[Cite as Haskins v. 7112 Columbia, Inc., 2016-Ohio-5575.]



                           STATE OF OHIO, MAHONING COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

DAVID HASKINS, CO-ADMINISTRATOR                        )
OF THE ESTATE OF MINNIE HASKINS,                       )
                                                       )
        PLAINTIFF-APPELLANT.                           )           CASE NO. 15 MA 0192
V.                                                     )
                                                       )                  OPINION
7112 COLUMBIA, INC., DBA VALLEY                        )
RENAISSANCE HEALTH CARE                                )
CENTER,                                                )
                                                       )
        DEFENDANT-APPELLEE.                            )

CHARACTER OF PROCEEDINGS:                              Civil Appeal from Court of Common
                                                       Pleas of Mahoning County, Ohio
                                                       Case No. 12CV2834

JUDGMENT:                                              Affirmed

APPEARANCES:
For Plaintiff-Appellant                                Attorney Andrew L. Johnson, Jr.
                                                       6809 Mayfield Road, Suite 570
                                                       Mayfield Heights, Ohio 44124

For Defendant-Appellee                                 Attorney Ernest W. Auciello
                                                       Attorney Susan M. Audey
                                                       Attorney John A. Favret, III
                                                       950 Main Avenue, Suite 1100
                                                       Cleveland, Ohio 44113-7213

JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                       Dated: August 22, 2016
[Cite as Haskins v. 7112 Columbia, Inc., 2016-Ohio-5575.]
DONOFRIO, P.J.

        {¶1}    Plaintiff-appellant, Crystal Haskins, co-administrator of the Estate of
Minnie Haskins, appeals from a Mahoning County Common Pleas Court judgment
granting summary judgment in favor of defendant-appellee, 7112 Columbia, Inc.,
d.b.a. Valley Renaissance Health Care Center.
        {¶2}    Minnie Haskins was admitted to Valley Renaissance Health Care
Center on January 15, 2010. Minnie was bedridden and weighed 300 to 400 pounds.
On or about July 25, 2011, two state tested nursing assistants (STNAs) were
changing the bed linens on Minnie’s bed. Minnie was in bed at the time. The STNAs
had to “turn” Minnie in order to remove the bed sheets. While they were turning her,
Minnie heard a “pop.” She subsequently complained of pain in her leg. Several days
later, Minnie was taken to the hospital where x-rays revealed she had a broken
femur. Minnie returned to Valley Renaissance after her hospital stay. She passed
away there on March 6, 2012.
        {¶3}    On September 10, 2012, David Haskins, Minnie’s son and the co-
administrator of her estate, filed a complaint against appellee. The complaint alleged
that on or about July 25, 2011, when the STNAs attempted to move Minnie to change
her bed linens, they broke her left leg.
        {¶4}    Appellee raised numerous defenses, one of which was that the one-
year statute of limitations for medical claims had run. The trial court dismissed the
complaint on this basis. David appealed to this court. We found that based solely on
the pleadings at that stage of the proceedings, appellant’s claim could be construed
as a general negligence claim, which has a two-year statute of limitations. Haskins v.
7112 Columbia, Inc., 7th Dist. No. 13 MA 100, 2014-Ohio-4154, 20 N.E.3d 287, ¶ 19.
Therefore, we reversed the dismissal and remanded the matter to the trial court. Id.
        {¶5}    After the case was remanded, David passed away. His sister, Crystal
Haskins, was substituted as the plaintiff-appellant in this case.
        {¶6}    Appellee then filed a motion for summary judgment. Appellee again
asserted that appellant’s claim was time-barred by the one-year statute of limitations
for medical claims. It asserted the act of turning Minnie to change her bed linens was
                                                                              -2-


a necessary part of her medical care and, therefore, appellant’s claims were medical
claims under R.C. 2305.113(E)(3) subject to the one-year statute of limitations. This
time, however, appellee submitted evidence in support of its allegation.
       {¶7}    Appellant filed a response in opposition. She asserted that her claim
was not a medical claim but instead was a negligence claim, which is governed by a
two-year statute of limitations.
       {¶8}    The trial court granted appellee’s motion for summary judgment.       It
found there was no genuine issue of material fact that appellant’s claim was a
medical claim that should have been brought within one year from the date of the
alleged injury.   It found appellant’s claim arose from Minnie’s medical care and
treatment. And it found appellant’s complaint was filed after the one-year statute of
limitations expired.      Therefore, the court granted appellee’s summary judgment
motion and dismissed the complaint.
       {¶9}    Appellant filed a timely notice of appeal on October 26, 2015. Appellant
raises three assignments of error.
       {¶10} Appellant’s first assignment of error states:

               THE TRIAL COURT ERRED BY GRANTING DEFENDANT-
       APPELLEE’S MOTION FOR SUMMARY JUDGMENT.

