Norris v. BasdenNorris v. Basden
- Reporters:
- , ,
- Before:
- Leland, Dorrian, Luper Schuster
LELAND, J.
{¶ 1} Plaintiff-appellant, Audene Norris, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion for summary judgment filed by defendants-appellees Arlena Basden, Mount Carmel Grove City, Mount Carmel Health System, Trinity Health Corporation, and John Does 1-10, after previously denying appellant‘s motion for an extension of time to oppose summary judgment and striking appellant‘s subsequent attempt to file an untimely brief in opposition to summary judgment. For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} Aрpellant initially filed a complaint against appellees on December 14, 2020. See Norris v. Basden, Franklin C.P. No. 20CV-8027. The parties agree that appellees filed
{¶ 3} One year later, appellant refiled a complaint against appellees on December 1, 2022. In the complaint, appellant alleged that on February 9, 2019 at approximately 12:09 p.m., she went to Mount Carmel Grove City‘s emergency department due to right leg pain. After an examination, medical professionals determined appellant “had an acute exacerbation or flare-up of chronic pain, and that she did not have any injury or trauma to her right leg.” (Compl. at 4.) The exam concluded at 1:53 p.m., she was discharged in a stable condition, and was taken by wheelchair to the lobby to wait for her transportation home. At approximately 2:11 p.m., appellant‘s daughter arrived to pick up appellant. Around the same time as appellant‘s daughter‘s arrival, Basden “transported [appellant] in a wheelchair from the Mount Carmel Grove City‘s lobby to [appellant‘s] daughter‘s vehicle.” (Compl. at 4.) While appellant was “being transferred from the wheelchair to her daughter‘s car,” appellant alleged she sustained injuries, including a right femur fracture. (Compl. at 4.) She was thereafter transferrеd by ambulance to Mount Carmel West where she was admitted and underwent surgery to repair the fracture.
{¶ 4} In Count 1 of appellant‘s complaint, she alleged “Personal Injury/Negligence” based on appellees providing “substandard” transportation services and/or custodial care for appellant; breaching a duty of care owed to “customers“; negligent or reckless hiring, training, and supervision of their employees and/or agents; and negligence or recklessness with respect to policies, procedures, and/or protocols relative to transporting “customers.” (Compl. at 6-10.) Appellant asserted that “[t]he acts or omissions complained of herein do not implicate questions of medical competence nor involve mаtters of medical science or art that would require specialized knowledge, training, or skills ordinarily not possessed by laypersons.” (Compl. at 9.) Appellant additionally alleged counts of respondeat superior and tortious interference with or destruction of evidence related to a surveillance video, audio recordings, and written reports.
{¶ 5} Appellees filed an answer on December 9, 2022 asserting, in part, the expiration of the statute of limitations and/or statute of repose as affirmative defenses. On
{¶ 6} According to appellees, since appellant‘s medical claims accrued on February 9, 2019, her initial December 14, 2020 complaint was filed beyond the one-year statute of limitations. Further, because that initial filing was untimely, the savings statute ordinarily available following a voluntary dismissal does not, in this case, apply to save the refiled сomplaint. As a result, appellees argued there is no genuine issue of material fact and appellees are entitled to judgment as a matter of law. Appellees attached to the motion for summary judgment authenticated portions of the Mount Carmel Grove City emergency department records related to appellant‘s care on February 9, 2019 and an affidavit of Basden.
{¶ 7} On January 9, 2023, appellant filed a motion for an extension of 90 days to respond to appellees’ motion for summary judgment pursuant to
{¶ 8} On February 17, 2023, appellees filed a motion to stay discovery until the summary judgment motion was resolved by the trial court. The trial court granted appellees’ motion to stay.
{¶ 9} The trial court then, on February 23, 2023, denied appellant‘s motion for extension of time to respond to appellees’ motion for summary judgment. “Based on the history of this case, [appellant‘s] motion is not well taken. [Appellant] has previously briefed the issues in [appellees‘] Motion for Summary Judgment in the prior case and submitted a supporting affidavit.” (Feb. 23, 2023 Order at 1.)
{¶ 10} A few weeks later, appellant filed a brief in opposition to summary judgment. Appellant indicates her brief in opposition was filed on March 10, 2023, while the trial court decision and appellees’ appellate brief state the filing date was March 13, 2023. Appellees filed a motion to strike appellant‘s brief in opposition to summary judgment on March 14, 2023, and appellant did not file a response. The trial court on April 19, 2023 granted appellees’ motion and ordered the brief in opposition to summary judgment be “hereby stricken for being untimely and for exceeding the page limitation set forth in Loc.R. 12.01.” (Apr. 19, 2023 Jgmt. Entry at 3.) The brief in opposition to summary judgment filed by appellant is not in the apрellate record.
