Miles v. Cleveland Clinic Health Sys. - E. RegionMiles v. Cleveland Clinic Health Sys. - E. Region
RELEASED AND JOURNALIZED: July 27, 2023
Appearances:
The Mellino Law Firm, LLC, Christopher M. Mellino, and Calder Mellino; Flowers & Grube, Louis E. Grube, Paul W. Flowers, and Melissa A. Ghrist, for appellants Robyn D. Miles, Individually and as Administrator of the Estate of Sydney Mariah Perryman.
Hanna, Campbell & Powell, LLP, Douglas G. Leak, Michael Ockerman, and W. Bradford Longbrake, for appellees Nathaniel Pavkov, D.O. and DHSC, LLC d.b.a. Affinity Medical Center and Affinity Medical Center.
Reminger Co., LPA, Erin Siebenhar Hess, Brian D. Sullivan, Jessica O. Hamad, and Brianna M. Prislipsky, for appellee Michelle F. Wallen, D.O.
{¶ 1} Robyn D. Miles, individually and as administrator of the estate of Sydney Mariah Perryman (“appellants“), appeal from the trial court‘s judgment entries that (1) denied their motion to substitute their standard-of-care expert, and (2) granted summary judgment in favor of defendants-appellees, Michelle F. Wallen, D.O. (“Wallen“), Nathaniel Pavkov, D.O. (“Pavkov“), and DHSC, LLC d.b.a. Affinity Medical Center, and Affinity Medical Center (“Affinity“) (collectively “appellees“). For the reasons that follow, this court reverses the trial court‘s judgments and remands for further proceedings.
I. Procedural Background
{¶ 2} In 2015, Sydney Perryman passed away at South Pointe Hospital. In 2016, appellants filed a complaint asserting claims for wrongful death, medical negligence, and loss of consortium against the Cleveland Clinic‘s nursing staff and the emergency department physicians.1 See Miles v. Cleveland Clinic Health System-East Region, et al., Cuyahoga C.P. No. CV-16-870818. Appellants also asserted claims of vicarious liability against the Cleveland Clinic for the nurses it employed and the doctors it contracted with to staff its emergency department, including Wallen and Pavkov.2 In November 2018, appellants voluntarily dismissed their complaint without prejudice, but in March 2019, they refiled the instant
{¶ 3} In November 2019, appellants identified Dr. Gary Harris M.D. (“Dr. Harris“) as their only emergency medicine standard-of-care expert and provided appellees with his expert report. During Dr. Harris‘s March 10, 2021 deposition, he stated that he is “in the full-time practice of emergency medicine, and [has] been for 44 and a half years.” (Dr. Harris deposition tr. 54.) He explained, however, that in May or June 2020, he had to take a temporary sabbatical leave from the practice of medicine due to a series of medical issues and the Covid-19 pandemic. He stated that he remained “on staff at a number of places,” and he “hopefully [would] be back to work very soon.” Id. at tr. 56. At the time of his deposition, “the only thing holding [him] back [from returning to work was] the Achilles tendon injury.” Id. at tr. 59. Dr. Harris stated that he could not “say for sure” when he would return to work but opined that it would “probably [be] a couple months more. I‘m making great progress with it.” Id. At the time of Dr. Harris‘s deposition, trial was approximately seven months away, scheduled for October 18, 2021.
{¶ 4} On April 30, 2021, Wallen moved for summary judgment, contending that appellants could not support their emergency medical negligence action without any qualified or competent expert testimony as required by
{¶ 5} Appellants opposed appellees’ motion, contending that summary judgment was not proper because a temporary leave in active clinical practice was insufficient to disqualify a witness from providing standard-of-care testimony at trial. In support, appellants cited to the Ohio Supreme Court‘s decision in Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557, in which the plurality opinion created an exception to
{¶ 7} In their reply, appellees contended that appellants’ reliance on Celmer and its progeny was misplaced and did not change the fact that Dr. Harris was not currently engaged in the active clinical practice of emergency medicine at the time of deposition and filing for summary judgment. In support, appellees directed the trial court to Dr. Harris‘s deposition testimony that at the time, he was not engaged in active clinical practice due to various health issues and the Covid-19 pandemic.
{¶ 8} In October 2021, Wallen, without leave of court, filed a supplemental reply in support of her motion for summary judgment and attached the Ohio Supreme Court‘s then newly released decision of Johnson v. Abdullah, 166 Ohio St.3d 247, 2021-Ohio-3304, 187 N.E.3d 463, in which the court declined to extend the exception created in Celmer, but continued to follow the “general rule” identified in Celmer that “the [expert] witness must meet the active-clinical-requirement of
{¶ 10} Appellees opposed the motion to substitute, contending that the deadline to produce expert reports had passed and granting appellants’ motion to substitute “would derail the entire litigation schedule for this matter, at the prejudice and cost of the defense.” Appellees requested instead that the trial court grant their motion for summary judgment because appellants failed to present a “prima facie case of medical malpractice” due to Dr. Harris‘s purported inability to satisfy the requirements of
{¶ 11} On March 11, 2022, the trial court denied appellants’ motion to substitute its expert witness, finding that “pursuant to
{¶ 12} Appellants now appeal, raising two assignments of error, which will be addressed out of order.
