Kathleen McCarthy et al., Plaintiffs-Appellants, v. Peter K. Lee, M.D. et al., Defendants-Appellees.
No. 21AP-105
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 29, 2022
[Cite as McCarthy v. Lee, 2022-Ohio-1033.]
DORRIAN, J.
C.P.C. No. 20CV-554; ACCELERATED CALENDAR
Rendered on March 29, 2022
On brief: Beausay & Nichols Law Firm, T. Jeffrey Beausay, and Sara C. Nichols, for appellants. Argued: T. Jeffrey Beausay.
On brief: Baker & Hostetler, LLP, John H. Burtch, and Allison R. Thomas, for appellees. Argued: John H. Burtch.
Current counsel for appellees: FisherBroyles, LLP, Robert B. Graziano, and Michael R. Traven.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{1} Plaintiffs-appellants, Kathleen and Brett McCarthy, appeal the February 26, 2021 decision and entry of the Franklin County Court of Common Pleas granting the motion for judgment on the pleadings filed by defendants-appellees, Peter K. Lee, M.D., OhioHealth Colon and Rectal Surgeons, and OhioHealth Physician Group. For the following reasons, we reverse in part and affirm in part.
I. Facts and Procedural History
{2} On January 21, 2020, appellants filed a complaint in the trial court. Appellants indicated in the complaint that this was a refiled case, with the original case
{3} On October 19, 2010, Dr. Lee conducted a physical examination, anoscopy, and rigid sigmoidoscopy on Kathleen. As a result of the evaluation, Dr. Lee found Grade 1 hemorrhoids and ordered a colonoscopy. On February 2, 2011, Kathleen underwent a colonoscopy, which found mildly enlarged internal hemorrhoids but no other abnormalities. Kathleen continued to experience symptoms but attributed her symptoms to her diet and age.
{4} In early 2015, Kathleen became concerned due to an increase in the severity of her symptoms. As a result, Kathleen returned to Dr. Lee, who performed another anoscopy. Dr. Lee allegedly concluded that Kathleen‘s symptoms were caused by Grade 1 hemorrhoids. Dr. Lee did not order another colonoscopy but, instead, recommended Kathleen increase her fiber and fluid intake. Dr. Lee also recommended a hemorrhoid repair procedure, which Kathleen declined.
{5} On November 18, 2016, Kathleen underwent a physical screening in connection with an application for insurance coverage. Upon learning that she had been denied coverage under the insurer‘s premiere rate based on her test results from the physical screening, Kathleen requested the specific results of the tests. In January 2017, Kathleen learned her test results revealed she had abnormally high AST and ALT liver enzyme levels. On February 2, 2017, Kathleen returned to her primary care physician who ordered a liver ultrasound, which was performed on February 16, 2017. When the liver ultrasound failed to identify the cause of the abnormal liver enzyme levels, Kathleen‘s primary care physician referred Kathleen to Ohio Gastroenterology Group.
{6} On March 6, 2017, Kathleen was examined by Dr. Kiran Bidari of Ohio Gastroenterology Group, who ordered an endoscopy and colonoscopy. On April 4, 2017,
{7} On April 24, 2017, surgeons at Riverside Methodist Hospital performed a colectomy on Kathleen and removed an invasive, moderate to poorly differentiated adenocarcinoma tumor. However, at that point, cancer had already spread to Kathleen‘s lymph nodes. From June through December 2017, Kathleen received 12 rounds of chemotherapy. CT scans showed suspicious areas of possible metastases. On April 17, 2018, a PET scan revealed further lymph node involvement.
{8} On May 8, 2018, Kathleen had surgery to remove cancerous lymph nodes at the intersection of the aorta and right iliac artery and other cancerous masses. At the time of the filing of the complaint, Kathleen had incurable stage IV colon cancer and was continuing to receive chemotherapy.
