Francis v. Cleveland Clinic Found.Francis v. Cleveland Clinic Found.
RELEASED AND JOURNALIZED: March 12, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-24-993096
Appearances:
D.W. Smith Legal Services and Derek W. Smith, for appellant.
Roetzel & Andress, LPA and Emily K. Anglewicz, for appellee Cleveland Clinic Foundation.
LISA B. FORBES, P.J.:
{¶ 1} Antoine Francis, individually (“Antoine”) and as administrator of Michael Francis’s Estate (“the Estate”) (collectively, “Appellant”), appeals the trial
I. Facts and Procedural History
{¶ 2} The parties do not dispute the following facts. On December 3, 2020, Michael E. Francis (“Michael”) underwent hip surgery in a CCF hospital. Before surgery, Michael presented with several conditions that elevated the risk of adverse surgical outcomes, including that he was receiving hemodialysis for kidney disease. On December 4, 2020, after his hip surgery, while in recovery in the hospital, Michael went into cardiac arrest and died. For a period before Michael’s death, heart monitors that Michael’s physician had ordered for him were not properly connected.
{¶ 3} On April 22, 2022, Appellant sued CCF in the Cuyahoga County Common Pleas Court, before later voluntarily dismissing his complaint. He refiled his complaint on February 20, 2024, raising the following claims: Count 1, “Medical Negligence, Professional Torts and/or General Negligence/Survivorship” and Count 2, “Wrongful Death.” Appellant also requested compensatory and punitive damages. He alleged that, because CCF’s monitors had not been properly connected, medical personnel had failed to respond timely to Michael’s cardiac arrest.
{¶ 4} On December 2, 2024, CCF filed a motion for partial summary judgment, arguing that Appellant commenced the medical-negligence survivorship claim in this case outside the one-year limitations period that R.C. 2305.113(A)
{¶ 5} Appellant opposed CCF’s motion, arguing that counsel’s email and a CCF email in response were sufficient to extend the limitations period by an additional 180 days under R.C. 2305.113(B), within which time Appellant had filed his initial complaint. Appellant attached to his summary-judgment briefing a copy of an email, dated March 28, 2021, that CCF sent to Appellant’s counsel. In this email, CCF confirmed that it had received counsel’s correspondence regarding his investigation into potential claims.
{¶ 6} On March 19, 2025, the court granted CCF’s motion for partial summary judgment. Consequently, the Estate’s medical-negligence survivorship claim was dismissed.1 The case proceeded on Antoine’s wrongful-death claim.
{¶ 7} Before trial, Antoine proposed jury instructions, including one regarding a loss-of-chance theory. That is, the proposed jury instruction addressed
{¶ 8} On March 24, 2025, CCF filed a “motion in limine to preclude plaintiff from pursuing a loss-of-chance theory at trial,” arguing that Antoine’s medical expert Dr. David Grundy (“Dr. Grundy”) had offered no opinion in his expert report or deposition regarding loss of chance. Following in-court arguments by counsel for each party, the court granted CCF’s motion in limine. On the record, the court instructed the parties to limit the testimony of experts “to the opinions that are contained within their expert reports.” The court found that “the loss of less than even chance of recovery claim . . . [was] not cited to explicitly in the expert witness report” of Dr. Grundy.
{¶ 9} The case proceeded to a jury trial on March 24, 2025. The court did not issue the proposed jury instruction regarding loss of chance. CCF stipulated that it had failed to satisfy a duty to Michael to maintain cardiac monitoring but disputed that doing so had proximately caused his death. The jury returned a verdict in favor of CCF, finding that Antoine had not proven to a reasonable degree of medical probability that CCF’s negligence had directly and proximately caused Michael’s death.
{¶ 10} Appellant appealed, raising the following assignments of error:
1. The trial court erred in granting partial summary judgment against the survivorship claim by holding that Appellant’s timely written notice, actually received and acknowledged by Appellee’s law department, was ineffective because it was not transmitted by USPS certified mail.
