Opinion
Appellate Case No. 28624 Appellate Case No. 28625 Appellate Case No. 28629
03-12-2021
DEBORAH TAYLOR-JONES Plaintiff-Appellee v. KETTERING MEDICAL CENTER, et al. Defendants-Appellants
PAUL W. FLOWERS, Atty. Reg. No. 0046625 and LOUIS E. GRUBE, Atty. Reg. No. 0091337, 50 Public Square, Suite 1910, Cleveland, Ohio 44113 Attorneys for Plaintiff-Appellee STEPHANIE FRANCKEWITZ, Atty. Reg. No. 0073291, DAVID S. LOCKEMEYER, Atty. Reg. No. 0059188 and JOSHUA F. DEBRA, Atty. Reg. No. 0083267, 6281 Tri-Ridge Boulevard, Suite 210, Loveland, Ohio 45140 DOUGLAS G. LEAK, Atty. Reg. No. 0045554, 3737 Embassy Parkway, Suite 100, Akron, Ohio 44333 Attorneys for Defendant-Appellant, Southwest Ohio ENT Specialists, Inc. JENNIFER L. BROGAN, Atty. Reg. No. 0075558, 6 North Main Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellant, Kettering Medical Center JOHN B. WELCH, Atty. Reg. No. 0055337, 580 Lincoln Park Boulevard, Suite 222, Dayton, Ohio 45429 Attorney for Defendant-Appellant, Kettering Pathology Associates, Inc. JENNIFER L. LAWRENCE, Atty. Reg. No. 0066864 and LINDSAY A. LAWRENCE, Atty. Reg. No. 0085880, 606 Philadelphia Street, Covington, Kentucky 41011 Attorneys for Amicus Curiae, The Ohio Association for Justice
Trial Court Case No. 2018-CV-3007 (Civil Appeal from Common Pleas Court)
OPINION
PAUL W. FLOWERS, Atty. Reg. No. 0046625 and LOUIS E. GRUBE, Atty. Reg. No. 0091337, 50 Public Square, Suite 1910, Cleveland, Ohio 44113 Attorneys for Plaintiff-Appellee STEPHANIE FRANCKEWITZ, Atty. Reg. No. 0073291, DAVID S. LOCKEMEYER, Atty. Reg. No. 0059188 and JOSHUA F. DEBRA, Atty. Reg. No. 0083267, 6281 Tri-Ridge Boulevard, Suite 210, Loveland, Ohio 45140 DOUGLAS G. LEAK, Atty. Reg. No. 0045554, 3737 Embassy Parkway, Suite 100, Akron, Ohio 44333 Attorneys for Defendant-Appellant, Southwest Ohio ENT Specialists, Inc. JENNIFER L. BROGAN, Atty. Reg. No. 0075558, 6 North Main Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellant, Kettering Medical Center JOHN B. WELCH, Atty. Reg. No. 0055337, 580 Lincoln Park Boulevard, Suite 222, Dayton, Ohio 45429 Attorney for Defendant-Appellant, Kettering Pathology Associates, Inc. JENNIFER L. LAWRENCE, Atty. Reg. No. 0066864 and LINDSAY A. LAWRENCE, Atty. Reg. No. 0085880, 606 Philadelphia Street, Covington, Kentucky 41011 Attorneys for Amicus Curiae, The Ohio Association for Justice TUCKER, P.J.
{¶ 1} Appellants Matthew R. Garrett, M.D., Southwest Ohio ENT Specialists, Inc. ("Southwest ENT"), Richard Pelstring, M.D., Patricia McDowell, M.D., Kettering Pathology Associates, Inc. ("Pathology Associates"), and Kettering Medical Center ("KMC") appeal from the trial court's denial of their motions for summary judgment. For the reasons that follow, the appeal of Matthew Garrett, M.D. and Southwest ENT is dismissed for lack of a final order. As to appellants Pelstring, McDowell, Kettering Pathology Associates, and KMC, the trial court's judgment is reversed, and the matter is remanded for the trial court to enter judgment in their favor.
I. Facts and Procedural History
{¶ 2} On September 17, 2012, Deborah Taylor-Jones had an office consultation with Dr. Garrett regarding a mass on the right side of her neck below the mandibular joint; Garrett was an ear, nose and throat specialist employed by Southwest ENT. Following an examination, Garrett ordered a fine-needle aspiration which was performed by another physician at KMC. The aspirate was examined by a pathologist, Dr. Richard Pelstring, who issued a cytology report on September 27, 2012, diagnosing the mass as benign.