{¶ 11} The trial court granted appellees’ motion for summary judgment the same day, April 19, 2023. In doing so, the trial court determined the allegations in appellant‘s complaint were “ancillary to and an inherently necessary part” of appellant‘s medical care and treatment provided to her in Mount Carmel‘s Emergency Department for her complaints of right leg pain. (Apr. 19, 2023 Decision & Entry at 7, 9.) Therefore, since the allegations constituted medical claims under
II. Assignments of Error
{¶ 12} Appellant assigns three assignments of error for our review:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT‘S CIV.R. 56(F) MOTION FOR EXTENSION OF TIME TO RESPOND TO APPELLEES’ MOTION FOR SUMMARY JUDGMENT IN ITS February 23, 2023 ORDER.
[II.] THE TRIAL COURT ABUSED ITS DISCRETION IN STRIKING APPELLANT‘S BRIEF IN OPPOSITION TO APPELLEES’ MOTION FOR SUMMARY JUDGMENT IN ITS APRIL 19, 2023 JUDGMENT ENTRY.
[III.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT IN ITS APRIL 19, 2023 DECISION AND ENTRY.
III. Analysis
{¶ 13} With her assignments of error, appellant challenges three determinations of the trial court: the decision denying her motion for an extension to respond to appellees’ motion for summary judgment; the decision granting appellees’ motion to strike her brief in opposition to summary judgment; and the decision to grant appellees’ motion for summary judgment based on the expiration of the statute of limitations.
A. First Assignment of Error – Denying Motion for Extension
{¶ 14} In her first assignment of error, appellant contends the trial court abused its discretion in denying her
{¶ 15} While there is a “wide scope of permissible discovery” in civil litigation, “a party‘s efforts to conduct discovery may be interrupted” since “a motion for summary judgment can be filed at ‘any time.’ ” Miller v. NWD 355 McConnell L.L.C., 10th Dist. No. 22AP-725, 2023-Ohio-3374, ¶ 11-12 (10th Dist.), citing
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.
{¶ 16} Thus, ”
{¶ 17} On appellate review, “the trial court‘s ruling on a
{¶ 18} Here, appellant has not shown the trial court abused its discretion on the facts of this case. In her motion for an extension of time to respond to appellees’ argument on summary judgment, appellant provided an affidavit of her counsel that explained he had not been able to fully research and brief all the issues raised in appellees’ motion for summary judgment or obtain the neсessary affidavits to respond to the motion due to his workload and personal obligations over the holidays. The affidavit continues that
{¶ 19} In denying appellant‘s motion, the trial court indicated the threshold statute of limitations issue raised in appellees’ motion for summary judgment had been previously raised and responded to in the original case, which undermined appellant‘s stated need for an extension in this case. Appellant has not shown how the trial court‘s position in this regard was unreasonable. This is, undisputedly, a re-filed case and appellant does not contend it was error for the trial court to consider the parties’ filings from the previous case. Moreover, the affidavit provided in support of the
{¶ 20} Upon review of the motion and affidavit, appellant has not demonstrated the trial court acted outside of its discretion in denying her motion for an extension to respond tо appellees’ summary judgment motion. Miller at ¶ 12. Accordingly, appellant‘s first assignment of error is overruled.
{¶ 21} Appellant‘s second assignment of error challenges the trial court‘s decision to grant appellees’ motion to strike appellant‘s brief in opposition to summary judgment. We review the trial court‘s decision to grant the motion to strike under an abuse of discretion standard. Nist v. Nexeo Solutions, L.L.C., 10th Dist. No. 14AP-854, 2015-Ohio-3363, ¶ 14. See Boggs v. Ohio Real Estate Comm., 186 Ohio App.3d 96, 2009-Ohio-6325, ¶ 42 (10th Dist.)(“The enforcement of local court rules is well within the sound discretion of the court, including the power to strike a brief that does not comply with such rules.“); A.M. v. Miami Univ., 10th Dist. No. 17AP-156, 2017-Ohio-8586, ¶ 21 (“Trial courts have inherent power to manage their own dockets and the progress of the proceedings before them.“). An abuse of discretion occurs when a trial court‘s ruling is “unreasonable, аrbitrary or unconscionable.” Blakemore at 219.
{¶ 22} In this case, the trial court expressed two bases for its decision to strike appellant‘s brief in opposition to summary judgment: untimeliness and violation of Loc.R. 12.01. Appellant has not demonstrated the trial court abused its discretion in either regard.
{¶ 23} First, pursuant to Franklin County Court of Common Pleas Loc.R. 12.01, “A supporting or opposing memorandum or brief * * * shall not exceed fifteen (15) pages exclusive of any supporting documents. Any supporting or opposing memorandum or brief which exceeds fifteen (15) pages shall not be considered without prior leave of the Court.” (Emphasis added.) Appellant admits in her appellate brief that she violated Loc.R. 12.01 by providing a brief that exceeded 15 pages and does not contend she sought leave of court to do so. She therefore concedes this basis for the trial court‘s decision was factually correct.
