Bartley v. Hearth & Care of Greenfield, L.L.C.
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[Cite as Bartley v. Hearth & Care of Greenfield, L.L.C., 2013-Ohio-279.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
ELIZABETH BARLEY, ET AL.,1
:
Case No. 12CA13
:
Plaintiffs-Appellants,
:
:
DECISION AND
v.
:
JUDGMENT ENTRY
:
HEARTH AND CARE OF GREENFIELD, LLC :
:
RELEASED 01/28/13
Defendant-Appellee.
:
______________________________________________________________________
APPEARANCES:
Conrad A. Curren and Carol Ann Curren, Greenfield, Ohio, for appellants.
Danny Merril Newman Jr. and Michael M. Mahon, Reminger Co. LPA, Cincinnati, Ohio,
for appellee.
______________________________________________________________________
Harsha, J.
{¶1}
The appellants appeal the trial court’s decision to dismiss their complaint
after finding that it was a “medical claim” and time barred by the one-year statute of
limitations. They allege that their action is not a “medical claim,” but rather one for
personal injury based on a violation of nursing home resident’s rights under R.C.
3721.13, and therefore not subject to the one-year statute of limitations. However,
claims brought under chapter 3721 of the revised code are also “medical claims” if the
action arises from the individual’s medical diagnosis, care, or treatment. Here the basis
of the appellants’ complaint is that Hearth and Care of Greenfield, “fail[ed] to provide
adequate medical treatment and nursing care” to Elizabeth Bartley. So, it is clear they
are “medical claims” and subject to the one-year statute of limitations. And because it is
1
It appears that appellant’s name is misspelled in the caption of the trial court’s entry and her last name is
actually “Bartley.”
Highland App. No. 12CA13
2
also clear from the face of complaint that the action is time barred, the trial court did not
err by dismissing their complaint.
I. FACTS
{¶2}
Elizabeth Bartley entered the nursing home, Hearth and Care of
Greenfield, LLC (Hearth and Care), for rehabilitation following a surgery in May 2010.
Bartley claims in her complaint that on May 10, 2010, she became severely anemic and
although Hearth and Care was aware of her condition, it failed to inform her attending
physician until May 12, 2010. Consequently, between May 10 and May 12, 2010, she
became increasingly anxious, short of breath and experienced deteriorating vital signs.
She was transferred to Adena Green Field Medical Center on May 12, 2010, and
diagnosed with severe congestive heart failure due to her anemia.
{¶3}
Nearly two years later on April 30, 2012, Bartley, along with her two
children, Tina Nutt and Cleve Bartley, filed suit against Hearth and Care alleging a
violation of resident’s rights under R.C. 3721.13 and loss of consortium. Hearth and
Care responded by filing a motion to dismiss the complaint under Civ.R. 12(B)(6),
arguing that the complaint was based on “medical claims” and therefore time barred by
the one-year statute of limitations. The trial court agreed and granted Hearth and
Care’s motion. The appellants now appeal the trial court’s decision to dismiss their
complaint.
II. ASSIGNMENTS OF ERROR
{¶4}
Initially, we point out that the appellants’ brief does not include any
assignments of error. Rather, they present only “issues” for our review. App.R.
16(A)(3) requires appellants to include in their brief “[a] statement of the assignments of
Highland App. No. 12CA13
3
error presented for review, with reference to the place in the record where each error is
reflected.” As a result it would be within our discretion to disregard their appeal on this
basis and summarily affirm the trial court’s decision. See In re Estate of Poling, 4th
Dist. No. 04CA18, 2005-Ohio-5147, ¶ 18. Nevertheless, we will recast the “issues” they
present as assignments of error and consider the merits of their appeal.
{¶5}
The appellants raise four assignments of error for our review:
1. “THE TRIAL COURT’S DISMISSAL WITH CITING THE EXPIRATION OF THE
STATUTE OF LIMITATIONS WAS INAPPROPRIATE WHEN THE COMPLAINT
DID NOT EXPLICITLY SAY ON ITS FACE THAT THE CLAIM WAS MEDICAL
MALPRACTICE AND INSTEAD ALLEGED PERSONAL INJURY AND
VIOLATION OF STATUTORY RIGHT AS WELL AS LOSS OF CONSORTIUM
OF THE ADULT CHILDREN OF MRS. BARTLEY.”
