noting that “the common knowledge exception is limited in scope * * *”
How later courts described this case
- noting that “the common knowledge exception is limited in scope * * *”
Written by the judges who cited it.
The opinion
[Cite as Chalmers v. HCR Manorcare, Inc., 2017-Ohio-5678.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Kim Chalmers, etc. Court of Appeals No. L-16-1143
Appellant Trial Court No. CI0201402776
v.
HCR Manorcare, Inc., et al. DECISION AND JUDGMENT
Appellees Decided: June 30, 2017
*****
Michael J. Fuller, Jr. and D. Bryant Chaffin, for appellant.
Robert M. Anspach, J. Randall Engwert and Joseph S. Center,
for appellees.
*****
JENSEN, P.J.
I. Introduction
{¶ 1} Appellant, Kim Chalmers, acting individually and on behalf of the wrongful
death beneficiaries of her father, John Costell, Sr., appeals the judgment of the Lucas
County Court of Common Pleas, granting summary judgment to appellees, HCR
ManorCare, Inc., HCR Manor Care Services, Inc., Heartland Employment Services, LLC,
Heartland of Waterville OH, LLC, Becky Ziviski, John Does 1 through 10, and
unidentified entities 1 through 10, on appellant’s claims for wrongful death, medical
malpractice, breach of fiduciary duty, fraud, and premises liability.
A. Facts and Procedural Background
{¶ 2} The prominent facts of this case are largely undisputed. On May 11, 2013,
Costell was transported to the University of Toledo Medical Center (UTMC) because he
was having difficulty breathing. Costell suffered from advanced COPD. According to
the emergency room physician’s notes found in Costell’s medical records, Costell “was
critically ill and required critical services including evaluation and management of
[patient] with [respiratory] failure and atrial fibrillation with [rapid ventricular
response].” Further, the record reveals that Costell was awaiting a lung transplant at the
time of his admission to the hospital, although at least one of Costell’s physicians was
skeptical as to whether Costell would survive a transplant surgery. Notably, the
aforementioned medical records indicate that Costell had no history of falling and was
therefore not a fall risk.
{¶ 3} Costell was eventually transferred to Toledo Hospital. On May 18, 2013,
Costell was released from Toledo Hospital and admitted into skilled nursing care at
Heartland of Waterville (Heartland), a nursing home located in Lucas County. The
record reveals that Costell was suffering from pneumonia at the time he entered
Heartland’s care.
2.
{¶ 4} On June 6, 2013, appellant took Costell to a doctor’s appointment at which
he discussed the possibility of undergoing a lung transplant procedure. According to
appellant’s deposition testimony, Costell complained that he was experiencing dizziness
while at the doctor’s office.
{¶ 5} The following day, June 7, 2013, employees at Heartland discovered Costell
lying on the floor of his bathroom bleeding from the side of his head. According to
appellant, Costell became dizzy while making his way to his bathroom. Upon entering
the bathroom, Costell passed out and hit his head in the ensuing fall.
{¶ 6} Shortly after the fall, Costell began complaining of left hip pain. Costell
remained at Heartland for several hours while he awaited the arrival of an x-ray
technician to take an x-ray of his hip. Once the technician arrived, she determined that it
would not be possible to take an on-site x-ray of Costell’s hip. Consequently, Costell
was transferred to UTMC, where he was eventually diagnosed with a fractured left hip.
While in the hospital, Costell developed a C. difficile infection. The infection eventually
went septic. Unfortunately, Costell succumbed to the sepsis on June 16, 2013, nine days
after being transferred from Heartland to UTMC.
{¶ 7} Thereafter, on June 11, 2014, appellant filed a 61-page complaint with the
trial court in her individual capacity and as a representative of Costell’s wrongful death
beneficiaries.
{¶ 8} In her complaint, appellant asserted 11 counts. The first two counts, styled
as corporate negligence, generally alleged that Costell was injured and ultimately died as
3.
a direct and proximate result of the entity appellees’ failure to provide adequate staffing
at Heartland and failure to implement adequate guidelines, policies, and procedures for
identifying and correcting nursing home deficiencies and alerting residents to such
deficiencies. A similar claim was brought under count three against Heartland’s
administrator, Becky Ziviski.1
{¶ 9} In Counts 4 and 5, appellant alleged that the entity appellees breached their
duty to provide Costell with certain residents’ rights under contract and applicable state
and federal statutes. Once again, appellant asserted that the breach was due to inadequate
staffing, failure to implement proper nursing home guidelines and procedures,
misallocation of nursing home resources, and failure to recognize, report, and correct
instances of non-compliance with applicable statutes and regulations.
{¶ 10} Counts 6 and 7 were styled as medical malpractice claims against the entity
appellees. In these claims, appellant alleged that the entity appellees failed to meet the
applicable standard of care by, among other things, (1) failing to notify a doctor of
significant changes in Costell’s medical condition; (2) failing to respond to such changes;
(3) failing to develop, implement, and update an appropriate care plan to meet Costell’s
needs; (4) failing to maintain appropriate records; (5) failing to provide sufficient staffing
to care for Costell; (6) failing to adequately assess, evaluate, and supervise the nursing
staff to ensure compliance with corporate policies and applicable regulations; (7) failing
1
Ziviski was made a party to this action upon the filing of appellant’s amended
complaint on January 15, 2015.
4.
to take measures to prevent Costell’s infection and, after said infection set in, failing to
adequately treat the infection; and (8) failing to prevent Costell from developing
pneumonia. Appellant went on to allege that the foregoing failures proximately caused
Costell’s fall. As such, appellant asserted that these failures were “negligent, grossly
negligent, willful, wanton, malicious and reckless.”
