DEBORAH TAYLOR-JONES v. KETTERING MEDICAL CENTER, et al.
Appellate Case Nos. 28624, 28625, 28629
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 12, 2021
2021-Ohio-738
TUCKER, P.J.
Trial Court Case No. 2018-CV-3007 (Civil Appeal from Common Pleas Court)
Rendered on the 12th day of March, 2021.
PAUL W. FLOWERS, Atty. Reg. No. 0046625 and LOUIS E. GRUBE, Atty. Reg. No. 0091337, 50 Public Square, Suite 1910, Cleveland, Ohio 44113 Attorneys for Plaintiff-Appellee
STEPHANIE FRANCKEWITZ, Atty. Reg. No. 0073291, DAVID S. LOCKEMEYER, Atty. Reg. No. 0059188 and JOSHUA F. DEBRA, Atty. Reg. No. 0083267, 6281 Tri-Ridge Boulevard, Suite 210, Loveland, Ohio 45140
DOUGLAS G. LEAK, Atty. Reg. No. 0045554, 3737 Embassy Parkway, Suite 100, Akron, Ohio 44333 Attorneys for Defendant-Appellant, Southwest Ohio ENT Specialists, Inc.
JENNIFER L. BROGAN, Atty. Reg. No. 0075558, 6 North Main Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellant, Kettering Medical Center
JOHN B. WELCH, Atty. Reg. No. 0055337, 580 Lincoln Park Boulevard, Suite 222, Dayton, Ohio 45429 Attorney for Defendant-Appellant, Kettering Pathology Associates, Inc.
JENNIFER L. LAWRENCE, Atty. Reg. No. 0066864 and LINDSAY A. LAWRENCE, Atty. Reg. No. 0085880, 606 Philadelphia Street, Covington, Kentucky 41011 Attorneys for Amicus Curiae, The Ohio Association for Justice
{¶ 1} Appellants Matthew R. Garrett, M.D., Southwest Ohio ENT Specialists, Inc. (“Southwest ENT“), Richard Pelstring, M.D., Patricia McDowell, M.D., Kettering Pathology Associates, Inc. (“Pathology Associates“), and Kettering Medical Center (“KMC“) appeal from the trial court‘s denial of their motions for summary judgment. For the reasons that follow, the appeal of Matthew Garrett, M.D. and Southwest ENT is dismissed for lack of a final order. As to appellants Pelstring, McDowell, Kettering Pathology Associates, and KMC, the trial court‘s judgment is reversed, and the matter is remanded for the trial court to enter judgment in their favor.
I. Facts and Procedural History
{¶ 2} On September 17, 2012, Deborah Taylor-Jones had an office consultation with Dr. Garrett regarding a mass on the right side of her neck below the mandibular joint; Garrett was an ear, nose and throat specialist employed by Southwest ENT. Following an examination, Garrett ordered a fine-needle aspiration which was performed by another physician at KMC.1 The aspirate was examined by a pathologist, Dr. Richard Pelstring,2 who issued a cytology report on September 27, 2012, diagnosing the mass as benign.
{¶ 3} On October 1, 2012, Taylor-Jones had a follow-up appointment with Garrett
{¶ 4} Taylor-Jones did not see Garrett again until April 2015, when he again began to treat her for a mass in the same area of her neck. In June 2015, Garrett performed a biopsy on the mass; the mass was determined to be benign by a pathologist who reviewed a specimen during the surgery and another pathologist who reviewed a specimen after the surgery. In December 2015, a fine needle aspiration was performed, and the aspirate was determined to be benign. Finally, in January 2017, Garrett performed another excision.4 At that point, the mass was determined to be cancerous. Garrett requested a pathologic examination of the 2012 specimens, which he sent to a pathologist in Virginia. The re-examination revealed that the 2012 specimen was cancerous. This information was forwarded to KMC and was added to Taylor-Jones‘s medical records. Garrett did not see Taylor-Jones after February 2017.
{¶ 5} On June 29, 2018, Taylor-Jones filed a claim for medical malpractice against
{¶ 6} In late 2018, Garrett, Southwest ENT, KMC, Pelstring, McDowell, and Pathology Associates filed motions to dismiss, arguing that the trial court lacked subject matter jurisdiction over the action because Taylor-Jones‘s cause of action was barred by the statute of repose. The trial court overruled the motions in March 2019.