       {¶11} Appellant argues a genuine issue of material fact surrounds whether,
under the statutory definition of “medical care,” the STNAs were performing nursing
care or medical care when they were turning Mrs. Haskins and changing her bed
sheets. She points to several instances where appellee refers to the turning at issue
as “nursing medical care.” Appellant claims that “nursing medical care” refers to
medical care performed by nurses, which she asserts is governed by a two-year
statute of limitations.
       {¶12} Appellant goes on to argue there is no evidence that a doctor provided
a medical diagnosis along with a care or treatment plan for Minnie that included
turning her when changing her bed linens.        Instead, the care plan produced by
                                                                                -3-


appellee was prepared and executed by appellee’s nurses.           Moreover, appellant
cites to the affidavit of Dr. Janet Morgan who opined that when the STNAs turned
Minnie it was not medical care or treatment, but was a careless act in violation of the
training on how to change a bedridden patient’s sheets. (Morgan Aff. ¶ 4).
         {¶13} An appellate court reviews the granting of summary judgment de novo.
Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus,
we shall apply the same test as the trial court in determining whether summary
judgment was proper.
         {¶14} A court may grant summary judgment only when (1) no genuine issue
of material fact exists; (2) the moving party is entitled to judgment as a matter of law;
and (3) the evidence can only produce a finding that is contrary to the non-moving
party.    Mercer v. Halmbacher, 9th Dist. No. 27799, 2015-Ohio-4167, ¶ 8; Civ.R.
56(C).     The initial burden is on the party moving for summary judgment to
demonstrate the absence of a genuine issue of material fact as to the essential
elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt,
75 Ohio St .3d 280, 292, 662 N.E.2d 264 (1996). If the moving party meets its
burden, the burden shifts to the non-moving party to set forth specific facts to show
that there is a genuine issue of material fact. Id.; Civ.R. 56(E). “Trial courts should
award summary judgment with caution, being careful to resolve doubts and construe
evidence in favor of the nonmoving party.” Welco Industries, Inc. v. Applied Cos., 67
Ohio St.3d 344, 346, 1993-Ohio-191, 617 N.E.2d 1129.
         {¶15} The statute of limitations for a medical claim is one year from the date
the action accrued. R.C. 2305.113(A). In contrast, the statute of limitations for a
negligence action is two years from the date the action accrued. R.C. 2305.10. The
issue of which statute of limitations applies to a particular cause of action presents a
question of law.     Potter v. Cottrill, 4th Dist. No. 11CA685, 2012-Ohio-2417, ¶ 9;
Simmons v. Ohio Rehab. Serv. Comm., 10th Dist. No. 09AP-1034, 2010-Ohio-1590,
¶ 3. Thus, which statute of limitations applies is a legal question for the court to
determine.
                                                                                  -4-


       {¶16} Appellant’s claim was filed past the one-year statute of limitations for
medical claims but within the two-year statute of limitations for negligence claims.
Thus, if appellant’s claim is a medical claim, it is barred by the statute of limitations
and summary judgment was proper. If it is not a medical claim but instead is a
general negligence claim, it is not barred by the statute of limitations and summary
judgment was inappropriate. Thus, we must determine whether appellant’s claim is a
medical claim.
       {¶17} Pursuant to the version of R.C. 2305.113(E)(3) that was in effect at the
time the claim accrued, a medical claim is

       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 * * *,
       and that arises out of the medical diagnosis, care, or treatment of any
       person.

       {¶18} Medical claims also include:

               (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
                                                                                         -5-


       treatment of any person and that are brought under section 3721.17 of
       the Revised Code.

R.C. 2305.113(E)(3).1
       {¶19} Under R.C. 2305.113(E)(14), the word “home” includes a nursing home.
There is no dispute here that appellee is a nursing home under the statutory
definition.
       {¶20} In the previous appeal in this case, we found that at the pleading stage,
there was “no indication from [the] record in this case that changing Minnie's sheets
was part of some type of medical test or procedure, was ordered by a doctor, or that
it required any medical expertise or professional skill.” Haskins, 2014-Ohio-4154, at
¶ 18. Yet we recognized it was possible that appellee “through the use of evidence
at some later stage of the proceedings” might be able to prove that this case involved
a medical claim subject to the one-year statute of limitations. Id. Thus, we left open
the possibility that this case asserted a medical claim.
       {¶21} The parties submitted the affidavits and depositions of Kimberly Floyd
and Dr. Morgan.
       {¶22} Kimberly Floyd was Minnie’s son’s girlfriend. She is also an STNA at a
different nursing home. In her affidavit, Floyd stated that on August 2, 2011, she
visited Minnie in the hospital. (Floyd Aff. ¶ 4). Minnie told Floyd that two female staff
members employed by appellee had come into her room to change her sheets while
she was lying on her back. (Floyd Aff. ¶ 5). Minnie told Floyd that one sheet was
stuck under the weight of her body so one of the women grabbed her left leg and
threw it over and onto her right leg and she heard a “pop” in her left leg. (Floyd Aff.
¶ 5). David Haskins also submitted an affidavit before his death averring to these
same facts.
       {¶23} In her deposition, Floyd stated that Minnie suffered from numerous