{9} Appellants alleged in their complaint that appellees fell below the accepted standard of care by failing to order a colonoscopy in 2015 when Kathleen experienced an increase in the severity of her symptoms and sought medical care from Dr. Lee. Appellants further alleged appellees were negligent for failing to timely diagnose her colon cancer, resulting in the progression of the cancer to stage IV without treatment. As a result of appellees’ alleged negligence, Kathleen experienced and would continue to experience pain, mental anguish, extreme emotional distress, medical costs and treatment, loss of income and earning capacity, and the loss of enjoyment of life and the ability to perform customary activities. Appellants stated in the complaint that they were necessarily raising a claim for wrongful death in light of defenses raised by appellees in the previously dismissed case relating to the statute of repose.
{10} On the same date as the filing of the complaint, appellants also filed a motion pursuant to
{11} On June 16, 2020, the trial court granted appellants’ unopposed January 21, 2020 motion for extension of time to file an affidavit of merit. On July 30, 2020, appellants filed a second motion pursuant to
{12} On January 22, 2021, appellees filed a motion for judgment on the pleadings pursuant to
{13} On January 28, 2021, appellants filed a motion to hold appellees’ January 22, 2021 motion for judgment on the pleadings in abeyance pending the outcome of reconsideration following the Supreme Court of Ohio‘s decision in Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827. On February 3, 2021, appellees filed a memorandum in opposition to appellants’ January 28, 2021 motion to hold in abeyance. On February 5, 2021, appellants filed a memorandum in opposition to appellees’ motion for judgment on the pleadings. On February 26, 2021, the trial court filed a decision and entry denying appellants’ January 28, 2021 motion to hold in abeyance and granting appellees’ January 22, 2021 motion for judgment on the pleadings.
II. Assignment of Error
{14} Appellants appeal and assign the following sole error for our review:
The trial court erred in determining that the medical statute of repose (
2305.113(C) ) applies to wrongful death claims.
III. Analysis
{15} In their sole assignment of error, appellants argue the trial court incorrectly applied the medical statute of repose under
A. Standard of Review
{16} Pursuant to
{17} As a trial court‘s decision on a motion under
B. Applicable Law
{18} This case involves issues arising from the interaction of statutes of limitation, statutes of repose, and the savings statute with claims for wrongful death and medical malpractice. Our court recently addressed these issues in a similar case involving the application of the statute of repose for medical claims to claims for wrongful death and medical malpractice. Everhart v. Coshocton Cty. Mem. Hosp., 10th Dist. No. 21AP-74, 2022-Ohio-629. Before turning to our resolution of that case and its application to the facts before us, we briefly review the applicable statutory provisions and caselaw.
1. Distinctions Between Claims for Wrongful Death and Medical Malpractice
When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances which make it aggravated murder, murder, or manslaughter.
In order to establish a wrongful death claim based on a theory of negligence, a plaintiff must demonstrate: ” ‘(1) the existence of a duty owing to plaintiff‘s decedent, i.e., the duty to exercise ordinary care, (2) a breach of that duty, and (3) proximate causation between the breach of duty and the death.’ ” Amoako-Okyere v. Church of the Messiah United Methodist Church, 89 Ohio App.3d 17, 2015-Ohio-3841, ¶ 35 (10th Dist.), quoting Bennison v. Stillpass Transit Co., 5 Ohio St.2d 122 (1966), paragraph one of the syllabus.
{20} Unlike claims for wrongful death, which are statutory in nature, ” ‘[m]edical malpractice claims have long been recognized at common law.’ ” Stuck v. Miami Valley Hosp., 2d Dist. No. 28233, 2020-Ohio-305, ¶ 14, quoting LaValley v. Riverside Methodist Hosp., 10th Dist. No. 77AP-103 (Sept. 29, 1977). See Thompson v. Community Mental Health Ctrs. of Warren Cty., 71 Ohio St.3d 194, 195 (1994); Chilton-Clark v. Fishel, 10th Dist. No. 16AP-76, 2016-Ohio-7135, ¶ 9, fn. 1. Similar to the requirements for a wrongful death claim based on negligence, in order to establish a claim for medical malpractice, a plaintiff must demonstrate: “(1) the existence of a standard of care recognized within the medical community, (2) the breach of that standard of care by defendant, and (3) proximate cause between the breach of the standard of care and the injury.” Jenkins v. Karl HC, LLC, 10th Dist. No. 19AP-572, 2020-Ohio-1137, ¶ 11, citing Adams v. Kurz, 10th Dist. No. 09AP-1081, 2010-Ohio-2776, ¶ 11, citing Williams v. Lo, 10th Dist. No. 07AP-949, 2008-Ohio-2804, ¶ 11.
Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. 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.
Klema at 521, quoting St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U.S. 648, 658 (1915). See Koler v. St. Joseph Hosp., 69 Ohio St.2d 477, 479 (1982). Furthermore, the Supreme Court has held that the statute authorizing an action for wrongful death “creates a new cause or right of action distinct and apart from the right of action which the injured person might have had and upon the existence of which such new right is conditioned.” Karr v. Sixt, 146 Ohio St. 527 (1946), paragraph one of the syllabus.
2. Statutes of Limitations, Statutes of Repose, and Saving Statutes
{22} “Statutes of limitations and statutes of repose share a common goal of limiting the time during which a putative wrongdoer must be prepared to defend a claim, but they operate differently and have distinct applications.” Wilson at ¶ 8, citing Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, ¶ 11, citing CTS Corp. v. Waldburger, 573 U.S. 1, 7 (2014). See Mominee v. Scherbarth, 28 Ohio St.3d 270, 290 (1986), fn. 17. Statutes of limitations set forth ” ‘a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).’ ” Wilson at ¶ 9, quoting Black‘s Law Dictionary 1707 (11th Ed.2019). Statutes of limitation are designed to encourage a plaintiff‘s diligent prosecution of known claims. Id. at ¶ 10, citing CTS Corp at 8, citing Black‘s Law Dictionary 1546 (9th Ed.2009).
{23} On the other hand, statutes of repose bar ” ‘any suit that is brought after a specified time since the defendant acted * * * even if this period ends before the plaintiff has suffered a resulting injury.’ ” Wilson at ¶ 9, quoting Black‘s Law Dictionary 1707 (11th Ed.2019). Statutes of repose are designed to entitle a defendant to be free from fear of prosecution of a claim following a period of time prescribed by the legislature. See id. at ¶ 10, citing California Pub. Emps. Retirement Sys. v. ANZ Secs., Inc., ___U.S.___, 137 S.Ct. 2042, 2049 (2017); Antoon at ¶ 18, quoting Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, ¶ 19 (stating that ” ‘[t]he statute of repose exists to give medical providers certainty with respect to the time within which a claim can be brought and a time after which they may be free from the fear of litigation’ “).
{24} Unlike statutes of limitation and statutes of repose, savings statutes are designed to extend the time for a plaintiff to file an action. “Generally, a saving statute will provide that ‘where an action timely begun fails in some manner described in the statute, other than on the merits, another action may be brought within a stated period from such failure.’ ” Wilson at ¶ 11, quoting Annotation, 6 A.L.R.3d 1043 (1966). Saving statutes are remedial in nature and “are intended to provide a litigant an adjudication on the merits.” Id., citing Wasyk v. Trent, 174 Ohio St. 525, 528 (1963).
{25} Having set forth the general principles underlying statutes of limitations, statutes of repose, and savings statutes, we turn to the specific statutory provisions at issue in this appeal.
{26}
(1) No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.
(2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.
{27} As used in
[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.
(a) Derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person;
* * *
(c) Claims that arise out of the medical diagnosis, care, or treatment of any person or claims that arise out of the plan of care prepared for a resident of a home and to which both types of claims either of the following applies:
(i) The claim results from acts or omissions in providing medical care.
(ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medical diagnosis, care, or treatment.