II. Law and Analysis
A. Assignment of Error No. 1 — the Statute of Limitations Regarding Antoine’s Medical-Negligence Survivorship Claim
{¶ 11} Appellant asserts that the trial court erred by granting CCF’s motion for partial summary judgment and dismissing the medical-negligence survivorship claim pled in Count 1 of the complaint. According to Appellant, Antoine’s counsel’s email representation to CCF that he was considering bringing medical claims related to Michael’s death and CCF’s email acknowledging receipt thereof were sufficient to extend the one-year limitations period for such claims by an additional 180 days under R.C. 2305.113(B).2 We disagree.
{¶ 12} “Under Civ.R. 56, summary judgment is appropriate when no genuine issue exists as to any material fact and, viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party, entitling the moving party to judgment as a matter of law.” Madaras v. Applebee’s Neighborhood Grill & Bar, 2025-Ohio-169, ¶ 12 (8th Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
{¶ 13} “‘We review an appeal from summary judgment de novo.’” Anderson v. Mitchell, 2014-Ohio-1058, ¶ 4 (8th Dist.), quoting Grafton at 105. “‘De
{¶ 14}
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{¶ 16} Regarding the requirement in
{¶ 17} We are not persuaded by Appellant’s argument that the medical-negligence survivorship claim was commenced within the applicable limitations period. In a recent case, the Ohio Supreme Court considered a similar issue and affirmed dismissal of medical claims that it found a plaintiff had commenced after the one-year limitations period in
{¶ 18} In light of the foregoing, we find that the court did not err by granting CCF partial summary judgment on the basis that the medical-negligence survivorship claim was commenced more than one year after Michael’s death. We acknowledge that the undisputed evidence indicates that, less than a year after Michael died, Appellant’s counsel informed CCF that he was considering bringing medical claims related to Michael’s death. We also acknowledge that an agent of CCF sent Appellant’s counsel a reply email that confirmed receipt of this information. However, we find that the email notice of potential claims was not sufficient under
{¶ 19} Lastly, we find this case to be distinct from Wiltz v. Cleveland Clinic, 2021-Ohio-62 (8th Dist.), which Appellant cites for the proposition that a defendant’s actual receipt of notice is sufficient to extend the limitations period under
{¶ 20} The court properly granted CCF partial summary judgment, dismissing the medical-negligence survivorship claim in Count 1. Accordingly, assignment of error No. 1 is overruled.
B. Assignment of Error No. 2 — Exclusion of Expert Testimony in Support of a Loss-of-Chance Theory
{¶ 21} Appellant asserts that the trial court erred by granting CCF’s motion in limine, precluding testimony that CCF’s failure to maintain working heart monitors deprived Michael of a less-than-even chance of recovery from his cardiac
{¶ 22} We review a trial court’s decisions regarding motions in limine and the admissibility of expert testimony for abuse of discretion. 180 Degree Solutions L.L.C. v. Metron Nutraceuticals, L.L.C., 2021-Ohio-2769, ¶ 57 (8th Dist.); accord Halenar v. Ameritech-Ohio SBC/Ameritech, 2011-Ohio-2030, ¶ 28 (8th Dist.). An abuse of discretion occurs when a court exercises “its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. An abuse of discretion “‘implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’” W.A.F.P., Inc. v. Sky Fuel Inc., 2024-Ohio-3297, ¶ 13 (8th Dist.), quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 23} Appellant’s complaint is based on the uncontested allegation that CCF breached the standard of medical care. To raise a medical claim, a plaintiff usually “must prove causation through medical expert testimony in terms of probability to establish that the injury was, more likely than not, caused by the defendant’s negligence.” Roberts v. Ohio Permanente Med. Group, 76 Ohio St.3d 483, 485 (1996), citing Shumaker v. Oliver B. Cannon & Sons, Inc. 28 Ohio St.3d 367 (1986).
