[Cite as Howard v. HCR Manorcare, Inc., 2018-Ohio-1053.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    CLARK COUNTY

 DAVID HOWARD, Individually and on                  :
 behalf of the Wrongful Death                       :
 Beneficiaries of DONALD LEE                        :      Appellate Case Nos. 2016-CA-75 and
 HOWARD                                             :      2017-CA-16
                                                    :
         Plaintiff-Appellee/Cross-                  :      Trial Court Case No. 2014-CV-0210
         Appellant                                  :
                                                    :      (Civil Appeal from
 v.                                                 :      Common Pleas Court)
                                                    :
 HCR MANORCARE, INC.,
 HEARTLAND EMPLOYMENT
 SERVICES, LLC, HCR MANOR CARE
 SERVICES, LLC and HEARTLAND OF
 SPRINGFIELD, OHIO, LLC

         Defendants-Appellants/Cross-
         Appellees


                                            ...........

                                            OPINION

                           Rendered on the 23rd day of March, 2018.

                                            ...........

MICHAEL J. FULLER, JR., Atty. Reg. No. 0090250, D. BRYANT CHAFFIN, Atty. Reg.
No. 0090249, 97 Elias Whiddon Road, Hattiesburg, Mississippi 39402
      Attorneys for Plaintiff-Appellee/Cross-Appellant

ROBERT M. ANSPACH, Atty. Reg. No. 0017263, MARK D. MEEKS, Atty. Reg. No.
0040495, J. RANDALL ENGWERT, Atty. Reg. No. 0070746, JOSEPH S. CENTER, Atty.
Reg. No. 0092570, 300 Madison Avenue, Suite 1600, Toledo, Ohio 43604
                                                                                         -2-


       Attorneys for Defendants-Appellants/Cross-Appellees

                                     .............

WELBAUM, P.J.

       {¶ 1} In this case, Defendants-Appellants, HCR ManorCare, Inc., HCR Manor

Care Services, LLC, Heartland Employment Services, LLC, and Heartland of Springfield,

Ohio, LLC (collectively, “HCR” or “corporate defendants”) appeal from a jury verdict

rendered in favor of Plaintiff-Appellee/Cross-Appellant, David Howard, individually and on

behalf of the wrongful death beneficiaries of Donald Lee Howard (“Howard”). According

to HCR, the trial court erred by failing to grant HCR’s motion for judgment on the pleadings

on the wrongful death claims, by submitting an improper jury form, by failing to cure

prejudicial statements of Howard’s counsel during closing argument, and in instructing

the jury.

       {¶ 2} As was noted, Howard filed a cross-appeal. Howard contends that the trial

court erred in granting HCR’s motion for judgment on the pleadings concerning three

survival claims, and by denying Howard’s motion for pre-judgment interest.

       {¶ 3} We conclude that the trial court did not err in denying HCR’s motion for

judgment on the pleadings, as HCR admitted liability for the wrongful death, and any

alleged error concerning defects in Howard’s Civ.R. 10(D)(2) affidavit is irrelevant. By

admitting liability, HCR waived any error and is precluded from raising this error on

appeal. Furthermore, compliance with Civ.R. 10(D)(2) does not pertain to a court’s

subject matter jurisdiction and can be waived.

       {¶ 4} We further conclude that HCR is precluded from raising issues regarding the

jury interrogatories and verdict form, as HCR told the court its instructions were correct.
                                                                                          -3-


Even if this issue were considered on a plain error basis, there was no error that would

warrant reversal. The trial court also did not err in failing to include an instruction on

negligence and proximate cause, as there was no basis for this instruction. In addition,

the trial court did not err in failing to give a curative instruction during Howard’s closing

argument. Howard’s argument was not prejudicial, and a curative instruction was not

required for one isolated comment that Howard’s counsel immediately corrected.

       {¶ 5} Concerning Howard’s cross-assignments of error, the trial court did err in

granting a motion for judgment on the pleadings in connection with Howard’s survival

claims (Counts One, Three, and Four of the Second Amended Complaint). Based on

the content of the pleadings, the HCR corporate defendants were not medical providers

and the survival claims were also not “medical claims” for purposes of R.C.

2305.113(E)(3).

       {¶ 6} Finally, the trial court did not abuse its discretion when it refused to give

Howard a continuance to conduct discovery in connection with his motion for prejudgment

interest. Howard would have been well aware of his right to conduct discovery, but failed

to even mention discovery until the day before the scheduled non-oral evidentiary

hearing. Accordingly, the judgment of the trial court will be affirmed in part and reversed

in part, and will remanded for further proceedings solely on the survival claims (Counts

One, Three, and Four of the Second Amended Complaint).



                              I. Facts and Course of Proceedings

       {¶ 7} In April 2014, Howard filed a complaint, individually and on behalf of the

wrongful death beneficiaries of Donald Lee Howard (“Donald”), alleging that Donald had
                                                                                     -4-


suffered injuries and wrongful death while he was a nursing home resident at Heartland

of Springfield between December 11, 2011 and April 5, 2012. The named defendants

included HCR, the local administrator of the nursing home, and various defendants

labeled “John Does 1 through 10” and “Unidentified Entities 1 through 10.”

      {¶ 8} The complaint contained claims for negligence for lethal and non-lethal

injuries, medical malpractice, malice, fraud, breach of fiduciary duty, and premises

liability. Attached to the complaint was a request for an extension of time to file an

affidavit of merit pursuant to Civ.R. 10(D)(2)(b), and the court subsequently granted

Howard a 90-day extension of time.

      {¶ 9} According to the complaint, HCR ManorCare Inc. was in the business of

operating nursing homes, with a home office in Toledo, Ohio. HCR ManorCare Services,

LLC, Heartland Employment Services, LLC, and Heartland of Springfield, LLC, were

corporations engaged in custodial and personal care of the elderly. Some of these

corporations were Ohio corporations and some were incorporated in Delaware, but

Toledo, Ohio was their principal place of business.1

      {¶ 10} In June 2014, Howard filed a first amended complaint containing the same

claims. Howard attached the affidavit of a geriatric nurse practitioner and registered

nurse, who expressed various opinions about deviations from the standard of care by the

nursing home and its personnel. After filing an answer to the amended complaint, HCR

filed a motion to dismiss and a motion for summary judgment.

      {¶ 11} The motion contended that Counts One, Three, Four, Six, Nine, Ten, and


1 According to HCR’s answer, HCR ManorCare Services, LLC was improperly referenced
as HCR ManorCare Services, Inc. in the complaint. This error had no effect on the case.
At times, even HCR confused “Inc.” and “LLC.”
                                                                                         -5-


Eleven were medical claims under R.C. 2305.113(E)(3), and were subject to a one-year

statute of limitations that had expired on April 5, 2013, nearly a year before the complaint

was filed. In addition, HCR contended that Count Eight, which stated a claim for punitive

damages, failed as a matter of law. On October 15, 2014, the trial court agreed with

HCR, and dismissed these counts. The court then set a November 2014 pre-trial on the

remaining claims (Counts Two, Five, and Seven).

       {¶ 12} Howard filed a notice of appeal from this decision, but his appeal was

dismissed for lack of a final appealable order. In late May 2015, HCR filed a motion for

judgment on the pleadings, arguing that Howard’s 10(D)(2) affidavit was defective

because the nurse was unqualified to render an opinion regarding the cause of death.

In June 2015, the trial court overruled HCR’s motion for judgment on the pleadings.

       {¶ 13} In January 2016, the court granted Howard’s request to file a second

amended complaint to add survival claims for corporate negligence, nursing home

negligence, and administrator negligence.       Howard then filed a second amended

complaint containing six counts, which included both survival and wrongful death claims.

This was followed on March 16, 2016, by HCR’s motion for judgment on the pleadings.

In the motion, HCR again argued that the claims in Counts One, Three, and Four for non-

lethal injuries were barred by the statute of limitations because they were “medical

claims.” HCR also filed an answer to the second amended complaint the following day.

       {¶ 14} A jury trial was scheduled for April 5, 2016. On March 28, 2016, HCR filed

an “omnibus” motion in limine, seeking to limit testimony about many items, including

medical diagnosis or causation opinions of Howard’s nursing expert. HCR also asked

the court to limit damages pursuant to R.C. 2323.42 and to bifurcate the trial under R.C.
                                                                                        -6-


2315.21. On March 31, 2016, the trial court granted HCR’s motion for judgment on the

pleadings, again finding that the claims for non-lethal injuries were medical claims that

had been filed outside the statute of limitations in R.C. 2305.113(A).

       {¶ 15} On the same day, HCR filed a motion for summary judgment as to

allegations seeking punitive damages. This was based on the deposition of Howard’s

medical expert, Dr. Fannin, who had testified to various bases of liability of HCR for

Donald’s death, including neglect and failure to perform a proper evaluation. According

to HCR, these deficiencies in care did not support the standard required to submit the

issue of punitive damages to a jury. The trial court concluded that the motion would be

held in abeyance pending the outcome of the compensatory damages portion of the case.

       {¶ 16} On April 5, 2016, the parties appeared in court for the scheduled jury trial.

Prior to trial, the court presented its ruling on all outstanding motions, including HCR’s

motion in limine, which was overruled in part and sustained in part. The court also

dismissed the nursing home administrator from the action. As the court attempted to

bring the jurors into the courtroom, HCR’s counsel told the court that HCR wanted to place

an admission into the record. The admission, which had not been previously disclosed

to the trial court or counsel, was that HCR would admit liability for Donald’s wrongful

death, leaving damages as the only issue left for decision.

       {¶ 17} After accepting the admission, the court continued the trial, and also let

Howard file a memorandum concerning how the admission affected Howard’s survival

claims, which Howard still contended should be allowed. In late May 2016, the court

overruled Howard’s motion as it related to the survival claims. The court concluded that

even though HCR had adopted inconsistent positions concerning whether the corporate
                                                                                      -7-


defendants were medical providers, the court would follow its understanding of the law,

which indicated that these defendants were medical providers under R.C. 2305.113(E)(3).

      {¶ 18} On September 27 and 28, 2016, the case was tried before a jury on the

issue of damages only. After a brief deliberation, the jury returned a total verdict of

$1,100,000 against HCR. Shortly after the judgment on the verdict was entered, Howard

filed a motion for prejudgment interest. Before that issue was decided, HCR filed a

notice of appeal, and we docketed the appeal as Case No. 16-CA-75.

      {¶ 19} On December 6, 2016, Howard filed a motion to remand the case because

the trial court had not yet held an evidentiary hearing on the motion for prejudgment

interest. We remanded the case on December 28, 2016, and stayed the appellate

proceedings pending a decision on the motion. On January 12, 2017, the trial court filed

a notice of a non-oral hearing to be held on January 26, 2017. Although Howard filed a

motion to continue the hearing in order to conduct discovery, the court declined to

continue the hearing. The court then overruled the motion for prejudgment interest on

January 30, 2017.

      {¶ 20} Howard filed a notice of cross-appeal after this judgment, and we docketed

the appeal as Case No. 17-CA-16. We consolidated the two appeals on May 11, 2017.

We also concluded that Howard’s time for appeal had been tolled due to the filing of the

motion for prejudgment interest, and that Howard was entitled to cross-appeal from the

judgement on the jury verdict that was entered in October 2016.



                          II. Motion for Judgment on the Pleadings

      {¶ 21} HCR’s First Assignment of Error states that:
                                                                                          -8-


                The Trial Court Erred by Failing to Grant HCR Judgment on the

       Pleadings on the Wrongful Death Claims.

       {¶ 22} Under this assignment of error, HCR contends that the trial court erred by

failing to grant the motion for judgment on the pleadings that was filed in connection with

the wrongful death claims. HCR’s argument is based on the contention that Howard’s

Civ.R. 10(D)(2) affidavit was legally insufficient because Howard’s nurse practitioner

expert was not legally competent to testify as to the cause of Howard’s death. As was

noted, HCR filed a motion for judgment on the pleadings in late May 2015, and the trial

court overruled the motion in June 2015.       The court did not provide any reasoning for

its decision.

       {¶ 23} Because motions for judgment on the pleadings present only questions of

law, we review them on a de novo basis. See, e.g., Discover Bank v. Swartz, 2016-Ohio-

2751, 51 N.E.3d 694, ¶ 11 (2d Dist.).         De novo review mandates an independent

decision, without deference to a trial court’s determination.           (Citations omitted.)

Portfolio Recovery Assocs., L.L.C. v. VanLeeuwen, 2d Dist. Montgomery No. 26692,

2016-Ohio-2962, ¶ 6.

       {¶ 24} The parties do not dispute that the wrongful death claims were “medical

claims” under R.C. 2305.113. In such situations, Civ.R. 10(D)(2) provides, in pertinent

part, that:

                (a) Except as provided in division (D)(2)(b) of this rule, a complaint

       that contains a medical 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
                                                                                     -9-


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:

        (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 time, not

to exceed sixty days, to file an affidavit of merit intended to cure the defect.
                                                                                          -10-


       {¶ 25} The Supreme Court of Ohio has said that “the purpose behind the rule is to

deter the filing of frivolous medical-malpractice claims. The rule is designed to ease the

burden on the dockets of Ohio's courts and to ensure that only those plaintiffs truly

aggrieved at the hands of the medical profession have their day in court.” Fletcher v.

Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 10.

       {¶ 26} Currently, there is some disagreement among Ohio courts concerning

whether a nurse’s affidavit is sufficient to withstand a challenge under Civ.R. 10(D)(2).

