Price v. United States Of America

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Raymond Price,

Plaintiff, Case No. 2:18-cv-949

v. Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

United States of America, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on a Motion for Summary Judgment filed by Defendant

Ambulatory Care Solutions of Ohio, LLC.1 (ECF No. 31.) Plaintiff filed a Memorandum in

Opposition to the Motion (ECF No. 33), and Defendant filed a Reply (ECF No. 41). The matter

is now ripe for decision.

I. STATEMENT OF THE FACTS

Plaintiff Raymond Price, a veteran, is a patient of the Department of Veterans Affairs

(“VA”) Medical Center in Belmont County, Ohio (the “VA-Belmont”). (Amended Compl. ¶ 35,

ECF No. 25.) The VA-Belmont is a part of the VA-Pittsburgh Health System (“VAPHS”). (Id.

¶¶ 2–3.) In March 2015, the VA entered into a contract with Ambulatory Care Solutions, LLC,

(“ACS”) to provide primary care services at the VA-Belmont (the “Contract”). (U.S. Mot.

Dismiss Ex. A, ECF No. 27-1, at 1, 9–10.) At some point, ACS formed Defendant Ambulatory

Care Solutions of Ohio, LLC, (“ACS of Ohio”) to fulfill these contractual obligations and to

1 Plaintiff’s Amended Complaint names Ambulatory Care Solutions, LLC, as a defendant. (ECF No. 25, at

1–2.) Ambulatory Care Solutions of Ohio, LLC, filed an Answer, contending that it is the proper defendant and was

misidentified as Ambulatory Care Solutions, LLC, in the Amended Complaint. (ECF No. 26.) On January 3, 2020,

the parties filed a status report stipulating that Ambulatory Care Solutions of Ohio, LLC, is the appropriate

defendant and should be substituted as such. (ECF No. 51.)

operate the VA-Belmont. (ECF No. 51, ¶ 2.) During the relevant time period, until at least

November 2016, the providers at the VA-Belmont were employed by ACS of Ohio. (Christina

Hood Aff. ¶ 4, ECF No. 31-1.)

Pursuant to this Contract, ACS was responsible for “comply[ing] with all relevant VA

policies and procedures, including those related to quality, patient safety and performance . . . .”

(ECF No. 27-1, at 7.) These policies and procedures included VHA Directive 2009-019 and

VHA Directive 1088 (collectively, the “Directives”), which govern the transmission of results

for diagnostic tests at VA clinics. (Amended Compl. Exs. 2, 4, ECF Nos. 25-2, 25-4.)

Mr. Price has been a patient of the VA-Belmont for several years. (Pl. Opp. to Def. Mot.

for Summ. J. Ex. 8, ECF No. 33-9.) He has gone to the VA-Belmont for his routine annual lab

work, and he plans to continue to do so. (Id.) As a part of his annual lab work, the VA-Belmont

tests Mr. Price’s Prostate-Specific Antigen (“PSA”) levels because of his family history of

cancer. (ECF No. 25 ¶¶ 36–37.) PSA is a protein produced by the prostate, and elevated levels of

PSA (above four ng/ml) indicate a risk of prostate cancer. (Id. ¶¶ 37–38.)

On October 2, 2015, Mr. Price had blood drawn at the VA-Belmont, and a nurse

practitioner sent his blood to the VAPHS laboratory for testing, including a PSA test. (Id. ¶¶ 40,

43, 44.) Mr. Price left the VA-Belmont without receiving the results of his PSA test. (Id. ¶¶ 41–

42.) VAPHS completed the PSA test later that same day and, at some point, notated in Mr.

Price’s medical record that he had an elevated PSA level of 61.98 ng/ml. (Id. ¶¶ 42, 44.)

On October 9, 2015, VAPHS sent Mr. Price’s October 2, 2015, blood test results to his

regular primary care provider, who works outside of the VA system. (Id. ¶ 48; Amended Compl.

Ex. 5, ECF No. 25-5.) This transmission did not include the results of the PSA test. (ECF No. 25

¶ 49.)

Over one year later, on October 28, 2016, Mr. Price returned to the VA-Belmont for

another PSA test. (Id. ¶ 54.) This test showed that Mr. Price’s PSA level had further increased to

145.36 ng/ml. (Id.) On November 16, 2016, Mr. Price visited the VA-Belmont where he learned

for the first time that his PSA levels were elevated. (Id. ¶¶ 55, 58.)

Shortly after Mr. Price learned this information, he sought treatment from an oncologist,

Dr. Gregory Merrick, at Wheeling Hospital. (Id. ¶ 60.) On December 13, 2016, Dr. Merrick

diagnosed Mr. Price with advanced prostate cancer. (Id. ¶¶ 60, 63) According to Dr. Russell

Pachynski, another oncologist, Mr. Price’s prostate cancer “progress[ed] and spread to a

substantial and significant degree” between the time of the October 2, 2015, PSA test and the

October 28, 2016, test. (Amended Compl. Ex. 7, ECF No. 25-7 ¶ 6.)

On November 15, 2017, Mr. Price submitted an administrative claim of medical

malpractice to the VA. (ECF No. 25 ¶ 66.) On June 13, 2018, the VA denied Mr. Price’s claim

on the grounds that the relevant VA-Belmont employees were contract employees2, precluding

liability for the United States. (U.S. Mot. Dismiss Ex. B, ECF No. 27-2.) Mr. Price contends that

he did not, and could not have known with the exercise of reasonable diligence, that the

providers at the VA-Belmont were employed by ACS.3 (ECF No. 25 ¶ 76.) He contends that the

VA-Belmont providers never told him that they were employed by ACS, that he always believed

he was receiving care from the VA, and that he never knew about the existence of ACS until

receiving the VA’s June 13 letter. (Raymond Price Aff. ¶¶ 3–6, ECF No. 25-6.)