1 R.C. 2305.113(E)(3) was amended on March 23, 2015, to include in the definition of a “medical
claim,” “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)(d). But this
subsection was not added until three and a half years after the cause of action accrued.
                                                                                 -6-


health issues including high blood pressure, heart disease, a tracheotomy, obesity,
and incontinence. (Floyd Dep.19-22). Floyd understood that part of Minnie’s care
plan was that the STNAs and nurses were to change her if she had a bowel
movement, clean her, assess her for skin breakdown, and turn and reposition her.
(Floyd Dep. 23-24). Floyd stated that when she and David went to visit Minnie on
August 2, 2011, Minnie told them that an STNA was in the process of changing her
sheets and the STNA took Minnie’s left leg and threw it over causing Minnie to hear a
noise and call out to the STNA that she just broke her leg. (Floyd Dep. 33).
       {¶24} Floyd also testified that during her STNA training, she was taught how
to properly turn a patient to change their bed linens. (Floyd Dep. 14-16). She stated
that this was a task for STNAs or nurses, as opposed to a housekeeping task. (Floyd
Dep. 15, 17-18). Floyd also testified that turning and changing an incontinent patient
is part of the patient’s care plan. (Floyd Dep. 18).
       {¶25} Dr. Morgan is appellant’s expert witness. In her affidavit, she opined
that the nursing home staff breached the standard of care when changing Minnie’s
bed linens and “throwing” her leg over her other leg to turn her. (Morgan Aff. ¶ 2).
Dr. Morgan averred that when the nursing home staff grabbed Minnie’s left leg and
threw it over her right leg, fracturing her femur, “it was not medical care or treatment.”
(Morgan Aff. ¶ 4). Instead, it was a “careless act * * * in violation of the instructions
and training nurse assistants receive on how to change the sheets on a bedridden
patient’s bed.” (Morgan Aff. ¶ 4).
       {¶26} Dr. Morgan stated that she is generally familiar with nursing care plans,
which outline the nursing medical care to be provided to a patient. (Morgan Dep. 22).
She agreed that a nursing care plan could include various interventions to treat the
patient’s medical conditions and to either prevent or alleviate the patient’s physical
defects. (Morgan Dep. 22). Dr. Morgan also agreed that nurses and STNAs acquire
professional expertise through education and clinical training which they execute
pursuant to nursing care plans. (Morgan Dep. 23). And she agreed that both nurses
and STNAs must pass state boards in order to practice their professions. (Morgan
                                                                            -7-


Dep. 24).
       {¶27} Dr. Morgan then went through Minnie’s care plan. (Morgan Dep. 24;
Ex. 3).     She acknowledged various aspects of Minnie’s care plan including that
Minnie was totally dependent on the staff for transfers because she was bedridden,
she was incontinent of bowel and bladder and required incontinence care, she
required skin care cream to prevent skin breakdown and infections from the
incontinence, and she was required to be repositioned every two hours. (Morgan
Dep. 25-27).     Dr. Morgan agreed that these items were part of Minnie’s nursing
medical care. (Morgan Dep. 27). Dr. Morgan also acknowledged that Minnie’s care
plan provided for assistance with turning and repositioning as needed and
incontinence care as needed. (Morgan Dep. 27-28).
       {¶28} Dr. Morgan agreed that turning and repositioning an immobile patient is
performed to prevent skin breakdown, pressure ulcers, and infections. (Morgan Dep.
29-30).     She agreed that turning and repositioning an immobile patient is also
performed to alleviate pressure and pain associated with immobility. (Morgan Dep.
30). Dr. Morgan further agreed that, due to Minnie’s medical conditions, appellee’s
nursing care plan of turning and repositioning Minnie was meant to prevent skin
breakdown, pressure ulcers, and infections as well as to alleviate any pressure and
pain resulting from her immobility. (Morgan Dep. 30, 31). Dr. Morgan also agreed
that this intervention performed by the nursing staff was medical care. (Morgan Dep.
30).
       {¶29} Dr. Morgan also discussed incontinence care.          She stated that
incontinence care is provided to prevent skin breakdown and ulceration as well as to
alleviate the patient’s discomfort. (Morgan Dep. 32). She agreed that incontinence
care involved changing the patient’s clothing and bed sheets, cleaning the skin,
assessing the skin for breakdown, and providing various ointments. (Morgan Dep.
32). Dr. Morgan agreed that incontinence care for a bedridden patient also involved
maneuvering or turning the patient in order to provide the needed care. (Morgan
Dep. 33).
                                                                              -8-