{¶ 7} Following discovery, the same defendants filed motions for summary judgment, again arguing that Taylor-Jones‘s claim for medical malpractice was barred by the statute of repose as codified at
{¶ 8} After a hearing, the trial court issued a single decision denying all of the summary judgment motions. The trial court found the claims against Garrett and Southwest ENT were not barred by the statute of repose because Garrett had continued to treat Taylor-Jones through 2017. The court concluded there was a question of fact concerning Garrett‘s last culpable act or omission due to his ongoing course of treatment of Taylor-Jones. The trial court further found that the statute of repose did not bar the
II. Summary Judgment Standard
{¶ 9} Summary judgment may be granted when there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and that conclusion is adverse to the non-moving party. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996);
{¶ 10} As a general rule, the denial of a motion for summary judgment is not a final appealable order. State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23, 222 N.E.2d 312 (1966). This is so because a denial of summary judgment does not determine the action and prevent a judgment and is therefore not a final order under
{¶ 11} The exception concerns the summary judgment decision with respect to Garrett and Southwest ENT. As noted, because Garrett treated Taylor-Jones after 2012, the trial court denied Garrett and Southwest ENT‘s summary judgment motion, concluding that “Garrett may have been negligent in treating [Taylor-Jones] for a benign tumor without reevaluating it in light of inspections and symptoms and/or periodically having a specimen reinterpreted.” From this, the trial court concluded that there were material issues of fact “about * * * [when Garrett‘s] ‘last culpable act or omission’ [occurred].” The trial court further concluded that Taylor-Jones‘s cause of action against Garrett and Southwest ENT was “not barred by
IV. The Constitutionality of R.C. 2305.113(C) /(D)(2)
{¶ 12} The first assignment of error presented by Pelstring, McDowell and Pathology Associates and the first assignment of error presented by KMC state respectively:
THE TRIAL COURT ERRED IN HOLDING THAT OHIO‘S STATUTE OF REPOSE AS SET FORTH IN
R.C. 2305.113(C) AND SPECIFICALLYR.C. 2305.113(D)(2) , VIOLATES THE EQUAL PROTECTION CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS.THE TRIAL COURT ERRED IN FINDING THAT OHIO‘S STATUTE OF REPOSE,
R.C. 2305.113(C) , WAS UNCONSTITUTIONAL AS APPLIED TO MRS. TAYLOR-JONES‘S MEDICAL CLAIM.
{¶ 13} The second assignment of error raised by Pelstring, McDowell and Pathology Associates and the second assignment of error asserted by KMC state respectively:
THE TRIAL COURT ERRED IN DENYING APPELLANTS SUMMARY JUDGMENT.
THE TRIAL COURT ERRED IN FAILING TO GRANT KETTERING MEDICAL CENTER‘S MOTION FOR SUMMARY JUDGMENT WHERE MRS. TAYLOR-JONES FILED HER MEDICAL CLAIMS OUTSIDE THE FOUR YEAR TIME PERIOD AS PROVIDED FOR IN
R.C. 2305.113 .
{¶ 14} Initially, we note that statutes enacted by the Ohio General Assembly are presumed to be constitutional. State v. Melms, 2018-Ohio-1947, 101 N.E.3d 747, ¶ 25 (2d Dist.). Thus, “before a court may declare [a statute] unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State ex rel. O‘Brien v. Heimlich, 10th Dist. Franklin No. 08AP-521, 2009-Ohio-1550, ¶ 24, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. Because the constitutionality of a statute presents a question of law, an appellate court reviews a trial court‘s determination of constitutionality de novo. Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 11 (1st Dist.).
{¶ 15} A review of the constitutionality of the statute of repose for medical malpractice claims “must be conducted according to the ‘rational basis’ test, since * * * [a medical negligence] case involves neither a fundamental right nor a suspect class.” Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 58, 514 N.E.2d 709 (1987). “The rational-basis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260, 267, 652 N.E.2d 952 (1995). With these standards in mind, we address the statute at issue here.
{¶ 16}
(C) Except * * * as provided in division (D) of this section, both of the following apply:
(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.