{¶ 11} Appellant’s eighth count was a “malice” claim premised on the
aforementioned conduct, which appellant alleged demonstrated appellees’ gross disregard
for Costell’s safety. The ninth and tenth counts alleged claims for fraud and breach of
fiduciary duty, respectively, against the entity appellees. In the fraud claim, appellant
asserted that the entity appellees “misrepresented the material fact that they were willing
to, and would, provide the proper care, treatement, and services to [Costell], when, in
fact, [appellees] knew that they would provide as little care, treatment, and services as
possible in order to maximize [appellees’] profit at the expense of [Costell].” Appellant
also contended that the entity appellees breached their fiduciary duty to Costell by failing
to provide him with the appropriate level of care to which he was entitled, by accepting
payment for services that were not provided, and by concealing their abuse and neglect of
Costell.
{¶ 12} For her eleventh and final count, appellant asserted a premises liability
claim against appellees. This claim was essentially based on appellant’s prior allegations
that Heartland was insufficiently staffed, lacked an appropriate allocation of resources to
care for the residents, and was staffed by unqualified nursing personnel. Appellant
5.
alleged that appellees failed to warn Costell of these conditions, which led to his eventual
fall and ultimate demise.
{¶ 13} Attached to appellant’s complaint was an affidavit of merit in which Holly
Brown, a geriatric nurse practitioner and registered nurse, indicated that she reviewed
Costell’s medical records from Heartland and UTMC. Based upon her education,
training, and experience, as well as her review of Costell’s medical records, Brown
opined, within a reasonable degree of nursing probability, that appellees “did deviate
from the accepted standards of nursing care in the treatment of [Costell] and these
deviations did result in and proximately caused [Costell] to suffer severe injuries and
damages.” Brown went on to specify several examples of appellees’ alleged deviations
in the standard of care. According to Brown’s affidavit, appellees’ deviations from the
standard of care proximately caused Costell to suffer injuries including a left hip fracture,
dehydration, sepsis, and pneumonia. Notably, Brown did not opine as to whether
appellees’ conduct was the proximate cause of Costell’s death.
{¶ 14} One month after appellant filed her complaint, appellees filed their answer,
in which they generally denied appellant’s allegations and asserted several affirmative
defenses. Relevant here, appellees urged that the claims contained in appellant’s
complaint were barred by the applicable statute of limitations. Further appellees asserted
that appellant’s claims were procedurally deficient under Civ.R. 10.
6.
{¶ 15} Following extensive pretrial discovery, appellees filed a motion for
summary judgment on October 30, 2015.2 In their motion, appellees argued that they
were entitled to summary judgment as to all claims contained in appellant’s complaint.
Specifically, appellees urged that Counts 1, 3, 4, 6, 9, 10, and 11 all constituted medical
claims subject to a one-year statute of limitations, which expired before appellant filed
her complaint. Appellees next argued that appellant’s malice claim contained in Count 8
amounted to a request for punitive damages and should be dismissed because
independent claims for punitive damages are not recognized in Ohio and punitive
damages are not available in association with the wrongful death claims that remained
after dismissing the medical claims. Finally, appellees asserted that appellant’s
complaint was insufficiently pleaded because Brown’s affidavit of merit did not establish
the cause of Costell’s injury or death and Brown acknowledged that she was not
competent to opine as to the cause of Costell’s death.
{¶ 16} On November 17, 2015, appellant filed a response in opposition to
appellees’ motion for summary judgment. In the response, appellant conceded that her
malice claim could not stand as an independent claim. Appellant indicated that she
included such a claim in her complaint to put appellees on notice that she was seeking
2
Along with the motion for summary judgment that is at issue here, which was filed on
behalf of all appellees collectively, three additional motions for summary judgment were
filed with the trial court, each seeking relief on different bases and for certain individual
appellees. Consistent with the trial court’s grant of summary judgment as to the
collective motion that disposed of all of appellant’s claims against all appellees, the court
denied the remaining motions for summary judgment as moot.
7.
punitive damages in this action. Additionally, appellant argued that appellees could not
establish that HCR ManorCare, Inc., HCR Manor Care Services, Inc., Heartland
Employment Services, LLC, and Becky Ziviski were medical providers under R.C.
3721.01(A)(6). Consequently, appellant argued that the claims brought against appellees
in Counts 1, 3, 4, 6, 9, 10, and 11 were not medical claims subject to the one-year statute
of limitations pursuant to R.C. 2305.113. Further, appellant insisted that all but two of
her claims fell outside the realm of medical claims because they did not arise from
Costell’s receipt of care, treatment, or diagnosis. Instead, appellant claimed that “the
majority of [her] allegations are that [appellees] were negligent in their corporate and
administrative capacity which caused systemic operational failures at Heartland of
Waterville.”
{¶ 17} As to the wrongful death claims that appellees argued should be dismissed
based upon appellant’s failure to attach an adequate affidavit of merit to the complaint,
appellant argued that an affidavit was not required as to most of the claims because such
claims were not medical claims. Moreover, appellant asserted that any deficiency in the
affidavit was cured by the coroner’s report and the testimony of her physician expert,
William Fannin, M.D., in which Fannin testified as to causation, opining that Costell’s
fall ultimately led to his death. Finally, appellant contended that Brown’s affidavit of
merit was sufficient to satisfy Civ.R. 10(D)(2) because the issue of causation was within
the common knowledge of a layperson and did not require the expert testimony of a
physician. Alternatively, in the event that the trial court agreed with appellees that
8.
Brown’s affidavit of merit was defective, appellant urged that she should be granted a
reasonable time to cure such defect.
