claims.
Law and Analysis
Standard of Review
{¶6} “Appellate review of a judgment on the pleadings involves only questions of law and is therefore de novo.” New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 8, citing Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18. “Dismissal is appropriate under Civ.R. 12(C) when a court construes as true all material allegations in the complaint, along with all reasonable inferences to be drawn therefrom, and finds, beyond doubt, that the plaintiff can prove no set of facts that would entitle him to relief.” Id., citing State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 937 (1996). “Similarly, questions of statutory construction constitute legal issues that we decide de novo.” Id., citing New York Frozen Foods, Inc. v. Bedford Hts. Income Tax Bd. of Rev., 150 Ohio St.3d 386, 2016-Ohio-7582, 82 N.E.3d 1105, ¶ 8.
“Emotional Harm” Claim
{¶7} “[A] cause of action for the negligent infliction of serious emotional distress may be stated where the plaintiff-bystander reasonably appreciated the peril which took place, whether or not the victim suffered actual physical harm, and, * * * as a result of this cognizance or fear of peril, the plaintiff suffered serious emotional distress.” Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759 (1983), paragraph four of the syllabus. The element of “seriousness” is a necessary component required for a plaintiff-bystander to sufficiently state a claim for relief when the plaintiff did not suffer a contemporaneous physical injury. Id. at 78; see Binns v. Fredendall, 32 Ohio St.3d 244, 513 N.E.2d 278 (1987). “Serious” emotional distress must be “beyond trifling mental disturbance” or “mere upset or hurt feelings.” Paugh at 78. It must be “emotional injury which is both severe and debilitating.” Id. “Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.” Id. “A court may decide whether a plaintiff-bystander has stated a cause of action by ruling on whether the emotional distress alleged is serious as a matter of law.” Id.
{¶8} Here, Ewing‘s claim merely alleges “emotional harm.” Emotional harm is insufficient to establish severe and debilitating emotional distress. Thus, the allegations in the complaint fail as a matter of law to assert the level of harm required to sustain a cause of action for negligent infliction of serious emotional distress. Therefore, the trial court properly granted judgment in favor of defendants and dismissed this claim. Accordingly, we overrule this part of the assignment of error as to this cause of action.
Survivorship Claim
{¶9} Ewing does not contest that her survivorship claim is a “medical claim” under
{¶10} Section I, Article 16 of the Ohio Constitution provides, “All courts shall be open, and every person, for any injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”
{¶11} Thus, the Ohio Supreme Court has determined that “a party need not be granted an unlimited amount of time to bring a vested cause of action, but must receive only a ‘reasonable’ amount of time in order for a law to pass constitutional muster.” (Citations omitted.) Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 27. Further, the Ohio Supreme Court held that the statute of repose, “in compliance with the right-to-remedy clause, does not ‘completely foreclose a cause of action for injured plaintiffs or otherwise eliminate their ability to receive a meaningful remedy.‘” Id. at ¶ 29, quoting Flagstar Bank, F.S.B. v. Airline Union‘s Mtge. Co., 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, ¶ 29. Accordingly, it held that the medical-claim statute of repose is constitutional “both when it extinguishes a vested and a nonvested cause of action.” Id. Thus, the statute of repose is a “true statute of repose that applies to both vested and nonvested claims.” Id. at ¶ 35; see Wilson, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, at ¶ 16. Therefore, even if Ewing had a vested right under the saving statute as she asserts, it was not unconstitutional for her claim to be extinguished by the statute of repose as she was provided with a reasonable amount of time within which to bring her claim.
{¶12} Because
Wrongful-Death Claim
{¶13} “[W]hen a person is injured by the tortious conduct of another and the person later dies from the injury, two claims arise.” Thompson v. Wing, 70 Ohio St.3d 176, 183, 637 N.E.2d 917 (1994). “The first is a claim for malpractice or personal injury, enforced either by the injured person herself or her representative in a survival action.” Id. “The second is a wrongful death [sic] claim, enforced by the decedent‘s personal representative on behalf of the decedent‘s beneficiaries.” Id. Although prosecuted by the same personal representative, the two actions are not derivative of the same right and are instead two separate and independent causes of action. Id. at 182-183; Klema v. St. Elizabeth‘s Hosp., 170 Ohio St. 519, 521, 166 N.E.2d 765 (1960); Koler v. St. Joseph Hosp., 69 Ohio St.2d 477, 479, 432 N.E.2d 821 (1982). The cause of action held by the injured party is ” ‘confined to his [or her] personal loss and suffering before he [or she] died.‘” Klema at 521, quoting St. Louis, Iron Mountain & S. Ry. Co. v. Craft, 237 U.S. 648, 658, 35 S.Ct. 704, 59 L.Ed. 1160 (1915). Whereas the cause of action held by decedent‘s beneficiaries is ” ‘confined to their pecuniary loss through his [or her] death.‘” Id. “‘One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong.‘” (Emphasis added.) Id. Because each action is separate and independent from the other, the right to bring a wrongful-death action is not dependent on the existence of a separate cause of action held by the injured person prior to his or her death. Thompson at 183; Klema at 521. A wrongful-death action requires only that the decedent “at one time” had a cause of action against the defendant. Id.
{¶14} A wrongful-death action is a special statutory action which did not exist at common law. Klema at 524.
- Except as provided in division (D)(2) of this section, a civil action for wrongful death shall be commenced within two years after the decedent‘s death.
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- Except as provided in divisions (D)(2)(b), (c), (d), (e), (f), and (g) of this section or in section 2125.04 of the Revised Code, no cause of action for wrongful death involving a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly, or rebuilding of another product.