Compare Tranter v. Mercy Franciscan Hosp. W. Hills, 1st Dist. Hamilton No. C-061039,

2007-Ohio-5132, ¶ 11 [yes – because while nursing expert was “arguably” not competent

to establish that injuries had caused decedent’s death, she was qualified to state that

“nurses’ alleged breach of duty had ‘caused injury to the plaintiff’ within the meaning of

Civ.R.10(D)(2)(iii)”], with Chalmers v. HCR ManorCare, Inc., 6th Dist. Lucas No. L-16-

1143, 2017-Ohio-5678, ¶ 42-48 (no – but a trial court errs if it grants summary judgment

on this point and dismisses an action without providing the plaintiff with an opportunity to

cure the defect).

       {¶ 27} In Chalmers, the plaintiff brought suit against a nursing home and related

corporations based on injuries and death caused to a nursing home resident. Like the

case before us, the trial court held that the survivorship claims were time-barred, and the

only other potential claims were for wrongful death. Id. at ¶ 19 and 44. The majority

opinion in Chalmers concluded that the trial court erred in granting summary judgment on

the wrongful death claims without allowing the plaintiff an opportunity to cure the defect

in the affidavit of merit. In addition, the majority observed that the opportunity to cure “is

not conditioned upon the competency of the original affiant, nor does the rule demand
                                                                                             -11-


that the affiant in the supplemental affidavit be the same affiant as in the original affidavit.”

Id. at ¶ 49. Thus, the plaintiff would be “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.” Id.

       {¶ 28} One judge on the panel agreed that the summary judgment decision in favor

of the nursing home on the wrongful death claims should be reversed. However, she

also concluded that Civ.R. 10(D)(2) did not apply to the summary judgment motion.

Chalmers at ¶ 53 (Mayle, J., concurring and dissenting). Judge Mayle noted that the

defendants failed to filed a Civ.R. 12(B)(6) motion to dismiss, which was the appropriate

course under Fletcher. Id. at ¶ 65-66, citing Fletcher, 120 Ohio St.3d 167, 2008-Ohio-

5379, 897 N.E.2d 147, at paragraph one of the syllabus.

       {¶ 29} Instead of filing a motion to dismiss, the defendants filed a summary

judgment motion. Judge Mayle commented that Civ.R. 10(D)(2) specifically states that

affidavits of merit are only to be used to test a complaint’s adequacy; they may not be

admitted as evidence or used for impeachment. Id. at ¶ 65. In this regard, Judge Mayle

stressed that:

              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 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
                                                                                         -12-


       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.

Chalmers, 6th Dist. Lucas No. L-16-1143, 2017-Ohio-5678, at ¶ 66 (Mayle, J., concurring

and dissenting).

       {¶ 30} We need not take a position on any conflict among districts, due to the

procedural posture of this case. As was noted, HCR filed a motion for judgment on the

pleadings, which was overruled. Even if the trial court had concluded that the affidavit

of merit was deficient, the proper remedy under Civ.R. 10(D)(2)(e) would have been to

give Howard an opportunity to cure the defect, not to grant a motion for judgment on the

pleadings. Furthermore, under Chalmers, Howard would not have been restricted to the

affidavit of a nurse or the same nurse; he could have provided an affidavit from another

expert to establish causation for wrongful death.

       {¶ 31} In light of the above discussion, the trial court did err in overruling HCR’s

motion rather than (1) deciding if the affidavit was defective, and (2) if a defect existed,

providing Howard with a chance to cure the defect. As a result, the relevant issue would

be whether the error prejudiced HCR. In this regard, several points are in order.

       {¶ 32} As an initial matter, we note that HCR filed a motion in limine shortly before
                                                                                            -13-


the trial that was scheduled for April 5, 2016. The motion sought to limit the testimony

of Howard’s nurse expert because she was allegedly not qualified to render medical

diagnoses or causation opinions. Notably, HCR mentioned in the motion that Howard

had designated Dr. Fannin (a medical doctor) as an expert witness. Attached to the

motion was a designation of experts that Howard had provided.                This designation

disclosed Dr. Fannin as an expert and outlined his testimony.

       {¶ 33} Among other things, Dr. Fannin intended to testify that HCR failed to provide

Donald “ ‘with care commensurate with the appropriate minimum standards of care, and

that [HCR’s] negligence and other culpable conduct resulted in painful injuries to [Donald]

and substantially contributed to his death.” See Doc. #231, Motion of Defendants HCR

ManorCare, Inc., et. al., for Summary Judgment as to Plaintiff’s Allegations Seeking

Punitive Damages, and Ex. A (Howard’s Designation of Expert Witnesses), p. 2, which is

attached to HCR’s Motion.2 These matters were not part of the pleadings, however, and

have not been considered in ruling on HCR’s assignment of error.

       {¶ 34} Instead, the critical point is that by admitting liability for Donald’s death, HCR

waived its ability to assert the alleged Civ.R. 10(D)(2) deficiency, and also precluded any

ability to assert error in connection with the trial court’s failure to grant the motion

challenging the affidavit of merit. “ ‘Waiver’ is defined as a voluntary relinquishment of a

known right.” (Citations omitted). State ex rel. Wallace v. State Med. Bd. of Ohio, 89

Ohio St.3d 431, 435, 732 N.E.2d 960 (2000).

       {¶ 35} As was noted, the jury trial was initially scheduled for April 5, 2016.


2 Howard apparently first consulted Dr. Fannin in May 2015, and HCR deposed Dr.
Fannin in March 2016. See Doc. #258, Deposition of Dr. William Fannin, pp. 1-3. The
record does not clearly indicate when Dr. Fannin was first identified as an expert.
                                                                                       -14-


However, as the court began to call in the jury, HCR’s counsel told the court that HCR

wished to admit liability. See Transcript of April 5, 2016 Proceedings, Doc. #308, p. 8.

HCR’s counsel then placed an admission into the record, and the court signed an order

accepting the admission. Id. at pp. 9-11 and 31, and Doc. #303, Order, filed on April 6,

2016. HCR’s admission was also filed on October 6, 2016, and provides, in pertinent

part, as follows:

              In light of this Court’s Entry filed March 31, 2016, wherein the Court

       dismissed Counts 1, 3, and 4 of Plaintiff’s Second Amended Complaint (the

       “survival claims”), and as the sole remaining claim in this proceeding is for

       the alleged wrongful death of Donald Lee Howard pursuant to R.C.

       § 2125.01, the remaining Defendants HCR ManorCare, Inc., HCR Manor

       Care Services, Inc., Heartland Employment Services, LLC, and Heartland

       of Springfield OH, LLC admit that an act or omission of one or all of these

       Defendants was a cause of Donald Lee Howard’s death as set forth in R.C.

       § 2125.01.

              Pursuant to the foregoing admission, the issues remaining in dispute

       in this matter are whether and, if so, to what extent any person defined by

       R.C. § 2125.02 sustained damage as set forth in R.C. § 2125.02 as a result

       of the death of Donald Lee Howard.

(Italics sic.) Doc. # 304, Admission of Defendants HCR ManorCare, Inc., HCR Manor

Care Services, Inc., Heartland Employment Services, LLC, and Heartland of Springfield

OH, LLC as to Plaintiff’s Wrongful Death Claim Only, pp. 1-2.

       {¶ 36} Despite this admission, HCR now argues that the judgment in Howard’s
                                                                                          -15-


favor should be reversed because some courts have found that Civ.R. 10(D)(2) is

jurisdictional. The point of this argument (although HCR does not explicitly say so) is to

escape the effect of HCR’s admission, apparently on the theory that “a court's subject

matter jurisdiction cannot be waived.” State v. Wilson, 73 Ohio St.3d 40, 46, 652 N.E.2d

196 (1995). Accord NVR, Inc. v. Centerville, 2016-Ohio-6960, 71 N.E.3d 745, ¶ 21 (2d

Dist.).

          {¶ 37} HCR’s position is not persuasive. HCR chose to admit that the actions of

one or more of the defendants caused Donald’s death and that the only issue to be

decided was the extent of damages, if any, sustained. Presumably, the point of the

admission was to benefit HCR in some way. However, after a jury verdict was awarded

for an injury HCR admitted causing, HCR now attempts to avoid the effect of its

admission.

          {¶ 38} HCR failed to cite any Ohio appellate cases to support a jurisdictional

argument; instead, HCR relies on two federal district court cases and one Ohio common

pleas court case. One of these cases is Bush v. Secy. of Dept. of Veterans Affairs, S.D.

Ohio No. 1:13-CV-76, 2014 WL 127092 (Jan. 13, 2014). However, contrary to HCR’s

assertion, Bush does not indicate that the affidavit of merit in Civ.R. 10(D)(2) is required

for a court to retain subject matter jurisdiction over an action.

          {¶ 39} In Bush, a pro se litigant had filed a claim against the Cincinnati Veterans

Administration Medical Center, alleging that the Center failed to diagnose the severity of

his hearing impairment. He did not attach a Civ.R. 10(D)(2) affidavit to his complaint.

Id. at *7. One of several issues before the court was whether Ohio’s procedural rule

should be applied as substantive law under the Federal Tort Claims Act, because the
                                                                                            -16-

federal rules do not require affidavits of merit.        Id. at *7-8.   The court noted that

disagreement existed in the Sixth Circuit concerning whether Ohio’s Civ.R. 10(D)(2) is

procedural or substantive.        (Citations omitted.)    Id. at *8.    Ultimately, the court

concluded that the rule was substantive and applied it to the plaintiff’s medical claims.

Id. Because the plaintiff had failed to file an affidavit of merit, the court concluded that

the defendant’s motion to dismiss should be granted. Id.

         {¶ 40} The fact that a procedural rule is found to be substantive for purposes of

applying state law in a federal action does not mean that satisfaction of the rule is required

for a court to have subject matter jurisdiction. In fact, the text of Civ.R. 10(D)(2)(d)

indicates otherwise, by stating that “[a]n affidavit of merit is required to establish the

adequacy of the complaint * * *.” (Emphasis added.)

         {¶ 41} The other federal case HCR cites is McCain v. Parks, S.D. Ohio No. 2:10-

CV-00791, 2011 WL 4398096 (Sept. 21, 2011). Again, the federal district court did not

hold that failure to file an affidavit of merit deprives a court of subject matter jurisdiction.

In discussing the background facts, the district court noted that the plaintiff, an Ohio

prisoner, had previously filed a claim with the Ohio Court of Claims, and that his claim

had been dismissed without prejudice because he failed to file an affidavit of merit. Id.

at *3.     In addition, the Ohio Court of Claims had dismissed the plaintiff’s Eighth

Amendment claim for cruel and unusual punishment, concluding that it lacked subject

matter jurisdiction over that type of claim. Id.

         {¶ 42} After making these remarks, the district court stated that “[o]n July 28, 2010,

plaintiff filed a second complaint with the Ohio Court of Claims based on the same

allegations contained in the February 26, 2010 complaint. On September 20, 2010, the
                                                                                            -17-


court [of claims] dismissed plaintiff's second complaint for failing to attach an affidavit of

merit and for lack of subject matter jurisdiction.” Id. at *3. Presumably, this is the

comment on which HCR’s “jurisdictional” argument is based.              However, the court’s

meaning is not clear.

       {¶ 43} From reading the case, it appears that plaintiff may have simply refiled the

previous action, including the same claims, that had been dismissed by the court of

claims, meaning that the jurisdictional comment related to the Eighth Amendment claim

rather than the failure to file an affidavit of merit. This makes sense, since the court of

claims had previously dismissed the Eighth Amendment claim due to lack of jurisdiction.

In addition, the federal court specifically commented that the second complaint contained

the “same allegations.” McCain, S.D. Ohio No. 2:10-CV-00791, 2011 WL 4398096, at

*3.

       {¶ 44} HCR did not attach the underlying decisions of the court of claims to its brief,

and we have been unable to locate them in our online research system. As a result, we

cannot reach any definite conclusion about the meaning of the statement in McCain, other

than it was simply part of a recitation of factual background in the state court system.

What is clear, however, is that the federal district court did not hold that failing to attach a

Civ.R. 10(D)(2) affidavit of merit results in a lack of subject matter jurisdiction.

       {¶ 45} As for the common pleas court case cited by HCR, this case also was not

attached to HCR’s brief, and we have been unable to locate it through our online research

system.     Nonetheless, even if we could locate the case, and even if HCR’s

representation of the holding is accurate, we disagree that failing to attach a Civ.R.

10(D)(2) affidavit deprives a court of subject matter jurisdiction.
                                                                                            -18-


       {¶ 46} “ ‘Subject-matter jurisdiction of a court connotes the power to hear and

decide a case upon its merits’ and ‘defines the competency of a court to render a valid

judgment in a particular action.’ ” Cheap Escape Co. v. Haddox, LLC, 120 Ohio St.3d

493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 6, quoting Morrison v. Steiner, 32 Ohio St.2d

86, 87, 290 N.E.2d 841 (1972). In Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-

Ohio-4275, 21 N.E.3d 1040, the Supreme Court of Ohio also stressed that:

              Subject-matter jurisdiction is the power of a court to entertain and

       adjudicate a particular class of cases. * * * A court's subject-matter

       jurisdiction is determined without regard to the rights of the individual parties

       involved in a particular case. * * * A court's jurisdiction over a particular

       case refers to the court's authority to proceed or rule on a case that is within

       the court's subject-matter jurisdiction. * * * This latter jurisdictional category

       involves consideration of the rights of the parties. If a court possesses

       subject-matter jurisdiction, any error in the invocation or exercise of

       jurisdiction over a particular case causes a judgment to be voidable rather

       than void.

