Akeeba Harris v. Firelands Regional Medical Center, et al.
Court of Appeals No. E-17-053
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
August 3, 2018
2018-Ohio-3085
Trial Court No. 2016-CV-0268
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Geoffrey L. Oglesby, for appellant.
Chad M. Thompson and Kayla L. Henderson, for appellees, Mercy Health-St. Charles Hospital, LLC, Alex R. Andray, RN-C, and David W. Wall, BHT.
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MAYLE, P.J.
{¶ 1} Plaintiff-appellant, Akeeba Harris, appeals the August 15, 2017 judgment of the Erie County Court of Common Pleas granting summary judgment in favor of
I. Background
{¶ 2} Very few facts are necessary to an understanding of the issues presented in this appeal. Briefly stated, Akeeba Harris called for medical help on May 26, 2015, after experiencing three days of sleeplessness and a severe headache. She was transported by ambulance to Firelands Regional Medical Center (“Firelands“), and then to Mercy St. Charles Hospital. Harris, who suffers from bipolar disorder, was ultimately admitted to Mercy‘s behavioral health unit. Shortly after her admission, early in the morning of May 27, 2015, she suffered a foot fracture. Harris filed a complaint for medical malpractice and negligence on April 13, 2016, naming the following defendants:
Drs. And Nurses John and Jane Doe,
Doctors and Nurses
Real names cannоt be determined without the Court‘s discovery
Who treated Plaintiff prior to, on or about May 26, 2015 and thereafter
c/o Firelands Regional Medical Center
and
Drs. And Nurses John and Jane Doe,
Doctors and Nurses
Real names cannot be determined without the Court‘s discovery
Who treated Plaintiff prior to, on or about May 26, 2015 and thereafter c/o Mercy St. Charles Hospital
{¶ 3} While Harris captioned her complaint against the John and Jane Doe nurses and doctors “c/o” Firelands and Mercy, she did not specifically name Mercy or Firelands as defendants. In fact, she identified no specific care providers until August 17, 2016, when, with leave of court, she filed an amеnded complaint.1 At that time she named as defendants Mercy, Alex R. Andray, R.N., and David W. Ball, “technician” (“the Mercy defendants“), and Firelands. She filed a second amended complaint on January 11, 2017, adding a fifth defendant, North Central EMS, the ambulance service that transported Harris to the hospital.2
{¶ 4} “The Unidentified Mercy Defendants” answered the original complaint,3 and Mercy, Andray, and Ball answered the amended complaint. They asserted among their
{¶ 5} The case progressed and the parties offered different theories for the cause of Harris’ foot fracture. Harris claimed that it occurred when Andray and Ball threw her onto a bed to restrain her; the Mercy dеfendants claimed that it occurred when Harris kicked and punched at the doors and walls of her room during one of several violent outbursts she exhibited while being treated that evening.5
{¶ 6} Harris and the Mercy defendants filed motions for summary judgment on March 30, and March 31, 2017, respectively. Harris moved on the issue of liability. She claimed that regardless of whose version of events was accurate, it is undisputed that the injury occurred at Mercy. She maintained that because she had suffered a “psychotic
{¶ 7} The Mеrcy defendants claimed in their summary-judgment motion that Harris’ complaint was barred by the statute of limitations because (1) she failed to satisfy
{¶ 8} In a judgment entry dated August 15, 2017, the trial court denied Harris’ summary-judgment motion and granted summary judgment to the Mercy defendants.
{¶ 9} As to Harris’ motion, the trial court concludеd that Harris’ claim was a medical claim requiring expert testimony as to the standard of care, breach of the standard of care, and injury proximately caused by breach of the standard of care. It found that Harris’ motion was supported only by argument of counsel without citation to the evidentiary record, let alone expert testimony. In other words, Harris’ motion lacked
{¶ 10} The court also found that Harris could not rely on the theory of res ipsa loquitur to support her motion for summary judgment because (1) res ipsa loquitur creates only a permissible inference for the jury and cannot be used to support a summary-judgment motion; and (2) Harris wholly failed to establish the two prerequisites necessary for its application: that the instrumentality causing the injury was under the exclusive management and control of the defendant when the injury occurred, and the injury occurred under circumstances that would not have occurred if ordinary care had been used.