      {¶30} Significantly, Dr. Morgan agreed that on July 25, 2011 (the day of the
alleged injury), turning Minnie to change her was a necessary part of her
incontinence care and a necessary part of Minnie’s overall nursing medical care.
(Morgan Dep. 34). Dr. Morgan agreed that this intervention was care-planned for
and was part of Minnie’s nursing medical care. (Morgan Dep. 34).
      {¶31} Finally, Dr. Morgan discussed STNAs’ and nurses’ training.              She
agreed that when turning or maneuvering a patient in a bed like Minnie, the nursing
staff has to follow what they have been trained to do or risk injuring the patient.
(Morgan Dep. 35). And she agreed that when turning a patient such as Minnie, the
STNAs would have to have special training and professional experience. (Morgan
Dep. 35-36).
      {¶32} The Ohio Supreme Court has observed that not all claims asserted
against a hospital are “medical claims” subject to the one-year statute of limitations.
Browning v. Burt, 66 Ohio St.3d 544, 556-557, 1993-Ohio-178, 613 N.E.2d 993. A
claim is a “medical claim” within the meaning of the statute “only if the claim arises
out of the medical diagnosis, care, or treatment of a person.” Id. at 557.
      {¶33} The Ohio Supreme Court also examined what constitutes a “medical
claim” in Rome v. Flower Mem. Hosp., 70 Ohio St.3d 14, 1994-Ohio-43, 635 N.E.2d
1239. Rome dealt with two separate cases involving potential medical claims. In one
case, the Court concluded that the process of securing the patient to a radiology
table “is ancillary to and an inherently necessary part of the administration of the X-
ray procedure which was ordered to identify and alleviate her medical complaints.”
Id. at 16. Additionally, the Court found that at the time of the injury the patient was
being assisted by an employee of the hospital who was required to exercise a certain
amount of professional expertise in preparing the patient for X-ray. Id. Thus, the
Court found a medical claim existed.       In the second case, the Court found the
transport of a patient from physical therapy “was ancillary to and an inherently
necessary part of his physical therapy treatment.” Id. Again the Court also found
that at the time of the alleged injury the patient was assisted by a hospital employee
                                                                            -9-


who was required to use a certain amount of professional skill in transporting the
patient in the wheelchair. Id. at 16-17. So once again, the Court found a medical
claim existed.
       {¶34} In the previous appeal of this case, where we found that on the
pleadings this was not a medical claim, we set out several facts that distinguished
this case from Rome:

       The complaint in this case does not indicate that the two people
       changing the sheets had any particular medical expertise or skill. The
       complaint does not indicate that Minnie was involved with or was being
       prepared for any particular medical procedure. Although it is possible
       that changing bed linens had some medical purpose, there are also a
       variety of possible non-medical reasons that the sheets were changed
       the day Minnie was injured. The fact that Minnie weighed 300-400
       pounds, was bedfast and could not walk or get out of bed on her own,
       might be relevant facts at that time, but they are not determinative at
       this stage. We must point out that Rome was decided on summary
       judgment, where the parties were able to submit actual evidence in
       support of their argument. The instant appeal involves a judgment on
       the pleadings, and all inferences from those pleadings must be read in
       favor of Appellant, the nonmoving party. It is apparent to us that the
       inferences that can be drawn solely from the pleadings support
       Appellant's argument.