2 In its letter, the VA identified its contractor as ACS. (ECF No. 27-2.) There is no mention in the letter of

the existence of ACS of Ohio.

3 Mr. Price’s Amended Complaint references ACS rather than ACS of Ohio. The Court assumes for

purposes of this motion that Mr. Price’s assertions about ACS apply in equal measure to Defendant ACS of Ohio.

On August 23, 2018, Mr. Price filed a Complaint against the United States and against

ACS. (Compl., ECF No. 1.) On March 7, 2019, Mr. Price filed an Amended Complaint. (ECF

No. 25.) The Amended Complaint pleads allegations of negligence against ACS (Count One)

and the United States (Counts Two and Three). (Id. at 21–28.) The parties have since agreed to

substitute ACS of Ohio for ACS as the appropriate defendant. (ECF No. 51.)

II. STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

movant has the burden of establishing there are no genuine issues of material fact, which may be

achieved by demonstrating the nonmoving party lacks evidence to support an essential element

of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel,

Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir.1993). The burden then shifts to the

nonmoving party to “‘set forth specific facts showing that there is a genuine issue for trial.’”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56). When

evaluating a motion for summary judgment, the evidence must be viewed in the light most

favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970).

A genuine issue exists if the nonmoving party can present “significant probative

evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.”

Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir. 1993). In other words, “summary

judgment will not lie . . . if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson, 477 U.S. at 248; accord Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (concluding that summary judgment is appropriate when

the evidence could not lead the trier of fact to find for the non-moving party).

III. ANALYSIS

Mr. Price alleges in Count One that ACS of Ohio, “by and through its employees and

agents,” acted negligently by failing to: follow VA policies and directives, inform Mr. Price of

his elevated PSA levels in a timely manner, develop and implement appropriate policies and

procedures to ensure timely communication of lab results, and train and supervise its employees

regarding the communication of lab results. (ECF No. 24 ¶ 87.) In other words, Mr. Price alleges

that ACS of Ohio is vicariously liable for the alleged medical negligence of its employees. At its

core, ACS of Ohio argues in its Motion for Summary Judgment that Mr. Price’s claim is barred

by Ohio’s one-year statute of limitations on medical negligence claims. (Def. Mot. Summ. J., at

7–9, ECF No. 31.)4 However, ACS of Ohio is only correct if Mr. Price’s claims are “medical

claims” under Ohio law.

A. Whether Count One is a “Medical Claim” under Ohio Law

Pursuant to § 2305.113 of the Ohio Revised Code, a “medical . . . claim” must be brought

“within one year after the cause of action accrued.” Ohio Rev. Code Ann. § 2305.113(A) (West

2019). A “medical claim” is “any claim that is asserted in any civil action against a . . . hospital”5

or any employee or agent of a “hospital . . . that arises out of the medical diagnosis, care, or

treatment of any person.” Id. § 2305.113(E)(3). In turn, “hospital” is defined as “any person,

corporation, association, board, or authority that is responsible for the operation of any hospital”

or “clinic that employs a full-time staff of physicians practicing in more than one recognized

4 ACS of Ohio also prophylactically argues that because it is a private entity, it cannot be held liable under

the Federal Tort Claims Act. (ECF No. 31, at 5–7.) Mr. Price concedes this and has made clear that he is only

pursuing a negligence claim under state law against ACS of Ohio. (ECF No. 33, at 5 (ACS of Ohio’s “motion should

be denied because [ACS of Ohio] is liable to Plaintiff under the state related negligence claim, not the Federal Tort

Claims Act (FTCA).”).)

5 Ohio law permits medical claims to be brought against other persons and entities, including physicians,

nurses, and residential facilities. Id. § 2305.113(E)(3). However, the Court finds that ACS of Ohio could only, if at

all, fall into the “hospital” category, and ACS of Ohio makes no argument to the contrary.

medical specialty and rendering advice, diagnosis, care, and treatment to individuals” while

excluding “any hospital operated by the government of the United States or any of its branches.”

Id. § 2305.113(E)(1).

There are three words or phrases in this statutory scheme that are relevant to ACS of

Ohio’s Motion for Summary Judgment—“hospital,” “medical claim,” and “within one year after

the cause of action accrued.” The Court addresses the first two here and in the next section

analyzes the third.

The first issue is whether ACS of Ohio is a “hospital” as defined in § 2305.113(E)(1).

Mr. Price argues that he has filed a claim against a “healthcare clinic” rather than a hospital.

(ECF No. 33, at 14.) This argument is unavailing. “Hospital” is specifically defined as any

authority that is responsible for operating a “clinic” that employs full-time physicians, practices

in multiple medical specialties, and renders advice, diagnosis, care, and treatment. All available

evidence shows that ACS of Ohio fits this definition.

Mr. Price next argues that ACS of Ohio is not a “hospital” because of § 2305.113(E)(1)’s

exclusion of any facilities “operated by the government of the United States . . . .” The Court has

already concluded that the United States did not “control” (and thus did not “operate[]”) the VA-

Belmont. (See ECF No. 42, at 6–7.)6 Because ACS of Ohio was responsible for operating a

healthcare clinic that met the requirements of the statute, ACS of Ohio is a “hospital” under §

2305.113.