(Citations omitted.) Id. at ¶ 19.

       {¶ 47} The Supreme Court of Ohio has not specifically addressed Civ.R. 10(D)(2)

in a subject matter jurisdiction context, but the court did note in Fletcher that the rule is

intended to “deter the filing of frivolous medical malpractice claims,” and that Civ.R.

10(D)(2) makes “it clear that the affidavit is necessary in order to ‘establish the adequacy

of the complaint.’ ” Fletcher, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, at

¶ 10, quoting from Civ.R. 10(D)(2)(c) [now Civ.R. 10(D)(2)(d)]. As was noted, this is not
                                                                                           -19-


a statement indicating that failure to attach an affidavit results in a lack of lack of subject

matter jurisdiction. To the contrary, such a failure results only in a dismissal without

prejudice. Id. at paragraph two of the syllabus.

       {¶ 48} The Supreme Court of Ohio has also said that the failure to attach an

affidavit is a “pleading deficiency” that “can be cured without automatic dismissal of a

complaint * * *.” Manley v. Marsico, 116 Ohio St.3d 85, 2007-Ohio-5543, 876 N.E.2d

910, ¶ 14 [analogizing Civ.R. 10(D)(2) to Civ.R. 10(D)(1)]. See also Troyer v. Janis, 132

Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 10 (observing that the proper remedy

where an affidavit of merit is not attached to a complaint is dismissal without prejudice

and that “dismissal is not based on the merits of the case, but on the insufficiency of the

complaint”).

       {¶ 49} Notably, the failure alleged here is that the affidavit was defective; it is not

that Howard failed to attach an affidavit. As we said, a defective affidavit would not

require dismissal of the action. Instead, the court would have been required to give

Howard time to cure any defects.

       {¶ 50} We should also note that a prior statute relating to medical claims and the

requirement of affidavits to accompany a complaint specifically stated that “[a] municipal

court, county court, or court of common pleas, or the court of claims, shall have jurisdiction

to hear and determine an action upon a medical, dental, optometric, or chiropractic claim

only if the complaint or other pleading that sets forth the claim is supported by

documentation as required by and described in division (C) of this section.” (Emphasis

added.) See former R.C. 2307.42(B), as codified in Am.Sub.H.B. No. 642, 1988 Ohio

Laws File 284.
                                                                                            -20-


        {¶ 51} In 1994, the Supreme Court of Ohio invalidated this statute, stating that the

affidavit requirement directly conflicted “with the express provision of Civ.R. 11 that

‘[e]xcept when otherwise specifically provided by these rules, pleadings need not be

verified or accompanied by affidavit.’ ” Hiatt v. S. Health Facilities, Inc., 68 Ohio St.3d

236, 238, 626 N.E.2d 71 (1994).         The court further stated that “[s]ince the conflict

involves the form and content of the complaint to initiate a medical malpractice case, it is

a procedural matter and, therefore, Civ.R. 11 prevails over the statute, R.C. 2307.42.”

Id.

        {¶ 52} A further iteration enacted in 1997 as R.C. 2305.011 required a “certificate

of merit.”   This statute fared poorly as well, because the Supreme Court of Ohio

invalidated it in 1999. See State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86

Ohio St.3d 451, 715 N.E.2d 1062 (1999) (invalidating Am.Sub.H.B. 350). In Sheward,

the court noted that when R.C. 2305.011 was enacted, the legislature had expressed its

intent to respond to Hiatt by “ ‘by clarifying the jurisdictional nature of certificate of merit

requirements and creating a substantive requirement for medical, dental, optometric,

chiropractic, and malpractice claims.’ ” Id. at 479, quoting Am.Sub.H.B. No. 350, Section

5(H)(1), 146 Ohio Laws, Part II, 4024.3

        {¶ 53} In response to the legislature’s statement of intent, the Supreme Court said

that:

              The notion that the General Assembly can direct our trial courts to


3  The legislature’s statement of intent also indicated that “trial courts lose subject matter
jurisdiction to hear medical, dental, optometric, chiropractic, and malpractice claims
defined or described in section 2305.11 of the Revised Code unless they are supported
by certificates of merit * * *.” Am.Sub.H.B. No. 350, Section 5(H)(2), 146 Ohio Laws, Part
II, 4024.
                                                                                          -21-


       apply a legislative rule that this court has already declared to be in conflict

       with the Civil Rules simply by denominating it “jurisdictional” or “substantive”

       is so fundamentally contrary to the principle of separation of powers that it

       deserves no further comment.         Moreover, the General Assembly has

       clarified nothing by expressing its view that certificate-of-merit requirements

       are jurisdictional in nature. Former R.C. 2307.42(B) specifically provided

       that trial courts “shall have jurisdiction to hear and determine an action upon

       a medical, dental, optometric, or chiropractic claim only if the complaint or

       other pleading that sets forth the claim is supported by” an affidavit of merit.

       (Emphasis added.) The fact that the General Assembly views certificate-

       of-merit requirements as something other than procedural is nothing new,

       and it certainly adds nothing to its claim of clarification that the term

       “jurisdiction” was used in former R.C. 2307.42, but appears nowhere in R.C.

       2305.011(B).

(Emphasis sic.; footnote omitted.) Sheward at 479.

       {¶ 54} Subsequently, the legislature repealed R.C. 2305.011 and revived and

amended R.C. 2305.11. See S.B. No. 108, 2001 Ohio Laws File 26. R.C. 2305.11 as

revived and amended included statutes of limitations for medical actions, but did not

mention affidavits or certificates of merit. Id.

       {¶ 55} In 2002, R.C. 2305.113 was enacted, but it did not include any references

to affidavits or certificates of merit. See S.B. No. 281, 2002 Ohio Laws File 250, effective

in April 2003. In 2004, the legislature enacted R.C. 2323.45, which allows health care

providers named as defendants in actions involving medical claims to file motions for
                                                                                         -22-

dismissal based on non-involvement. See Sub.H.B. No. 215, 2004 Ohio Laws 93. As

part of this bill, the legislature asked the Supreme Court of Ohio to amend the Ohio Civil

Rules to require plaintiffs to include a certificate of expert review for each defendant in

cases where plaintiffs file medical liability claims. Id. at Section 3.

       {¶ 56} In 2005, the Supreme Court of Ohio amended Civ.R. 10 in response to the

General Assembly's request. See 2005 Staff Notes to Civ.R. 10. The court, thus retitled

and reorganized Civ.R. 10(D) "to reflect the inclusion of a requirement in division (D)(2)

that a medical liability complaint include an affidavit of merit concerning the alleged

breach of the standard of care by each defendant to the action." Id. Civ.R. 10(D) was

amended again in 2007 "to define the effect of dismissal for failure to comply with the

affidavit of merit requirement" and to add a "new section" allowing a reasonable time, not

to exceed 60 days, for curing defects identified in affidavits. See 2007 Staff Notes to

Civ.R. 10.

       {¶ 57} In none of these revisions did the Supreme Court of Ohio indicate that the

failure to comply would deprive a court of subject matter jurisdiction. To the contrary,

including such language would be inconsistent with the court's prior decisions. In fact,

the court’s notes to the final rule amendment of Civ.R. 10 in 2007 specifically state that

“[t]he revisions also remove language initially proposed which made the affidavit

requirement a prerequisite to the trial court’s exercise of jurisdiction, but retains the

proposed language that clarifies that a dismissal for failure to comply with the rule

operates     as     a    failure    otherwise     than     on     the     merits.”      See

http://www.supremecourt.ohio.gov/RuleAmendments/Archive.aspx.             Thus, at no point,

has the Supreme Court expressed intent to make the requirements in Civ.R. 10(D)(2)
                                                                                          -23-


jurisdictional.

       {¶ 58} Furthermore, the current statute pertaining to medical claims (R.C.

2305.113) is contained in a section of the Ohio Revised Code entitled “Limitations –

Miscellaneous.”    The statute itself is entitled “Time limitations for bringing medical,

dental, optometric, or chiropractic claims.” See R.C. 2305.113. R.C. Chap. 2305, itself,

is entitled “Jurisdiction; Limitation of Actions”, indicating that the legislature is aware of

the distinction between jurisdiction and statutes of limitation.

       {¶ 59} As a final matter, the Supreme Court of Ohio noted in an arbitration case

that a nursing home had waived its right under an arbitration agreement to seek dismissal

under Civ.R. 10(D)(2). Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054,

908 N.E.2d 408, ¶ 39. Although the court did not discuss subject matter jurisdiction, it

stated, in upholding the agreement, that “both parties relinquished legal rights by agreeing

to arbitration.” Id. at ¶ 40. According to the court, one of these legal rights was the

nursing home’s “right to seek * * * an outright dismissal of the case.” Id. Because

subject matter jurisdiction cannot be waived, the court would not have relied on wavier if

it felt the requirements in Civ.R. 10(D)(2) were jurisdictional.

       {¶ 60} The point of this discussion is that a defect in an affidavit, or even a failure

to file the affidavit, does not deprive a court of subject matter jurisdiction. Accordingly,

we conclude that by admitting liability for Donald’s injuries, HCR waived the right to

challenge the trial court’s ruling on the motion for judgment on the pleadings and is

precluded from raising this error on appeal. By the same token, even if we had to

consider this issue under a plain error analysis (which we do not), any error would have

been harmless, as Howard was entitled to a continuance to cure the defect.
                                                                                          -24-


       {¶ 61} Based on the preceding discussion, HCR’s First Assignment of Error is

overruled.



                                      III. Jury Verdict Form

       {¶ 62} HCR’s Second Assignment of Error states that:

              The Trial Court Erred by Submitting to the Jury a Verdict Form

       Contrary to Statutory Law.

       {¶ 63} Under this assignment of error, HCR contends that the trial court committed

error in instructing the jury. HCR’s first point is that the court improperly allowed the jury

to consider individual damage awards to wrongful death beneficiaries who were not

parties to the action. According to HCR, this permitted the trial court to usurp the function

of the probate court, which has the duty to allocate damages among the beneficiaries.

In responding to this argument, Howard contends that HCR waived any error by failing to

object. Additionally, Howard maintains that the procedure the trial court followed was

proper.

       {¶ 64} R.C. 2125.02(A)(1) provides that wrongful death actions “shall be brought

in the name of the personal representative of the decedent for the exclusive benefit of the

surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably

presumed to have suffered damages by reason of the wrongful death, and for the

exclusive benefit of the other next of kin of the decedent.” Consistent with this statute,

the action against HCR was brought by Howard, as the personal representative of the

other wrongful death beneficiaries. The beneficiaries were Donald’s three adult children:

Howard, Guy Steven Howard, and MaryAnn Hayes.
                                                                                          -25-


       {¶ 65} R.C. 2125.03(A)(1) provides that:

              The amount received by a personal representative in an action for

       wrongful death under sections 2125.01 and 2125.02 of the Revised Code,

       whether by settlement or otherwise, shall be distributed to the beneficiaries

       or any one or more of them. The court that appointed the personal

       representative, except when all of the beneficiaries are on an equal degree

       of consanguinity to the deceased person, shall adjust the share of each

       beneficiary in a manner that is equitable, having due regard for the injury

       and loss to each beneficiary resulting from the death and for the age and

       condition of the beneficiaries. If all of the beneficiaries are on an equal

       degree of consanguinity to the deceased person, the beneficiaries may

       adjust the share of each beneficiary among themselves.                   If the

       beneficiaries do not adjust their shares among themselves, the court shall

       adjust the share of each beneficiary in the same manner as the court adjusts

       the shares of beneficiaries who are not on an equal degree of consanguinity

       to the deceased person.

       {¶ 66} On April 4, 2016, or just prior to the first scheduled trial, HCR filed proposed

jury instructions and interrogatories. See Doc. #270. One interrogatory (“C”) asked the

jury to find what money would reasonably compensate Howard’s next of kin for Donald’s

death. Also included were general verdict forms finding either for HCR or the plaintiff.

The latter verdict form contained a space to insert a money amount. Interrogatory C

instructed the jury that the amount found on the interrogatory must match the amount

assigned to the plaintiff on the general verdict form.
                                                                                         -26-


        {¶ 67} As was noted, HCR conceded liability on the April 5, 2016 trial date, and on

September 27-28, 2016, a jury trial was held on the issue of damages only.              On

September 20, 2016, HCR filed proposed jury instructions, a verdict sheet, and jury

interrogatories. See Doc. #425. Proposed interrogatory C was the same as the prior

interrogatory C, and the general verdict for plaintiff included separate lines for

compensatory damages and funeral and burial expenses.            HCR filed amended and

supplemental jury instructions on September 26, 2016, but the relevant interrogatory and

verdict form were the same as those submitted on September 20, 2016. See Doc. #430.

        {¶ 68} On September 28, 2016, HCR filed yet another amended set of proposed

instructions. The interrogatory in question remained the same but was renumbered B,

and the line for funeral and burial expenses was omitted from the general verdict form.

See Doc. #442. In the meantime, Howard had submitted jury interrogatories and a

verdict form, asking the jury to find losses necessary to compensate Donald’s family for

his death. The interrogatories and verdict form separated the three beneficiaries and

asked the jury to find an amount for each beneficiary for two items: (1) the loss of society

and companionship of Donald: and (2) the beneficiary’s own mental anguish. See Doc.

#438.

        {¶ 69} On September 28, 2016, HCR filed objections to Howard’s proposed jury

instructions.   See Doc. #445.     Among other things, HCR objected to the fact that

Howard had separated each beneficiary, and had asked that their damages be assessed

collectively by the jury. The record is unclear concerning whether the trial court saw

these objections, as the court did not specifically mention HCR’s objections during its

discussion of the proposed instructions. See Transcript of Proceedings, Vol. II, pp. 236-
                                                                                         -27-


237. However, after the jury was instructed, the court did rule against Howard on two

other points that HCR had raised.