(Emphasis added.)
{¶15} Divisions (D)(2)(b), (c), (d), (e), (f), and (g) provide exceptions to the products-liability statute of repose set forth in
{¶16} Here, the trial court found that Ewing‘s wrongful-death claim was additionally subject to the medical-claim statute of repose contained in
{¶17}
[A]ny claim that is asserted in any civil action against a physician, podiatrist,
hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice registered nurse, physical therapist, physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person.
{¶18} While the Ohio Supreme has made it clear that wrongful-death claims are separate and distinct causes of action from medical-malpractice claims—meaning that one is not interdependent upon the other to survive, and a wrongful-death claim begins where a medical-malpractice claim ends—this is not determinative of whether the wrongful-death claim is subject to the statute of repose under
{¶19} We begin by looking to the statutory language and its plain meaning. See, e.g., In re P.R., 1st Dist. Hamilton Nos. C-180166 and C-180167, 2019-Ohio-4751, ¶ 9, citing In re J.F., 2017-Ohio-7675, 97 N.E.3d 999, ¶ 18 (1st Dist.). In doing so, we
should not look solely to the plain language of
{¶20} This issue is one that has recently been addressed in several other districts and has created a conflict among those districts. The Tenth and Sixth Districts have both recently held that a wrongful-death claim related to the medical diagnosis, care, or treatment of a decedent was not subject to the medical-claim statute of repose contained in
{¶21} Conversely, the Third, Fifth, and Eleventh Districts have held that a wrongful-death claim related to the medical care, diagnosis or treatment of the decedent was subject to the medical-claim statute of repose. See Smith v. Wyandot Mem. Hosp., 2018-Ohio-2441, 114 N.E.3d 1224, ¶ 22 (3d Dist.), appeal not accepted, 153 Ohio St.3d 1505, 2018-Ohio-4285, 109 N.E.3d 1260; Mercer v. Keane, 2021-Ohio-1576, 172 N.E.3d 1101, ¶ 40 (5th Dist.), appeal not accepted, 164 Ohio St.3d 1420, 2021-Ohio-2923, 172 N.E.3d 1047; Martin, 11th Dist. Lake No. 2021-L-046, 2021-Ohio-4614, at ¶ 46, citing Wilson v. Mercy Health, 11th Dist. Trumbull No. 2021-T-0004, 2021-Ohio-2470, ¶ 23-24.
{¶22} Mercer, however, did not directly address the issue currently before this court. In Mercer, the medical-malpractice action was initially filed in 2016 before the decedent‘s death. Id. at ¶ 2, 4. The executor of the decedent‘s estate then filed an amended complaint in 2020 after the decedent passed away, which was beyond the repose period. Id. at ¶ 4-7. The only issue presented to the court was whether the wrongful-death action related back to the malpractice action, thereby making the action timely filed under the statute of repose. Id. at ¶ 36-38. Thus, there was no argument presented to the court that the wrongful-death claim was not subject to the medical-claim statute of repose and the court did not directly consider the issue.
{¶23} On the other hand, Smith and Martin both directly held that wrongful-death claims arising from the medical diagnosis, care, or treatment of a decedent were subject to the medical-claim statute of repose. Smith at ¶ 22; Martin at ¶ 46. Both courts acknowledged that wrongful-death claims were subject to their own statute of limitations outside of
{¶24} We recognize that, when looking to the plain language of
{¶25} In fact, we note the 2018 enactment of
Subject to division (F) of this section, after expiration of the one-hundred-eighty-day period described in division (D)(2) of this section, the plaintiff shall not join any additional medical claim or defendant to the action unless the medical claim is for wrongful death, and the period of limitation for the claim under R.C. 2125.02 of the Revised Code has not expired.
(Emphasis added.)
{¶26} We also note that
{¶27} The Ohio Supreme Court has already held that where the medical-malpractice claim ends, the wrongful-death claim begins. Klema, 170 Ohio St. at 521, quoting Craft, 237 U.S. at 658. We agree because, regardless of any underlying malpractice, there is no cause of action for wrongful death until the death of the decedent. The trigger for the cause of action is the death of the patient. Thus, in addressing the issue before us, we must begin by looking to the express statutory language of
{¶28} Additionally, if we go beyond the plain meaning of the statutory language, we find that
{¶29} The pertinent “notwithstanding” language from
{¶30} “The ‘General Assembly‘s use of particular language to modify one part of a statute but not another part demonstrates that the General Assembly knows how to make that modification and has chosen not to make that modification in the latter part of the statute.‘” Wilson, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, at ¶ 30, quoting Hulsmeyer v. Hospice of Southwest Ohio, Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903, ¶ 26. Additionally, “‘[t]he General Assembly, in enacting a statute, is assumed to have been aware of other statutory provisions concerning the subject matter of the enactment even if they are found in separate sections of the Code.‘” Hulsmeyer at ¶ 26, quoting Meeks v. Papadopulos, 62 Ohio St.2d 187, 191-192, 404 N.E.2d 159 (1980). Finally, “if the General Assembly could have used a particular word in a statute but did not, we will not add that word by judicial fiat.” Id., citing In re Application of Columbus S. Power Co., 138 Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 26.
{¶31} Because the General Assembly did not provide an exception to the period of limitation in
Conclusion
{¶32} For the foregoing reasons, we overrule the assignment of error in part as to the emotional-harm claim and the survivorship claim but sustain the assignment of error in part as to the wrongful-death
Judgment affirmed in part and reversed in part, and cause remanded.
BERGERON and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.
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