II. Summary Judgment
{¶ 13} In their second assignment of error, appellants contend that the trial court erred in determining that their expert, Dr. Harris, failed to the meet the requirements of
{¶ 14} We review the trial court‘s decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (1) there is no genuine issue of material
{¶ 15} The party moving for summary judgment bears the burden of demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party has the initial responsibility of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party‘s claims. Id. After the moving party has satisfied this initial burden, the nonmoving party has a reciprocal duty to set forth specific facts by the means listed in
{¶ 16} When appellees moved for summary judgment,
{¶ 17} When appellees filed for summary judgment, trial was scheduled to begin on October 18, 2021, and when the trial court granted summary judgment, trial had been continued at Wallen‘s request to September 12, 2022. Nevertheless, the trial court determined that appellees were entitled to judgment as a matter of law because, at the time of appellees’ motion for summary judgment, Dr. Harris currently did not satisfy the requirements of
{¶ 18} Moreover, construing the evidence in favor of appellants, a genuine issue of material fact exists as to whether Dr. Harris would be qualified to provide expert testimony pursuant to
{¶ 19} In their reply brief, appellees did not provide any evidence disputing either of Dr. Harris‘s statements. Rather, appellees maintained that
{¶ 20} Accordingly, we find that at a minimum, an issue of fact remained whether Dr. Harris would meet the requisite qualifications under
III. Substitution of Expert
{¶ 21} In their first assignment of error, appellants contend that the trial court erred in denying their motion to substitute their standard-of-care expert, who could not work due to a series of unforeseen medical issues. Even though the rules of evidence have been amended, which appears to have rendered this issue moot, this court exercises its discretion to briefly address this assignment of error.
{¶ 22} The trial court denied appellants’ motion finding that “pursuant to
{¶ 24} Our review of the record reveals that Wallen was afforded a great amount of discretion throughout the proceedings, yet when appellants faced a potentially case-ending technical hurdle, no discretion was afforded to them. “It is a fundamental tenet of judicial review that cases should be decided on the merits[,]” rather than procedural niceties and technicalities. DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 192, 431 N.E.2d 644 (1982). Judicial discretion must be carefully and cautiously exercised before upholding any outright dismissal of claims on purely procedural grounds. Id.
{¶ 25} In this case, the trial court granted Wallen two extensions of time to file her pathology expert report— the report was originally due on January 17, 2020, but not filed until May 26, 2020. Additionally, Wallen requested and received a
{¶ 26} Although the parties previously advised the trial court that all expert reports had been exchanged, on November 30, 2020, Wallen requested the trial court to extend the discovery cutoff deadline because of difficulties encountered “due to the Covid-19 pandemic and its impact on the medical community and its personnel.” The trial court granted Wallen‘s request and extended the discovery deadline until September 1, 2021, which was six weeks prior to the rescheduled October 18, 2021 trial date.
{¶ 27} On September 8, 2021, Wallen again requested a continuance of trial due to a conflict with another trial that was subsequently scheduled in common pleas court. Despite the fact that trial in this case was rescheduled on June 19, 2020, which was prior to the trial scheduled in the conflicting case (scheduled on April 21, 2021), the trial court again granted Wallen‘s request and rescheduled trial until September 12, 2022.
{¶ 28} The record demonstrates that the two-year delay in trial is solely attributable to Wallen. And it cannot go unnoticed that Wallen‘s justifications in seeking her initial trial continuance and then an extension with discovery cut-off
{¶ 29} Moreover, appellants’ request in seeking substitution of its expert was appropriate and arguably timely. At the time of appellees’ motions for summary judgment, the
{¶ 31} The situation before this court, however, is not one where appellees were unduly prejudiced or surprised by appellants’ request to substitute their expert. Appellees’ justification for summary judgment was premised entirely on appellants’ purported inability to produce medical expert testimony to support their medical claim. And when the Ohio Supreme Court decided Johnson during the middle of litigation and declined to extend the Celmer exception to the general rule, appellants for the first time sought relief from the trial court to triage its case from being dismissed on a procedural deficiency that, quite frankly, was not even ripe for dismissal because Dr. Harris‘s competency to testify at trial pursuant to
{¶ 32} Considering the amount of discretion afforded to Wallen throughout the proceedings in her requests for extensions to file her expert report and for discovery, and then her request to continue trial on three occasions, leads this court to conclude that the trial court acted unreasonably and arbitrarily in denying
{¶ 33} Judgment reversed and remanded.
It is ordered that appellants recover from the named appellees, Michelle F. Wallen, D.O., Nathaniel Pavkov, D.O., and DHSC, LLC dba Affinity Medical Center, and Affinity Medical Center, the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and MICHAEL JOHN RYAN, J., CONCUR