       {¶ 70} While discussing the proposed instructions, the court said it was going to

accept Howard’s proposed instructions with a few modifications. The court further said

that it would use the supplemental jury interrogatories and verdict form. At that point, the

court instructed that the jurors be brought into the courtroom. The following exchange

then occurred:

                 MR. MEEKS [HCR’s Counsel]: Your Honor, did you issue rulings

       on the defendants [sic] proposed?

                 THE COURT: Yes, I’m going with plaintiffs, so that’s it.

Id. at p. 237.

       {¶ 71} HCR did not object at this point, nor did it say anything more. After the jury

was instructed, HCR approached the court and noted that it maintained its objection to all

jury instructions Howard had proposed and its objections to the instructions that were

given. HCR then mentioned two instructions specifically – (1) that HCR was entitled to

an instruction that the verdict was not subject to taxation and (2) that the court should

give an instruction that sympathy and emotion were not to play a factor. Id. at p. 301.

Subsequently, the court gave these requested instructions to the jury.

       {¶ 72} After the discussion of these two specific objections, the following exchange

occurred:

                 MR. ANSPACH [HCR’s Counsel]: The final thing, with regard to the

       verdict form and what the jury needs to do, you are absolutely right in

       everything you said, but I think I’m pretty sure you can’t have six jurors who
                                                                                   -28-


give the number for Maryann and then four who give the number with two

others for Guy and then three –

       All I’m saying, Judge, is I believe there have to be at least six of the

same jurors who answer each of those questions; otherwise, it’s not a six

percent [sic] verdict as a whole.

       So I wanted to raise that error also. I would request the instruction

that at least six of the same people must answer each of those questions.

It can be eight. It can be seven. But at least six of the jurors have to

answer each of them.

       THE COURT: Do you agree?

       MR. REINS [Howard’s Counsel]: Do you have authority for that?

       MR. ANSPACH: No. Frankly, I thought of it as we were – as you

were going through the verdict form. You don’t have a six-person verdict.

There is only one plaintiff. I understand the reason for breaking it down. I

mean, I think our request was just award X dollars to plaintiff. That’s what

the statute requires.

       There is only one award that is allowed. You accepted plaintiffs

which requested to be broken down among the three. If that’s going to

happen in order to be – for it to be an appropriate verdict, at least six of the

eight and the yeah, the same six of the eight have to answer each –

       MR. REINS: I understand that. I was asking if you have authority.

       MR. ANSPACH: My authority is there’s not a verdict.

       MR. REINS:       I didn’t think that your verdict forms had that
                                                                                 -29-


instruction.

       MR. ANSPACH: I thought ours was just how much do you award in

favor of the plaintiff,

       ***

       MR. REINS: * * * Now, in the absence of authority, that is not my

understanding of the law, that it has to be the same six people. * * *

       MR. ANSPACH: The same six people have to agree on a verdict.

       THE COURT:          Yes. I am kind of leaning that way.            My

understanding is that you have a general verdict and then the

interrogatories are kinda [sic] broken down; but the interrogatories in and of

themselves are not a verdict, I don’t believe. It’s just a way of breaking

down the findings of the jury so I do believe all six –

       MR. REINS: Okay.

       THE COURT: -- have to be the same six –

       MR. REINS: At least.

       THE COURT: -- At least the same six.

       MR. ANSPACH: And actually what I’ve done in the past you have

the verdict form which is we award X dollars and then you might have five

interrogatories and I know the law is if there is inconsistency between the

interrogatory answers and the jury verdict form * * * I have had cases where

the jury deliberates; the interrogatory answers takes [sic] precedence over

the jury verdict forms so for safety’s sake for everybody –

       MR. REINS: Okay.
                                                                                            -30-


              MR. ANSPACH: -- I think you need to go over that.

              THE COURT: All right.

              MR. ANSPACH: Thank you, sir.

Transcript of Proceedings, Vol. II, pp. 301-305.

       {¶ 73} No further comments were made.           Following this discussion, the court

instructed the jury that at least six jurors would have to agree on an amount, and that the

same six jurors would have to agree with respect to all the beneficiaries. Id. at 305-306.

       {¶ 74} When the jury returned the interrogatories and verdict form, all eight

members of the jury panel had agreed and signed with respect to the damages findings

for all three beneficiaries. Id. at pp. 307-308. While the individual amounts found by the

jury varied somewhat, the total amount was $1,100,000.              Subsequently, the court

entered judgment of $1,100,000 against HCR and in favor of Howard on behalf of the

wrongful death beneficiaries. See Doc. #447.

       {¶ 75} As was noted, Howard contends that HCR waived objections to the

instructions by failing to object. Civ.R 51 provides that “[o]n appeal, a party may not

assign as error the giving or the failure to give any instruction unless the party objects

before the jury retires to consider its verdict, stating specifically the matter objected to and

the grounds of the objection.” The Supreme Court has stressed that “failure to timely

advise a trial court of possible error, by objection or otherwise, results in a waiver of the

issue for purposes of appeal.” (Citations omitted.) Goldfuss v. Davidson, 79 Ohio St.3d

116, 121, 679 N.E.2d 1099 (1997).

       {¶ 76} After considering the record, we conclude that HCR, whatever its prior

objections were, agreed with the interrogatories and verdict form, and is precluded from
                                                                                           -31-


raising the issue on appeal. During the discussion among the parties and court, HCR

told the court that everything the court had said was "absolutely right" and that HCR

understood why the court had broken down the damages. From these comments, one

could not reasonably conclude that HCR was actually objecting to the interrogatories and

verdict form. Rather than disagreeing with the court’s choice, HCR's concern was that

all the individual interrogatories be signed by at least six of the same jurors. The trial

court agreed and instructed the jurors to do this. Notably, the verdict was unanimous,

with all eight members of the panel agreeing.

       {¶ 77} As a result, waiver does not even apply, since HCR agreed with the court.

Even if this were otherwise, and we were to consider the matter on the basis of plain error,

we find no error, let alone, plain error.

       {¶ 78} “In appeals of civil cases, the plain error doctrine is not favored and may be

applied only in the extremely rare case involving exceptional circumstances where error,

to which no objection was made at the trial court, seriously affects the basic fairness,

integrity, or public reputation of the judicial process, thereby challenging the legitimacy of

the underlying judicial process itself.” Goldfuss, 79 Ohio St.3d 116, 679 N.E.2d 1099, at

syllabus.

       {¶ 79} According to HCR, the trial court interfered with the jurisdiction of the

probate court, which is entrusted with deciding the amount wrongful death beneficiaries

are to receive.   It is true that R.C. 2125.03(A)(1) indicates that the court who appointed

the personal representative is to adjust the share of each beneficiary in an equitable

manner. An exception is made where all the beneficiaries are “on an equal degree.” Id.

       {¶ 80} In this case, there were three beneficiaries, who as children of the decedent,
                                                                                          -32-

stood on “an equal degree of consanguinity to the deceased person.” Id.                In this

situation, the beneficiaries may adjust their own shares. If they do not, “the court shall

adjust the share of each beneficiary in the same manner as the court adjusts the shares

of beneficiaries who are not on an equal degree of consanguinity to the deceased person.”

       {¶ 81} Thus, the probate court may not even need to be involved in an adjustment.

However, even if the probate court’s intervention among beneficiaries is required, the trial

court’s judgment did not interfere, because the court entered judgment in favor of the

appointed representative in an amount ($1,100,000), that reflected the total of the sums

calculated by the jury. HCR fails to suggest how this was prejudicial, other than saying

that the trial court created the potential for inconsistent verdicts. However, the trial court

entered a verdict for the representative in the total amount; it did not enter judgment in

favor of individual beneficiaries.

       {¶ 82} The Fifth District Court of Appeals rejected a similar argument in Dean v.

All. Obstetrics, Inc., 5th Dist. Stark No. CA-8885, 1993 WL 35673 (Jan. 28, 1993). There,

the trial court awarded the personal representative a total amount of $1,004,510.46. Id.

at *1. The jury had answered an interrogatory requiring it to itemize the damages of

various beneficiaries, and allocated various amounts to the decedent’s husband, child,

parents, and brother.     Id. at *4.   The total of these amounts equaled the amount

awarded to the personal representative. Id. The Fifth District concluded that the jury’s

response did not impair the probate court’s discretion in distributing wrongful death

damages.     In this regard, the court stated that “[t]here is a fundamental distinction

between the distribution of the amounts awarded and the determination of damages from

which the distribution is made. By submitting this interrogatory to the jury, the trial court
                                                                                         -33-

properly allowed the jury to perform its statutory function under R.C. 2125.02.” Id. at *5.

       {¶ 83} We agree. Dean’s conclusion is consistent with R.C. 2125.02(A)(2), which

states that a jury “may award damages authorized by division (B) of this section, as it

determines are proportioned to the injury and loss resulting to the beneficiaries described

in division (A)(1) of this section by reason of the wrongful death * * *.”    Again, so long

as the total judgment is entered in favor of the decedent’s personal representative, it is

hard to fathom how any interference with the probate court would occur.

       {¶ 84} HCR’s second argument under this assignment of error is that the jury also

split damages into two components – mental anguish and loss of consortium. 4

According to HCR, R.C. 2125.02(A)(2) does not allow a jury to award separate amounts;

instead, the allocation of damages is left to the probate court. Again, HCR did not object

to this at trial. In fact, as indicated above, HCR agreed with the trial court.

       {¶ 85} Assuming for the sake of argument that we were required to consider this

issue on a plain error basis, we find no error, let alone the kind of error that requires

reversal on a plain error basis.

       {¶ 86} Nothing in R.C. 2125.02(A)(2) precludes a jury from considering separate

elements of damages. See Orren v. BWF Corp., 12th Dist. Warren No. CA2013-11-112,

2015-Ohio-62, ¶ 55 (noting that “while * * * Ohio's Wrongful Death statute does not


4 Technically, the interrogatories listed “loss of companionship, attention, advice,
guidance, and counsel,” not “consortium.”         See Doc. #443.      However, adult,
emancipated children may recover for loss of parental consortium, which “may include
services, society, companionship, comfort, love, guidance, and solace.” (Citation
omitted). Rolf v. Tri State Motor Transit Co., 91 Ohio St.3d 380, 382, 745 N.E.2d 424
(2001). Consortium is also included in R.C. 2125.02(B)(3) as a loss of society suffered
by surviving spouses, dependent children, parents, or the decedent’s next of kin.
Donald’s adult children were his next of kin, as he had no surviving spouse. R.C.
2105.06(A).
                                                                                         -34-


expressly divide the possible compensatory damages into past and future categories, * *

* the statute does not prohibit such a consideration of past and future damages”).

       {¶ 87} In Orren, jury interrogatories had considered separate items listed in the

statute like loss of society and mental anguish, and the defendant argued that an

interrogatory was impermissible because “it broke down the mental anguish and loss of

love and other factors into categories to compensate for both past mental anguish/loss of

love and future mental anguish/loss of love.” Id. The court found the interrogatory

proper, for the reason mentioned. Id. at ¶ 55-60. Although the real objection in Orren

was to allowance of past and future mental anguish, the court, nonetheless, did not

consider the interrogatory improper because it asked the jury to consider separate items

of injury rather than simply asking a general question about “compensatory damages.”

       {¶ 88} As was noted, R.C. 2125.02(A)(2) states that the jury “may award damages

authorized by division (B) of this section, as it determines are proportioned to the injury

and loss * * *” suffered by the beneficiaries. The compensatory damages listed in R.C.

2125.02(B) include: “(1) Loss of support from the reasonably expected earning capacity

of the decedent; (2) Loss of services of the decedent; (3) Loss of the society of the

decedent, including loss of companionship, consortium, care, assistance, attention,

protection, advice, guidance, counsel, instruction, training, and education, suffered by the

surviving spouse, dependent children, parents, or next of kin of the decedent; (4) Loss of

prospective inheritance to the decedent's heirs at law at the time of the decedent's death;

and (5) The mental anguish incurred by the surviving spouse, dependent children,

parents, or next of kin of the decedent.” There is no indication in the statute that a jury

cannot consider separate items of damages, rather than lumping all damages together.
                                                                                         -35-


         {¶ 89} As we mentioned before, HCR fails to illustrate how any possible prejudice

occurred. Consistent with the statute, the court allowed the jury to consider the items

listed in R.C. 2125.02(B)(3) and (5). Furthermore, for the reasons previously stated, the

trial court did not interfere with the probate court’s role.     Accordingly, the Second

Assignment of Error is overruled.



                                      IV. Closing Argument

         {¶ 90} HCR’s Third Assignment of Error states that:

               The Trial Court Erred by Failing to Cure the Unfairly Prejudicial and

         Precluded Statements of Appellee’s Counsel During Oral Argument.

         {¶ 91} Under this assignment of error, HCR contends that the judgment must be

reversed due to misconduct of Howard’s counsel during closing argument.                  As

background, HCR argues that it was persuaded to admit liability because the trial court

had overruled its motion for judgment on the pleadings and had also overruled its motion

in limine, which asked the court to prevent Howard from using the word “kill” during trial.