2. “THE TRIAL COURT ERRED IN DECREEING THAT THE CLAIM WAS A
MEDICAL MALPRACTICE CLAIM WHEN NO DISCOVERY OR OTHER
EVIDENCE HAD BEEN PRESENTED ASIDE FROM THE FACT THAT HEARTH
AND CARE MET THE DEFINITION OF A ‘HOME’ FOR THE PURPOSES OF
RC§2305.113.”
3. “THE TRIAL COURT ERRED TO THE DETRIMENT OF THE
PLAINTIFFS/APPELLANTS WHEN IT DISMISSED THE CASE WITHOUT
AFFORDING THE PLAINTIFFS THE OPPORTUNITY TO REMOVE THE
‘OFFENDING’ LANGUAGE THAT HAD CONVINCED THE COURT THE
CLAIMS WAS ONE FOR MEDICAL MALPRACTICE.”
4. “IF THE TRIAL COURT IS CORRECT AND ANY CASE BROUGHT AGAINST
A NURSING HOME IS A MEDICAL CLAIM THERE IS AN INCONSISTENCY OF
SUBSTANTIVE VS. PROCEDURAL LAW. RULE 12(B)(6) IS MOST
CERTAINLY PROCEDURAL IN THAT AREA OF THE STATUTE OF
LIMITATIONS AS IS RC 2305.10 OUTLINING WHAT IS A MEDICAL CLAIM
AND THE STATUTE OF LIMITATIONS SURROUNDING IT. BUT MAKING ANY
CLAIM AGAINST THE CARE GIVEN AT A HOME, WHETHER IT BE THEFT,
PHYSICAL ABUSE, RAPE OR MEDICAL MALPRACTICE FALL UNDER THE
MEDICAL CLAIM STATUTE IS CLEARLY UNCONSTITUTIONAL.”
Highland App. No. 12CA13
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III. LAW AND ANALYSIS
A. Medical Claim vs. Malpractice
{¶6}
The appellants claim that the trial court erred by granting Hearth and
Care’s motion to dismiss their complaint for several reasons. First they contend that the
trial court erred by “interpret[ing] the language as a medical malpractice complaint,”
because they did not explicitly allege medical malpractice or use the words “standard of
care.” Rather, they contend that the claims in their complaint are based on personal
injury and a violation of Mrs. Bartley’s statutory rights.
{¶7}
However, the appellant’s assertion that the trial court interpreted their
claims in the complaint as medical malpractice is simply a misstatement of the facts. In
the judgment entry granting the motion to dismiss, the trial court never found that the
appellants’ claims were based on medical malpractice. It did however find the “the
claims in the complaint are in fact medical claims.” The terms “malpractice” and
“medical claims” are distinct and not interchangeable. Lombard v. St. Vincent Hosp. &
Med. Ctr., 69 Ohio St.2d 471, 473-474, 433 N.E.2d 162 (1982). Although both
malpractice claims and medical claims are subject to the same one-year statute of
limitations, the Ohio Revised Code makes a distinction a between “malpractice” and
“medical claims” as discussed in R.C. 2305.11(A) and 2305.113(A) respectively.
Specifically, R.C. 2305.11(A) provides that “[a]n action * * * for malpractice other than
an action upon a medical * * * claim * * * shall be commenced within one year after the
cause of action accrued * * *.” R.C. 2305.113(A) provides that “an action upon a medical
* * * claim shall be commenced within one year after the cause of action accrued.”
{¶8}
Furthermore, as defined in R.C. 2305.113(E)(3):
Highland App. No. 12CA13
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“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 nurse, physical therapist, physician assistant, emergency medical
technician-basic, emergency medical technician-intermediate, or
emergency medical technician-paramedic, and that arises out of the
medical diagnosis, care, or treatment of any person.
