JAMES W. MARTIN, III, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF NANCY J. MARTIN, DECEASED v. JAY TAYLOR, M.D., et al.
CASE NO. 2021-L-046
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY
December 30, 2021
[Cite as Martin v. Taylor, 2021-Ohio-4614.]
Civil Appeal from the Court of Common Pleas Trial Court No. 2018 CV 000735 Judgment: Affirmed
Clifford C. Masch, Reminger Co., LPA, 1400 Midland Building, 101 Prospect Avenue, West, Cleveland, OH 44115; Bret C. Perry and Brian F. Lange, Bonezzi Switzer Polito & Hupp Co., LPA, 1300 East Ninth Street, Suite 1950, Cleveland, OH 44114; and Douglas G. Leak and Beverly A. Sandacz, Hanna Campbell & Powell, LLP, 3737 Embassy Parkway, Suite 100, Akron, OH 44333 (For Defendants-Appellees).
OPINION
THOMAS R. WRIGHT, J.
{¶1} Appellant, James W. Martin, III, individually and as executor of the estate of Nancy J. Martin, deceased, appeals the judgments (1) granting appellees’ motions for summary judgment, wherein the trial court found Martin‘s claims for medical malpractice
{¶2} To facilitate our discussion, we address the procedural history of this case in combination with Martin‘s four assigned errors, all of which pertain to some extent to the medical statute of repose:
{¶3} “[1.] Where the applicability of the Statute of Repose to Plaintiff‘s claims was first raised and ruled on after Plaintiffs’ experts had already issued their expert reports and had been deposed, and where the law concerning the proper interpretation and application of the Statute of Repose changed in the middle of the proceedings below, the trial court abused its discretion by unreasonably and arbitrarily (i) denying Plaintiff‘s
{¶4} “[2.] The trial court erred in failing to hold that the medical claims Statute of Repose is unconstitutional as applied to Plaintiff‘s wrongful death claim because its application violates the ‘right to remedy’ provision of Art. I, Sec. 16, of the Ohio Constitution.”
{¶5} “[3.] The trial court erred in failing to apply the new rule of the law interpreting the Savings Statute,
{¶7} Both claims in this case involve the applicability and interplay of the following statutes: the statute of limitations for medical claims contained in
{¶8} With respect to the statutes of limitations relative to Martin‘s claims,
{¶9} The statute of repose for medical claims contained in
Except as to persons within the age of minority or of unsound mind as provided by section
2305.16 of the Revised Code , and except as provided in division (D) of this section, both of the following apply:(1) No action upon a medical * * * claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim.
(2) If an action upon a medical * * * claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim, then, any action upon that claim is barred.
In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff‘s representative may commence a new action within one year after the date of the reversal of the judgment or the plaintiff‘s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. This division applies to any claim asserted in any pleading by a defendant.
{¶11} Here, in a case previously filed on January 14, 2016, James and Nancy Martin alleged medical malpractice against appellees for failing to timely diagnose and treat Nancy‘s lung cancer. On May 11, 2017, the complaint was voluntarily dismissed pursuant to
{¶12} On May 10, 2018, Martin filed the complaint in the instant case, both in his individual capacity and as executor of Nancy‘s estate, for medical malpractice (survivorship) and wrongful death against Jay Taylor, M.D.; Lake County Family Practice, Inc. (“LCFP“); E. Luke Bold, M.D.; and Eastside ENT Specialists, Inc. (“Eastside“). In the complaint, denoted as refiled from the former case, Martin alleged that Nancy was diagnosed with advanced adenocarcinoma of the lung in 2014. Martin maintained that Taylor and Bold, who practiced with LCFP and Eastside, respectively, examined Nancy on several occasions from 2011-2014. Martin asserted that Nancy had informed the doctors that she had smoked about one pack of cigarettes daily for thirty years until she ceased smoking in approximately 1996, and she complained to the doctors of chronic cough and related respiratory conditions. Martin alleged that the doctors departed from
{¶13} There is no dispute that Martin‘s claims were timely filed under the applicable statutes of limitations of
{¶14} Thereafter, Martin voluntarily dismissed his claims against Bold and Eastside. Subsequently, appellees moved for summary judgment. In their motions, appellees argued that both of Martin‘s claims were time barred under the four-year medical statute of repose contained in
{¶15} Martin opposed the motion, arguing that (1) the savings statute applied to both the statute of limitations and the statute of repose; (2) Taylor‘s negligence continued to occur from May 10, 2014, through the end of October 2014 and thus occurred within four years of the filing of the present complaint; (3) the wrongful death claim was not a “medical claim” for purposes of the statute of repose; and (4) the application of the statute of repose to bar a wrongful death claim prior to death violates due process. In support of his first argument, Martin cited Wilson v. Durrani, 2019-Ohio-3880, 145 N.E.3d 1071 (1st Dist.) (“Wilson I“). Therein, the First District Court of Appeals held that where the savings
{¶16} On May 13, 2020, the trial court issued an entry finding Wilson I persuasive and agreeing with Martin insofar as he argued that the savings statute applied to extend the time for filing the medical malpractice claim under the statute of repose. Accordingly, the trial court denied the motion for summary judgment as to this claim. The trial court agreed with appellees that the medical statute of repose applied both to the re-filed medical malpractice claim and to the wrongful death claim. However, the trial court denied summary judgment on the wrongful death claim solely because there was a genuine issue of material fact remaining as to when Taylor‘s care was alleged to have fallen below the acceptable standards of care.
