[Cite as Smith v. Laurels of Canton, L.L.C., 2018-Ohio-2369.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


PRISCILLA SMITH, ADMINISTRATOR :                                JUDGES:
OF THE ESTATE OF HELEN         :                                Hon. John W. Wise, P.J.
MAE RININGER, DECEASED         :                                Hon. W. Scott Gwin, J.
                               :                                Hon. Earle E. Wise, Jr., J.
     Plaintiff-Appellant       :
                               :
-vs-                           :
                               :
THE LAURELS OF                 :                                Case No. 2017CA00217
CANTON, LLC, ET AL.            :
                               :
     Defendants-Appellees      :                                OPINION



CHARACTER OF PROCEEDING:                                        Appeal from the Court of Common
                                                                Pleas, Case No. 2016CV02526




JUDGMENT:                                                       Affirmed




DATE OF JUDGMENT:                                               June 18, 2018




APPEARANCES:

For Plaintiff-Appellant                                         For Defendants-Appellees

STACIE L. ROTH                                                  PAUL W. MCCARTNEY
SEAN R. STEWARD                                                 CHRISTOPHER F. MARS
236 Third Street SW                                             312 Walnut Street, Suite 2530
Canton, OH 44702                                                Cincinnati, OH 45202
Stark County, Case No. 2017CA00217                                                          2

Wise, Earle, J.

        {¶ 1} Plaintiff-Appellant, Priscilla Smith, Administrator of the Estate of Helen Mae

Rininger, Deceased, appeals the October 26, 2017 decision of the Court of Common

Pleas of Stark County, Ohio, dismissing her case. Defendants-Appellees are The Laurels

of Canton, LLC, and Laurel Health Care Company dba The Laurels of Canton.

                         FACTS AND PROCEDURAL HISTORY

        {¶ 2} The decedent, Helen Mae Rininger, was a resident of a nursing home care

facility operated by appellees herein. Ms. Rininger passed away at the facility on June 7,

2013.

        {¶ 3} On November 17, 2016, appellant filed a wrongful death complaint against

appellees (a refiling). Appellant claimed on or about May 26, 2013, the decedent was

given an antibiotic for a urinary tract infection. She alleged the decedent suffered a severe

allergic reaction, causing her death.       Appellant alleged appellees' agents and/or

employees were negligent in administrating the antibiotic and in failing to timely recognize

and treat the allergic reaction.

        {¶ 4} On December 6, 2016, the trial court entered a nunc pro tunc order giving

appellant until January 20, 2017, to file an affidavit of merit. On said date, appellant filed

the affidavit of Michele Carson, R.N.       Ms. Carson averred appellees breached the

acceptable standards of medical care, and such breach directly and proximately caused

Ms. Rininger's death.

        {¶ 5} On June 19, 2017, appellees filed a motion to dismiss under Civ.R. 12(B)(6),

failure to state a claim, because the affidavit failed to comply with Civ.R. 10(D)(2).

Appellees claimed "a nurse cannot testify on the seminal issue of proximate cause
Stark County, Case No. 2017CA00217                                                        3


because a nurse is not competent or qualified to render an opinion on the issue of

proximate cause." In response, appellant claimed because proximate cause was not an

issue based upon the cause of death contained in the death certificate, Ms. Carson was

competent to testify on liability issues in an ordinary negligence case.

       {¶ 6} On July 27, 2017, the trial court issued an order, finding the affidavit of Ms.

Carson was inadequate under Civ.R. 10, and gave appellant until August 25, 2017, to

cure the defect.

       {¶ 7} On September 18, 2017, appellees again filed a motion to dismiss for

appellant's failure to cure the defect. In response, appellant claimed Ms. Carson, as a

nurse practitioner, was competent to render an opinion on causation. Appellant submitted

the death certificate, Ms. Rininger's discharge papers from Aultman Hospital issued by

Robert Sabota, M.D. on June 6, 2013, and history and physical notes by Awais Ahmed,

M.D. and Chadi Bouserhal, M.D. dated May 26, 2013. By judgment entry filed October

26, 2017, the trial court agreed with appellees and dismissed the complaint. The trial

court found Ms. Carson's affidavit to be inadequate as she was a nurse practitioner and

could not opine as to proximate cause of death.

       {¶ 8} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶ 9} "THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S COMPLAINT

FOR FAILURE TO PROVIDE A SUFFICIENT AFFIDAVIT OF MERIT AS REQUIRED BY

CIVIL RULE 10(D)(2)(iii)."
Stark County, Case No. 2017CA00217                                                     4


                                               I

      {¶ 10} In her sole assignment of error, appellant claims the trial court erred in

dismissing her complaint. We disagree.

      {¶ 11} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.

Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228, 551 N.E.2d

981 (1990). A motion to dismiss for failure to state a claim upon which relief can be

granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.

Guernsey County Board of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d 378 (1992).

Under a de novo analysis, we must accept all factual allegations of the complaint as true

and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v.

Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

      {¶ 12} Civ.R. 10 governs form of pleadings. Subsection (D)(2) states the following:



             (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 requirements of Evid.R. 601(D).

      Affidavits of merit shall include all of the following:
Stark County, Case No. 2017CA00217                                                           5


               (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.



       {¶ 13} The reason for the affidavit of merit is to deter the filing of frivolous medical

malpractice claims. Fletcher v. University Hospitals of Cleveland, 120 Ohio St.3d 167,

2008-Ohio-5379, 897 N.E.2d 147.

       {¶ 14} In its October 26, 2017 judgment entry granting the motion to dismiss, the

trial court determined the following:



               Plaintiff argues that because Michele Carson is a nurse practitioner

       who is able to render diagnosis and prescribe medications, she is qualified

       to opine as to causation in this particular case. However, nurse practitioners

       may only render diagnosis and prescribe medications in collaboration with

       one or more physicians. Keck v. MetroHealth Md. Ctr., 8th Dist. No 89526,

       2008-Ohio-801. Plaintiff cites no cases on point that would allow for a nurse

       practitioner to opine as to the cause of death.
Stark County, Case No. 2017CA00217                                                         6


              Here, while Ms. Carson may render an opinion as to Defendants'

       alleged breach of the standard of care, she cannot opine as to the proximate

       cause of death.



       {¶ 15} The trial court noted, "[t]he within case is not one in which the element of

causation is a matter of common knowledge," indicating the death certificate cited " 'acute

respiratory failure secondary to, as a first cause, angioedema drug-induce.' " "This case

involves allegations that a medication should not have been given and that nurses failed

to properly care for Plaintiff's decedent after an alleged reaction to eh (sic) medicine

leading to injury and death."

       {¶ 16} We agree with the trial court's analysis. Ms. Carson's affidavit avers that

she is a registered nurse. She did not claim to be a nurse practitioner. In a medical

negligence action, a nurse is not competent or qualified to testify on the issue of proximate

cause. Chapman v. South Pointe Hospital, 8th Dist. Cuyahoga No. 92610, 2010-Ohio-

152.

       {¶ 17} In her appellate brief, appellant relies on the case of Carte v. The Manor at

Whitehall, 10th Dist. Franklin No. 14AP-568, 2014-Ohio-5670, a case wherein a nurse's

affidavit of merit was deemed adequate. Carte is distinguishable from this case. In Carte,

the decedent's death was caused by a fall. The Carte court at ¶ 37 found "if the issue of

proximate cause is within the common knowledge of a layperson," then a nurse could

proffer an opinion that the decedent's injuries were caused by the negligence of the staff.

As found by the trial court sub judice, the decedent's cause of death was not a matter of

common knowledge.
Stark County, Case No. 2017CA00217                                                           7


         {¶ 18} Appellant argues the issue of causation was within the trial court's common

knowledge if the affidavit was read in conjunction with the death certificate and the

decedent's medical records.        For cause of death, the death certificate lists: "acute

respiratory failure" due to "angioedema drug induced" due to "recent stroke" due to

"hypertension."     See Certificate of Death, attached to Plaintiff's October 5, 2017

Memorandum Contra as Exhibit A. The decedent's discharge papers list discharge

diagnoses as: "1) Loss of consciousness secondary to stroke and anoxic

encephalopathy; * * * 3) History of clostridium difficile colitis; 4) History of angioedema

from amoxicillin; * * * 6) History of hypertension; 7) History of stroke on May 6, 2013."

The decedent's medical history and physical notes state that she "has received amoxicillin

in the past, however, has not had a reaction in the past." See Medical Records, attached

to Plaintiff's October 5, 2017 Memorandum Contra as Exhibit B. We do not find these

additional filings place the issue of causation within the trial court's common knowledge.

         {¶ 19} Appellant makes an additional argument that the spirit of the civil rules is to

have cases heard on their merits. Pursuant to the trial court's July 27, 2017 order,

appellant was put on notice that the trial court found the submitted affidavit of merit to be

inadequate, and gave her more time to cure the defect. Appellant chose not to submit

another affidavit, but chose to rely on Ms. Carson's affidavit, the death certificate, and the

decedent's medical records. These items do not comply with the requirements of Civ.R.

10(D).

         {¶ 20} Upon review, we find the trial court did not err in granting the motion to

dismiss.

         {¶ 21} The sole assignment of error is denied.
Stark County, Case No. 2017CA00217                                           8


      {¶ 22} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Gwin, J. concur.




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