Conversely, the “term ‘malpractice’ has a limited definition,” and only certain
professionals, including lawyers and physicians, can commit malpractice. Lombard at
473. See also R.C. 2305.11; Hocking Conservancy Dist. v. Dodson-Lindblom Assoc.,
Inc., 62 Ohio St.2d 195, 196, 404 N.E.2d 164 (1980). Therefore, medical employees,
such as, nurses and laboratory technicians, are not subject to malpractice claims, but
are subject to medical claims. Tisdale v. Toledo Hosp., 197 Ohio App.3d 316, 2012Ohio-1110, 967 N.E.2d 280, ¶ 40 (6th Dist.).
{¶9}
Consequently, because the trial court never made a finding that the
appellants’ complaint contained a medical malpractice claim, we find their argument to
be meritless and overrule their first assignment of error. Even if we were to consider the
merits of their argument, for the reasons that follow, the trial court did not err by finding
that the claims in the appellants’ complaint were “medical claims.”
B. R.C. 2305.113
{¶10} In their second assignment of error, the appellants contend that their
complaint contains a claim brought under Mrs. Bartley’s statutory rights as a resident of
a nursing home, rather than a “medical claim.”2 They argue that Hearth and Care
2
In their second assignment of error, the appellants again state that “[t]he trial court erred in decreeing
that the claim was a medical malpractice claim * * *.” However, in the argument section of their brief for
this assignment of error, the appellants also address “medical claims.” Therefore, we will consider the
portion of their argument that concerns medical claims.
Highland App. No. 12CA13
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incorrectly asserts that “just because a facility falls under the name of nursing home that
any claim brought against it is automatically a medical claim.” However, the trial court
never found that all claims against a nursing home are automatically classified as
“medical claims.” And after reviewing the record, we cannot find where Hearth and
Care ever made such a claim. And to the extent that the appellants’ contend that the
trial court erred by finding that the claims in their complaint were “medical claims,” we
disagree.
1. Standard of Review
{¶11} We review a trial court’s decision to dismiss a plaintiff’s complaint de novo.
Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.
See also Estep v. State, 4th Dist. No. 09CA3088, 2009-Ohio-4349, ¶ 5. When deciding
a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim, trial courts must presume
all factual allegations in the complaint to be true and make all reasonable inferences in
favor of the nonmoving party. State ex rel. Talwar v. State Med. Bd. of Ohio, 104 Ohio
St.3d 290, 819 N.E.2d 654, 2004-Ohio-6410, ¶ 5. Dismissal is proper only if it appears
beyond all doubt that the plaintiffs can prove no set of facts which would entitle them to
relief. Id.
2. “Medical Claims”
{¶12} “Although an action for bodily injury must generally be brought within two
years after the cause of action accrues, R.C. 2305.10(A), certain ‘medical claims’ are
subject to the shorter one-year statute of limitations set forth at R.C. 2305.113.” Estate
of Stevic v. Bio-Medical Application of Ohio, Inc., 121 Ohio St.3d 488, 2009-Ohio-1525,
905 N.E.2d 635, ¶ 8.
Highland App. No. 12CA13
7
{¶13} R.C. 2305.113(E)(3) defines a “medical claim” as “any claim that is
asserted in any civil action against a physician, podiatrist, hospital, home, or residential
facility * * * and that arises out of the medical diagnosis, care, or treatment of any
person.” “Medical claims” also include “[c]laims that arise out of the medical diagnosis,
care, or treatment of any person and that are brought under section 3721.17 of the
Revised Code.” R.C. 2305.113(E)(3)(c).
{¶14} The parties do not dispute that Hearth and Care qualifies as a “home”
within the meaning of R.C. 2305.113 and we agree. Thus, we must only consider
whether the appellants’ claims arise from Mrs. Bartely’s medical diagnosis, care or
treatment.