{¶ 24} Appellant attempts to established that regardless of her own Loc.R. 12.01 transgression, the trial court acted arbitrarily since appellees at times filed briefs that were too long under the local rule. However, in this instance, the trial court was presented with a motion to strike. We do not view the trial court‘s action to be arbitrary in these circumstances. Appellant additionally believes the trial court should have at least permitted counsel‘s affidavit to be filed, regardless of striking the response brief. However, this position appears to run counter to Loc.R. 56.01, which mandates all
{¶ 25} Lastly, appellant does not directly challenge the trial court‘s conclusion that her response brief was late but, with a citation to
{¶ 26}
{¶ 27} Thus,
{¶ 28} In these circumstances, appellant has not demonstrated the trial court abused its discretion in striking her response in opposition to summary judgment. Accordingly, appellant‘s second assignment of error lacks merit and is overruled.
C. Third Assignment of Error – Granting Summary Judgment
{¶ 29} Appellant‘s third and final assignment of error challenges the trial court‘s determination that summary judgment in favor of appellees is warranted in this case. Appellate review of summary judgment is de novo. MacDonald v. Authentic Invests., L.L.C., 10th Dist. No. 15AP-801, 2016-Ohio-4640, ¶ 22. “Under the de novo standard of review, an appellate court undertakes an independent review of the evidence without deference to the trial court‘s decision.” Kiser v. United Dairy Farmers, 10th Dist. No. 22AP-539, 2023-Ohio-2136, ¶ 9, citing Nazareth Deli L.L.C. v. John W. Dawson Ins. Inc., 10th Dist. No. 21AP-394, 2022-Ohio-3994, ¶ 22.
{¶ 30} Summary judgment is proper only when the party moving for summary judgment demonstrates:(1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of 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 non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.
{¶ 31} Pursuant to
1. “Medical claims” or ordinary negligence
{¶ 32} Appellees moved for summary judgment on the basis that appellant‘s complaint contains “medical claims” as defined by
{¶ 33} Medical сlaims are subject to a one-year statute of limitations.
{¶ 34} A “medical claim” is defined in relevant part as “any claim that is asserted in any civil action against a physician, * * * hospital, * * * against any employee or agent of a physician, [or] * * * hospital, * * * or against a licensed practical nurse, registered nurse, advanced practice registered nurse, * * * and that arises out of the medical diagnosis, care, or treatment of any person.”
{¶ 35} The Supreme Court of Ohio has indicated that “care,” as used in a prior but analogous version of
{¶ 36} Here, appellant does not dispute the first part of the
{¶ 37} On this record, we disagree. The medical records attached to appellees’ motion for summary judgment established that: appellant‘s medical history included sciatica and multiple surgeries to her right leg; she reported that her right leg “gives out on her“; she has a walker at home that she can use to ambulate; she sought emergency treatment for right leg pain which caused her to have, at minimum, difficulty bearing weight and ambulating; at the emergency room she was given morphine and instructed to follow-up with spеcific doctors; she was able to ambulate from the bed to a wheelchair to be taken to the lobby; and she was discharged in stable condition. (Mot. for Summ. Jgmt., Ex. B at 7.) Through the affidavit of Basden, appellees further established in pertinent part that: Basden is a registered nurse; Basden has personal knowledge of the facts; and that “[a]ll of [Basden‘s] involvement” with appellant on the date at issue “was performed within [her] role as a registered nurs[e] and was performed based upon [her] education, training, and
{¶ 38} The burden then shifted to appellant to respond, by affidavit or as otherwise provided in
{¶ 39} The cases appellant relies on to support a different result are distinguishable. Foremost, in the cases cited by appellant that involve summary judgment, the court concluded various claims based on patient or resident falls were not “medical claims” only after the plaintiff properly opposed summary judgment and presented the trial court with specific facts showing that a genuine issue exists for trial. For example, in Hill v. Wadsworth-Rittman Area Hosp., 185 Ohio App.3d 788, 2009-Ohio-5421, ¶ 13-17 (9th Dist.), the Ninth District determined the trial court erred in granting summary judgment to the defendants based on the trial court‘s assessment of the claims constituting “medical claims” requiring expert testimony. There, the parties did not dispute that a nurse transported the plaintiff, “[u]pon discharge” from an outpatient procedure, by wheelchair out of the hospital to meet the plaintiff‘s husband‘s vehicle, and the plaintiff fell after getting up from the wheelchair. Unlike the instant case, the specific summary judgment evidence before the court in Hill, which included deposition testimony from both the injured plaintiff and the nurse, showed the claims sounded in ordinary negligence. Id. at ¶ 16, 24 (explaining
{¶ 40} The remaining cases cited by appellant involve scenarios where the plaintiff presented allegations and attachments sufficient to survive various dismissals but did not involve the assessment of summary judgment evidenсe. See, e.g., Carte v. Manor at Whitehall, 10th Dist. No. 14AP-568, 2014-Ohio-5670, ¶ 29 (concluding trial court erred by dismissing, under
{¶ 41} Moreover, to the extent the cases appellant relies on arise from nursing home situations, particularly those with claims that accrued prior to 2015, those cases are of diminished value here since nursing home settings invoke additional statutory sections, and the statutory language was amended in 2015 to expand conduct fitting the statutory definition of medical claims pertaining to nursing homes. See
{¶ 42} In short, none of the cases cited by appellant involve uncontested averments by a medical professional that all of their interactions with the plaintiff on the date of injury, including transporting the plaintiff from a wheelchair to a vehicle, were conducted within their role as a medical professional and based on their medical training. We therefore find the cases relied on by appellant do not control the outcome here. However, we also decline to declare, as a matter of law, that a fall occurring under the circumstances alleged in this case is always a medical claim. See O‘Dell at ¶ 40 (“Falls can either be medical claims or general negligence claims, depending upon the factual circumstances.“).