         {¶ 92} HCR contends that the court subsequently reversed its prior decision on the

use of the word “kill,” based on HCR’s admission of liability. In addition, HCR contends

that despite the court’s admonition that it did not want to hear arguments about the

inadequacy of the nursing home, counsel for Howard improperly stated during closing

argument that HCR had “killed” Donald. Based on these facts, HCR maintains that the

court’s refusal to sustain HCR’s objection or to issue a curative instruction warrants a new

trial.

         {¶ 93} The Supreme Court of Ohio has acknowledged that “counsel should be
                                                                                         -36-


afforded great latitude in closing argument, * * * and that the determination of whether the

bounds of permissible argument have been exceeded is, in the first instance, a

discretionary function to be performed by the trial court * * *.” (Citations omitted.) Pesek

v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495, 501, 721 N.E.2d 1011 (2000).

Consequently, “the trial court's determination will not be reversed absent an abuse of

discretion.” Id. “However, ‘[w]here gross and abusive conduct occurs, the trial court is

bound, sua sponte, to correct the prejudicial effect of counsel's misconduct.’ ” (Emphasis

sic.) Id., quoting Snyder v. Stanford, 15 Ohio St.2d 31, 37, 238 N.E.2d 563 (1968).

       {¶ 94} Our review of the record indicates that the trial court did not abuse its

discretion. As an initial point, HCR’s representation of the background relies on matters

that are not found in the record, and are irrelevant in any event.

       {¶ 95} On March 16, 2016, HCR filed a motion for judgment on the pleadings,

asking the court to dismiss the survival claims in Counts One, Three, and Four of the

Second Amended Complaint. The court granted this motion on March 31, 2016, leaving

only wrongful death claims to be tried.

       {¶ 96} As was noted, the jury trial on both liability and damages was initially

scheduled for April 5, 2016. On March 28, 2016, HCR filed an “omnibus” motion in limine

objecting to 27 matters. This was followed by 22 separate memoranda filed on March

31, 2016, which addressed the matters raised in the omnibus motion in limine.

According to the discussion at the intended trial on April 5, 2016, none of these

memoranda were served on Howard’s counsel prior to trial. April 5, 2016 Transcript of

Proceedings, p. 12. The trial court also indicated it had not seen any of HCR’s motions

until the day before the trial. Id. at p. 13.
                                                                                          -37-


       {¶ 97} One liminal request asked the court to preclude Howard from using

variations of the word “kill” when arguing the wrongful death claim. HCR argued that

such use would be inflammatory and prejudicial. See Doc. #234, filed on March 31,

2016. On April 5, 2016, the court convened trial and began by issuing rulings on the

various motions in limine that had been filed by both sides. Some were sustained and

some were overruled. Id. at pp. 1-8. Among other things, the court overruled the motion

in limine precluding arguments using the word “kill.” Id. at p. 7. The court did not

elaborate on its reasons for overruling the motion.

       {¶ 98} After the court finished these rulings and asked for the jury to be brought in,

HCR asked to put an admission into the record. HCR’s counsel stated, in this regard

that: “There is one thing that is important to put on the record with regard to issues in the

trial that remain. I was not able to do it until the trial began.” (Emphasis added.) Id. at

p.8. The following exchange then occurred:

              Mr. Anspach [HCR’s counsel]: If I may just read this into the record

       and then I will supply it to Mr. Reins [Howard’s counsel].

              The Court: Well, I’m not sure what it is.

              Mr. Anspach: In light of this Court’s –

              The Court: I haven’t given you permission to bring it into the record

       yet. What is it?

              Mr. Anspach: On the wrongful death claims that remain in this case,

       the three claims that still remain, the defendants are prepared to admit

       liability so that the only issues that remain are damages.

              The Court: Okay, you can proceed.
                                                                                          -38-

                Mr. Anspach: I have an admission to that effect in a proposed order.

                The Court: You can proceed.

                Mr. Anspach: Thank you. And we are prepared to file and read

       into the record an admission of defendants * * * as to plaintiffs [sic] wrongful

       death claim only, which are the only claims remaining in the case after the

       Court’s entry of March 31, 2016, dismissing the survival claims. * * *

(Emphasis added.) April 5, 2016 Transcript of Proceedings, pp. 8-9.

       {¶ 99} HCR’s counsel then read the admission into the record. He also stated

that HCR was “lodging a proposed order” and read the proposed order into the record.

Id. at pp. 9-11. At that point, the trial court asked Howard’s counsel if the admission was

acceptable to the plaintiff. Howard’s counsel noted that they “had been spending days

designating depositions” with HCR’s lawyers and coordinating and subpoenaing

witnesses, and had “no clue” this was to happen. Id. at p. 12.            After some further

discussion, HCR’s counsel stated:

                The one other thing I would like to say with regard to the timing, and

       I would be candid with the court, as Mr. Lance Reins was.

                This, in our opinion, could not be done until the commencement of

       trial because if it were done prior to commencement of trial, it would have

       left open the possibility, if Plaintiff chose, to do so a voluntary dismissal

       without prejudice and a re-filing starting all over, and so in order for this

       admission to take place effectively it needed to be made when the trial

       commenced and we got our first available moment for doing so.

Id. at p. 15.
                                                                                          -39-


       {¶ 100} HCR's counsel also stated that “candidly, [HCR] could not even consider

doing this [making the admission of liability] until [HCR] received the Court's order of

March 31st, last Thursday, granting the motion for judgment on the pleadings regarding

all the survival claims * * *.” April 5, 2016 Transcript of Proceedings, p. 29.

       {¶ 101} The above facts reveal that the admission of liability had nothing to do with

the court’s ruling on the motion in limine, because the court did not issue a ruling until the

day of trial. Not being aware of what this ruling would be, HCR arrived with a written

admission and proposed order, and had clearly contemplated the matter prior to the

court’s ruling.

       {¶ 102} As background for this assignment of error, HCR also relies on an

allegation that it was persuaded to admit liability because the trial court denied the Civ.R.

10(D)(2) motion for judgment on the pleadings. In this regard, we note the following

facts. The case was originally filed in April 2014. Discovery ensued. In October 2014,

the trial court dismissed Howard’s survival claims. Discovery continued. In early June

2015, the trial court overruled HCR's motion for judgment on the pleadings, which was

based on Civ.R. 10(D)(2). Discovery again continued. In January 2016, the trial court

allowed Howard to file a second amended complaint, which added survival claims back

into the case, based on Howard's contention that they were not barred by the statute of

limitations.   Discovery continued to take place, including the deposition of Howard's

medical expert, Dr. Fannin, which was taken on March 22, 2016. The admission of

liability occurred on April 5, 2016, almost a year after the trial court denied HCR’s motion

for judgment on the pleadings.

       {¶ 103} HCR did not mention anything about the denial of this motion when it
                                                                                      -40-


admitted liability.     Instead, HCR’s only comment was that it could not contemplate

admitting liability until it received the court’s order of March 31, 2016, dismissing the

survival claims. Thus, the record contains no facts supporting HCR’s contention.

       {¶ 104} Furthermore, even if HCR’s claims had been substantiated in the record,

HCR’s motivation is irrelevant.       HCR could have been motivated by unfavorable

depositions of Howard’s experts, by a desire not to have the jury hear evidence

concerning the alleged negligence of HCR’s employees, or by a myriad of other

considerations.       None of these factors have anything to do with whether prejudicial

misconduct occurred.

       {¶ 105} The trial on damages took place on September 27-28, 2016.             On

September 20, 2016, HCR filed another “omnibus” motion in limine, which contained eight

items, including a request to prevent Howard from using the word “kill.” On September

26, 2016, the trial court sustained the omnibus motion, without discussing any particular

item. See Doc. #435, Entry, p. 1.

       {¶ 106} As part of the factual background for its position, HCR also relies on the

trial court’s warning not to discuss adequacy of care.      The implication here is that

Howard’s mention of the word “kill” was even more egregious in light of the court’s

warning. What occurred, in context, however, was as follows.

       {¶ 107} Before trial testimony began, the parties and the court discussed whether

HCR was entitled to present testimony about the fact that, after Donald’s death, Howard

had visited his mother-in-law, who was a resident at Heartland of Springfield. HCR

argued that this evidence was admissible as an indication of how Howard was

“processing” his grief. Howard objected because he had no choice in the placement of
                                                                                           -41-


his mother-in-law at Heartland. He expressed concern over prejudice, insofar as HCR

might imply to the jury that HCR’s facility could not have been that bad, since Howard’s

mother-in-law had been placed there. Transcript of Proceedings, Vol. II, pp. 153-165.

The trial court ultimately decided to allow the testimony, stating that “I think it’s relevant,

but again, I don’t want to hear any arguments about – I want this issue to be limited to the

effects of the state of mind or the state of mind of the adult children and not to be – no

arguments to be made with respect to the adequacy or inadequacy of the nursing home.”

Id. at p. 165.

       {¶ 108} Without excusing any deviation from the ruling on use of the word “kill,” the

fact is that the court’s instruction about commenting on the facility’s adequacy were not

directed to anything improper Howard had done, or intended to do. Given the context,

the instruction was directed more towards HCR than Howard.

       {¶ 109} During voir dire and the trial testimony, Howard did not mention the word

“kill” or words to that effect. There was discussion, initiated by HCR during voir dire,

about the reasons HCR had delayed in admitting liability for Donald’s death.             HCR

stressed that it had made the decision “after years of investigation, depositions * * *.”

Transcript of Proceedings, Vol. I, p. 121. In opening statement, counsel for HCR again

brought up the investigation and tendered an apology to Donald’s family. Id. at pp. 175-

178. HCR then commented once more on the delay in admitting liability and stressed

the amount of investigation that needed to be done before an admission could be made.

Id. at pp. 179-180.

       {¶ 110} During closing argument, both sides commented on the delay issue.

Transcript of Proceedings, Vol. II, pp. 238-239 (Howard) and 256-261 (HCR). During
                                                                                      -42-


HCR’s closing argument, HCR’s counsel stated that “And by the way, we come into the

courtroom on the day set for trial and we say okay we are admitting liability. We throw

in the towel on liability. Just put the damage witnesses on. And guess who asked for a

continuance?” Id. at pp. 260-261.

       {¶ 111} During rebuttal argument, Howard’s counsel responded to this statement,

during which the following exchange occurred:

              MS. QUEZON: * * * So to blame us for that continuance when they

       did an 11th hour concession that they killed this man, excuse me, that they

       caused the death of this man, is just inappropriate.

              MR. ANSPACH: Your Honor, I have to object at this point.

              MS. QUEZON: I changed the terminology, Your Honor. That was

       the wrong terminology.        This is a wrongful death case where their

       negligence caused the wrongful death.

Transcript of Proceedings, Vol. II, pp. 283-284.

       {¶ 112} The trial court did not rule on the objection, and HCR did not request a

curative instruction then, or after the court instructed the jury.5

       {¶ 113} Courts are not required to give limiting instructions unless they are

requested to do so. (Citations omitted.) Taylor v. Davignon, 8th Dist. Cuyahoga No.

79019, 2001 WL 1110338, *2 (Sept. 13, 2001). Furthermore, “failure to request a

curative instruction at the time error can be avoided or corrected precludes any claim of

error on appeal where it appears that a curative instruction would have obviated the



5  The court did subsequently instruct the jury that both sides’ argument about delay was
irrelevant. Transcript of Proceedings, pp. 288-289.
                                                                                          -43-

potential prejudice.”    (Citations omitted.)     Id.   Accord Mercer v. Bok, 2d Dist.

Montgomery No. CA 9383, 1986 WL 4016, *3 (Mar. 27, 1986); State v. Root, 2d Dist.

Montgomery No. 20366, 2005-Ohio-448, ¶ 8. Since HCR failed to request a curative

instruction, any alleged error has been waived.

       {¶ 114} Even if we considered the matter under a plain error analysis, we find no

error, let alone, plain error.      One isolated remark was made, and trial counsel

immediately realized and corrected the mistake before HCR objected.             “Counsel is

afforded wide latitude in addressing the jury during closing argument.”           (Citations

omitted.) Knepler v. Cowden, 2d Dist. Montgomery No. 17473, 1999 WL 1243349, *4

(Dec. 23, 1999). “A judgment will not be reversed on the grounds of misconduct in

closing arguments unless the circumstances are so reprehensible as to constitute

prejudice.”   (Citation omitted.)   Id.   Accord Snowden v. Ekeh, 2016-Ohio-4976, 67

N.E.3d 1255, ¶ 98 (2d Dist.). After reviewing the transcript, we found no evidence of

reprehensive conduct.

       {¶ 115} HCR also points out that Howard’s counsel encouraged the jury to

speculate that HCR admitted liability in order to hide evidence from the jury.          See

Transcript of Proceedings, Vol. II, p. 284. HCR objected, and after a bench conference,

the court told the parties that “just so it’s clear, I know the defense has been accusing the

plaintiffs [of] waiting until the last minute to file a claim. The plaintiffs are blaming the

defendants for not entering an admission until the 11th hour. I’m not so sure who started

the argument, but I don’t think any of that is relevant.” Id. at 287.

       {¶ 116} The court then said, “I’ve allowed some argument because I do feel like

somebody opened the door, and I felt compelled to let people respond; but you’ve said
                                                                                          -44-


you’re ready to move on. And I am going to give the jury just a limiting instruction on that

whole issue.” Id. The court then gave the jury the instruction mentioned above, i.e.,

that the parties’ argument about delay was irrelevant.

       {¶ 117} As was noted, HCR is the party who initially raised the point about delay,

its need to thoroughly investigate the claim before admitting liability, and so forth, during

voir dire. Transcript of Proceedings, Vol. I, pp. 62-63. When HCR raised the issue

again during voir dire, a juror asked if it had taken years for the liability decision to be

reached.   Id. at p. 121.   At that point, the trial court asked Howard’s counsel if he

objected to the jurors just being told how long the case had been pending. Id. at p. 122.