{¶ 18} On June 1, 2016, the trial court issued its decision on appellees’ motion for
summary judgment. In its decision, the court found that appellant’s survivorship claims
found in Counts 1, 3, 4, 6, 9, 10, and 11 of the complaint constituted medical claims
under R.C. 2305.113(E)(3). As such, the court found that these claims were subject to
dismissal because they were filed outside of the one-year statute of limitations applicable
to medical claims. Further, the trial court found that appellant’s remaining wrongful
death claims were subject to dismissal because they were not supported by an adequate
affidavit of merit under Civ.R. 10(D)(2). Specifically, the court concluded that Brown
was incompetent to opine as to the cause of Costell’s death, a necessary element in a
wrongful death action. Moreover, the court was not persuaded by appellant’s assertion
that the defect was cured by Fannin’s testimony and the coroner’s report. The court
noted that such evidence was not attached to the complaint and was therefore not relevant
for purposes of determining whether the complaint was sufficient. Finally, the trial court
rejected appellant’s contention that she was entitled to be provided with a reasonable
amount of time to cure the defect in the affidavit. In rejecting this argument, the court
found that Brown’s incompetency did not constitute a curable defect, and therefore
appellant was left without an affidavit of merit. The court also found that appellant was
not entitled to additional time to file an affidavit of merit because appellant failed to
establish good cause to do so.
9.
{¶ 19} In light of its finding that appellant’s survivorship claims were time-barred
and the wrongful death claims were subject to dismissal due to the lack of an affidavit of
merit, the trial court granted appellees’ motion for summary judgment as to all of the
claims contained in appellant’s complaint. Appellant timely appealed.
B. Assignments of Error
{¶ 20} On appeal, appellant assigns the following errors for our review:
1. The trial court erred in granting Appellees’ Motion for Summary
Judgment as to Counts 1, 3, 4, 6, 9, 10, and 11 of Appellant’s Amended
Complaint by finding that these claims constituted “medical claims” as
defined by R.C. 2305.113.
2. The trial court erred by dismissing Counts 2, 5, and 7 of
Appellant’s Amended Complaint by finding that her affidavit of merit was
defective pursuant to Civil Rule of Procedure 10(D)(2) and could not be
cured.
II. Analysis
A. Standard of Review
{¶ 21} A motion for summary judgment is reviewed de novo by an appellate court.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “‘When
reviewing a trial court’s ruling on summary judgment the court of appeals conducts an
independent review of the record and stands in the shoes of the trial court.’” Gunsorek v.
10.
Pingue, 135 Ohio App.3d 695, 700, 735 N.E.2d 487 (10th Dist.1999), quoting Baker v.
Buschman Co., 127 Ohio App.3d 561, 566, 713 N.E.2d 487 (12th Dist.1998).
{¶ 22} In order to obtain summary judgment at the trial level,
[I]t must be determined that (1) there is no genuine issue of material
fact; (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 when viewing the evidence in favor of the nonmoving party,
and that conclusion is adverse to the nonmoving party. State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631
N.E.2d 150 (1994), citing Davis v. Loopco Industries, Inc., 66 Ohio St.3d
64, 65-66, 609 N.E.2d 144 (1993); see also Civ.R. 56(C).
B. Dismissal of Survivorship Claims
{¶ 23} In her first assignment of error, appellant argues that the trial court erred in
granting summary judgment to appellees on her survivorship claims by finding that these
claims constituted “medical claims” as defined by R.C. 2305.113.
{¶ 24} Under R.C. 2305.113(E)(3),
“Medical claim” means 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,
11.
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:
(a) Derivative claims for relief that arise from the plan of care,
medical diagnosis, or treatment of a person;
(b) Claims that arise out of the plan of care, medical diagnosis, or
treatment of any person and to which either of the following applies:
(i) The claim results from acts or omissions in providing medical
care.
(ii) The claim results from the hiring, training, supervision, retention,
or termination of caregivers providing medical diagnosis, care, or
treatment.
(c) 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;
(d) 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.
{¶ 25} “The term ‘medical claim’ as defined in R.C. 2305.113(E)(3) has two
components that the statute states in the conjunctive: (1) the claim is asserted against one
12.
or more of the specifically enumerated medical providers and (2) the claim arises out of
medical diagnosis, care, or treatment.” Estate of Stevic v. Bio-Medical Application of
Ohio, Inc., 121 Ohio St.3d 488, 2009-Ohio-1525, 905 N.E.2d 635, ¶ 18.
{¶ 26} Here, appellant does not contest the trial court’s grant of summary
judgment in favor of Heartland of Waterville OH, LLC, as to appellant’s survivorship
claims. Rather, appellant argues that the trial court disregarded the first prong of the
Stevic test set forth above and failed to consider whether the three remaining entity
appellees (HCR ManorCare, Inc., HCR Manor Care Services, Inc., and Heartland
Employment Services, LLC) were medical providers given the fact that they are not
licensed by the state of Ohio to provide skilled nursing care and personal care services
and, thus, do not meet the definition of a “nursing home” under R.C. 3721.01(A)(6).3
{¶ 27} In its decision granting summary judgment, the trial court stated the
following with respect to the argument appellant raises on appeal:
Plaintiff wishes to argue that her claims against the corporate
Defendants cannot be considered medical claims because such Defendants do
not fall within the categories of medical care givers or facilities to which
statutorily defined medical claims are limited. However, it is well-established
3
R.C. 3721.01(A)(6) provides:
“Nursing home” means a home used for the reception and care of individuals who by
reason of illness or physical or mental impairment require skilled nursing care and of
individuals who require personal care services but not skilled nursing care. A nursing
home is licensed to provide personal care services and skilled nursing care.
13.
that creative or artful pleading will not change the nature of a claim.
Regardless of the various failures alleged in Plaintiff’s survivorship claims,
the only potential negligence supported by the evidence directly relates to
Heartland’s diagnosis, medical care, and treatment of Mr. Costell. The
established facts of this case in no way support a claim that ordinary
negligence on the part of any actor proximately caused Mr. Costell’s fall and
resulting injuries.