{¶ 17} Unlike the statute of limitations in a medical negligence case, which begins
{¶ 18} In addressing the rational basis for Ohio‘s statute of repose, the Ohio Supreme Court has stated that “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. The court further explained:
Many policy reasons support this legislation. Just as a plaintiff is entitled to a meaningful time and opportunity to pursue a claim, a defendant is entitled to a reasonable time after which he or she can be assured that a defense will not have to be mounted for actions occurring years before. The 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. Forcing medical providers to defend against medical claims that occurred 10, 20, or 50 years before presents a host of litigation concerns, including the risk that evidence is unavailable through the death or unknown whereabouts of witnesses, the possibility that pertinent documents were not retained, the likelihood that evidence would be untrustworthy due to faded memories, the potential that technology may have changed to create a different and more stringent standard of care not applicable to the earlier time, the risk that the medical providers’ financial circumstances may have changed - i.e., that practitioners have retired and no longer carry liability insurance, the possibility that a practitioner‘s insurer has become insolvent, and the risk that the institutional medical provider may have closed.
Responding to these concerns, the General Assembly made a policy decision to grant Ohio medical providers the right to be free from litigation based on alleged acts of medical negligence occurring outside a specified time period. This decision is embodied in Ohio‘s four-year statute of repose for medical negligence, set forth in
R.C. 2305.113(C) . The statute establishes a period beyond which medical claims may not be brought even if the injury giving rise to the claim does not accrue because it is undiscovered until after the period has ended.
{¶ 19} The constitutional challenge raised in this appeal involved the following
If the alleged basis of a medical claim, dental claim, optometric claim, or chiropractic claim is the occurrence of an act or omission that involves a foreign object that is left in the body of the person making the claim, the person may commence an action upon the claim not later than one year after the person discovered the foreign object or not later than one year after the person, with reasonable care and diligence, should have discovered the foreign object.
{¶ 20} The trial court concluded that this exception made
{¶ 21} The equal protection requirement prevents the government from “treating differently persons who are in all respects alike.” Bennett v. Motorists Mut. Ins. Co., 118 Ohio St.3d 493, 2008-Ohio-2751, 890 N.E.2d 307, ¶ 30, quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Thus, a statute may classify
{¶ 22} Ohio law has long recognized a distinction between retained foreign body plaintiffs and other medical malpractice plaintiffs, albeit in terms of the tolling of the relevant statute of limitations. In Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198, 200, 290 N.E.2d 916 (1972), the Ohio Supreme Court noted that, when a foreign object has been negligently left in the patient‘s body, questions about the patient‘s credibility and the doctor‘s professional diagnosis, judgment and discretion are not at issue. Id. at 200, fn. 5. The court stated, “to carelessly leave a large and obvious metallic forceps and a nonabsorbent sponge in a surgical patient‘s body is negligence as a matter of law, and the proof thereof is generally unsusceptible to speculation or error.” Id. at 200.
{¶ 23} The singular nature of retained foreign objects which were not in the body prior to surgery has been recognized by other Ohio courts. See, Pritchard v. Riverside Methodist Hosp., 64 Ohio App. 2d 125, 128, 411 N.E.2d 1343, (10th Dist.1978). (“exposure to radiation treatments simply does not leave a ‘foreign object’ in the body within the fundamental meaning of that term.“); Kodger ex rel. Kodger v. Singh, 8th Dist. Cuyahoga No. 41149, 1980 WL 354883 (June 19, 1980) (a shard of glass negligently not
{¶ 24} In Smith v. Wyandot Mem. Hosp., the Third District was also confronted with the contention that
{¶ 25} Since there is a rational basis, though not always precise or completely fair one, for the statutory distinction between retained foreign body plaintiffs and misdiagnosed plaintiffs, we agree with the Third District that such plaintiffs are not alike in all relevant ways. This conclusion results in the ultimate conclusion that the disparate treatment of such plaintiffs created by
{¶ 26} The first and second assignments of error asserted by Pelstring, McDowell,
V. Conclusion
{¶ 27} Appellants Garrett and Southwest ENT‘s appeal is dismissed for lack of a final appealable order, and the case is remanded to the trial court.6 As to appellants Pelstring, McDowell, Pathology Associates, and KMC, the case is remanded to the trial court for it to enter judgment in their favor.
HALL, J. and WELBAUM, J., concur.
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