Given that ACS of Ohio is a hospital, the next question is whether Count One is a

“medical claim” under Ohio law. At the core of Count One—and, indeed, the Amended

6 Mr. Price also argues that the United States contractually retained the right to control ACS of Ohio’s lab

reporting protocols. (ECF No. 33, at 10–13.) It is not clear why this matters for purposes of ACS of Ohio’s liability.

Regardless, the Court already rejected this argument. (See ECF No. 42, at 8.)

Complaint—is the alleged failure by the VA-Belmont to provide Mr. Price timely notice of his

2015 PSA test results. As a result, whether this constitutes a “medical claim” depends on

whether this allegation “arises out of” Mr. Price’s “medical diagnosis, care, or treatment.” The

Court finds that it does.

To “arise” means “[t]o originate[,] to stem (from)[,]” or “[t]o result (from).” Arise,

Black’s Law Dictionary (10th ed. 2014). The terms “diagnosis” and “treatment” relate “to the

identification and alleviation of a physical or mental illness, disease, or defect.” Browning v.

Burt, 613 N.E.2d 993, 1003 (Ohio 1993). And “care,” in this context, “means the prevention or

alleviation of a physical or mental defect or illness.” Id. Accordingly, Mr. Price’s claim

regarding the VA-Belmont’s failure to notify him of his 2015 PSA test results is a “medical

claim” if it originated, stemmed, or resulted from the prevention, identification, or alleviation of

a physical or mental defect, illness, or disease.

It is clear from this language alone that a claim alleging the failure to provide the results

of a diagnostic test falls squarely within the definition of “medical claim.” The reason why Mr.

Price had his PSA levels tested on an annual basis was because he has a family history of cancer

and because his doctors sought to ensure that his levels remained within the normal range. That

is, Mr. Price’s medical providers were using this test as a way to identify a potential diagnosis of

prostate cancer. Mr. Price’s doctors and nurses would no doubt be puzzled if anyone questioned

whether they were testing Mr. Price’s PSA levels for any other reason than for prevention,

identification, or alleviation of a physical or mental defect, illness, or disease.

Mr. Price tries to avoid this obvious conclusion by characterizing the transmission of his

test results as a purely administrative failure requiring no “professional skill.” (ECF No. 33, at

17.) In support of his argument, he relies on the Ohio Supreme Court’s passing usage of the

language “professional skill” when analyzing the confines of a “medical claim.” See, e.g., Rome

v. Flower Mem’l Hosp., 635 N.E.2d 1239, 1242 (Ohio 1994). But correctly reporting the results

of a PSA test requires at least as much “professional skill” as the activities that the Ohio courts

have found to have met this seemingly low threshold. See, e.g., id. at 1241–42 (radiology intern

improperly secured patient to table for an X-ray); Brittingham v. Gen. Motors Corp., No. 24517,

2011 WL 6352294, at *1, *4 (Ohio Ct. App. Dec. 16, 2011) (failure to explain results of lung

function test to patient); Grubb v. Columbus Cmty. Hosp., 691 N.E.2d 333, 334–36 (Ohio Ct.

App. 1997) (orderly transferring patient on gurney between diagnostic procedures caused patient

to fall down stairs).

While the literal communication of the results of a laboratory test may require less

medical expertise than, for example, a surgery or a physical examination, there is no doubt that it

is still a crucial part of a patient’s diagnosis, treatment, and care. (See ECF No. 42, at 8 (“It

defies logic to say that reporting blood test results is not part of the ‘medical, professional

aspects of services rendered.’”).) VHA Directive 2009-019—on which the Amended Complaint

heavily relies—proves that the VA agrees with this determination, given that it specifically

obligates VA facilities to ensure that test results are “communicated by licensed or certified

health care staff.” (ECF No. 25-2, at 5.)

In an effort to prove that reporting test results is too administrative to constitute a

“medical claim,” Mr. Price cites a litany of cases in which Ohio courts have ruled that various

negligent acts were not “medical claims.” These cases are inapt—they involve random accidents

divorced from medical diagnosis, treatment, or care. See, e.g., Conkin v. CHS-Ohio Valley, Inc.,

No. A-1104723, 2012 WL 2367391, at *1–3 (Ohio Ct. App. June 22, 2012) (nursing home

employees dropped patient while moving her from wheelchair to a lift so she could shower); Hill

v. Wadsworth-Rittman Area Hosp., 925 N.E.2d 1012, 1013, 1016 (Ohio Ct. App. 2009) (patient

tripped over wheelchair footrests while being wheeled out of hospital); Summers v. Midwest

Allergy Assocs., Inc., No. 02AP-280, 2002 WL 31894902, at *7 (Ohio Ct. App. Dec. 31, 2002)

(cabinet at allergy clinic fell onto patient); Balascoe v. St. Elizabeth Hosp. Med. Ctr., 673 N.E.2d

651, 653 (Ohio Ct. App. 1996) (patient slipped on plastic in hospital bathroom). These

accidents—unlike the failure to report the results of a diagnostic test—are the types of accidents

that could occur in any environment. It just so happens that in these cases they occurred in

medical settings. It is only these fortuitous slip-and-fall-in-the-hospital claims that are the types

of torts that the Ohio legislature intended to carve out of § 2305.113 by specifically—yet

broadly—defining “medical claim,” not a claim involving the transmission of diagnostic test

results.

The above analysis encompasses Mr. Price’s allegation that ACS of Ohio was negligent

in failing to timely provide him with his PSA test results. However, the remainder of Count One

of the Amended Complaint contains additional allegations of negligence. As mentioned above,

Count One of the Amended Complaint also accuses ACS of Ohio of acting negligently by failing

to 1) follow VA policies and directives, 2) develop and implement appropriate policies and

procedures to ensure timely communication of lab results, and 3) train and supervise its

employees regarding the communication of lab results.