Haskins, 2014-Ohio-4154, at ¶ 15.
       {¶35} The facts of this case have changed since the matter was last before
us. This case no longer involves a judgment on the pleadings. Instead, this matter
was decided on summary judgment, as was Rome, and the parties have had the
opportunity to submit evidence in support of their positions.
       {¶36} The depositions indicate that the STNAs changing the sheets had to
                                                                               - 10 -


have had certain expertise and skill. Both witnesses testified that STNAs must be
trained and state-licensed. (Floyd Dep. 8; Morgan Dep. 24). Moreover, they both
stated that changing Minnie’s bed linens was not a housekeeping matter but instead
required certain skill and experience. (Floyd Dep. 14-18; Morgan Dep. 23, 35-36).
      {¶37} Importantly, the depositions provided that changing the bed linens on
the day in question did have a medical purpose. Dr. Morgan agreed that turning
Minnie to change her was a necessary part of her incontinence care and a necessary
part of her overall nursing medical care. (Morgan Dep. 34). Dr. Morgan agreed that
this intervention was care-planned for and was part of Minnie’s nursing medical care.
(Morgan Dep. 34). Dr. Morgan testified that incontinence care includes changing the
patient’s clothing and bed sheets. (Morgan Dep. 32). And Dr. Morgan agreed that
these measures were necessary to prevent skin breakdown and ulceration as well as
to alleviate discomfort. (Morgan Dep. 32).
      {¶38} The witnesses’ testimony clearly indicates that the turning and changing
of Minnie’s bed linens on the day in question was “ancillary to and an inherently
necessary part of” her incontinence care. Appellant’s own expert agreed that turning
Minnie to change her sheets was a necessary part of her incontinence care and a
necessary part of Minnie’s overall nursing medical care. And she agreed that this
intervention was care-planned for and was part of Minnie’s nursing medical care.
      {¶39} Based on the above, the trial court properly concluded that appellant’s
claim here is a medical claim subject to the one-year statute of limitations. Therefore,
summary judgment was proper.
      {¶40} Accordingly, appellant’s first assignment of error is without merit.
      {¶41} Appellant’s second assignment of error states:

             THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT
      THE CARELESS, NEGLIGENT, FRACTURING OF MRS. HASKINS’
      FEMUR BONE BY DEFENDANT-APPELLEE’S NURSE WAS A NEW,
      SEPARATE AND DISTINCT ACT THAT DID NOT ARISE OUT OF
      ANY MEDICAL DIAGNOSIS, CARE, OR TREATMENT OF MRS.
                                                                               - 11 -


      HASKINS.

      {¶42} Here appellant argues a genuine issue of material fact exists as to
whether a doctor ever rendered a medical diagnosis concerning Minnie’s health
conditions and her care and treatment that included turning her to change her bed
linens. Instead, appellant again argues this was nursing care, not medical care.
      {¶43} Appellant attempts to make distinction here between “medical care” and
“nursing medical care.”     But there is no basis for such a distinction.          R.C.
2305.113(E)(3) defines a “medical claim” as “any claim that is asserted in any civil
action against a * * * home, or residential facility, against any employee or agent of a
* * * home, or residential facility * * * and that arises out of the medical diagnosis,
care, or treatment of any person.” Nothing in the statute differentiates between care
provided by a nurse and care provided by a physician. And as will be discussed in
appellant’s third assignment of error, medical claims can be asserted against all
types of employees working in hospitals and nursing homes.
      {¶44} Accordingly, appellant’s second assignment of error is without merit.
      {¶45} Appellant’s third assignment of error states:

             THE TRIAL COURT ERRED BY ITS CONCLUSION STATED IN
      ITS    JUDGMENT       ENTRY      THAT     “EVIDENCE      SHOWS      THAT
      PLAINTIFF’S CLAIMS AROSE FROM THE MEDICAL CARE AND
      TREATMENT        THAT     VALLEY     RENAISSANCE         HEALTH     CARE
      CENTER PROVIDED TO MINNIE HASKINS ON JULY 25, 2011.”

      {¶46} In her final assignment of error, appellant asserts there is a genuine
issue of material fact as to whether Minnie had any claim that arose from her medical
care and treatment. Appellant once again cites to appellee’s counsel’s statements
that the STNAs were providing “nursing medical care” when they turned Minnie. She
claims these statements are concessions on appellee’s part that this case does not
involve a “medical claim” within the meaning of the statute.
                                                                              - 12 -


      {¶47} Appellant seems to argue here that medical care provided by a nurse
cannot result in a medical claim. This is simply not true. Many cases have found
medical claims to exist when the care has been provided by various health care
employees including hospital transport personnel (Rome, 70 Ohio St.3d 14); nurses
and orderlies (Long v. Warren Gen. Hosp., 121 Ohio App.3d 489, 700 N.E.2d 364
(11th Dist.1997)); and radiology technicians (Taylor v. Meridia Huron Hosp., 8th Dist.
No. 80121, 2002-Ohio-3449).      Thus, the fact that the actions in this case were
undertaken by nurses or STNAs has no bearing on whether the case involves a
medical claim.
      {¶48} Accordingly, appellant’s third assignment of error is without merit.
      {¶49} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

DeGenaro, J., concurs.

Robb, J., concurs.