The physician who performed the fine-needle aspiration is not a part of this appeal.
Pelstring performed the pathology examination at a KMC facility. At that time, he was employed by Pathology Associates and was not employed by KMC.
{¶ 3} On October 1, 2012, Taylor-Jones had a follow-up appointment with Garrett during which they discussed excising the mass. Taylor-Jones opted to have the excision, and the surgery was performed by Garrett at KMC on October 29, 2012. Thereafter, the surgical specimen was examined by pathologist Dr. Patricia McDowell at a KMC facility. On October 30, 2012, McDowell issued a pathology report in which she diagnosed the mass as benign. Garrett saw Taylor-Jones the day after the surgery to remove drainage tubes. He also saw her in a follow-up appointment at his office three weeks after the surgery. At that time, Garrett told Taylor-Jones to follow up with him as needed.
McDowell was also an employee of Pathology Associates, Inc. and was not an employee of KMC.
{¶ 4} Taylor-Jones did not see Garrett again until April 2015, when he again began to treat her for a mass in the same area of her neck. In June 2015, Garrett performed a biopsy on the mass; the mass was determined to be benign by a pathologist who reviewed a specimen during the surgery and another pathologist who reviewed a specimen after the surgery. In December 2015, a fine needle aspiration was performed, and the aspirate was determined to be benign. Finally, in January 2017, Garrett performed another excision. At that point, the mass was determined to be cancerous. Garrett requested a pathologic examination of the 2012 specimens, which he sent to a pathologist in Virginia. The re-examination revealed that the 2012 specimen was cancerous. This information was forwarded to KMC and was added to Taylor-Jones's medical records. Garrett did not see Taylor-Jones after February 2017.
That surgery and pathological examination of the mass were performed at Miami Valley Hospital. Neither MVH nor that pathologist are part of this action.
{¶ 5} On June 29, 2018, Taylor-Jones filed a claim for medical malpractice against 23 defendants, including KMC, Garrett, Southwest ENT, Pelstring, McDowell and Pathology Associates. Taylor-Jones alleged that KMC, Garrett, Southwest ENT, Pelstring, McDowell and Pathology Associates had negligently failed to diagnose the neck mass as cancerous. Several days later she filed an amended complaint adding an additional defendant, but otherwise asserting the same claims.
{¶ 6} In late 2018, Garrett, Southwest ENT, KMC, Pelstring, McDowell, and Pathology Associates filed motions to dismiss, arguing that the trial court lacked subject matter jurisdiction over the action because Taylor-Jones's cause of action was barred by the statute of repose. The trial court overruled the motions in March 2019.
{¶ 7} Following discovery, the same defendants filed motions for summary judgment, again arguing that Taylor-Jones's claim for medical malpractice was barred by the statute of repose as codified at R.C. 2305.113(C). Taylor-Jones responded to the motions, challenging the constitutionality of the statute of repose. During a May 30, 2019 telephone conference, the trial court noted that Taylor-Jones had not provided notice of her constitutional challenge to the Ohio Attorney General. On June 12, 2019, Taylor-Jones provided the relevant pleadings to the Attorney General, who declined to participate in the litigation.
{¶ 8} After a hearing, the trial court issued a single decision denying all of the summary judgment motions. The trial court found the claims against Garrett and Southwest ENT were not barred by the statute of repose because Garrett had continued to treat Taylor-Jones through 2017. The court concluded there was a question of fact concerning Garrett's last culpable act or omission due to his ongoing course of treatment of Taylor-Jones. The trial court further found that the statute of repose did not bar the claims against KMC, Pelstring, McDowell and Pathology Associates. But the trial court found the statute did violate Taylor-Jones's right to equal protection of the law. Garrett and Southwest ENT, KMC, and Pelstring, McDowell and Pathology Associates filed timely appeals, and this court consolidated the appeals on January 27, 2020.
II. Summary Judgment Standard
{¶ 9} Summary judgment may be granted when there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and that conclusion is adverse to the non-moving party. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Civ.R. 56(C). When reviewing a trial court's decision to grant summary judgment, we utilize a de novo standard. Bullucks v. Moore, 1st Dist. Hamilton No. C-020187, 2002-Ohio-7332, ¶ 4.