The third is squarely foreclosed by § 2305.113(E)(3)’s definition of “medical claim.” The

statute provides that medical claims include claims arising out of medical diagnosis, care, or

treatment that also result from the “training” or “supervision . . . of caregivers providing medical

diagnosis, care, or treatment.” Ohio Rev. Code Ann. § 2305.113(E)(3)(c)(ii). Because Mr. Price

alleges that ACS of Ohio failed to adequately train and supervise its employees only in the

context of failing to timely provide him with his PSA test results, this aspect of the claim is

barred by the same one-year statute of limitations as is the allegation of the failure to timely

provide the results.

However, Mr. Price alleges that ACS of Ohio was not just vicariously negligent, but also

was directly negligent by failing to follow VA policies and directives and to develop and

implement appropriate policies and procedures to ensure timely communication of lab results.

These allegations do not stem from the prevention, identification, or alleviation of a physical or

mental defect, illness, or disease. Cf. Browning, 613 N.E.2d at 1003–04 (concluding that a claim

against a hospital for negligent credentialing is not a “medical claim” because it does not arise

out of medical diagnosis, care or treatment). Rather, they deal with hospital administration and

compliance. To the extent Mr. Price suffered bodily harm as a result of the hospital’s negligent

administration and compliance, such a claim may fall within § 2305.10, which has a two-year

statute of limitations. See Ohio Rev. Code § 2305.10(A) (West 2019).

Having said this, even if ACS of Ohio was negligent in this regard, liability requires the

breach of a duty owed to Mr. Price specifically. See Chambers v. St. Mary’s Sch., 697 N.E.2d

198, 200 (Ohio 1998) (noting that a negligence claim requires that a defendant breach a duty that

it owed to the plaintiff); see Gelbman v. Second Nat’l Bank of Warren, 458 N.E.2d 1262, 1263

(Ohio 1984) (per curiam) (“In Ohio it is well-established that liability in negligence will not lie

in the absence of a special duty owed by the defendant.”). To the extent ACS of Ohio was

contractually obligated to comply with the VA’s policies and directives, it owed these

contractual duties to the VA, not to Mr. Price. But while Mr. Price is not a party to the Contract,

he could be an intended beneficiary. That would mean that ACS of Ohio owed a duty to him,

too. See Hill v. Sonitrol of Sw. Ohio, Inc., 521 N.E.2d 780, 784–85 (Ohio 1988) (adopting

Restatement (Second) of Contracts provision that contractual duties can be owed to an intended

beneficiary of a contract). But the beneficiary of a contract who is not an intended beneficiary is

an incidental beneficiary and has no enforceable rights under the contract. Id.

ACS of Ohio did not address these points in its Motion for Summary Judgment. Instead,

ACS of Ohio relied solely on its argument that Mr. Price’s claim was entirely a medical claim. In

turn, Mr. Price has not had the opportunity to explain whether he was an intended beneficiary of

the Contract and thus whether his non-medical claims can proceed. On this limited ground, the

Court denies ACS of Ohio’s Motion for Summary Judgment on Mr. Price’s non-medical claims

alleging direct negligence by ACS of Ohio.

B. Accrual Date of Mr. Price’s Medical Claim

Having concluded that Mr. Price has pleaded a medical claim, the Court must now

determine when that claim accrued. A medical claim accrues upon the occurrence of a

“cognizable event.” Allenius v. Thomas, 538 N.E.2d 93, 96 (Ohio 1989). “A ‘cognizable event’

is the occurrence of facts and circumstances which lead, or should lead, the patient to believe that

the physical condition or injury of which she complains is related to a medical diagnosis,

treatment, or procedure that the patient previously received.” Flowers v. Walker, 589 N.E.2d

1284, 1287 (Ohio 1992). The statute of limitations begins to run even if the plaintiff has not

“discovered all the relevant facts necessary to file a claim . . . .” Id. Rather, “[t]he occurrence of a

‘cognizable event’ imposes upon the plaintiff the duty to (1) determine whether the injury

suffered is the proximate result of malpractice and (2) ascertain the identity of the tortfeasor or

tortfeasors.” Id. at 1288. But while “the occurrence of the cognizable event imposes a duty of

inquiry on the plaintiff,” it is not the case “that the plaintiff has a duty to ascertain the cognizable

event itself, especially in a situation . . . where the patient had no way of knowing” key facts

surrounding his medical care. Akers v. Alonzo, 605 N.E.2d 1, 3–4 (Ohio 1992).“Whether the

‘cognizable event’ relates to the discovery of the tortfeasor’s identity is a question of law.”

Flowers, 589 N.E.2d at 1289.

Having said this, there is one circumstance in which a “cognizable event” will not

necessarily trigger the statute of limitations. When the plaintiff’s medical claim arises out of an

ongoing physician-patient relationship, the statute of limitations does not begin to run until after

“the physician-patient relationship for that condition terminates . . . .” Frysinger v. Leech, 512

N.E.2d 337, 341 (Ohio 1987). This rule, known as the termination rule, also extends to a hospital

when the patient’s relationship is with the hospital rather than with a particular practitioner.

Amadasu v. O’Neal, 891 N.E.2d 802, 806–07 (Ohio Ct. App. 2008); Ram v. Cleveland Clinic

Found., No. 80447, 2002 WL 1587858, at *3 (Ohio Ct. App. July 18, 2002).

Importantly, the termination rule does not require that the relationship with the allegedly

negligent doctor or hospital be severed entirely in order to suspend the statute of limitations.