{¶ 28} Referring to this portion of the trial court’s decision, appellees argue that
summary judgment was proper because appellant failed to advance evidence in support of
her allegedly non-medical claims against HCR ManorCare, Inc., HCR Manor Care
Services, Inc., and Heartland Employment Services, LLC.4
{¶ 29} Having reviewed the record in this case, we agree with the trial court that
appellant’s various non-medical claims against the aforementioned entities are not
supported by the evidence. Under these claims, appellant asserted that Costell’s injuries
resulted from (1) a lack of staffing and failure to implement administrative guidelines; (2)
a failure to provide Costell with certain residents’ rights; (3) an exaggeration of the
entities’ ability to provide the appropriate level of care to meet Costell’s needs when, in
fact, the entities would provide the least amount of care possible in order to maximize
profit; and (4) the entities’ failure to warn Costell of the inadequate staffing and
4
Appellees acknowledge that these entities are not nursing homes within the definition of
R.C. 3721.01(A)(6).
14.
unqualified nursing personnel. However, the record contains sparse evidence to support
such causation arguments.
{¶ 30} On the issue of causation, the only tenable argument to be made from the
evidence is that Costell was injured following a lack of adequate supervision from
Heartland’s nursing personnel. This is precisely the nature of the time-barred medical
claim brought against Heartland of Waterville OH, LLC. The claims for negligence,
fraud, breach of fiduciary duty, and premises liability against the remaining entities lack
evidentiary support on the issue of causation, and were therefore appropriately dismissed
on summary judgment. Accordingly, appellant’s first assignment of error is not well-
taken.
{¶ 31} In addressing the issues raised in the dissent, App.R. 16 states that the
appellant’s brief shall include a “statement of the assignments of error presented for
review” and “[a]n argument containing the contentions of the appellant with respect to
each assignment of error presented[.]” Under App.R. 12(A)(1)(b), an appellate court’s
review is limited to the assignments of error, the trial court’s record, and, unless waived,
oral argument.
{¶ 32} The parties’ arguments as to the first assignment of error center on the issue
of whether the claims raised by appellant are medical claims and whether they were
properly dismissed for want of evidence as to causation. Under App.R. 12(A)(1)(b), we
find it prudent to limit our analysis to that issue. See Steinbrink v. Greenon Local Sch.
Dist., 2d Dist. Clark No. 11CA0050, 2012-Ohio-1438, ¶ 45 (“We may affirm a judgment
15.
for reasons different from those on which the trial court relied, State v. Peagler, 76 Ohio
St.3d 496, 668 N.E.2d 489 (1996), but that does not imply authority to reverse a
judgment on error that was not assigned and argued, sua sponte.”).
C. Dismissal of Wrongful Death Claims
{¶ 33} In her second assignment of error, appellant argues that the trial court erred
in granting summary judgment to appellees on her wrongful death claims based upon its
conclusion that Brown’s affidavit of merit was inadequate under Civ.R. 10(D)(2) to
establish Costell’s cause of death.
{¶ 34} Civ.R. 10(D)(2), which requires the attachment of an affidavit of merit to a
plaintiff’s complaint in which medical claims are asserted, states:
(D) Attachments to pleadings.
***
(2) Affidavit of merit; Medical, dental, optometric, and chiropractic
liability claims.
(a) Except as provided in division (D)(2)(b) of this rule, a complaint
that contains a medical claim, dental claim, optometric claim, or
chiropractic claim, as defined in R.C. 2305.113, shall be accompanied by
one or more affidavits of merit relative to each defendant named in the
complaint for whom expert testimony is necessary to establish liability.
Affidavits of merit shall be provided by an expert witness meeting the
requirements of Evid.R. 702 and, if applicable, also meeting the
16.
requirements of Evid.R. 601(D). Affidavits of merit shall include all of the
following:
(i) A statement that the affiant has reviewed all medical records
reasonably available to the plaintiff concerning the allegations contained in
the complaint;
(ii) A statement that the affiant is familiar with the applicable
standard of care;
(iii) The opinion of the affiant that the standard of care was
breached by one or more of the defendants to the action and that the breach
caused injury to the plaintiff.
***
(d) An affidavit of merit is required to establish the adequacy of the
complaint and shall not otherwise be admissible as evidence or used for
purposes of impeachment. Any dismissal for the failure to comply with
this rule shall operate as a failure otherwise than on the merits.
(e) If 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
17.
time, not to exceed sixty days, to file an affidavit of merit intended to cure
the defect.
{¶ 35} Relevant to our analysis of appellant’s assignment of error, Brown
indicated in her affidavit of merit that she “reviewed all medical records reasonably
available related to John Costell, Sr. concerning his care and treatment at Heartland of
Waterville.” Moreover, Brown testified that she was familiar with the applicable
standard of care based upon her training, education, and experience in nursing and long
term care. Based upon her review, Brown opined:
[I]t is my professional opinion, within a reasonable degree of nursing
probability, * * * that Heartland of Waterville, its agents, its parent and/or
subsidiary corporations, assigns, administrators, and/or subsequent
purchasers involved in anyway [sic] with the operation, supervision,
management, control, and/or assumption of liability of this nursing home,
its employees, its nurses and its staff, did deviate from the accepted
standards of nursing care in the treatment of John Costell, Sr. and these
deviations did result in and proximately caused John Costell, Sr. to suffer
severe injuries and damages.
{¶ 36} Later in her affidavit, Brown specified that the injuries caused by
appellees’ deviations in the standard of care included a left hip fracture, dehydration,
sepsis, and pneumonia. She then concluded her affidavit by opining that Costell’s
injuries were “the proximate result of Heartland of Waterville’s deviations from the
18.
nursing standard of care outlined above.” Notably, Brown did not opine as to Costell’s
cause of death. Indeed, she acknowledged her incompetency to render such an opinion
during a subsequent deposition.
{¶ 37} “In medical malpractice cases, the general rule is that the plaintiff must
prove causation through medical expert testimony in terms of probability to establish that
the injury was, more likely than not, caused by the defendant’s negligence.” Roberts v.