{¶ 43} As a result, appellees’ motion for summary judgment was sufficient to show appellant‘s complaint stated “medical claims” subject to the one-year statute of limitations stated in
{¶ 44}
{¶ 45} Appellant argues the exception in
{¶ 46} Appellant‘s argument fails on the record before us. It appears that “180-day” arguments and evidence were not properly before the trial court: if appellant made and supported this argument in her response to summary judgment, that response was stricken as described in the second assignment of error. Because appellant did not properly raise the issue to the trial court, we decline to address this issue for the first time on appeal. Tucker v. Leadership Academy for Math, 10th Dist. No. 14AP-100, 2014-Ohio-3307, ¶ 20; State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 18. Moreover, even if we were inclined to address this issue in the first instance, we could not do so. The affidavit cited by appellant to allegedly evidence the 180-day letters is not in the appellate record. Johnson v. Johnson, 10th Dist. No. 19AP-84, 2019-Ohio-5138, ¶ 15, quoting Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 19 (1988) (“[I]t is the duty of the appellant to ensure that the record, or whatever portions thereof are necessary for the determination of the appeal, are filed with the court in which he seeks review.“);
{¶ 47} On the record before us, appellant did not file her initial complaint until December 14, 2020, beyond the one-year statute of limitations stated in
3. Spoliation claim
{¶ 48} Lastly, as a part of the third assignment of error, appellant asserts that her spoliation of evidence claims, as asserted in Count 3 of her complaint, are not medical claims. As explained below, based on the resolution of the medical claims, appellant has not demonstrated prejudicial error as to the dismissal of the spoliation claim.
{¶ 49} Appellant cites to Janson v. Christ Hosp., Inc., 1st Dist. No. C-200047, 2021-Ohio-1467, ¶ 32, in supрort of the position that spoliation claims are not medical claims. Janson does indicate spoliation-of-evidence claims do “not arise out of the medical diagnosis, care, or treatment of a plaintiff and is therefore not a ‘medical claim.’ ” Nevertheless, Janson then continues to discuss how dismissal of a spoliation claim is nevertheless still proper where the elimination of the underlying claims essentially negated a required element of the spoliation claim:
However, in order to prevail on a claim for interference or destruction of evidence, a plaintiff must be able to show (1) pending or probable litigation, (2) knowledge on the part of the defendant that litigation exists or is probable, (3) willful destruction of evidence by the defendаnt designed to disrupt the plaintiff‘s case, (4) disruption of the plaintiff‘s case, and (5) damages proximately caused by the defendant‘s acts. (Emphasis added.) Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 29, 1993-Ohio-229, 615 N.E.2d 1037 (1993). In the cases at hand, all other claims brought against [The Christ Hospital] were properly dismissed under
Civ.R. 12(B)(6) . Thus, plaintiffs would be unable to prove disruption of their respective cases and their spoliation-of-evidence claims would inevitably fail. Therefore, dismissal of the spoliation-of-evidence claims was proper as it appears beyond doubt from the complaint that plaintiffs could prove no set of facts entitling them to recovery on the spoliation-of-evidence claims.
{¶ 50} To be entitled to a reversal on appeal, an appellant must demonstrate “prejudicial” error.
{¶ 51} Overall, appellees met their initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact concerning their statute of limitations argument. Appellant thereafter did not properly respond with specific facts showing that a genuine issue exists for trial. Dresher at 293;
IV. Conclusion
{¶ 52} Having overruled appellant‘s three assignments of error, the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.