Rather, the statute of limitations begins to run as soon as the relationship for the particular

condition terminates. Frysinger, 512 N.E.2d at 341; cf. Omni-Food & Fashion, Inc. v. Smith, 528

N.E.2d 941, 943–44 (Ohio 1988) (relying on Frysinger to hold that statute of limitations for legal

malpractice claims begin to run after the conclusion of “legal representation regarding a

particular undertaking or transaction”). This makes sense because the termination rule is

motivated by the twin policy goals of giving the alleged tortfeasor the opportunity to mitigate the

patient’s damages and alleviate the effects of his or her negligence and encouraging the parties to

resolve their dispute short of litigation. Frysinger, 512 N.E.2d at 341; see also Ram, 2002 WL

1587858, at *3. Once treatment for a particular condition has concluded, the opportunity to

mitigate has passed, and it makes less sense to continue to suspend the statute of limitations,

even if the medical relationship remains intact.

Beginning with the termination rule, Mr. Price has not put forth sufficient evidence to

show that he had an ongoing relationship with the VA-Belmont for a particular “condition.” In

fact, his evidence affirmatively shows that he did not have such an ongoing relationship. Mr.

Price attests that he continues to go to the VA-Belmont for his annual lab work; however, his

evidence shows that he goes elsewhere for his other medical needs since his primary care doctor

and his oncologist are outside of the VA system. While it is possible that visiting the VA-

Belmont on an annual basis for routine testing constitutes a “relationship” with that facility, Mr.

Price has offered no law or argument that it constitutes a relationship for a particular condition.

The Court finds that Mr. Price had no ongoing relationship with the VA-Belmont for a particular

condition, and he cannot avail himself of the termination rule.

Thus, barring any tolling or estoppel, in order for Mr. Price’s medical claim to survive,

the relevant “cognizable event” must have occurred no later than August 23, 2017, one year prior

to the filing of the Complaint. Mr. Price argues this to be the case, that the cognizable event

occurred when he learned the identity of ACS in June 2018. The Court disagrees.

There are two Ohio Supreme Court cases that are particularly illustrative as to what

constitutes a “cognizable event.” First, in Flowers v. Walker, the plaintiff, Arlene Flowers, began

to pursue a claim of medical negligence after finding out that she had a cancerous lump in her

breast that had not been discovered during a mammogram. 589 N.E.2d at 1285–86. However,

Ms. Flowers did not discover the identity of the radiologist who had interpreted her mammogram

until over a year after she learned that she had cancer. Id. at 1286. Ms. Flowers subsequently

sued the radiologist within one year of discovering his identity but more than one year after her

cancer diagnosis. Id. The court concluded that the “cognizable event” was Ms. Flowers’s cancer

diagnosis, not her discovery of the radiologist’s identity, and that she had had a duty to discover

the radiologist’s identity after she became aware of the potential negligence (i.e., after the cancer

diagnosis). Id. at 1287–88.

Subsequently, the court decided Akers v. Alonzo, this time ruling in favor of the plaintiff.

See 605 N.E.2d at 3–4. After the plaintiff, Ralph Akers, had his bladder biopsied three times, his

urologist reported each time that he had found no evidence of cancer. Id. at 1. A few months

later, Mr. Akers saw a second urologist, who diagnosed him with cancer. Id. Four years later,

Mr. Akers learned for the first time that the pathology slides from his first three biopsies had

been misinterpreted by a third doctor, Dr. de Lamerens. Id. at 1–2. The court distinguished

Flowers on the grounds that while Ms. Flowers might not have initially been aware of the

identities of those who had misinterpreted her mammogram, she was at least aware of their

existence. Id. at 3. In contrast, there was no evidence that Mr. Akers knew or should have known

any earlier of Dr. de Lamerens’s involvement or his misinterpretation of the pathology slides; in

fact, Mr. Akers did not know that the slides even existed. Id. Accordingly, the court determined

that because Mr. Akers had “had no way of knowing either that there had been another physician

involved or that that other physician had made an incorrect diagnosis,” it was Mr. Akers’s

discovery that Dr. de Lamerens had misinterpreted the pathology slides that was the cognizable

event. Id. at 3–4.

The Court concludes from Flowers and Akers that Ohio law obligates a plaintiff alleging

medical negligence to work diligently to determine the identity of the tortfeasor(s) upon

becoming aware of alleged negligence. However, if there exists a tortfeasor who was potentially

involved in the alleged negligence of whom the plaintiff was unaware and had no reason to be

aware, the statute of limitations does not begin to run until the existence of that tortfeasor

becomes known (or should have become known).

It is tempting to think that Akers is the governing precedent because of Mr. Price’s

asserted unawareness of ACS’s existence prior to June 2018, which ACS of Ohio offers no

evidence to refute. However, whereas what Mr. Akers lacked was the knowledge of the existence

of a potential primary tortfeasor, what Mr. Price lacked was the knowledge of the existence of

the employer of a potential primary tortfeasor. In terms of the medical claim, ACS of Ohio is

only liable to the extent its employees were negligent (i.e., through vicarious liability). In other

words, ACS of Ohio could not itself have been negligent, but only derivatively so. This

conclusion is not based on an assessment of ACS of Ohio’s culpability but rather only on an

observation of the fact that ACS of Ohio, as a non-human entity, could only act through one if its

human employees.