[C]laims of a parent, guardian, custodian, or spouse of an individual who was the subject of any medical diagnosis, care, or treatment, dental diagnosis, care, or treatment, dental operation, optometric diagnosis, care, or treatment, or chiropractic diagnosis, care, or treatment, that arise from that diagnosis, care, treatment, or operation, and that seek the recovery of damages for any of the following:
(a) Loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, or any other intangible loss that was sustained by the parent, guardian, custodian, or spouse;
(b) Expenditures of the parent, guardian, custodian, or spouse for medical, dental, optometric, or chiropractic care or treatment, for rehabilitation services, or for other care,
treatment, services, products, or accommodations provided to the individual who was the subject of the medical diagnosis, care, or treatment, the dental diagnosis, care, or treatment, the dental operation, the optometric diagnosis, care, or treatment, or the chiropractic diagnosis, care, or treatment.
{28} Ohio‘s savings statute,
In any action that is commenced or attempted to be commenced * * *, if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the * * * plaintiff‘s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.
Thus, if the action fails other than on the merits, “the savings statute ‘may be used only once to invoke an additional one-year time period in which to refile an action.’ ” Brownfield v. Krupman, 10th Dist. No. 14AP-294, 2015-Ohio-1966, ¶ 10, quoting Boggs v. Baum, 10th Dist. No. 10AP-864, 2011-Ohio-2489, ¶ 30, citing Hancock v. Kroger Co., 103 Ohio App.3d 266, 269 (10th Dist.1995).
C. Analysis
{29} Here, appellants raise two arguments related to their claims for medical malpractice and wrongful death. With regard to their claim for medical malpractice, appellants argue the statute of repose is not a bar to the refiling of their medical malpractice claim under the savings statute. Appellants acknowledge that the Supreme Court in Wilson recently reached the opposite conclusion regarding the interaction between the statute of repose and the savings statute.
{30} Appellants did not set forth an assignment of error with regard to the medical malpractice claim, therefore we address the argument only to observe that Wilson would dispose of the same. In Wilson, the plaintiffs initially filed medical malpractice complaints within four years of the alleged malpractice, but voluntarily dismissed such complaints before refiling them in another county. The plaintiffs contended that, having voluntarily dismissed their claims pursuant to
{31} As appellants acknowledge, notwithstanding their arguments regarding the Supreme Court‘s holding in Wilson, we are bound to follow the precedent of the Supreme Court of Ohio. See generally In re C.J., 10th Dist. No. 16AP-891, 2018-Ohio-931, ¶ 77; In re W.W.E., 10th Dist. No. 15AP-167, 2016-Ohio-4552, ¶ 34; Coniglio v. State Med. Bd. of Ohio, 10th Dist. No. 07AP-298, 2007-Ohio-5018, ¶ 8. As a result, we would not find the trial court erred in dismissing appellants’ medical malpractice claim pursuant to
{32} Next, appellants argue that claims for medical malpractice and wrongful death are distinct and, as such, the statute of repose applies only to their claim for medical malpractice, not their claim for wrongful death. We recently resolved this question in our decision in Everhart. In that case, the trial court granted a motion for judgment on the pleadings because it found the plaintiff‘s wrongful death claim was a medical claim under
{33} In this case, the trial court found appellants’ claims, including appellants’ wrongful death claim, were medical claims as defined by
{34} Having found that appellants’ claim for wrongful death is not barred by the medical claim statute of repose, on remand, we instruct the trial court to vacate that portion of its February 26, 2021 decision and entry which dismissed appellants’ wrongful death claim pursuant to
{35} Accordingly, we sustain appellants’ sole assignment of error.
{36} Having sustained appellants’ sole assignment of error, we affirm in part and reverse in part the February 26, 2021 decision and entry granting appellees’ motion for judgment on the pleadings, and remand this matter to the Franklin County Court of Common Pleas for proceedings consistent with law and this decision.
Judgment affirmed in part; reversed in part; and cause remanded.
KLATT and MENTEL, JJ., concur.