{¶ 10} As a general rule, the denial of a motion for summary judgment is not a final appealable order. State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23, 222 N.E.2d 312 (1966). This is so because a denial of summary judgment does not determine the action and prevent a judgment and is therefore not a final order under R.C. 2505.02. Celebrezze v. Netzley, 51 Ohio St.3d 89, 90, 554 N.E.2d 1292 (1990). However, R.C. 2505.02(B)(6) provides, "[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: * * * [a]n order determining the constitutionality of any changes to the Revised Code made by * * * the enactment of [R.C.] 2305.113." Thus, the trial court's summary judgment order was final and appealable, with one exception.
III. Garrett and Southwest ENT
{¶ 11} The exception concerns the summary judgment decision with respect to Garrett and Southwest ENT. As noted, because Garrett treated Taylor-Jones after 2012, the trial court denied Garrett and Southwest ENT's summary judgment motion, concluding that "Garrett may have been negligent in treating [Taylor-Jones] for a benign tumor without reevaluating it in light of inspections and symptoms and/or periodically having a specimen reinterpreted." From this, the trial court concluded that there were material issues of fact "about * * * [when Garrett's] 'last culpable act or omission' [occurred]." The trial court further concluded that Taylor-Jones's cause of action against Garrett and Southwest ENT was "not barred by R.C. 2305.113(C) and did not accrue until January 2017." Thus, the trial court's decision denying Garrett and Southwest ENT's motion for summary judgment was not based upon a conclusion that Ohio's statute of repose, R.C. 2305.113(C)/(D)(2), was unconstitutional, and therefore it did not fall within the final appealable order exception set forth at R.C. 2505.02(B)(6). Given this, we do not have jurisdiction under R.C. 2505.02(B)(6) to decide Garrett and Southwest ENT's appeal, and it must be dismissed.
IV. The Constitutionality of R.C. 2305.113(C)/(D)(2)
{¶ 12} The first assignment of error presented by Pelstring, McDowell and Pathology Associates and the first assignment of error presented by KMC state respectively:
THE TRIAL COURT ERRED IN HOLDING THAT OHIO'S STATUTE OF REPOSE AS SET FORTH IN R.C. 2305.113(C) AND SPECIFICALLY
R.C. 2305.113(D)(2), VIOLATES THE EQUAL PROTECTION CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS.
THE TRIAL COURT ERRED IN FINDING THAT OHIO'S STATUTE OF REPOSE, R.C. 2305.113(C), WAS UNCONSTITUTIONAL AS APPLIED TO MRS. TAYLOR-JONES'S MEDICAL CLAIM.
{¶ 13} The second assignment of error raised by Pelstring, McDowell and Pathology Associates and the second assignment of error asserted by KMC state respectively:
THE TRIAL COURT ERRED IN DENYING APPELLANTS SUMMARY JUDGMENT.
THE TRIAL COURT ERRED IN FAILING TO GRANT KETTERING MEDICAL CENTER'S MOTION FOR SUMMARY JUDGMENT WHERE MRS. TAYLOR-JONES FILED HER MEDICAL CLAIMS OUTSIDE THE FOUR YEAR TIME PERIOD AS PROVIDED FOR IN R.C. 2305.113.
{¶ 14} Initially, we note that statutes enacted by the Ohio General Assembly are presumed to be constitutional. State v. Melms, 2018-Ohio-1947, 101 N.E.3d 747, ¶ 25 (2d Dist.). Thus, "before a court may declare [a statute] unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." State ex rel. O'Brien v. Heimlich, 10th Dist. Franklin No. 08AP-521, 2009-Ohio-1550, ¶ 24, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. Because the constitutionality of a statute presents a question of law, an appellate court reviews a trial court's determination of constitutionality de novo. Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio- 2759, 791 N.E.2d 1025, ¶ 11 (1st Dist.).
{¶ 15} A review of the constitutionality of the statute of repose for medical malpractice claims "must be conducted according to the 'rational basis' test, since * * * [a medical negligence] case involves neither a fundamental right nor a suspect class." Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 58, 514 N.E.2d 709 (1987). "The rational-basis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational." McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260, 267, 652 N.E.2d 952 (1955). With these standards in mind, we address the statute at issue here.
{¶ 16} R.C. 2305.113(C), Ohio's statute of repose, provides:
(C) Except * * * as provided in division (D) of this section, both of the following apply:
(1) No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.
