IRENE HENIK v. ROBINSON MEMORIAL HOSPITAL, et al.
C.A. No. 25701
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
March 21, 2012
[Cite as Henik v. Robinson Mem. Hosp., 2012-Ohio-1169.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2009-01-0412
Dated: March 21, 2012
MOORE, Judge.
{¶1} Appellant, Irene Henik, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms in part, reverses in part, and remands the matter for further proceedings.
I.
{¶2} On January 16, 2009, Appellant Irene Henik, individually and as administratrix of the estate of Jozelle Henik, filеd a wrongful death action. She alleged that on February 10, 2007, Robinson Memorial Hospital, and its employees and agents, negligently failed to diagnose a placental abruption. As a result of this failure, her unborn child, Jozelle, died in utero on that day and was delivered stillborn. Ms. Henik‘s original complaint included several defendants fictitiously named. On January 6, 2010, Henik filed an amended complaint substituting Carol Klemencic and Dr. Manjy Vijayvargiya for the defendants fictitiously named, and directing service.
{¶3} On May 3, 2010, Dr. Vijayvargiya filed a motion to dismiss because the action was time-barred by the two-year statute of limitations, and because Ms. Henik failed to properly commence her action to obtain the “relation back” provisions of
{¶4} Ms. Henik timely filed a notice of appeal. She raises three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED [] VIJAYVARGIYA[‘S] [] MOTION TO DISMISS.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED [] KLEMENCIC‘S MOTION FOR SUMMARY JUDGMENT.
{¶5} We address the first two assignments of error together because they are clоsely related. In her first and second assignments of error, Henik argues that the trial court erred in concluding that
{¶6} “Whether the trial court properly denied [Dr. Vijayvargiya‘s] motion to dismiss the complaint for failure to timely perfect service presents a question of law, which we review de novo. Integrity Technical Servs., Inc. v. Holland Mgmt., Inc., 9th Dist. No. 02CA0009-M, 2002-Ohio-5258, ¶ 30, citing Western Reserve Mut. Cas. Co. v. GMC, 9th Dist. No. 00CA0003, 2000 WL 1824888 at *2 (Dec. 13, 2000). A court also reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Because the assignments of error pertain to thе same undisputed facts, and are subject to the same standard of review, we will review them together.
{¶7}
{¶8} “[A] plaintiff may benefit from the one-year period allowed in
{¶9} The statute of limitations in a wrongful-death action runs two years from the date of the decedent‘s death.
{¶10} In order to perfect service on the fictitiously named parties, Ms. Henik needed to comply with all of the service requirements of
{¶11} Ms. Henik urges this Court to construe her amended complaint filed after the applicable statutory period as a dismissal of her original complаint, and an election to invoke the saving statute under
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED [] ROBINSON MEMORIAL HOSPITAL‘S MOTION FOR SUMMARY JUDGMENT.
{¶12} In her third assignment of error, Ms. Henik argues that the trial court erred when it granted Robinson Memorial Hospital‘s motion for summary judgment. We agree.
{¶13} As discussed in the first assignment of error, this Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). We apply the same stаndard as the trial court, viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (1983).
{¶14} Pursuant to
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter оf law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶15} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶16} In the trial court below, Robinson Memorial Hospital filed a motion for summary judgment arguing that because the court dismissed Klemencic as a party, it was nоw entitled to summary judgment pursuant to Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601. There, the Ohio Supreme Court held that “[a] law firm may be vicariously liable for legal malpractice only when one or more of its principals or associates are liable for legal malpractice.” Id. at paragraph two of the syllabus. The trial court applied Wuerth to the cаse at hand and concluded that because “[a] hospital does not practice medicine and is incapable of committing malpractice,” Robinson Memorial Hospital was not capable of being directly liable for the decedent‘s dеath. Browning v. Burt, 66 Ohio St.3d 544, 556 (1993). Thus, it granted Robinson Memorial Hospital‘s motion for summary judgment.
{¶17} On appeal, Ms. Henik contends that this decision constituted error because she did not bring a suit for medical malpractice against the hospital, but rather for negligence under the
{¶18} In Cope v. Miami Valley Hosp., 195 Ohio App.3d 513, 2011-Ohio-4869 (2d Dist.), the Second District addressed this issue. There, the trial court found that because no agent or employee of the hospital was left active in the case, summary judgment was appropriate in favor оf the hospital because a hospital cannot commit malpractice. Id. at ¶ 19. However, the Second District concluded that Wuerth must be narrowly applied, specifically to malpractice suits, and not to other medical claims. Id. at ¶ 21. “[I]t is well-established common law of Ohio that malpractice is limited tо the negligence of physicians and attorneys.” Wuerth at ¶ 15. “Thus, no other medical employees are subject to malpractice; for instance, ‘[t]he Ohio Supreme Court has held that the negligence of nurses employed by a hospital does not fall under the definition of “malpractice” as discussed in
{¶19} Here, Robinson Memorial Hospital was timely sued for negligence under the doctrine of respondeat superior based upon the actions Ms. Klemencic, its employee. Because she was not a physician and was not timely named as a defendant, Wuerth is inapplicable, and a suit under a theory of respondeat superior may still proceed. Accordingly, summary judgment was not appropriate, and Ms. Henik‘s third assignment of error is sustained.
III.
{¶20} Ms. Henik‘s first and seсond assignments of error are overruled. Her third assignment of error is sustained. The matter is remanded to the trial court for further proceedings.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stаmped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
CARR, P. J. CONCURS.
{¶21} I сoncur in the majority‘s judgment and opinion. I write separately to emphasize that service of Ms. Henik‘s amended complaint was accomplished on Ms. Klemencic on February 15, 2010, and on Dr. Vijayvargiya on April 8, 2010. That is, service of the amended complaint was nоt accomplished on either Ms. Klemencic or Dr. Vijayvargiya within a year of when Ms. Henik filed her original complaint. The majority‘s opinion should not be read as meaning anything regarding the result this Court would have reached if service of the amended complaint had been accomplished within a year of the filing of the original complaint.
APPEARANCES:
WILLIAM S. JACOBSON and BRENDA M. JOHNSON, Attorneys at Law, for Appellant.
DOUGLAS G. LEAK, Attorney at Law, for Appellee.
STACY R. DELGROS, Attorney at Law, for Appellee.
DAVID M. BEST, Attorney at Law, for Appellee.
KURT R. WEITENDORF, Attorney at Law, for Appellee.