Ohio Permanente Med. Group, 76 Ohio St.3d 483, 485, 668 N.E.2d 480 (1996); see also
Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 182 Ohio App.3d 768,
2009-Ohio-2460, 915 N.E.2d 361, ¶ 11 (9th Dist.) (requiring expert testimony to
establish causation in a wrongful death case premised on medical negligence). The
exception to that rule is “in cases where the nature of the case is such that the lack of skill
or care of the [medical professional] is so apparent as to be within the comprehension of
laymen and requires only common knowledge and experience to understand and judge it
* * *.” Bruni v. Tatsumi, 46 Ohio St.2d 127, 130, 346 N.E.2d 673 (1976). However, the
common knowledge exception is limited in scope and “[r]elatively few courts in Ohio
have applied the common knowledge exception to obviate the need for expert witness
testimony on the malpractice issue.” Lipp v. Kwyer, 6th Dist. Lucas No. L-02-1150,
2003-Ohio-3988, ¶ 14, citing Buerger v. Ohio Dep’t of Rehabilitation & Correction, 64
Ohio App.3d 394, 399, 581 N.E.2d 1114 (10th Dist.1989).
{¶ 38} On appeal, appellant asserts that expert testimony was not required on the
issue of causation because the fact that Costell was injured and subsequently died as a
19.
result of his fall at Heartland was readily apparent to a layperson. In support of her
argument, appellant cites the Eighth District’s decision in Dimora v. Cleveland Clinic
Found., 114 Ohio App.3d 711, 683 N.E.2d 1175 (8th Dist.1996).
{¶ 39} In Dimora, the appellate court affirmed the trial court’s denial of Cleveland
Clinic’s motion for directed verdict in a malpractice case in which Dimora asserted that a
student nurse acted unreasonably by leaving Dimora unattended at her walker while the
nurse opened a bathroom door for Dimora. Id. at 718. The record clearly established that
Dimora had a documented history of balance difficulties and needed assistance with the
use of her walker. Id. Ultimately, Dimora fell backward while unattended and was
injured. Id. The trial court allowed the case to be submitted to the jury despite the
absence of expert testimony as to the appropriate standard of care and the breach thereof.
On appeal, the Eighth District found that the common knowledge exception was
applicable on these facts and affirmed the trial court’s denial of Cleveland Clinic’s
motion for directed verdict. Id. at 719; see also Carte v. The Manor at Whitehall, 10th
Dist. Franklin No. 14AP-568, 2014-Ohio-5670 (applying common knowledge exception
where patient died following a fall in which he sustained a subarachnoid hemorrhage).
{¶ 40} Having examined the facts of Dimora, we find that case to be
distinguishable from the case sub judice on at least two important points. First, the
patient in Dimora was clearly incapable of walking on her own accord, even with the
assistance of a walker. Such was not the case here where the record establishes that
Costell did not have the same history of falls and lack of balance. Second, the causal
20.
connection between Dimora’s fall and her subsequent injuries was direct and obvious; the
causal connection between Costell’s fall and eventual death was uncertain and was
further complicated by his unrelated preexisting conditions including terminal end-stage
COPD and pneumonia, among other things. See Murray v. Doney, 6th Dist. Lucas No.
L-01-1365, 2002 Ohio App. LEXIS 334 (Feb. 1, 2002), *6 (“Another fact that affects the
need for medical expert testimony to establish proximate cause is the plaintiff’s medical
history.”). How Costell’s hip fracture (which could perhaps be deemed to be an obvious
consequence of the fall) led Costell to subsequently develop sepsis, dehydration, and
worsening pneumonia resulting in his death would be unclear to the layperson.
Therefore, we find that this case is distinguishable from those cited by appellant, and we
conclude that the common knowledge exception does not apply.
{¶ 41} Regardless of our conclusion as to the inapplicability of common
knowledge exception, appellant argues that the express terms of Civ.R. 10(D)(2) make it
clear that expert testimony is not required as to the ultimate cause of Costell’s death.
Rather, appellant urges that the rule merely requires expert testimony that appellees’
negligence “caused some injury.” Because Brown opined in her affidavit that appellees’
deviations from the standard of care caused Costell to suffer severe injuries, appellant
argues that the affidavit establishes the adequacy of the complaint as to the wrongful
death claims.
{¶ 42} In support of her argument, appellant cites the First District’s decision in
Tranter v. Mercy Franciscan Hosp. W. Hills, 1st Dist. Hamilton No. C-061039, 2007-
21.
Ohio-5132. In that case, Tranter brought a medical malpractice action alleging that the
nurses’ negligence caused the decedent to fall and sustain injuries. Id. at ¶ 2. The trial
court dismissed the action with prejudice based on its finding that Tranter’s nurse expert
lacked the qualifications to render an opinion on the issue of proximate cause in her
affidavit of merit. Id. at ¶ 5. On appeal, the First District held that the trial court erred in
dismissing the action because, even if the expert was not qualified to express the opinion
that the fall caused the decedent’s death more than a year later, she was qualified to state
that the nurses’ negligence “caused injury to the plaintiff” within the meaning of Civ.R.
10(D)(2)(a)(iii). In so holding the court emphasized:
[U]nder the language of Civ.R. 10(D)(2)(c), the purpose of the
affidavit is “solely to establish the adequacy of the complaint and shall not
otherwise be admissible as evidence or used for purposes of impeachment.”
The requirement of the affidavit, then, is to winnow out utterly frivolous
claims; its purpose is not to test the sufficiency of the plaintiff’s evidence
on the ultimate issue of the defendant’s liability. Under that standard, [the
nurse expert’s] affidavit was sufficient to withstand a challenge under
Civ.R. 10(D)(2). Id. at ¶ 12.