(2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.
{¶ 17} Unlike the statute of limitations in a medical negligence case, which begins to run when the plaintiff discovers or should have discovered an injury, the statute of repose bars " 'any suit that is brought after a specified time since the defendant acted * * * even if this period ends before the plaintiff has suffered a resulting injury.' " Antoon v. Cleveland Clinic Found., 148 Ohio St. 3d 483, 2016-Ohio-7432, 71 N.E.3d 974, 978, ¶ 11, quoting Black's Law Dictionary 1637 (10th Ed.2014). The "plain language of the statute is clear, unambiguous, and means what it says. If a lawsuit bringing a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the basis for the claim, then any action on that claim is barred." Id. at ¶ 23. "Simply stated, regardless of the applicable statute of limitations, 'a person must file a medical claim no later than four years after the alleged act of malpractice occurs or the claim will be barred.' " York v. Hutchins, 12th Dist. Butler No. CA2013-09-173, 2014-Ohio-988, ¶ 10, quoting Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 2.
{¶ 18} In addressing the rational basis for Ohio's statute of repose, the Ohio Supreme Court has stated that "the General Assembly has the right to determine what causes of action the law will recognize and to alter the common law by abolishing the action, by defining the action, or by placing a time limit after which an injury is no longer a legal injury." Ruther at ¶ 14. The court further explained:
Many policy reasons support this legislation. Just as a plaintiff is entitled to a meaningful time and opportunity to pursue a claim, a defendant is entitled to a reasonable time after which he or she can be assured that a defense will not have to be mounted for actions occurring years before. The statute of repose exists to give medical providers certainty with respect
to the time within which a claim can be brought and a time after which they may be free from the fear of litigation.Id. at ¶ 19-21.
Forcing medical providers to defend against medical claims that occurred 10, 20, or 50 years before presents a host of litigation concerns, including the risk that evidence is unavailable through the death or unknown whereabouts of witnesses, the possibility that pertinent documents were not retained, the likelihood that evidence would be untrustworthy due to faded memories, the potential that technology may have changed to create a different and more stringent standard of care not applicable to the earlier time, the risk that the medical providers' financial circumstances may have changed - i.e., that practitioners have retired and no longer carry liability insurance, the possibility that a practitioner's insurer has become insolvent, and the risk that the institutional medical provider may have closed.
Responding to these concerns, the General Assembly made a policy decision to grant Ohio medical providers the right to be free from litigation based on alleged acts of medical negligence occurring outside a specified time period. This decision is embodied in Ohio's four-year statute of repose for medical negligence, set forth in R.C. 2305.113(C). The statute establishes a period beyond which medical claims may not be brought even if the injury giving rise to the claim does not accrue because it is undiscovered until after the period has ended.
{¶ 19} The constitutional challenge raised in this appeal involved the following exception to the four-year time limit:
If the alleged basis of a medical claim, dental claim, optometric claim, or chiropractic claim is the occurrence of an act or omission that involves a foreign object that is left in the body of the person making the claim, the person may commence an action upon the claim not later than one year after the person discovered the foreign object or not later than one year after the person, with reasonable care and diligence, should have discovered the foreign object.R.C. 2305.113(D)(2).
{¶ 20} The trial court concluded that this exception made R.C. 2305.113(C)/(D)(2) unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, which provides that "[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." See also Article I, Section 2, Ohio Constitution: ("[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit * * *"). Specifically, the trial court found that the legislation established an irrational classification between a negligently misdiagnosed plaintiff and a plaintiff with a retained foreign body.
The two equal protection clauses are "functionally equivalent." State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 38.
{¶ 21} The equal protection requirement prevents the government from "treating differently persons who are in all respects alike." Bennett v. Motorists Mut. Ins. Co., 118 Ohio St.3d 493, 2008-Ohio-2751, 890 N.E.2d 307, ¶ 30, quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Thus, a statute may classify individuals differently so long as the individuals are not in all relevant ways situated alike. Id. Moreover, a legislative classification "does not fail rational-basis review because 'it is not made with mathematical nicety or because in practice it results in some inequality.' " Smith v. Wyandot Mem. Hosp., 3d Dist. Wyandot No. 16-14-07, 2015-Ohio-1080, ¶ 15, quoting Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 32, quoting Am. Assn. of Univ. Professors v. Central St. Univ., 87 Ohio St.3d 55, 58, 717 N.E.2d 286 (1999), quoting Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).