{¶ 11} The trial court granted summary judgment to the Mercy defendants. It began by recognizing that because Harris’ claim was a “medical claim,” the one-year statute of limitations set forth in
{¶ 12} As to Harris’ claims against Andray and Ball, the court found that she could not rely on
{¶ 13} Harris appealed the trial court‘s decision, and assigns the following errors for our review:
Assignment of Error No. I
WHEN LEAVE OF COURT GIVES THE PLAINTIFF UNTIL A DATE CERTAIN TO AMEND THE NAMES IN THE COMPLAINT, A DEFENDANT CANNOT GET SUMMARY JUDGMENT ON BEING OUTSIDE THE STATUTE OF LIMITATIONS FOR TIMELY FILING AND NAMING DEFENDANTS.
Sub-Assignment of Error No. I
SUMMARY JUDGMENT WAS IMPROPER REGARDLESS OF THE LEAVE OF COURT.
Assignment of Error No. III [sic]
SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY SHOULD HAVE BEEN GRANTED IN FAVOR OF THE PLAINTIFF.
II. Standard of Review
{¶ 14} 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 сonclusion 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) .
{¶ 15} 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 respоnd with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A “material” fact is one which would affect the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).
III. Law and Analysis
{¶ 16} In her first assignment of error, Harris argues that because the trial court granted her leave to file an amended complaint, this effectively extended the statute of limitations, thereby rendering her claims timely-filed. In a “sub-assignment of error,” Harris argues that her amended complaint related back to the date of her original complaint undеr
A. Harris did not properly invoke Civ.R. 15(D) .
{¶ 17} In her original complaint, filed before the statute of limitations expired, Harris asserted claims against “Drs. And Nurses John and Jane Doe,” claiming that the
{¶ 18}
When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be аmended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words “name unknown,” and a copy thereof must be served personally upon the defendant.
{¶ 19} If a plaintiff files her complaint within the applicable statute of limitations and follows the specific requirements of
{¶ 20} Importantly, however, ”
{¶ 21} Harris and her mother were both deposed in this case. It is clear from their testimony that they immediately believed that Harris had been the victim of malpractice, and they were aware on May 27, 2015, of Andrаy and Ball‘s first names: Alex and Dave. Harris’ mother—who served as her guardian—requested and was provided Harris’
{¶ 22} The trial court held that Harris could not in good faith claim that she did not know Andray and Ball‘s names, thus she could not rely on
{¶ 23} The fact that Harris knew or should have known Andray and Ball‘s names is dispositive here—it precluded her from utilizing
{¶ 24} Under
{¶ 26} Second, the summons in this case did not contain the words “name unknown.” Harris insists that the phrase used in the summons here—“whose names are unable to be ascertained,” “means the same as ‘unknown’ and thus supports the spirit of the rule.” As an initial matter, the summons was not worded “whose names are unable to be ascertained.” (See above.) But more importantly, Ohio Supreme Court case law demonstrates that
{¶ 27} Finally, it is undisputed that Harris did not personally serve Andray and Ball. Summonses were issued in their names but served “c/o Mercy St. Charles Hospital” by certified mail. “Certified mail is an improper method of service under
{¶ 28} Because Harris knew Andray and Ball‘s names and because she failed to comply with the strict requirements of
Civ.R. 15(C) .
{¶ 29} Harris captioned her original complaint in the name of the fictitiously named defendants “c/o Mercy St. Charles Hospital.” (Emphasis added.) The trial court held that Mercy was not named as a defendant in the original complaint, therefore, her amended complaint did not relate back to the date of the filing of her original complaint. It dismissed Harris’ claims against Mercy as time-barred. Harris argues that this was error. She maintains that Mercy was identified as a party in the original complaint.
{¶ 30}
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
{¶ 32} Harris argues that Mercy “was listed as a party just was not captioned correctly in the original pleading [sic].” But numerous Ohio courts, including this court, have held that the designation “c/o” in a complaint is insufficient to name an individuаl as a party defendant.