{¶ 43} However, this holding is not universally embraced throughout the state.
Indeed, in McKay v. Ohio State Univ. Med. Ctr., Ct. of Cl. No. 2013-00120, 2013 Ohio
Misc. LEXIS 211 (Apr. 22, 2013), the Court of Claims examined the sufficiency of a
nurse’s affidavit of merit, which contained her opinion that “the standard of care was
22.
breached by the Defendant to the action and * * * said breach proximately caused the
injury to the Plaintiff.” Id. at *5. Upon examination, the court held that the plaintiff’s
wrongful death action was not supported by a sufficient affidavit of merit under Civ.R.
10(D)(2) because the nurse was not competent to opine regarding the cause of death. Id.
at *6. Although the nurse opined as to the proximate cause of injury, no expert testimony
was offered by way of affidavit attached to the complaint as to the cause of death.
{¶ 44} Likewise, the affidavit attached to appellant’s amended complaint in this
case does not include expert testimony as to the cause of Costell’s death. Moreover,
Brown has acknowledged that, as a nurse, she is not competent to render such expert
testimony. We disagree with the court in Tranter that such testimony is not required
under Civ.R. 10(D)(2), especially in cases such as the one at bar, where the only
remaining claims are claims for wrongful death in which appellant is required to establish
that appellees’ breach of the standard of care proximately caused Costell’s death. Under
Civ.R. 10(D)(2)(a)(iii), expert testimony is required on the element of causation, and in
this case the threshold issue under that element is the cause of death. By her own
admission and appellant’s acknowledgement, Brown is not competent to render expert
testimony on that issue. Therefore, we agree with the trial court that appellant’s affidavit
of merit was defective under Civ.R. 10(D)(2).5
5
Appellant attempts to avoid this conclusion by relying upon evidence that was produced
during discovery in the form of deposition testimony from appellant’s physician expert
and the coroner’s death certificate and autopsy report. However, we look to the evidence
that was attached to complaint under Civ.R. 10(D)(2). Indeed, Civ.R. 10(D)(2) is
23.
{¶ 45} As her final argument under the second assignment of error, appellant
argues that the trial court erred in failing to afford her an opportunity to cure the defect in
her affidavit of merit prior to granting summary judgment. We agree.
{¶ 46} Under Civ.R. 10(D)(2)(e), if an affidavit of merit is determined to be
defective under Civ.R. 10(D)(2)(a), “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.” Here,
the trial court concluded that appellant, in submitting an affidavit of merit from a nurse
who was not competent to render an expert opinion on the issue of causation, effectively
failed to attach an affidavit of merit. Therefore, the court concluded that it was not
required to provide appellant with an opportunity to cure under Civ.R. 10(D)(2)(e).
{¶ 47} In Chapman v. South Pointe Hosp., 186 Ohio App.3d 430, 2010-Ohio-152,
928 N.E.2d 777 (8th Dist.), the plaintiff filed an affidavit of merit executed by a
registered nurse along with her amended complaint. Id. at ¶ 6. The hospital argued that
the affidavit was defective under Civ.R. 10(D)(2) because a nurse is not qualified to
express an opinion on proximate cause in a medical malpractice action. Id. The court
agreed with the hospital and granted its motion to dismiss. Id. On appeal, the Eighth
District reversed, holding that, “although the affidavit in this case was deficient under the
designed to ferret out frivolous medical claims at the outset of the litigation. Therefore,
we decline to consider evidence on the issue of causation that was produced after the
filing of the complaint and not attached to the complaint as doing so would be in direct
contravention of Civ.R. 10(D)(2).
24.
requirements of Civ.R. 10(D), [the plaintiff] should have been granted an extension of
time, not to exceed 60 days, to cure the defect.” Id. at ¶ 28; see also Jarina v. Fairview
Hosp., 8th Dist. Cuyahoga No. 91468, 2008-Ohio-6846 (holding that the trial court errs
when it does not afford a plaintiff an opportunity to cure a defect under Civ.R.
10(D)(2)(e)).
{¶ 48} Similarly here, we find that the trial court erred under Civ.R. 10(D)(2)(e)
when it dismissed appellant’s wrongful death claims without providing her an extension
of time, not to exceed 60 days, to cure the defect in the affidavit of merit. We disagree
with the trial court’s treatment of the affidavit of merit as a nullity simply because Brown
lacked the competency to testify concerning Costell’s cause of death.
{¶ 49} Although the lack of causation evidence in the affidavit may not be
remedied by Brown, Civ.R. 10(D)(2)(e) demands that the trial court afford appellant with
the opportunity to “file an affidavit of merit intended to cure the defect.” This
opportunity is not conditioned upon the competency of the original affiant, nor does the
rule demand that the affiant in the supplemental affidavit be the same affiant as in the
original affidavit. Thus, under Civ.R. 10(D)(2)(e), appellant is permitted to cure the
defective affidavit of merit by securing a new affidavit of merit from a competent expert
that includes the missing causation testimony. While the express language of the rule
compels this result, we are also mindful of the axiom that cases should be decided on
their merits rather than on technical grounds. Baker v. McKnight, 4 Ohio St.3d 125, 129,
447 N.E.2d 104 (1983) (“Decisions on the merits should not be avoided on the basis of
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mere technicalities; pleading is not ‘a game of skill in which one misstep by counsel may
be decisive to the outcome * * * [rather] the purpose of pleading is to facilitate a proper
decision on the merits.’”).
{¶ 50} As to appellant’s second assignment of error, the concurring/dissenting
judge finds that appellees’ arguments under Civ.R. 10(D)(2) were improperly raised in its
motion for summary judgment and were untimely insofar as they were not raised in a
motion to dismiss under Civ.R. 12(B)(6). Once again, we find that our analysis as to
appellant’s second assignment of error should be limited to the arguments raised by the
parties before the trial court and in their briefs to this court. App.R. 12(A)(1)(b).