{¶17} Appellees sought partial reconsideration of the ruling on summary judgment, and the trial court granted the motions to clarify its order with respect to the wrongful death claim. The trial court concluded that, “pursuant to
{¶18} On December 20, 2020, the Supreme Court of Ohio reversed Wilson I in Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, (“Wilson II“), reconsideration granted in part, 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 580, and held that the savings statute did not provide an extension of the medical statute of repose. Id. at ¶ 38-39. Thereafter, appellees renewed their motions for summary judgment with leave of the court. In their renewed motions, appellees again asserted that both of Martin‘s claims were barred by the four-year statute of repose pursuant to Wilson
{¶19} On February 16, 2021, Martin opposed the renewed summary judgment motion, arguing that the longevity of Wilson II was in doubt, a motion for reconsideration of Wilson II was pending before the Supreme Court, the holding of Wilson II should be applied prospectively only, and the statute of repose as applied to the wrongful death claim would violate the right-to-remedy pursuant to Article I, Section 16, of the Ohio Constitution. Martin specifically did not point to evidence speaking to whether there was a question of fact that acts or omissions occurring after May 10, 2014, could provide the basis of his claims. Instead, he alternatively requested that the court, if it disagreed with him relative to his aforementioned arguments, permit him time, pursuant to
{¶20} Thereafter, the Supreme Court granted in part the motion for reconsideration of Wilson II on an issue not raised here. See Wilson v. Durrani, 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 580 (“Cause remanded to the court of appeals solely to consider whether the repose period was tolled under
{¶21} Subsequently, the trial court issued a judgment entry granting appellees’ renewed motion for summary judgment on both claims for medical malpractice and wrongful death and denying Martin‘s motion for reconsideration.
{¶22} On April 13, 2021, Martin moved for relief from judgment pursuant to
In response to a question, I stated that Mrs. Martin‘s probability of survival at the end of 2013 and the beginning of 2014 was much less than 50%. Upon further review and reflection, that statement was mistaken. Applying the correct conservative doubling time, the tumor at the end of 2013 and the beginning of 2014 would most likely have been less than 3 cm in size since I believe it would have been less than 3 cm in size even as late as mid-May 2014.
At less than 3 cm in size at the time of diagnosis, if that had occurred in mid-May 2014, Mrs. Martin‘s probability of five-
year survival, and even ten-year survival, would have been greater than 50%. * * *
{¶23} On April 14, 2021, Martin appealed the court‘s judgment granting the motions for summary judgment and denying his motion for reconsideration. Thereafter, Martin moved to remand this case for a ruling on his
{¶24} Considering this procedural background, in his first assigned error, Martin argues that the trial court erred in failing to grant him additional time to obtain the supplemental expert reports to oppose the renewed motions for summary judgment on both the claims for medical malpractice and for wrongful death and in denying him relief from summary judgment under
{¶25} Regarding the former argument,
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
{¶26} We review a ruling on a request for additional time under
{¶27} “In interpreting
“However, the nonmoving party does not have an absolute right to be given additional discovery time in every instance. To be entitled to a continuance under the rule, the nonmoving party has the burden of establishing a sufficient reason for the additional time. * * * That is, the party requesting more time must show that the additional discovery will actually aid in either the demonstration or negation of a fact relevant to an issue raised in the motion for summary judgment.”
Brown at ¶ 21, quoting Marshall at ¶ 18.