       {¶ 118} Howard’s counsel responded that “Yeah, I think counsel said it’s taken

years for them to make that decision.         I think the cat is out of the bag.        The

representation was just made[,] so.” Id. At that point, the trial court told the jury that it

was not unusual for civil cases to be pending for a year or two. Id.

       {¶ 119} Howard did not refer to this issue during its opening statement. However,

during opening statement, HCR’s attorney again raised the issue of delay and how long

it had taken to investigate the case, to make sure HCR was being represented properly.

       {¶ 120} As the trial court noted, both parties used this issue for their own purposes.

However, HCR opened the door by introducing the matter during voir dire and then

discussing it again during opening statement. In addition to giving the limiting instruction,

the trial court gave standard instructions concerning the fact that counsel’s statements

were not evidence and that “sympathy was not to be a factor” in the jury’s decision. Id.

at pp. 293 and 305. We presume the jury followed the court’s instructions. See, e.g.,

Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 18. Parties are
                                                                                     -45-


also not permitted to take advantage of error they invited or induced a court to make.

State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359, 626 N.E.2d 950 (1994)

      {¶ 121} Based on the preceding discussion, we find neither error nor plain error

concerning the points that have been raised. Accordingly, HCR’s Third Assignment of

Error is Overruled.



                      V. Instruction on Intervening and Superseding Cause

      {¶ 122} HCR’s Fourth Assignment of Error states that:

             The Trial Court Erred by Failing to Instruct the Jury on the Law of

      Intervening and Superseding Cause and for Arbitrarily Omitting Additional

      Jury Instructions Proposed by Appellants.

      {¶ 123} Under this assignment of error, HCR contends that the trial court erred in

failing to give a requested instruction on intervening and superseding cause. According

to HCR, the jury should have been instructed that HCR was only responsible for mental

anguish caused by its actions. The focus of HCR’s argument is the fact that David

Howard’s wife passed away two years after Donald’s death.

      {¶ 124} HCR relies on Duckworth v. Lutheran Med. Ctr., 8th Dist. Cuyahoga No.

65738, 1995 WL 33070 (Jan. 25, 1995), for the proposition that “[i]t is well established

that relying on general proximate cause instructions while refusing to give an

intervening/superseding cause instruction * * * constitutes reversible error.”   Brief of

Appellants, p. 17. HCR contends, that as in Duckworth, HCR elicited evidence that an

intervening and superseding cause may have existed for David Howard’s mental anguish.

Therefore, HCR argues that the court should have given its proposed instruction No. 10.
                                                                                      -46-


       {¶ 125} We find this argument concerning, as HCR’s proposed jury instruction on

intervening and superseding cause was not Instruction No. 10; instead, HCR’s proposed

Instruction No. 12 was titled “Intervening and Superseding Cause.” The body of this

instruction stated that:

              Causal Connection is broken when another cause, fully independent

       of the wrongful death of Donald Lee Howard, intervenes and completely

       removes the effect of the wrongful death of Donald Lee Howard [sic]

       becomes the proximate cause of damage.

Doc. #425, p. 13, citing Ohio Jury Instructions, CV Section 405.05 (Rev. Jan. 10, 2004);

Doc. #430, p. 13.

       {¶ 126} Howard objected to this instruction because it was related to causation,

which was not at issue, and because no evidence supported the instruction. Doc. #437,

p. 3. After Howard filed his objections, HCR filed amended proposed jury instructions on

September 28, 2016 (during trial). See Doc. #442. The amended instructions do not

include proposed instruction No. 12. Id. In another document filed on September 28,

2016, HCR explained that “[w]ith respect to Plaintiff’s objection to Defendants’ proposed

instruction NUMBER 12, Defendants have deleted this proposed jury instruction for the

reason cited by Plaintiff.” (Bolding and underlining in original) Doc. #444, Reply to

Plaintiff’s Objections to Defendant’s Proposed Jury Instructions, p. 3.

       {¶ 127} Accordingly, HCR agreed with Howard that an intervening and

superseding cause instruction was inappropriate because it related to causation and

because it was not supported by the evidence.

       {¶ 128} Instruction 10, which HCR asserts is the instruction that should have been
                                                                                       -47-


given on intervening and superseding cause, is entitled “Negligence and Causation:

Separate and Distinct.” Doc. #425; p. 11; Doc. #430, p. 11; Doc. #444, p. 11. This

instruction states, in all three filings, that:

                Negligence and proximate cause are separate and distinct issues.

       Although Defendants have admitted that the actions of one or more of them

       caused Donald Howard’s death, the Plaintiff must still prove that the

       damages Plaintiff seeks were proximately caused by Donald Howard’s

       wrongful death.

Id., citing Ohio Jury Instructions, CV Section 311.11 (Rev. Oct. 22, 2011).

       {¶ 129} Howard objected to this instruction because the model instruction used

damages and causation interchangeably, and would be confusing to the jury, since the

only issue was compensation for Howard’s death, if any. The trial court declined to give

HCR’s instructions, and instructed the jury that:

                It is a fundamental purpose of the law that parties damaged by the

       wrongful conduct of others are entitled to be made whole. Thus in any

       action involving the award of damages, the objective is to compensate the

       injured party for their loss and to make the injured party so far as possible

       whole.

                The mere difficulty of assessing damages does not preclude an

       award where the fact of injury clearly appears.       Because some of the

       elements of Donald Lee Howard’s family damages cannot be precisely

       calculated, the exact amount of damages that would make the parties whole

       is left to your discretion within the allowable elements under the law.
                                                                                        -48-


                You must exercise that discretion reasonably and within the range of

       the proofs in the case. You should determine the amount necessary to

       make Donald Lee Howard’s family whole in light of the circumstances of this

       case.

                You will be asked to determine what sum of money will compensate

       his beneficiaries for the injury and loss of them resulting from his wrongful

       death.

Transcript of Proceedings, Vol. II, pp. 295-296. Following these comments, the court

instructed the jury on the two pertinent elements of recovery under the wrongful death

statute – loss of society and mental anguish. Id. at 296.

       {¶ 130} The trial court’s instructions were correct, and the instruction on

negligence and causation was unnecessary. In the first place, HCR never contended

that Donald’s death failed to cause any damages. Beginning in voir dire, HCR noted that

it had admitted liability and that the jury was to decide damages. As an example, HCR

stated at the beginning of voir dire that “with our admission we’ve taken that decision [of

admitting liability] and said you don’t have to hear all of that because under all the

circumstances and after a lot of time and investigation we made the decision to admit

liability, so that’s what’s left for you is still the issue of damages. How much money will

adequately compensate Mr. Howard, his brother, Guy, his sister Maryann.” (Emphasis

added.) Transcript of Proceedings, Vol. I, p. 63.

       {¶ 131} HCR then told the jury it would be given guidance on the damages, that

the judge “will tell you what the damages are that are allowable under the law and then

based on that you will make your decision.” Id. at p. 64.
                                                                                           -49-


       {¶ 132} This theme continued, with HCR stating “there is one other important thing

because it’s the plaintiff who is seeking the money even though we have admitted liability,

so that we expect you’re gonna [sic] award money, the proof, the proof of what will

reasonably and adequately compensate Mr. Howard and his brother Guy and his sister

Maryann, the burden of proof, that’s the technical legal term, still rests with the plaintiff.”

Id. at p. 65. See also further comments by HCR: [p. 81 (“through our admission, we have

conceded they are entitled to do [sic] a recovery * * * are you okay with the fact that

Heartland of Springfield is to come in and say yeah, we owe them but it’s not anywhere

near numbers that you have heard?”); p. 85 (“you’re gonna [sic] have to decide * * * what

is the amount of money that will adequately compensate [them] for the death of their

dad”); and pp. 119-120 (“[i]t’s just a matter of what will compensate reasonably for the

loss sustained under the law as the judge gives it to you”)].

       {¶ 133} In closing argument, HCR again made similar remarks. See Transcript of

Proceedings, Vol. II, p. 255 (“the second step in atonement after apology is amends. * *

* You have heard numbers and suggestions from Mr. Reins.                   Amends must be

reasonable under all the circumstances.”); p. 258 (“* * *we didn’t give him [Donald] the

care that we should have in a certain respect and therefore we admit it. Tell us what the

award should be. Tell us what the amends should be.”); p. 266 (“We have admitted an

error. We have made an apology. * * * Now it’s a matter of making amends.”); p. 267 (“ *

* * what can I do to make it right? That’s what we are leaving to you to tell us. * * *

Carefully and lawfully use the Ohio Statute in determining damages.”); p. 268 (“The Court

already told you yesterday there is no place in this courtroom in this case for punishment.

It is compensation only.”); and pp. 268-270 and 275-278 (suggesting $107,762.25 as
                                                                                        -50-


appropriate compensation, which would permit the beneficiaries to buy items like a

conversion van and three big-screen televisions, and to pay for lawn care and snow-

removal for ten years).

      {¶ 134} In view of the above discussion, the trial court did not need to include an

instruction on negligence and proximate cause, and did not err in failing to give HCR’s

requested instruction.

      {¶ 135} As final matter, HCR argues that the trial court arbitrarily refused to allow

counsel to argue the merits of HCR’s instructions. By the time of trial, HCR had filed

several sets of instructions, and both sides had filed memoranda regarding objections to

the instructions. HCR had ample opportunity to present its position. In addition, HCR

made no comment when the court indicated it was going to use Howard’s instructions.

See Transcript of Proceedings, Vol. II, p. 237.

      {¶ 136} Based on the preceding discussion, the Fourth Assignment of Error is

overruled.



                               VI. Dismissal of Survival Claims

      {¶ 137} Howard has presented two cross-assignments of error. His First Cross-

Assignment of Error states as follows:

             The Trial Court Erred in Granting HCR Judgment on the Pleadings

      Dismissing Counts 1, 3, and 4 of the Second Amended Complaint as These

      Claims Were Not “Medical Claims” as Defined by R.C. 2305.113.

      {¶ 138} Under this assignment of error, Howard contends that the trial court erred

in granting HCR’s motion for judgment on the pleadings with respect to Counts One,
                                                                                       -51-


Three, and Four of the Second Amended Complaint.             According to Howard, the

corporate defendants were not “medical providers,” and Howard’s survival claims were

not “medical claims” under R.C. 2305.113; instead, they were claims for negligence.

       {¶ 139} “A motion for judgment on the pleadings tests the allegations of the

complaint and presents questions of law.” (Citations omitted.) Franks v. Ohio Dept. of

Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048, 958 N.E.2d 1253, ¶ 5 (10th Dist.)

As a result, the court’s decision is reviewed de novo, which means an appellate court

conducts an independent review without deferring to the trial court's decision. (Citations

omitted.) Portfolio Recovery Assocs., L.L.C., 2d Dist. Montgomery No. 26692, 2016-

Ohio-2962, ¶ 6.

       {¶ 140} In October 2014, the trial court dismissed several counts in the First

Amended Complaint, concluding that they contained “medical claims” under R.C.

2305.113(E)(3), and were barred because they were not timely filed. The trial court

subsequently allowed Howard to file a second amended complaint. After this complaint

was filed, HCR filed a motion for judgment on the pleadings, again contending that the

claims for non-lethal injuries were “medical claims” and were barred because the

complaint was not filed within one year, as required by R.C. 2305.113(A). On March 31,

2016, the trial court granted the motion for judgment on the pleadings and dismissed

Counts One, Three, and Four.       The court again held that these counts contained

“medical claims” and were barred by the statute of limitations. The court did not discuss

its reasoning.

       {¶ 141} Subsequently, after HCR admitted liability, the court allowed Howard to

address the issue of whether its survival claims should be reinstated. However, the court
                                                                                           -52-


ultimately rejected Howard’s position. The court agreed with Howard that “the corporate

defendants have taken ‘contradictory and inconsistent positions throughout the history of

this litigation simply because it benefits their position at the time’ and that therefore they

are being disingenuous in this litigation.” Doc. #405, May 23, 2016 Entry, p. 2. This

comment was based on the fact that “the corporate defendants admitted in their motion

for judgment on the pleadings that they were medical providers in order to secure the

protection of the one-year statute of limitations but later admitted in their summary

judgment that they are not medical providers in hopes of being dismissed from the

wrongful death action.” Id. at p. 1.

       {¶ 142} The court stated that it respected Howard’s “desire to inject some integrity

into this litigation,” but concluded that it would rely on the law in making its decisions. Id.

at p.2. The court then reiterated its prior holding (again without discussion) that the

corporate defendants were medical providers under R.C. 2305.113, and that the survival

claims were barred by the statute of limitations.

       {¶ 143} R.C. 2305.113(A) applies a one-year statute of limitations to medical

claims. As pertinent here, 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, 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, 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.” The definition of “medical claim” also extends to the following
                                                                                            -53-


items:

               (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.

R.C. 2305.113(E)(3)(a)-(d)6

         {¶ 144} According to Howard, before the one-year limitations period in R.C.

2305.113(A) can be applied, a conjunctive test must be satisfied. First, the claim “must

be asserted against one or more of the specifically enumerated medical providers” and

second, the claim must arise “out of medical diagnosis, care, or treatment.” Estate of



6 R.C. 3721.17 pertains to grievances filed in connection with violations of nursing home
residents’ rights.
                                                                                       -54-

Stevic v. Bio-Med. Application of Ohio, Inc., 121 Ohio St.3d 488, 2009-Ohio-1525, 905

N.E.2d 635, ¶ 18.    Howard argues that neither prong was met, because the survival

claims were not "medical claims," and the defendants in question - the corporate

defendants and the nursing home administrator – were not medical providers as

enumerated in R.C. 2305.113(E).