{¶ 51} Accordingly, we find appellant’s second assignment of error well-taken.
III. Conclusion
{¶ 52} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas is affirmed, in part, and reversed, in part. Summary judgment as to
appellant’s wrongful death claims is reversed as to counts two, five, and seven. This
matter is remanded to the trial court and appellant is hereby granted an extension of time,
not to exceed 60 days, to cure the defect in appellant’s affidavit of merit. The trial
court’s summary judgment ruling on the remaining claims is affirmed. Appellees are
ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed, in part
and reversed, in part.
26.
L-16-1143
Chalmers, etc. v.
HCR Manorcare,
Inc., et al.
Thomas J. Osowik, J. _______________________________
JUDGE
James D. Jensen, P.J.
CONCUR. _______________________________
JUDGE
Christine E. Mayle, J. _______________________________
CONCURS, IN PART, AND DISSENTS, JUDGE
IN PART, AND WRITES SEPARATELY.
MAYLE, J.
{¶ 53} I concur in the majority’s conclusion that summary judgment should be
affirmed as to defendants HCR ManorCare, Inc.; Heartland Employment Services, LLC;
HCR Manor Care Services, Inc.; and Becky Ziviski. I write separately to clarify that I
would affirm summary judgment in favor of defendants HCR ManorCare, Inc.; Heartland
Employment Services, LLC; and HCR Manor Care Services, Inc. (the “HCR Corporate
Defendants”) because those entities had no legal duty to Costell—each for different
reasons. And while I agree with the majority’s reversal of summary judgment in favor of
defendant Heartland of Waterville, OH, LLC on Counts 2, 5, and 7, I would reverse
27.
because I believe that Civ.R. 10(D)(2) is inapplicable to a motion for summary judgment
under Civ.R. 56—and, therefore, I dissent from the majority’s order that appellant must
cure the alleged deficiencies in the affidavit of merit within 60 days to avoid dismissal
with prejudice.
I. The HCR Corporate Defendants
{¶ 54} In the trial court and on appeal, appellant argues that her claims against the
HCR Corporate Defendants are “ordinary negligence claims”—not “medical claims”
under R.C. 2305.113—because the HCR Corporate Defendants are not statutorily-
enumerated medical providers and because her negligence claims against these
defendants do not arise out of “the plan of care, medical diagnosis, or treatment” of
Costell as required for a claim under R.C. 2305.113. The trial court not only found that
appellant’s claims against the HCR Corporate Defendants are time-barred medical claims
under R.C. 2305.113, but it also concluded that appellant’s theory of direct negligence
against these entities is without merit.
{¶ 55} Although the trial court focused on the causation element of negligence, we
are not confined by that analysis on appeal. “[S]ince an appellate court’s review of a
summary judgment exercise is de novo, we can substitute the proper analysis for the trial
court’s analysis on this specific point, and then affirm on that basis.” Portage Cty. Bd. of
Commrs v. City of Akron, 156 Ohio App.3d 657, 2004-Ohio-1665, 808 N.E.2d 444, ¶ 57
(11th Dist.). When considering a negligence claim, any discussion of causation
necessarily assumes the existence of the predicate elements of (1) a legal duty and (2) a
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breach of that duty. Thus, it is better to start the analysis by considering whether the
HCR Corporate Defendants had any duty to Costell that would justify an ordinary
negligence theory of liability.
{¶ 56} Although not addressed by the trial court, the parties presented argument
and evidence on this issue with their summary judgment briefing. “When reviewing a
trial court’s ruling on summary judgment, the court of appeals conducts an independent
review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Banc
Corp., 122 Ohio App.3d 100, 103, 701 N.E.2d 383 (12th Dist.1997).
A. HCR ManorCare, Inc.
{¶ 57} In its motion for summary judgment before the trial court, HCR
ManorCare, Inc. argued that it is merely the parent company of Heartland of Waterville,
OH, LLC and should be granted summary judgment because the record lacks evidence
sufficient to pierce the corporate veil. I agree.
{¶ 58} The evidence establishes that HCR ManorCare, Inc. and Heartland of
Waterville, OH, LLC are separate entities, and that the allegedly-negligent nursing care
was rendered in a nursing home operated by Heartland of Waterville, OH, LLC. Thus,
HCR ManorCare, Inc. had no independent duty to appellant and may be held liable for
the alleged misdoings of Heartland of Waterville, OH, LLC only if there is evidence
sufficient to pierce the corporate veil. In Ohio, a plaintiff seeking to pierce the corporate
veil must show (1) the parent’s control over the subsidiary was so complete that the
corporation has no separate mind, will, or existence of its own; (2) the parent exercised
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control over the subsidiary in such a manner as to commit fraud, an illegal act, or a
similarly unlawful act; and (3) injury or unjust loss resulted to the plaintiff from such
control and wrong. Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827,
895 N.E.2d 538, ¶ 18, 29.
{¶ 59} Although the trial court record demonstrates that HCR ManorCare, Inc.
exerts some control over Heartland of Waterville, OH, LLC—e.g., HCR ManorCare, Inc.
reviews and approves its subsidiaries’ budgets, carries liability insurance for its
subsidiaries, and maintains a “Quality Committee” that is responsible for reviewing the
quality of care provided by its indirectly-owned skilled nursing centers—no reasonable
person could find that such evidence demonstrates that Heartland of Waterville, OH, LLC
lacked a separate mind, will, or existence of its own. And even if such evidence
arguably presented a question of fact on the control element, the record is lacking any
evidence to demonstrate that HCR ManorCare, Inc. exerted control over Heartland of
Waterville, OH, LLC in such a manner as to commit fraud, an illegal act, or a similarly
unlawful act. Dombroski at ¶ 29.