{¶ 24} By contrast, “the loss of chance theory, which compensates an injured plaintiff for his or her diminished chance of recovery or survival,” allows a plaintiff to bring a medical claim “even though the possibility of survival or recovery is less
{¶ 25} Among the cases cited by Appellant, the following are instructive here as to whether an expert opinion is sufficient to establish a loss-of-chance claim. In Geesaman v. St. Rita’s Med. Ctr., 2009-Ohio-3931 (3d Dist.), the court of appeals found that the trial court erred in failing to instruct the jury on loss of chance where “plaintiff presented evidence that the decedent would have had a 28[] percent chance of survival had proper and timely care been rendered but that the defendants’ negligence decreased that chance of survival to zero.” Id. at ¶ 21. Compare Liotta at *5 (court did not err in granting directed verdict in favor of defendant as to loss-of-chance claim where, despite medical expert’s testimony that defendant’s conduct decreased plaintiff’s likelihood of survival, such likelihood remained 50-60 percent that is, greater than even.) In Liotta, this court found, “At no time did [plaintiff’s medical expert witness] testify that [plaintiff] had a less than
{¶ 26} The opinions of expert witnesses must be laid out in a report. The Ohio Rules of Civil Procedure provide that the “reports of expert witnesses expected to be called by each party shall be exchanged with all other parties.”
{¶ 27} We find that the court did not abuse its discretion by granting CCF’s motion in limine based on its conclusion that Dr. Grundy did not opine, in his expert report, that CCF’s failure to monitor Michael deprived him of a less-than-even chance of recovery from his cardiac arrest. Regarding Michael’s recovery from his hip surgery, the report opines, “Even if we accept 46 months as an upper boundary for a 50% chance of survival for Mr. Francis, it is still more likely than not that he
{¶ 28} In his report, Dr. Grundy concluded that “it is more likely than not that by failing to carry out their own physicians’ monitoring orders, the substandard care delivered . . . at the Cleveland Clinic took this chance at life from Mr. Francis.” Dr. Grundy also articulated that “had Cleveland Clinic carried out Mr. Francis’ appropriately ordered cardiac and oxygen monitoring . . . Mr. Francis’ decline and death could have likely been prevented.” (Emphasis added.) As in Liotta, Dr. Grundy’s report never offered the opinion that Michael’s chance of survival was less than 50 percent at the time of CCF’s negligence. Instead, the report presented Dr. Grundy’s opinion in terms of traditional medical negligence.
{¶ 29} Further, though Dr. Grundy’s report discusses a person’s general declining blood-oxygen saturation levels at different time increments during cardiac arrest, it does not address whether proper monitoring would have allowed CCF personnel to respond to Michael’s arrest more quickly or the likelihood that any subsequent life-saving measures that could have been rendered would have been successful. As such, we cannot say that the court abused its discretion by concluding
{¶ 30} Lastly, we note that Appellant argues that expert testimony sufficient to support a medical claim may be introduced through cross-examination. Appellant directs us to testimony, given by CCF witnesses during cross-examination, that purportedly addresses whether CCF’s failure to monitor Michael decreased his likelihood of surviving cardiac arrest. However, such testimony is not pertinent to Appellant’s assignment of error, which is limited to whether the court erred in granting CCF’s pretrial motion in limine, precluding the Appellant from introducing his own expert testimony about loss of chance. See Yagour Group, LLC v. Ciptak, 2024-Ohio-73, ¶ 31 (8th Dist.), quoting Hamid v. Univ. Manors, Ltd., 2021-Ohio-2115, ¶ 16 (10th Dist.), quoting Huntington Natl. Bank v. Burda, 2009-Ohio-1752, ¶ 21 (10th Dist.) (“Appellate courts rule on assignments of error, ‘“not mere arguments.”’”).
{¶ 31} We do not find that the court abused its discretion by granting CCF’s motion in limine. Accordingly, assignment of error No. 2 is overruled.
{¶ 32} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
LISA B. FORBES, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
DEENA R. CALABRESE, J., CONCUR