{¶ 22} Ohio law has long recognized a distinction between retained foreign body plaintiffs and other medical malpractice plaintiffs, albeit in terms of the tolling of the relevant statute of limitations. In Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198, 200, 290 N.E.2d 916 (1972), the Ohio Supreme Court noted that, when a foreign object has been negligently left in the patient's body, questions about the patient's credibility and the doctor's professional diagnosis, judgment and discretion are not at issue. Id. at 200, fn. 5. The court stated, "to carelessly leave a large and obvious metallic forceps and a nonabsorbent sponge in a surgical patient's body is negligence as a matter of law, and the proof thereof is generally unsusceptible to speculation or error." Id. at 200.
{¶ 23} The singular nature of retained foreign objects which were not in the body prior to surgery has been recognized by other Ohio courts. See, Pritchard v. Riverside Methodist Hosp., 64 Ohio App. 2d 125, 128, 411 N.E.2d 1343, (10th Dist.1978). ("exposure to radiation treatments simply does not leave a 'foreign object' in the body within the fundamental meaning of that term."); Kodger ex rel. Kodger v. Singh, 8th Dist. Cuyahoga No. 41149, 1980 WL 354883 (June 19, 1980) (a shard of glass negligently not removed in the original treatment of a wound was not equivalent to a foreign object not previously in the body).
{¶ 24} In Smith v. Wyandot Mem. Hosp., the Third District was also confronted with the contention that R.C. 2305.113(C)/(D)(2) created an equal protection violation between retained foreign body plaintiffs and misdiagnosed plaintiffs. In that case, the plaintiff's kidney cancer was not timely diagnosed because of a negligent radiology interpretation. The cancer was discovered more than four years after the interpretation error, and, of course, the resulting lawsuit was filed more than four years after the negligent act. Relying on Melnyk, the Third District, stated that "plaintiffs who suffer from retained foreign bodies present an entirely different type of medical-malpractice case than that of a plaintiff who suffers from a negligent misdiagnosis." Id. at ¶ 16. The court further stated that "retained-foreign-body plaintiffs do not face the same challenges that negligent-misdiagnosis plaintiffs do, including changing standards of care over time and the diminished availability of evidence and witnesses over time. Therefore, retained-foreign-object plaintiffs and medical-misdiagnosis plaintiffs are not similarly situated individuals within the same class." Id.
{¶ 25} Since there is a rational basis, though not always precise or completely fair one, for the statutory distinction between retained foreign body plaintiffs and misdiagnosed plaintiffs, we agree with the Third District that such plaintiffs are not alike in all relevant ways. This conclusion results in the ultimate conclusion that the disparate treatment of such plaintiffs created by R.C. 2305.113(C)/(D)(2) does not violate the Equal Protection Clause of the United States Constitution or the Ohio Constitution.
{¶ 26} The first and second assignments of error asserted by Pelstring, McDowell, Pathology Associates, and Kettering Medical Center are sustained.
V. Conclusion
{¶ 27} Appellants Garrett and Southwest ENT's appeal is dismissed for lack of a final appealable order, and the case is remanded to the trial court. As to appellants Pelstring, McDowell, Pathology Associates, and KMC, the case is remanded to the trial court for it to enter judgment in their favor. HALL, J. and WELBAUM, J., concur. Copies sent to: Paul W. Flowers
Louis E. Grube
Jennifer L. Lawrence
Lindsay A. Lawrence
Stephanie Franckewitz
David S. Lockemeyer
Joshua F. DeBra
Douglas G. Leak
Jennifer L. Brogan
John B. Welch
Theodore Munsell
Karen Cadieux
John Haviland
Elizabeth Wilfong
Susan Blasik-Miller
Robert Snyder
Kevin Quinlan Zachary Lyon
Neil Freund
Shannon Bockelman
Emily Horst
Kimberly A. Hedges
Tabatha S. Longeway
James Kelley, III
Marilena DiSilvio
Kimberly Young
Patrick Adkinson
Hon. Richard Skelton
Of course, given our determination that R.C. 2305.113(C)/(D)(2) does not violate the equal protection clause, the Garrett/Southwest ENT litigation cannot proceed on any claimed negligent act that occurred more than four years prior to the commencement of this litigation.