      {¶ 145} Howard is correct regarding the holding in Stevic. There, the court stated

that “ ‘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 or more of the

specifically enumerated medical providers and (2) the claim arises out of medical

diagnosis, care, or treatment.” Id. The issue before us, thus, involves two parts: (1)

whether the “corporate defendants” and the administrator were medical providers; and

(2) whether the claims in Counts One, Three, and Four of the Second Amended

Complaint arose from medical diagnosis, care, or treatment.

      {¶ 146} Under Civ.R. 12(C), a plaintiff is “entitled to have all the material

allegations in the complaint, with all reasonable inferences to be drawn therefrom,

construed in her favor as true.” (Citation omitted.) Peterson v. Teodosio, 34 Ohio St.2d

161, 165–66, 297 N.E.2d 113 (1973). Furthermore, because the motion presents only

issues of law, “determination of the motion for judgment on the pleadings is restricted

solely to the allegations in the pleadings.” (Citation omitted.) Id. As relevant here, the

“pleadings,” according to Civ.R. 7(A), are the complaint and answer.

      {¶ 147} Consequently, in considering the issues, we refer only to the Second

Amended Complaint and HCR’s Answer to the Second Amended Complaint, as those

are the matters that would have been considered in ruling on a motion for judgment on
                                                                                       -55-


the pleadings. We, therefore, will disregard the argument in Part “D” (pp. 19-21) of

HCR’s Brief responding to the cross-appeal, during which HCR refers to various corporate

agreements that were attached to a deposition.

      {¶ 148} The Second Amended Complaint stated that whenever the term

“Corporate Defendants” was used, the term referred to and included “HCR ManorCare,

Inc., HCR Manor Care Services, Inc. [correctly “LLC”], Heartland Employment Services,

LLC, and Heartland of Springfield, Ohio, LLC.” Doc. #137, ¶ 17.     The complaint further

stated, concerning all the “corporate defendants,” that they were corporations “engaged

in the custodial and personal care of elderly, helpless individuals who are chronically

infirm, mentally impaired, and/or in need of nursing care and treatment at Heartland of

Springfield.” Id. at ¶ 8, 9, 10, and 11. These paragraphs also stated that these entitles,

other than Heartland of Springfield, were not licensed as entities entitled to operate

Heartland of Springfield. Id.    HCR admitted the latter allegations. Doc. #158, ¶s 8,

9, 10, and 11.

      {¶ 149} The factual summary in the Second Amended Complaint indicated that

Donald was 78 when he was admitted at Heartland of Springfield, and that he remained

there for almost four months, until his death in April 2012. The summary further alleged

that as a result of Defendants’ failure to discharge obligations of care, Donald suffered

“catastrophic injuries, disfigurement, extreme pain, suffering, and mental anguish.” Id.

at ¶ 25. Among the wrongs allegedly inflicted that accelerated his deterioration beyond

the normal aging process were falls, pressure sores, weight loss, dehydration, infections,

sepsis and death. Id.

      {¶ 150} Count One alleged corporate negligence of the corporate defendants due
                                                                                         -56-


to a breach of duty in failing to properly manage, operate, and control Heartland of

Springfield. The listed negligence of these defendants included: lack of sufficient staffing

to meet the needs of residents; failure to implement adequate guidelines and procedures

for investigating and correcting deficiencies and licensure violations; failure to properly

allocate funding to comply with applicable statutes and regulations or to ensure sufficient

staffing, supplies, and food; and failure to recognize, timely report, and correct

noncompliance with statutes and regulations. Doc. #137, ¶s 38-45.

       {¶ 151} Count Three asserted claims against administrator defendants and John

Does 1 through 10. 7     The wrongs alleged in this count included the same general

allegations as Count One.        In addition, however, the staffing failure included the

following: failure to ensure that Donald had adequate hygiene and sanitary care, and

clean bed linens; failure to ensure that Donald received timely care assessments,

prescribed medication and diet; failure to protect Donald from accidental or intentional

injuries; failure to keep Donald comfortable and warm and prevent bed sores; and failure

to ensure that Donald was provided a safe environment free from abuse and neglect. Id.

at ¶s 54-63.

       {¶ 152} Finally, Count Four alleged nursing home violations by the corporate

defendants, John Does 1 through 10, and unidentified entities 1 through 10. The claims

in this count were essentially the same as those in Count One, but were based on breach

of contract, breach of duties created by any state statute or rule, or breach of applicable

federal statute or regulation.   Id. at ¶ 66.   According to Count Four, these failures


7 The administrator defendant was Kelly Meckstroth, who was dismissed from the action
by the court after the motion for judgment on the pleadings had been granted. Transcript
of Proceedings, Doc. #308, p. 4.
                                                                                          -57-


resulted in physical injuries to Donald, including “falls, pressure sores, weight loss,

dehydration, infections, sepsis,” and mental injuries, including “extreme pain, suffering,

mental anguish, embarrassment, and fright * * *.” Id. at ¶ 71.

       {¶ 153} Other than the admissions mentioned above, HCR denied the allegations

in the Second Amended Complaint. Construing the allegations in the Second Amended

Complaint as true, the issue is whether the corporate defendants fit within the definition

of “statutorily enumerated” medical providers in R.C. 2305.113(E)(3), and whether the

claims arise from medical diagnosis, care, and treatment.

       {¶ 154} As    was   noted,    the   providers   specifically   enumerated    in   R.C.

2305.113(E)(3) are: “a physician, podiatrist, hospital, home or residential facility;” “any

employee or agent of a physician, podiatrist, hospital, home, or residential facility”; and “a

licensed practical nurse, registered nurse, advanced practice registered nurse, physical

therapist, physician assistant, emergency medical technician-basic, emergency medical

technician-intermediate, or emergency medical technician-paramedic.”

       {¶ 155} Chalmers, 6th Dist. Lucas No. L-16-1143, 2017-Ohio-5678, involved

similar allegations against the same corporate defendants. We have already discussed

Chalmers in the context of our Civ.R. 10(D)(2) discussion.

       {¶ 156} The plaintiff in Chalmers asserted both wrongful death and survival claims

against Heartland of Westerville, OH, LLC, HCR ManorCare, Inc., HCR Manor Care

Services, Inc., and Heartland Employment Services, LLC, based on events that occurred

while the plaintiff was a resident at the Heartland of Westerville nursing home. Id. at ¶ 1-

6. Concerning the survival claims only, the trial court concluded that they were barred

by the one-year statute of limitations because they were “medical claims” under R.C.
                                                                                        -58-

2305.113(E)(3). Id. at ¶ 18. The procedural posture in Chalmers was quite different

from the case before us, however, because the survival claims were dismissed after

summary judgment motions had been filed; they were not dismissed based on an analysis

only of the pleadings. Id.

      {¶ 157} With respect to the survival claims, the plaintiff in Chalmers argued that

the trial court had disregarded Stevic’s first prong and had failed to consider whether the

remaining corporate defendants were medical providers, since they were not licensed by

Ohio to provide skilled nursing care. Id. at ¶ 25-26.8 The court of appeals observed that

the HCR “corporate defendants” had conceded they were not licensed by the State of

Ohio to provide personal care services and skilled nursing care, and, therefore, did not

meet the definition of “nursing home” under R.C. 3721.01(A)(6). Id. at ¶ 26.9 This is the

same concession that HCR made here, in its answer to the Second Amended Complaint,

when it admitted the defendants, other than Heartland of Springfield, were not licensed

to operate the nursing home.



8 The trial court had granted summary judgment in favor of Heartland of Westerville on
the survival claims, and the plaintiff did not challenge that finding. Chalmers, 6th Dist.
Lucas No. L-16-1143, 2017-Ohio-5678, at ¶ 26. Thus, the remaining defendants were
the corporate entities other than the nursing home itself.
9 The use of the definition of “nursing home” in R.C. 3721.01(A)(6) is based on the
following analysis. R.C. 2305.113(E)(3) lists statutorily enumerated medical providers,
one of which is a “home.” R.C. 2305.113(E)(14) defines “home” by using the same
meaning of “home” as R.C. 3721.10. In turn, R.C. 3721.10 (A)(1) incorporates the
definition of “home” in R.C. 3721.01. Resort to R.C. 3721.01(A)(1)(a) indicates that it
includes a nursing home in the definition of “home.” Finally, R.C. 3721.01(A)(6), used in
Chalmers, further states that “ ‘[n]ursing 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.” (Emphasis added.)
                                                                                        -59-

      {¶ 158} The importance of this is that the complaint in Chalmers could not have

been dismissed at the pleading stage based on Stevic (other than perhaps with respect

to the nursing home itself), since one prong of R.C. 2305.113(E)(3) had not been satisfied.

Stevic, 121 Ohio St.3d 488, 2009-Ohio-1525, 905 N.E.2d 635, at ¶ 18. However, the

court of appeals did not specifically comment on this point, other than agreeing that the

corporate defendants did not meet the definition of “nursing home” under R.C.

3721.01(A)(6).

      {¶ 159} Instead of basing its decision on this point, the court of appeals concluded

that summary judgment was proper on the survival claims because plaintiff’s “various

non-medical claims against the aforementioned entities are not supported by the

evidence.” (Emphasis added.)       Chalmers at ¶ 29. The “non-medical” survival claims

in Chalmers were similar to those asserted here, i.e., they were based on “(1) a lack of

staffing and failure to implement administrative guidelines; (2) a failure to provide [the

decedent] with certain residents' rights; (3) an exaggeration of the entities' ability to

provide the appropriate level of care to meet [the decedent’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 [decedent] of the inadequate staffing and unqualified

nursing personnel.” Id. at ¶ 31.

      {¶ 160} The conclusion that can be drawn from the court’s remarks is that

dismissal of the survival claims would have been improper at the pleading stage under

Stevic for two reasons: (1) the corporate defendants (other than the nursing home) did

not fit within the definition of “home” under R.C. 2305.113(E)(3), meaning they were not

“statutorily enumerated” medical providers; and (2) the asserted survival claims were non-
                                                                                       -60-


medical claims.     Applying this holding to the case before us, which involves similar

allegations, dismissal at the pleading stage would have been improper. We are not bound

by the court’s conclusion in Chalmers that the claims were non-medical claims; we merely

note it.

       {¶ 161} Ultimately, the court of appeals concluded in Chalmers that summary

judgment was properly rendered in favor of the HCR corporate defendants with respect

to the survival claims.10 However, this was not because the court had concluded that

the claims were medical claims. Instead, the court stated that:

              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 [the decedent’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 unqualified nursing personnel.

       However, the record contains sparse evidence to support such causation

       arguments.



10 As was previously noted, the court of appeals did reverse the summary judgment on
the wrongful death claims, concluding that the plaintiff should be given an opportunity to
cure a defective Civ.R. 10(D)(2) affidavit. Chalmers, 6th Dist. Lucas No. L-16-1143,
2017-Ohio-5678, at ¶ 33-50.
                                                                                     -61-


             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.

(Emphasis added.) Chalmers, 6th Dist. Lucas No. L-16-1143, 2017-Ohio-5678, at ¶ 29-

30.

      {¶ 162} Again, the procedural posture in Chalmers was different, being summary

judgment rather than judgment on the pleadings. We also note that the pleadings are

not clear concerning whether the nursing home administrator, Meckstroth, was an

employee of the nursing home or of another entity. However, as administrator of the

home, she could be considered an “agent,” and would, therefore, have been within the

statutorily enumerated medical providers in R.C. 2305.113(E)(3).      However, as was

noted, both prongs of R.C. 2305.113(E)(3) must be satisfied.

      {¶ 163} In responding to Howard’s arguments, HCR contends that regardless of

the manner in which Counts One, Three, and Four were phrased, they necessarily arise

from Howard’s medical diagnosis, care, and treatment, and, therefore, are medical claims

for purposes of the statute of limitations, even if the corporate defendants and nursing

home administrator were not medical providers. We disagree.

      {¶ 164} As was noted, the trial court granted the motion for judgment on the
                                                                                           -62-


pleadings regarding these counts, and our analysis is limited to the content of the

pleadings. In essence, the amended complaint alleged, with respect to Meckstroth and

the corporate defendants, that failures to adequately fund and staff the facility, failures to

adequately train and supervise staff, failures to document and report neglect and abuse,

and failures to correct deficiencies caused injury to Donald, including various physical

injuries, including falls, as well as pain and mental anguish.

       {¶ 165} In Christian v. Kettering Med. Ctr., 2016-Ohio-1260, 62 N.E.3d 658 (2d

Dist.), we noted that “[t]he terms ‘medical diagnosis’ and ‘treatment’ are terms of art, which

relate to the identification and alleviation of a physical or mental illness, disease, or

defect.” Id. at ¶ 29, citing Browning v. Burt, 66 Ohio St.3d 544, 557, 613 N.E.2d 993

(1993). We also commented that “[i]n the context of the statute of limitations for ‘medical

claims,’ ‘care’ has been defined as ‘the prevention or alleviation of a physical or mental

defect or illness.’ The Supreme Court of Ohio has cautioned that the term ‘care’ ‘should

not be broadly interpreted when the context in which it is used is properly understood.’ ”

Id., quoting Browning at 557.