{¶15} In their complaint, the appellants assert that the “nursing care that
Elizabeth Bartley received at Hearth and Care was not adequate in that the staff failed
to notify her treating physician of her severe anemia, and thereafter failed to recognize
and treat the symptoms even though they were obvious to, and charted by, the staff,”
and that the “staff failed to respond to Elizabeth Bartley’s complaints of anxiety and
shortness of breath * * *.” Thus, it is clear that the appellants’ claims arise out of Hearth
and Care’s medical care and treatment of Mrs. Bartley. Accordingly, their claims
brought under section 3721.17 of the Revised Code concerning Mrs. Bartley’s resident
rights are “medical claims” as defined in R.C. 2305.113(E)(3) and subject to its one-year
statute of limitations.
{¶16} R.C. 2305.113(E)(3)(a) also states that “medical claims” include
“[d]erivative claims for relief that arise from the medical diagnosis, care, or treatment of
a person.” Therefore, the claims of Mrs. Bartley’s children for loss of consortium based
Highland App. No. 12CA13
8
on the same inadequate nursing care are also “medical claims” and subject to the oneyear statute of limitations.
{¶17} A Civ.R. 12(B)(6) motion to dismiss a complaint based on a statute of
limitations should only be granted where it is clear from the face of the complaint that
the action is time barred. Swanson v. Boy Scouts of Am., 4th Dist. No. 07CA663, 2008Ohio-1692, ¶ 6. In the appellant’s complaint they allege that the acts concerning Mrs.
Bartley’s medical care, treatment or diagnosis occurred between May 10 and May 12,
2010. They did not file their complaint until nearly two years later on April 30, 2012.
Thus, it is clear from the face of their complaint that the action is time barred and the
trial court did not err by dismissing it. Accordingly, we overrule their second assignment
of error.
C. Opportunity to Amend the Complaint
{¶18} In their third assignment of error, the appellants argue that the trial court
erred by not giving them an opportunity to amend their complaint before dismissing it.
However, Civ.R. 15(A) provides that after a responsive pleading has been filed “a party
may amend his pleading only by leave of court or by written consent of the adverse
party.” And because the record shows that the appellants never filed a motion for leave
to amend the complaint, there was no error.
{¶19} The appellants also assert in their third assignment of error that even if
“the court found language showing a complaint for medical malpractice the other parts
of the complaint should not have been dismissed.” As we already noted, the other
claims in the complaint by Mrs. Bartely’s children are derivative claims based on her
medical care and treatment. Therefore, under R.C. 2305.113(E)(3)(a) they are also
Highland App. No. 12CA13
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“medical claims” subject to a one-year statute of limitations. The trial court did not err
by dismissing them and we overrule their third assignment of error.
D. Claims Brought Against Nursing Homes
{¶20} Finally, in their fourth assignment of error the appellants claim that the trial
court erred by finding that any case brought against a nursing home is a medical claim
and “making any claim against the care given at a home, whether it be theft, physical
abuse, rape or medical malpractice fall under the medical claim statute is clearly
unconstitutional.” (Emphasis sic.). As we have already indicated, the trial court never
made such a finding. Rather, in its judgment entry dismissing the appellants’ complaint
the court explained that “a medical claim is one that is based upon medical care and
brought against any of the statutorily enumerated providers. Defendant operates a
nursing home which is one of the enumerated medical providers in R.C.
2305.113(E)(14).” The court also made it clear that the appellants’ claims were based
on their allegation that Mrs. Bartley did not receive adequate medical care from Hearth
and Care. Nothing in its entry supports the appellants’ contention that the court
concluded every case brought against a nursing home is a “medical claim.” Therefore,
we overrule the appellants’ fourth assignment of error.
V. CONCLUSION
{¶21} In summary, it appears beyond all doubt that the appellants can prove no
set of facts which would entitle them to relief. Even presuming all factual allegations in
the complaint to be true and making all reasonable inferences in their favor, it is clear
that the claims in the appellants’ complaint are “medical claims” subject to the one-year
statute of limitations. And because it also is clear from the face of the complaint that the
Highland App. No. 12CA13
10
action is time barred, the trial court did not err by dismissing it. We overrule the
appellants’ four assignments of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Highland App. No. 12CA13
11
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
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