{¶ 33} In Phh Mtge. Corp. v. Therrien, 10th Dist. Franklin No. 12AP-312, 2012-Ohio-5307, the plaintiff filed a complaint naming various defendants, including “5872 OREILY DRIVE FORECLOSURE DEFENSE TRUST C/O BRIAN K. URBANSKI TRUSTEE (hereinafter “the trust“).” Urbanski participated in the litigation, purporting to file various pro se motions and pleadings on behalf of the trust, but after the plaintiff
{¶ 34} In Storage World, Inc., the court held that the trial court lacked personal jurisdiction to enter a judgment against the president of the defendant company where the summons was addressed to “Storage World Inc., c/o Michael DeMarco, President.” Id. The court held that DeMarco “was not named as an individual defendant * * * and was not served a summons that was addressed to him individually.” Id.
{¶ 35} And in Smith v. Bassett, 6th Dist. Ottawa No. OT-96-018, 1996 Ohio App. LEXIS 5167 (Nov. 15, 1996), we held that only one party was named as a defendant in a case captioned “BASSETTS‘, INC. dba BASSETTS IGA C/O RICHARD G. BASSETT.” We found that Richard Bassett was not a party and had been named only to accept service.
C. The trial court could not extend the statute of limitations.
{¶ 37} In her first assignment of error, Harris claims that the statute of limitations for filing claims against the Mercy defendants was extended when the magistrate granted her leave to amend her complaint. The Mercy defendants counter that (1) Harris failed to raise this argument in the lower court and has, thereforе, waived it for purposes of appeal; and (2) the trial court lacks the authority to extend the applicable statute of limitations.
{¶ 38} The Ohio Supreme Court has made clear that establishing the statute of limitations for a cause of action “is the province of the legislative, not the judicial, branch of government.” Erwin, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 4. It
{¶ 39} Harris cites two cases that she claims support her position that a trial court can extend the applicable statute of limitations by granting leave to amend: Boley v. Knowles, 905 S.W.2d 86 (Mo.1995), a Missouri case, and Merkosky v. Wilson, 11th Dist. Lake No. 2008-L-017, 2008-Ohio-3252.
{¶ 40} In Boley, a minor sued a physician for malpractice and her mother joined the action in her individual capacity. The mother sought to amend her complaint to add a claim for medical expenses. Her motion was denied because her claim was barred by the applicable statute of limitations. The minor then sought leave to amend the complaint to add a claim for those same expenses. The trial court denied the motion, holding that to grant leave to the minor to amend her complaint “would effectively extеnd the statute of limitations that barred her mother‘s claim.” Id. at 88. The question the appellate court
{¶ 41} Aside from being non-binding on this court, Boley does not stand for the proposition that a court‘s order granting leave to amend a complaint extends the statute of limitations for a claim that would otherwise be barred as untimely.
{¶ 42} In the second case cited by Harris, Merkosky, the plaintiff filed a claim for legal malpractice. The defendant moved for summary judgment, arguing that plaintiff‘s complaint was not filed within the one-year statute of limitations. Plaintiff sought leave to amend his complaint, alleging that new facts supported his claims; however, none of those new facts feasibly altered the last day by which plaintiff knew of the alleged malpractice. The trial court granted summary judgment in favor of defendant on the basis that plaintiff‘s claims were time-barred, and denied plaintiff‘s motion for leave to amend because the proposed amended complaint would not alter the result of the litigation. The appellate court affirmed.
{¶ 43} Harris apparently believes that Merkosky stands for the proposition that where a motion for leave to amend is denied, “the statute of limitations remain[s] in place,” and conversely, where a motion is granted, the statute of limitations is extended. That is not how it works. Courts lack the authority to extend the statute of limitations
{¶ 44} We reject Harris’ claim that the magistrate‘s order granting leave to amend her complaint extended the applicable statute of limitations.
{¶ 45} Because
IV. Conclusion
{¶ 46} We find Harris’ first assignment of error and her “sub-assignment of error” not well-taken. In light оf our rulings on these assignments of error, we need not consider her third assignment of error. We affirm the August 15, 2017 judgment of the
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J.
JUDGE
James D. Jensen, J.
Christine E. Mayle, P.J. JUDGE CONCUR.
JUDGE
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.оhio.gov/ROD/docs/.
Notes
To date, this is how Plaintiff has described and identified the second defendant(s) in this case. Without waiving any objection regarding Plaintiff‘s use and identification of this second defendant(s), the undersigned will use Plaintiff‘s description for purposes of answering the specific claims set forth in the Complaint.