NICOLE WILSON, ADMINISTRATOR OF THE ESTATE OF SILUS SMITH (a.k.a. BABY BOY WILSON) v. MERCY HEALTH (FORMERLY ST. JOSEPH HOSPITAL), et al.
CASE NO. 2021-T-0004
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY
Decided: July 19, 2021
2021-Ohio-2470
CYNTHIA WESTCOTT RICE, J.
Civil Appeal from the Court of Common Pleas, Trial Court No. 2020 CV 01135. Judgment: Affirmed in part, reversed in part, and remanded.
Thomas A. Prislipsky, Reminger Co., LPA, 11 Federal Plaza Central, Suite 1200, Youngstown, OH 44503 (For Defendant-Appellee, Mercy Health [Formerly St. Joseph Hospital]).
Stephen W. Funk and David E. Oeschger, Jr., Roetzel & Andress, LPA, 222 South Main Street, Suite 400, Akron, OH 44308 (For Defendant-Appellee, Norman Greene, M.D.).
CYNTHIA WESTCOTT RICE, J.
{1} Appellant, Nicole Wilson, Administrator of the Estate of Silus Smith (a.k.a. Baby Boy Wilson) (“Ms. Wilson“), appeals the January 19, 2021 and January 22, 2021 Judgment Entries of the Trumbull County Court of Common Pleas dismissing appellant‘s wrongful death complaint and granting the motions to dismiss filed by appellees, Norman
{2} This case stems from the death of a newborn infant, Silas Smith, a.k.a. Baby Boy Wilson, who died several hours after his birth on July 26, 2017, from meconium aspiration. In 2018, the child‘s mother, Ms. Wilson, filed a wrongful death action against Mercy Health, where the child was born and cared for, and against Dr. Greene, who delivered the child. Mercy Health responded with a motion to dismiss, arguing the affidavits were insufficient as they did not comply with
{3} Ms. Wilson refiled her complaint in 2020 pursuant to the saving statute,
{4} An appellate court reviews a trial court‘s dismissal under
{5} Ms. Wilson‘s first assignment of error states:
{6} The trial court erred, to the detriment of appellant, by dismissing her complaint on the pleadings.
{7}
{8} [i]f an affidavit of merit as required by this rule has been filed as to any defendant along with the complaint or amended complaint in which claims are first asserted against that defendant, and the affidavit of merit is determined by the court to be defective pursuant to the provisions of division (D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time, not to exceed sixty days, to file an affidavit of merit intended to cure the defect. Id.
{9} Both appellees contend that the opportunity to correct a defect provided by
{10} However, a voluntarily dismissed complaint shall be considered as having never been filed. O‘Stricker, supra, at ¶ 53, quoting Denham v. New Carlisle, 86 Ohio St.3d 594, 597 (1999) (“‘[A] voluntary dismissal pursuant to
{11} Moreover, appellees misconstrue the phrase “claims are first asserted against that defendant.” The “first filed” language does not serve to mandate that only
{12} The staff notes to
{13} Thus, if a plaintiff files an affidavit along with his or her complaint or amended complaint, and the court finds it to be defective,
{14} The opportunity to cure is not within a court‘s discretion to grant; rather, “the court shall grant the plaintiff a reasonable time” to attempt to cure any defects. Furthermore, it is clear that the cure period begins when the court determines the affidavits to be defective. Thus, contrary to Mercy Health‘s argument, the fact that Ms. Wilson had three years from the death of her son to the dismissal of her 2020 complaint is irrelevant to this assignment of error, as the court did not determine the affidavits attached to her 2020 complaint to be defective until January 2021 and the 2018 complaint is treated as if it were never filed.
{15} Ms. Wilson attached affidavits to her 2020 complaint, which the trial court found defective. After appellees filed their motions to dismiss, Ms. Wilson attached an amended affidavit to her reply to the motions. However, the trial court appears not to have considered this new affidavit, and the court did not give Ms. Wilson an opportunity to cure the defects required by
{16} Accordingly, Ms. Wilson‘s first assignment of error has merit.
{17} Her second assigned error states:
{18} The trial court erred, to the detriment of appellant, by holding appellant‘s affidavits were insufficient under Civil Rule 10.
{19} Given our holding on Ms. Wilson‘s first assignment of error is dispositive, we need not address the merits of her second assigned error.
{20} Her third states:
{21} The trial court erred, to the detriment of appellant, by not applying the requirements of a wrongful death action instead of a medical claim.
{22} Under this assignment of error, Ms. Wilson argues that wrongful death claims should be excused from the requirements of
{23}
{24}
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{25} 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. “Medical claim” includes the following:
{26} (a) Derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person;
{27} (b) Derivative claims for relief that arise from the plan of care prepared for a resident of a home;
{28} (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:
{29} (i) The claim results from acts or omissions in providing medical care.
{30} (ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medical diagnosis, care, or treatment.
{31} (d) Claims that arise out of the plan of care, medical diagnosis, or treatment of any person and that are brought under section 3721.17 of the Revised Code;
{32} (e) Claims that arise out of skilled nursing care or personal care services provided in a home pursuant to the plan of care, medical diagnosis, or treatment.
{33} In this case, Ms. Wilson‘s civil claims are asserted against a hospital and a physician. Ms. Wilson‘s complaint asserts that the appellees failed to diagnose and treat the child‘s meconium aspiration. Thus, it is readily apparent to this court that Ms. Wilson‘s claims “arise[] out of the medical diagnosis, care, or treatment of any person,” and are, therefore, “medical claims” as defined by
{34} Additionally, as Mercy Health correctly notes, Koler was decided under a former version of
{35} Accordingly, Ms. Wilson‘s third assignment of error is without merit.
{36} In light of the foregoing, the judgments of the Trumbull County Court of Common Pleas are affirmed in part, reversed in part, and remanded.
MARY JANE TRAPP, P.J.,
THOMAS R. WRIGHT, J.,
concur.