       {¶ 166} After making these observations, we cited various cases in which injury

was caused to hospital patients or nursing home residents, but the claims were caused

by negligence, rather than being part of medical diagnosis and treatment. For example,

we cited Eichenberger v. Woodlands Assisted Living Residence, L.L.C., 2014-Ohio-5354,

25 N.E.3d 355 (10th Dist.), in which a resident’s “injury allegedly arose from falling out of

a wheelchair while on the way to lunch at an assisted living facility.” Christian at ¶ 35.

Another example was an injury caused by “falling backwards while washing hands in a

bathroom while receiving rehabilitative care following surgery * * *.” Id., citing McDill v.
                                                                                          -63-

Sunbridge Care Ents., Inc., 4th Dist. Pickaway No. 12CA8, 2013-Ohio-1618. We also

cited a case where the mode of injury was found to involve a medical claim because it

was “ ‘ancillary to and an inherently necessary part of [the patient’s] diagnosis and

treatment’ * * *.” Id. at ¶ 37, quoting Long v. Warren Gen. Hosp., 121 Ohio App.3d 489,

700 N.E.2d 364 (11th Dist.1997).

       {¶ 167} Christian was before us after summary judgment had been granted in favor

of the hospital. The plaintiff had been injured in the parking lot of the hospital when an

emergency room nurse attempted to transfer her from a vehicle to a wheelchair. Id. at

¶ 3. The hospital contended that this was a “medical claim” because plaintiff was there

for medical treatment; in contrast, the plaintiff argued that the claim was for negligence.

Id. at ¶ 5 and 31. We concluded that the trial court erred in granting summary judgment

in the hospital’s favor because the nurse’s act of transferring the plaintiff from the vehicle

to a wheelchair “was too attenuated from the receipt of medical treatment, care, and

diagnosis to constitute a ‘medical claim.’ ” Id. at ¶ 42. As a result, we reversed the

summary judgment that had been granted to the hospital on statute of limitations grounds.

Id. at ¶ 43.

       {¶ 168} Obviously, these cases are fact-intensive – a situation that does not lend

itself well to resolution based on the pleadings. “The purpose of Ohio notice pleading

provisions is to do exactly that, to-wit, to notify a defendant of the allegations against him

so that he might prepare a defense thereon.” Konicki v. Salvaco, Inc., 16 Ohio App.3d

40, 44, 474 N.E.2d 347 (2d Dist.1984). Accord Wells Fargo Bank, N.A. v. Horn, 142

Ohio St.3d 416, 2015-Ohio-1484, 31 N.E.3d 637, ¶ 13.

       {¶ 169} HCR contends that this case does not involve negligence because Howard
                                                                                         -64-


“did not allege, for example, that insufficient funding caused a ceiling tile to fall on the

decedent’s head.” HCR’s Reply Brief, p.11. This level of specificity is not required in a

complaint. There are many ways in which a resident could be injured by negligence,

including falls, without the claim being considered a “medical claim.”

       {¶ 170} The Supreme Court of Ohio noted in the context of a medical credentialing

case that involved both credentialing and alleged medical malpractice, that “[w]hile the

acts or omissions of a hospital in granting and/or continuing staff privileges to an

incompetent physician may ultimately lead to an act of medical malpractice by the

incompetent physician, the physician's ultimate act of medical malpractice is factually and

legally severable and distinct from the hospital's acts or omissions in negligently

credentialing him or her with staff membership or professional privileges.” Browning,

66 Ohio St.3d at 557, 613 N.E.2d 993. While these comments are made in a somewhat

different context, they are not inapposite. Again, factual matters are difficult to resolve

at the pleading stage.

       {¶ 171} As in Chalmers, summary judgment might potentially be appropriate in the

case before us (a point about which we express no view, due to the lack of facts).

However, dismissal at the pleading stage was inappropriate. Accepting the material

allegations of the pleadings as true, and construing the reasonable inferences in

Howard’s favor, as is required, indicates that the corporate defendants were not

“statutorily enumerated medical providers,” and that the alleged claims against the

corporate defendants and administrator did not arise from medical diagnosis, care, and

treatment. As a result, at this point in the process, it is error to say the survival claims

were “medical claims” under R.C. 2305.113(E)(3), and were not timely filed under R.C.
                                                                                         -65-

2305.113(A). Stevic, 121 Ohio St.3d 488, 2009-Ohio-1525, 905 N.E.2d 635, at ¶ 18.

See also Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048,

958 N.E.2d 1253, ¶ 8 (10th Dist.) (holding that “to constitute a medical claim within the

statutory definition, a plaintiff must allege proper content against a proper defendant”).

       {¶ 172} Based on the preceding discussion, the First Cross-Assignment of Error is

sustained.   This matter will be reversed with respect only to the judgment on the

pleadings entered on the survival claims, and that issue will be remanded to the trial court

for further proceedings. The reversal will not affect the verdict on the wrongful death

claims, as liability was admitted for the death, and the jury verdict involved only the

damages caused to the wrongful death beneficiaries for the death.



                                   VII. Prejudgment Interest

       {¶ 173} Howard’s Second Cross-Assignment of Error states that:

              The Trial Court Erred in Denying Appellee’s Request for Discovery

       on His Motion for Prejudgment Interest.

       {¶ 174} Under this assignment of error, Howard contends that the trial court erred

in refusing to let him conduct discovery in connection with the post-trial motion for

prejudgment interest that was filed on November 1, 2016. The court set a non-oral

hearing on the motion for prejudgment interest for January 26, 2017. On January 25,

2017, Howard asked for a 60-day continuance of the hearing in order to allow him to

obtain answers to interrogatories and to depose HCR ManorCare’s associate general

counsel. Howard attached a copy of the proposed interrogatories to his motion. The

trial court overruled the motion for continuance without comment on January 26, 2017.
                                                                                         -66-


       {¶ 175} Subsequently, the court filed a decision on January 30, 2017, overruling

Howard’s request for pre-judgment interest. The court stated that it had reviewed the

pleadings and found that HCR complied with discovery requests and had made a good

faith monetary offer to settle the case.

       {¶ 176} According to Howard, the court erred in overruling his motion for a

continuance because the Supreme Court of Ohio has held that the discovery process

applies to proceedings for pre-judgment interest. Howard also notes that discovery is

needed because information required to meet the burden of establishing a right to

prejudgment interest is typically in the hands of the party resisting such an award.

       {¶ 177} R.C. 1343.03(C)(1) permits an award of prejudgment interest “[i]f, upon

motion of any party to a civil action that is based on tortious conduct, that has not been

settled by agreement of the parties, and in which the court has rendered a judgment, * *

* the court determines at a hearing held subsequent to the verdict or decision in the action

that the party required to pay the money failed to make a good faith effort to settle the

case and that the party to whom the money is to be paid did not fail to make a good faith

effort to settle the case * * * .” In situations where a party has admitted liability in a

pleading, R.C. 1343.03(C)(1)(a) requires the interest to be computed “from the date the

cause of action accrued to the date on which the order, judgment, or decree was

rendered.”

       {¶ 178} The party seeking prejudgment interest has the burden of proving

entitlement to the award. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 659, 635

N.E.2d 331 (1994). Decisions on whether to award prejudgment interest are reviewed

for abuse of discretion. Id. at 657. An abuse of discretion “means we will affirm unless
                                                                                          -67-

we find the trial court's attitude ‘unreasonable, arbitrary or unconscionable.’ ” Schafer v.

RMS Realty, 138 Ohio App.3d 244, 300, 741 N.E.2d 155 (2d Dist.2000), quoting AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990). “Decisions are unreasonable if they are not supported

by a sound reasoning process.” Id.

       {¶ 179} In discussing this issue, both sides rely on Cotterman v. Cleveland Elec.

Illum. Co., 34 Ohio St.3d 48, 517 N.E.2d 536 (1987). Howard argues, correctly, that the

Supreme Court held in Cotterman that “[t]he R.C. 1343.03(C) proceeding is amenable to

the discovery process.” Id. at paragraph two of the syllabus. In contrast, HCR correctly

notes that the court also held in Cotterman that “[t]he trial court should exercise such

governance so as to speedily resolve the post-trial discovery.” Id. According to HCR,

Howard delayed an inordinate amount of time (84 days) after filing the motion before

taking any initiative concerning discovery. HCR further contends that a non-oral hearing

is sufficient to meet the statutory requirements.

       {¶ 180} Taking the hearing issue first, the Supreme Court of Ohio has held that

before trial courts rule on the merits of motions for prejudgment interest, they must set a

date certain for an evidentiary hearing. Pruszynski v. Reeves, 117 Ohio St.3d 92, 2008-

Ohio-510, 881 N.E.2d 1230, paragraph one of the syllabus. However, Pruszynski also

held that a “trial court has the discretion to determine the nature of the evidentiary hearing

to be held, as it is in the best position to select the kind of evidence necessary to make

the findings required by R.C. 1343.03(C) and determine whether an award of prejudgment

interest is proper.” Id. at paragraph two of the syllabus.

       {¶ 181} In discussing these issues, the court commented that “a motion for
                                                                                          -68-


prejudgment interest addresses facts and issues different from those submitted at trial.

In fact, the issue of prejudgment interest pursuant to R.C. 1343.03(C) is akin to those

areas of law calling for factual determinations reviewable under an abuse-of-discretion

standard because it calls upon the trial court to make factual determinations regarding

the parties’ good faith efforts to settle a case.” (Footnote and citation omitted.) Id. at

¶ 11. The court further observed, however, that “[h]aving conducted case-management

conferences, pretrials, settlement conferences, and the trial, a court in some instances

may decide that presentation of evidence by affidavits, depositions, and other documents

is sufficient; at other times, the trial court may decide that an oral evidentiary hearing is

more appropriate.” Id. at ¶ 13.

       {¶ 182} As was noted, Howard filed his motion in early November 2016. He did

not attach affidavits to the motion, but did include pleadings and part of a deposition to

support his contention that HCR failed to conduct discovery in good faith. In addition,

Howard discussed settlement offers made prior to trial, with HCR’s highest offer being

less than 25% of what the jury ultimately found.

       {¶ 183} HCR responded to the motion on November 14, 2016, and also attached

pleadings and other materials, although no affidavits. See Doc. #451. Among other

things, HCR argued that it had conducted discovery in good faith and had provided

Howard with more than 20,000 documents. HCR also stressed its statement at the

settlement hearing, which indicated that the amount presented was not HCR’s final offer.

Id. at p. 16.

       {¶ 184} Notably, the trial court presided over the case for more than two years,

and had knowledge of what had transpired, including any discovery issues and settlement
                                                                                            -69-


discussions. As a result, the court did not act arbitrarily or unreasonably in declining to

hold an oral evidentiary hearing. Consistent with Pruszynski, the trial court set a date

certain for the hearing, and the parties could have submitted whatever information they

desired prior to the hearing date.

       {¶ 185} Regarding the court’s denial of a continuance to conduct discovery, we

again find that the court did not act arbitrarily, unconscionably or unreasonably.           In

Moskovitz, which was decided after Cotterman, the Supreme Court of Ohio stressed that

“the purpose of R.C. 1343.03(C) is to encourage good faith efforts to settle a case outside

the trial setting. The focus of an R.C. 1343.03(C) post-trial hearing for prejudgment

interest must be the pretrial settlement efforts made between the plaintiffs and defendants

and/or their insurers. Often, the only way for a party to prove another party's failure to

make a good faith effort to settle is by obtaining the claims file of an insurer.” Moskovitz,

69 Ohio St.3d at 661, 635 N.E.2d 331. The court also emphasized that “[t]he purpose of

Civ.R. 26 is to provide a party with the right to discover all relevant matters, not privileged,

that are pertinent to the subject of the pending proceeding.” Id., citing Civ.R. 26(B)(1).

       {¶ 186} Moskovitz was decided in 1994, and the right to discovery in such

situations has been established for many years. As a result, Howard would have been

well aware of his right to conduct discovery.         The right, however, is not unlimited.

Notably, Howard gave no explanation of why he waited until the day before the scheduled

hearing to even mention discovery. Howard could have sent interrogatories or could

have scheduled a deposition of HCR’s assistant counsel as early as the beginning of

November 2016.       Had Howard taken such steps then, the trial court could have

addressed any issues promptly.
                                                                                       -70-


      {¶ 187} “A judge's decision to grant or deny a party's request for a continuance is

within the sound discretion of the judge.” (Citation omitted.) In re Disqualification of

Pontious, 94 Ohio St.3d 1235, 1236, 763 N.E.2d 603 (2001). Accord Barton v. Barton,

2017-Ohio-980, 86 N.E.3d 937, ¶ 152 (2d Dist.) (courts have broad discretion in deciding

whether to deny or grant continuances). Again, under the circumstances, we find no

abuse of discretion in the court’s decision to deny Howard’s request for a continuance.

      {¶ 188} Accordingly, Howard’s Second Cross-Assignment of Error is overruled.



                                       VIII. Conclusion

      {¶ 189} All of HCR’s assignments of error are overruled, Howard’s First Cross-

Assignment of Error is sustained, and his Second Cross-Assignment of Error is overruled.

The judgment of the trial court, therefore, is affirmed in part and reversed in part. The

judgment is reversed only as to the dismissal of Counts One, Three, and Four (the survival

claims) in the Second Amended Complaint, and with regard to these claims, the matter

is remanded to the trial court for further proceedings. The remainder of the judgment is

affirmed.




                                    .............



FROELICH, J. and TUCKER, J., concur.
                            -71-


Copies mailed to:

Michael J. Fuller, Jr.
D. Bryant Chaffin
Robert M. Anspach
Mark D. Meeks
J. Randall Engwert
Joseph S. Center
Hon. Douglas M. Rastatter