Before elaborating on the importance of this distinction, some background on vicarious

liability is necessary. Under Ohio law, one is not liable for the negligence of another except

through vicarious liability. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 913 N.E.2d

939, 943–44 (Ohio 2009). In such a situation, the principal is merely secondarily liable—the

subordinate tortfeasor remains primarily liable for its actions. Comer v. Risko, 833 N.E.2d 712,

716 (Ohio 2005); accord Tisdale v. Toledo Hosp., 967 N.E.2d 280, 284 (Ohio Ct. App. 2012)

(“Under this theory, the liability of an employer for the negligence of the employee is secondary

or passive, while the latter’s liability is primary.”). A common type of vicarious liability is

respondeat superior by which an employer or principal is vicariously liable for the torts of its

employees. Wuerth, 913 N.E.2d at 943–44.

Because an employer’s vicarious liability is entirely dependent on the liability of its

employees, such vicarious liability exists only where an employee can be held directly liable. Id.

at 944. It follows that if the statute of limitations has run with respect to the employee (the

primary tortfeasor) and thus he/she is immune from liability, the principal’s secondary liability

will simultaneously be extinguished. See Comer, 833 N.E.2d at 718 (“[T]here can be no viable

claim for agency by estoppel if the statute of limitations against the independent-contractor

physician has expired.”); Henry v. Mandell-Brown, No. C-090752, 2010 WL 3239118, at *3

(Ohio Ct. App. Aug. 18, 2010) (dismissing claims against surgery center where claim against

allegedly negligent doctor was not filed within statute of limitations period).

Based on these general principles, ACS of Ohio can only be held liable for medical

errors committed by its employees through vicarious liability. See Wuerth, 913 N.E.2d at 942

(“[B]ecause only individuals practice medicine, only individuals can commit medical

malpractice.”); Browning, 613 N.E.2d at 1003 (“A hospital does not practice medicine and is

incapable of committing malpractice.”). As a result, in order for ACS of Ohio to be liable on the

medical claim (again, without consideration of tolling or estoppel), it must be the case that its

employees could have been held directly liable at the time the Complaint was filed. See Wuerth,

913 N.E.2d at 944. To be clear, while Mr. Price was well within his right to sue only ACS of

Ohio, it must have been the case that Mr. Price could have sued the employees from whom ACS

of Ohio would derive liability. See id. (“Although a party injured by an agent may sue the

principal, the agent, or both, a principal is vicariously liable only when an agent could be held

directly liable.”); Tisdale, 967 N.E.2d at 321–22 (allowing suit against hospital where statute of

limitations had run against allegedly negligent employees at time of briefing but had not when

complaint was filed).

ACS of Ohio’s status as a secondary tortfeasor is what distinguishes ACS of Ohio from

Dr. de Lamerens in the case of Akers. Mr. Akers’s ability to establish the liability of Dr. de

Lamerens was independent of his ability to establish the liability of the other doctors. Here,

however, ACS of Ohio’s liability is entirely dependent on the liability of its employees.

Because Mr. Price had all of the requisite facts at the time of his cancer diagnosis on

December 13, 2016, that diagnosis was the “cognizable event” for purposes of § 2305.113.

Barring a tolling period or estoppel, the statute of limitations on the direct liability of ACS of

Ohio’s employees for the medical claim began to run on December 13, 2016, and expired one

year later.

The Court recognizes the ostensible unfairness of these circumstances. But it should be

noted that this harsh result stems from Ohio’s legislative choice to maintain a one-year statute of

limitation on most medical claims, a legislative choice that this Court and the parties must obey.

C. Tolling and Estoppel

Since Mr. Price did not file his Complaint until August 2018, and because the statute of

limitations on the medical claim expired in December 2017, Mr. Price’s medical claim against

ACS of Ohio is timely only if the limitations period was tolled or if ACS of Ohio is estopped

from asserting a statute of limitations defense. Regarding the issue of tolling, the Court finds it

unnecessary to address the legal merits of this claim because it fails on the facts. As the Court

concluded above, the statute of limitations on Mr. Price’s medical claim began to run after he

received his cancer diagnosis on December 13, 2016. Mr. Price filed his administrative claim on

November 15, 2017, which left only one month on the limitations period. However, after Mr.

Price’s administrative claim was denied on June 13, 2018, he waited more than two additional

months to file his Complaint on August 23, 2018. Accordingly, even if the seven months

between November 15, 2017, and June 13, 2018, are excluded, it is still the case that Mr. Price

filed his medical claim late.

“Equitable estoppel prevents relief when one party induces another to believe certain

facts exist and the other party changes his position in reasonable reliance on those facts to his

detriment.” State ex rel. Chavis v. Sycamore City Sch. Dist. Bd. of Educ., 641 N.E.2d 188, 196

(Ohio 1994). In Ohio, equitable estoppel may be used to prohibit inequitable use of a statute of

limitations defense. See McCualsky v. Appalachian Behavioral Healthcare, 100 N.E.3d 1049,

1054–55 (Ohio Ct. App. 2017) (“To invoke the doctrine as a bar to [a] statute of limitations

defense . . . the plaintiff must be able to show the defendant’s specific actions prevented the

plaintiff from timely filing the lawsuit.”). “[R]eliance must have been reasonable in that the party

claiming estoppel did not know and could not have known that its adversary’s conduct was

misleading.” Ohio State Bd. of Pharmacy v. Frantz, 555 N.E.2d 630, 633 (Ohio 1990). The

invocation of equitable estoppel generally requires actual or constructive fraud. Chavis, 641

N.E.2d at 196; see Frantz, 555 N.E.2d at 633 (“The purpose of equitable estoppel is to prevent

actual or constructive fraud and to promote the ends of justice.”).7

Constructive fraud does not require proof of fraudulent intent. Cohen v. Estate of Cohen,

491 N.E.2d 698, 700 (Ohio 1986). However, it does require the “‘breach of a legal or equitable

duty, which, irrespective of moral guilt of the fraud feasor, the law declares fraudulent, because

of its tendency to deceive others, to violate public or private confidence, or to injure public

interests.’” Id. at 699–700 (quoting Stanley v. Sewell Coal Co., 285 S.E.2d 679, 683 (W. Va.