{¶28} Here, the trial court denied Martin‘s motion for additional time, reasoning as follows:
The plaintiff should have been aware since at least May 13, 2020, when the court denied the defendants’ motions for summary judgment, that the court had determined that the statute of repose applied to the wrongful death claim and that the defendants had raised the issue of proximate cause regarding any acts or omissions occurring after May 10, 2014 with regards to that claim. The court declined to address the issue of proximate cause in its May 13, 2020 ruling only because that issue was first raised in the defendants’ reply brief, and was thus not a basis for their motion for summary judgment. Further, on July 2, 2020, in its ruling on defendants’
motions for reconsideration, the court explicitly stated that the plaintiff‘s wrongful death claim could not be based on acts or omissions that occurred before May 10, 2014.
(Emphasis added.)
{¶29} We cannot say the trial court abused its discretion in denying the alternative motion for additional time under
{¶30} Regarding the remainder of his first assigned error pertaining to denial of his motion for relief from judgment, we review the trial court‘s ruling on this motion for an abuse of discretion. Chapman v. Chapman, 11th Dist. Lake No. 2015-L-039, 2015-Ohio-4833, ¶ 22.
{¶31}
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective
application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules.
{¶32} Accordingly,
“[t]o prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.”
Chapman at ¶ 23, quoting GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.
{¶33} Here, Martin relied on
{¶34} In ruling on Martin‘s
{¶36} With respect to Martin‘s second assigned error, which pertains to the wrongful death claim only, he argues that application of the statute of repose unconstitutionally denied a remedy for Nancy‘s wrongful death.
{¶37} “A party may challenge the constitutionality of a statute with either a facial challenge or an as-applied challenge.” Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 20, citing Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 26. “A party raising an as-applied constitutional challenge must prove by clear and convincing evidence that the statute is unconstitutional when applied to an existing set of facts.” Simpkins at ¶ 22, citing Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 181. When addressing constitutional challenges, we must remain mindful “that all statutes are entitled to a strong presumption of constitutionality.” Simpkins at ¶ 22, citing Arbino at ¶ 25. ““The only judicial inquiry into the constitutionality of a statute involves the question of legislative power, not legislative wisdom.“” Ruther v. Kaiser, 134 Ohio St.3d408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 9, quoting State ex rel. Bowman v. Bd. of Commrs. of Allen Cty., 124 Ohio St. 174, 196, 177 N.E. 271 (1931).
{¶38} The right-to-remedy provision of the Ohio Constitution provides that “[a]ll courts shall be open, and every person, for an 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.” Ohio Constitution, Article I, Section 16. “[T]he right-to-remedy provision applies only to existing, vested rights and * * * the legislature determines what injuries are recognized and what remedies are available.” Ruther at ¶ 13, citing Groch at ¶ 150, quoting Sedar v. Knowlton Constr. Co., 49 Ohio St.3d 193, 202, 551 N.E.2d 938 (1990), overruled on other grounds, Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 639 N.E.2d 425 (1994). “Thus, the General Assembly has the right to determine what causes of action the law will recognize and to alter the common law by abolishing the action, by defining the action, or by placing a time limit after which an injury is no longer a legal injury.” Ruther at ¶ 14.
{¶39} As set forth above,
{¶40} The constitutionality of
{¶41} As applied to the wrongful death claim here, the medical statute of repose did not deny Martin a vested right to a remedy, as the claim would not have vested until Nancy‘s death. As Nancy‘s death occurred more than four years after the alleged acts/omissions underlying the claim, the statute of repose prevented the cause of action from vesting, and the statute as applied to this claim does not unconstitutionally violate the right to a remedy. Accordingly, Martin‘s second assigned error lacks merit.
{¶42} With respect to Martin‘s third assigned error, which applies to both the medical malpractice and wrongful death claims, he argues that the trial court erred in
{¶43} Accordingly, Martin‘s third assigned error lacks merit.
{¶44} With respect to Martin‘s fourth assigned error, he argues that summary judgment on the wrongful death claim was improper, asserting that because the statutes of limitations for medical claims and wrongful death claims are contained in different statutory sections, a wrongful death claim is not a “medical claim” to which the statute of repose would apply.
{¶45} A “medical claim” for purposes of the statute of repose is
any 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. * * *
{¶46} There is no dispute that Martin‘s wrongful death claim is based upon the “medical diagnosis, care, or treatment” of Nancy. Although the wrongful death claim is subject to a different statute of limitations, it does not follow that is not a “medical claim”
{¶47} Having found no merit to Martin‘s four assigned errors, the judgments of the Lake County Court of Common Pleas are affirmed.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.