B. Heartland Employment Services, LLC
{¶ 60} In the trial court, appellant argued that Heartland Employment Services,
LLC (“HES”) had a direct duty to Costell based upon a written leasing agreement
between HES and Heartland of Waterville, OH, LLC. That is, appellant argued that HES
is liable because the staff of Heartland of Waterville, OH, LLC is employed by HES and
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leased to Heartland of Waterville, OH, LLC on a daily basis pursuant to a written
Amended and Restated Employee Leasing Agreement.
The loaned servant rule provides that where one person lends his
servant to another for a particular employment, within the context of that
employment, the servant is treated as if he were the servant of the one to
whom he was lent. Halkias v. Wilkoff Co. (1943), 141 Ohio St. 139, 151,
47 N.E.2d 199. Furthermore, the loaned servant relationship is not affected
by the fact that the party who lent the servant continues to pay him as long
as the “borrowing” party controls the servant while he accomplishes the
task he was sent to perform. Id. at 153; see also Restatement of the Law
2d, Agency (1958) 501-503, § 227, illustration five. Lawson v. May Dept.
Store, 7th Dist. Mahoning No. 00 CA 191, 2001 Ohio App. LEXIS 5325, 6
(Nov. 27, 2001).
{¶ 61} Although the leasing agreement provides that HES retains the right to
direct and control the employees it leases to Heartland of Waterville, OH, LLC, the
record lacks any evidence to suggest that HES exercised that right. There is no evidence
that HES actually directed or controlled Heartland of Waterville, OH, LLC’s nursing
home staff in their development of a care plan for or supervision of Costell. Moreover,
although appellant alleges that Costell was injured because the nursing home was
purportedly understaffed, there is no evidence that HES had any involvement in
determining staffing levels; HES merely provided whatever personnel that Heartland of
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Waterville, OH, LLC deemed necessary to operate its nursing home. Accordingly, based
on this record, HES had no duty to appellant and cannot be held vicariously liable for the
alleged negligence of any nursing personnel it leased to Heartland of Waterville, OH,
LLC.
C. HCR Manor Care Services, Inc.
{¶ 62} In their summary judgment briefing, the appellees argued that HCR Manor
Care Services, Inc. should be dismissed because it ceased to exist on November 16, 2009,
when it converted from a corporation to a limited liability company. But as appellant
correctly argued, this is irrelevant because HCR Manor Care Services, LLC, the
successor entity that was in existence while Costell was a patient of Heartland of
Waterville in 2013, appeared in this case and answered the complaint as “improperly
named as ‘Inc.’”
{¶ 63} Appellant’s only substantive argument against summary judgment,
however, was that HCR Manor Care Services, LLC provided certain services to
Heartland of Waterville, OH, LLC under a written contract. But that merely establishes
that HCR Manor Care Services, LLC had a legal duty to Heartland of Waterville, OH,
LLC; the record lacks any evidence that appellant is entitled to claim any rights under
that contract. See Reeves v. Vannatta, 10th Dist. Franklin No. 96APE04-407, 1996 Ohio
App. LEXIS 3454, 6 (Aug. 15, 1996) (“‘[A] mere stranger cannot intervene and claim by
action the benefit of a contract between other parties.’”).
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II. The Civ.R. 10(D)(2) Affidavit of Merit
{¶ 64} As appellant argues, a Civ.R. 10(D)(2) affidavit of merit is designed “to
winnow out utterly frivolous claims; its purpose is not to test the sufficiency of the
plaintiff’s evidence on the ultimate issue of the defendant’s liability.” Tranter v. Mercy
Franciscan Hosp. W. Hills, 1st Dist. Hamilton No. C-061039, 2007-Ohio-5132, ¶ 12. I
agree. Indeed, because a Civ.R. 56 motion for summary judgment is expressly designed
to test the sufficiency of the evidence, I would hold that it was error for the trial court to
consider the Civ.R. 10(D)(2) affidavit of merit because it is not “evidence” and is
therefore inapplicable.
{¶ 65} Under Civ.R. 56(C), summary judgment may be granted only if “it appears
from the evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion * * *.” (Emphasis added.) And Civ.R.
10(D)(2)(d) expressly provides that “[a]n affidavit of merit is required to establish the
adequacy of the complaint and shall not otherwise be admissible as evidence or used for
purposes of impeachment.” (Emphasis added.) Moreover, the Supreme Court of Ohio
has held that “[t]he proper response to the failure to file the affidavit required by Civ.R.
10(D)(2) is a motion to dismiss pursuant to Civ.R. 12(B)(6).” Fletcher v. Univ. Hosps. of
Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, paragraph one of the
syllabus.
{¶ 66} Appellees did not file a Civ.R. 12(B)(6) motion to dismiss; they filed a
Civ.R. 56 motion for summary judgment. At the summary judgment phase of a wrongful
33.
death case, the relevant inquiry with respect to causation should be whether the plaintiff
put forth admissible evidence, including expert testimony if required, to establish that the
defendant proximately caused the injury and, ultimately, death. But appellees moved for
summary judgment—and the trial court granted the motion—for the sole reason that the
Civ.R. 10(D)(2) affidavit of merit, attached to the complaint, lacked expert testimony
regarding cause of death. Even if that somehow caused the pleading to be deficient, it
was not a basis to grant summary judgment. By doing so, the court wholly ignored the
actual evidence in the record—including deposition testimony from appellant’s physician
expert and the coroner’s death certificate and autopsy report—that may or may not have
been sufficient to withstand summary judgment on the issue of causation. That is where
the focus should have been under Civ.R. 56.
{¶ 67} I therefore concur in the majority’s reversal of summary judgment in favor
of the only remaining defendant, Heartland of Waterville, OH, LLC, on the non-time-
barred wrongful death claims in Counts 2, 5, and 7, but dissent from the majority’s order
that appellant must cure the affidavit of merit in response to the Civ.R. 56 motion.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
34.