7 Mr. Price argues that the doctrine of agency by estoppel should apply. (ECF No. 33, at 18–19.) This

doctrine has been used to hold a hospital liable for the negligence of its independent contractors. See Clark v.

Southview Hosp. & Family Health Ctr., 628 N.E.2d 46, 53 (Ohio 1994) (“A hospital may be held liable under the

doctrine of agency by estoppel for the negligence of independent medical practitioners practicing in the hospital

. . . .). This doctrine is inapt because the allegedly negligent individuals at the VA-Belmont were employees of ACS

of Ohio, not independent contractors. It is ACS of Ohio that was an independent contractor (of the VA), not the

individual medical providers.

1981)). Fraud can be based not only on affirmative misrepresentations, but also on a party’s

failure to fully disclose material facts when there exists a duty to speak. Textron Fin. Corp. v.

Nationwide Mut. Ins. Co., 684 N.E.2d 1261, 1269 (Ohio Ct. App. 1996); see also Gaines v.

Preterm-Cleveland, Inc., 514 N.E.2d 709, 712 (Ohio 1987) (establishing that a claim for fraud

can be based on concealment of a fact by someone with a duty to disclose it).

ACS of Ohio cites to an Ohio Eighth District Court of Appeals case for the proposition

that equitable estoppel in the context of a statute of limitations defense requires “either an

affirmative statement that the statutory period to bring an action was larger than it actually was[,]

promises to make a better settlement of the claim if plaintiff did not bring the threatened suit, or

similar representations or conduct on defendant’s part.” (Def. Reply, at 13, ECF No. 41 (citing

Livingston v. Diocese of Cleveland, 710 N.E.2d 330, 339 (1998)).) The Court is not bound by

decisions of the Ohio intermediate appellate courts, and their decisions are not persuasive if the

Court is convinced that the Ohio Supreme Court would decide things differently. Yates v. Ortho-

McNeil-Janssen Pharm., Inc., 808 F.3d 281, 289 (6th Cir. 2015).

The Court finds the analysis by the Eighth District Court of Appeals in Livingston to be

thin and unsupported and is not persuaded that the Ohio Supreme Court would agree with it.

Livingston cites to another Eighth District Court of Appeals case, which in turn adopted this test

from a United States Court of Appeals for the Ninth Circuit case. See Cerney v. Norfolk & W. Ry.

Co., 662 N.E.2d 827, 830 (Ohio Ct. App. 1995) (citing Atkins v. Union Pac. R.R. Co., 753 F.2d

776, 777 (9th Cir. 1985) (per curiam)). That Ninth Circuit case established a test designed to fit

the facts of the particular case before it, which involved allegations of bad faith during settlement

discussions. See Atkins, 753 F.2d at 777. The Atkins court gave no indication that such a test

would apply outside of this factual context, and the Eighth District Court of Appeals applied this

test in a more general context without any explanation. Neither the Eighth District Court of

Appeals nor ACS of Ohio has provided any explanation why equitable estoppel should apply

differently (and in such a limited fashion) in the particular context of a statute of limitations

claim. The Court sees no reason why it should, and at least one other Ohio intermediate appellate

court appears to agree. See McCualsky, 100 N.E.3d at 1054–55 (allowing invocation of equitable

estoppel where plaintiff shows defendant’s specific actions prevented plaintiff from timely filing

suit).

Accordingly, Mr. Price may invoke equitable estoppel to estop ACS of Ohio from relying

on a statute of limitations defense if he can prove that ACS of Ohio engaged in constructive or

actual fraud by failing to fully disclose material facts when it had a duty to do so, he reasonably

relied on these incomplete facts, and he acted to his detriment. It also must be the case that Mr.

Price did not know and could not have known that ACS of Ohio’s conduct was misleading.

The Court finds that Mr. Price has put forth sufficient evidence to put in dispute whether

ACS of Ohio engaged in constructive fraud and is thus entitled to further discovery on his

medical claim.8 As Mr. Price’s healthcare provider, it is clear that there is certain information

that ACS of Ohio had a duty to provide to him. See, e.g., Nickell v. Gonzalez, 477 N.E.2d 1145,

1148 (Ohio 1985) (discussing physician’s duty to disclose material risks and dangers involved

with proposed treatment). Whether it had a duty to provide its identity—and if so, when—is less

clear. But because ACS of Ohio has not argued that it had no such duty, it is not entitled to

summary judgment on this point regardless.

8 Mr. Price has not yet produced any evidence of actual fraud by ACS of Ohio or by the VA. Constructive

fraud is based on the effect of an individual’s conduct, while actual fraud is based on an individual’s intended

conduct. The two should not be conflated. Mr. Price is advised to refrain from allegations of actual, intentional fraud

unless and until he has evidence to support such a claim.

As for the second and third elements, Mr. Price has presented sufficient evidence that he

relied on his misimpression that the VA operated the VA-Belmont and that he did so to his

detriment. He filed his administrative claim within one year of the statute of limitations, which

gives rise to two inferences. First, this demonstrates that Mr. Price thought that he had been

harmed by the VA and had to proceed against it through the administrative process. Second, the

Court can—and at this stage, must—conclude from this information that if Mr. Price had known

about ACS of Ohio’s identity, he would have filed a claim against ACS of Ohio, or sent them a

180-day letter9, in November 2017 instead of or in addition to filing this administrative claim.

That leaves the final element, whether Mr. Price knew or should have known that ACS of

Ohio’s conduct was misleading. ACS of Ohio does not dispute Mr. Price’s contention that he did

not have actual knowledge of ACS of Ohio’s identity, so the point of contention is on the issue

of constructive knowledge. The only piece of evidence that ACS of Ohio offers to show that Mr.

Price should have known that ACS of Ohio operated the VA-Belmont is a screenshot of a

Belmont County Outpatient Clinic webpage (the “Exhibit B Website”) that says, at the bottom,

“Operated by Ambulatory Care Solutions.” (Def. Mot. Summ. J. Ex. B., ECF No. 31-2.)

As Mr. Price points out, there are multiple reasons why this screenshot does not prove

nearly as much as ACS of Ohio says it does. First, this screenshot was taken on July 4, 2019.

(ECF No. 31-2). Even now, the Exhibit B Website says that it was last updated on March 25,

2019. See https://www.va.gov/directory/guide/facility.asp?id=968 (last visited Jan. 14, 2020).

Because ACS has offered no evidence as to what the Exhibit B Website looked like prior to

March 25, 2019, the probative value of this screenshot is minute.

9 See Ohio Rev. Code § 2305.113(B)(1) (allowing extension of statute of limitations by 180 days upon

notice to putative defendant prior to expiration of the one-year statute of limitations).

Second, the established factual record demonstrates legitimate—and justified—confusion

by the VA and Mr. Price as to who exactly operated the VA-Belmont. The parties now agree that

ACS of Ohio operated the VA-Belmont and is the appropriate defendant in this matter. However,

this is apparently news to the VA, which contracted with ACS (not ACS of Ohio) and identified

ACS (not ACS of Ohio) as its contractor in its letter to Mr. Price. (ECF Nos. 27-1, 27-2.)

Moreover, ACS of Ohio’s screenshot also shows that the VA identified the VA-Belmont’s

operator as ACS—not ACS of Ohio. (ECF No. 31-2.) Thus, the parties’ recent stipulation

indicates that the statement on the Exhibit B Website is false. The Court passes no judgment at

this time on whether the distinction between ACS and ACS of Ohio is a material one. However,

at this posture, the Court must construe these facts in the light most favorable to Mr. Price and

assume that it is. This alone is enough to warrant denial of summary judgment on the issue of

estoppel.

Third, the Court notes from the record evidence, (see, e.g., Geoffrey Brown Aff. ¶ 7, ECF

No. 33-2), and from itself visiting the websites relied on by the parties, that while it appears

possible to navigate to the Exhibit B Website from Google, the Court has found it impossible to

get to the Exhibit B Website from within the VA website. That is, when entering “Belmont

County VA” into Google, the second option that came up for the Court10 was the Exhibit B

Website.11 However, upon navigating away from this website, the Court found it impossible to

return to it without returning to Google. For example, when choosing “Belmont County VA

10 Different Google results can appear for different users. See Natasha Bach, Google’s ‘Filter Bubble’ Can

Manipulate Your Search Results, Study Suggests, https://fortune.com/2018/12/04/google-search-results-filter-

bubble/ (last visited Jan. 14, 2020).

11 See https://www.google.com/search?sxsrf=ACYBGNR0qc7jNclpN2pn3me6HERHNWKXSA%3A

1579039553040&source=hp&ei=QDseXt_dPI7W5gLul4iICg&q=Belmont+County+VA&oq=Belmont+County+V

A&gs_l=psy-ab.3..35i199i175i39j35i39j0i22i30l5j0i22i10i30j0i22i30l2.3692.6107..6481...1.0..0.179.2130.3j14....

2..0....1..gws-wiz.......0i322j0i199i291j0j0i199i291i131j0i322i131j0i199i175j0i322i199i175j0i20i263.nMfBkidxtm

k&ved=0ahUKEwjf_ZHdjITnAhUOq1kKHe4LAqEQ4dUDCAg&uact=5 (last visited Jan. 14, 2020).

Clinic” from the list of VAPHS locations12, the resulting website shows no indication that ACS

or ACS of Ohio plays any role in the VA-Belmont.13 As a result, the Court finds that ACS of

Ohio’s statement that “Plaintiff merely needed to conduct an internet search to discover

Ambulatory Care Solutions operated the” VA-Belmont is misleading at best.

The Court finds it troubling that ACS of Ohio not only omitted the aforementioned “last

updated” date on its exhibit, but also that ACS of Ohio has overstated how easy it is to navigate

to the website. The Court is equally troubled by misstatements by Mr. Price. For example, Mr.

Price accuses ACS of Ohio of not informing the Court that “Exhibit B is not an accurate

representation of the way the VA’s website looks even today.” (ECF No. 33, at 4.) This

statement is false. Exhibit B is an identical representation of how the website looks today,

despite omitting the bottom half of the page. Counsel for both parties are advised to be mindful

of their professional responsibilities, specifically their duty of candor under the Ohio Rules of

Professional Conduct, which this Court has adopted. See S.D. Ohio Model Fed. Rules of

Disciplinary Enforcement IV.B; Ohio R. Prof’l Conduct 3.3(a)(1).

In sum, Mr. Price may continue to pursue his medical claim against ACS of Ohio on the

theory that ACS of Ohio is estopped from asserting a statute of limitations defense on the basis

of constructive fraud (or actual fraud, should the evidence ultimately support such a theory).

12 See https://www.pittsburgh.va.gov/locations/ (last visited Jan. 14, 2020).

13 See https://www.pittsburgh.va.gov/locations/belmont.asp (last visited Jan. 14, 2020).

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE