[Cite as Birkmeier v. St. Rita's Med. Ctr., 2018-Ohio-2343.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




JOHN D. BIRKMEIER, ET AL.,

        PLAINTIFFS-APPELLANTS,                                 CASE NO. 1-17-57

        v.

ST. RITA’S MEDICAL CENTER, ET AL.,                             OPINION

        DEFENDANTS-APPELLEES.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CV 2015 0703

                                       Judgment Affirmed

                               Date of Decision: June 18, 2018




APPEARANCES:

        Chad M. Tuschman and Peter O. DeClark for Appellants

        Chad M. Thompson and Julia S. Wiley for Appellees
Case No. 1-17-57


ZIMMERMAN, J.

        {¶1} Plaintiffs-Appellants, John D. Birkmeier and Charlotte E. Birkmeier

(collectively referred to as “Appellants”), appeal the judgment of the Allen County

Common Pleas Court granting summary judgment to Defendants-Appellees, St.

Rita’s Medical Center, et al. On appeal, Appellants assert that the trial court: 1)

erred in granting Defendants’ motion for reconsideration; and 2) erred when it

granted summary judgment to Appellees. For the reasons that follow, we affirm the

ruling of the trial court.

                                       Factual Background

        {¶2} Appellant John D. Birkmeier (“John”) was diagnosed with prostate

cancer on November 5, 2013. (11/10/2016 Tr., John D. Birkmeier Dep. at 54). As

a result, John underwent a prostatectomy on December 13, 2013. (Id. at 60). A

Foley catheter (“catheter”) was placed into John’s penis as a result of his

prostatectomy. (Id. at 59; 68).

        {¶3} On December 19, 2013, John had a follow-up visit with his urologist,

Dr. Craig Nicholson (“Dr. Nicholson”)1. John reported to Dr. Nicholson that

following surgery he had an increase in pain and swelling in his genital area. (Id. at

71-72). Dr. Nicholson did not inspect the area, but informed John that “one of the

girls [would] be in to remove [his] staples and [the] catheter.” (Id. at 72). Appellee


1
 Dr. Nicholson was one of Cramer’s supervising urologists. (See generally, 11/10/2016 Tr., Heather Cramer
Dep. at 12).

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Heather N. Cramer (“Cramer”), a Certified Medical Assistant (“CMA”) employed

in Dr. Nicholson’s office, removed John’s staples without complication. (Id. at 74).

Cramer then proceeded to deflate the balloon on the catheter, and attempted to

remove the catheter. (Id. at 75). While reports differ on the amount of force used

and duration of Cramer’s pulling of John’s catheter, it is undisputed that Cramer left

John’s room to consult with Dr. Nicholson on the catheter removal process. (Id.).

Upon returning to John’s room, Cramer advised John and his wife, Charlotte E.

Birkmeier (“Charlotte”) that Dr. Nicholson informed (her) that John’s swelling was

expected. (Id. at 76). Cramer then again attempted to remove the catheter, and

ultimately used “moderate force” to pull the catheter out. (Id.; 11/10/2016 Tr.,

Heather Cramer Dep. at 18). John testified that the removal process felt “like [his]

penis was pulled inside out.” (Id. at 85).

       {¶4} After the catheter was removed, John continued to experience pain and

swelling, and returned to Dr. Taylor, another urologist in Dr. Nicholson’s office, on

December 26, 2013. (Id. at 86). During his appointment with Dr. Taylor, John was

advised that his penis was showing signs of internal scarring. (Id. at 92). At a

scheduled appointment on January 2, 2014, Dr. Nicholson removed the stents in

John’s penis, however, the process was complicated by the formation of strictures.

(Id. at 95). On January 11, 2014, John went to St. Rita’s Emergency Room for

urinary retention. (Id. at 100).


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       {¶5} As a result of the strictures in John’s penis, John suffered complications

which resulted in multiple surgeries, medical treatments, and specialist

appointments. (Doc. No. 1). According to John, three separate urologists agreed

(with John and Charlotte) that Cramer’s removal of John’s catheter was the cause

of John’s injuries. (11/10/2016 Tr., John D. Birkmeier Dep. at 128).

                              Procedural Background

       {¶6} On November 30, 2015, Appellants filed a complaint for money

damages against Defendants, St. Rita’s Medical Center, Heather N. Cramer, Lima

Urology, and St. Rita’s Professional Services, LLC. (Doc. No. 1). In the first count

of their complaint, Appellants alleged that Cramer was “negligent and departed

from the accepted standards of medical care in traumatically and negligently

removing a Foley catheter from John D. Birkmeier.” (Id.). Further, Appellants

alleged that Cramer, at all times pertinent to the complaint, was an employee of

Defendants, St. Rita’s Medical Center, Lima Urology, and St. Rita’s Professional

Services, LLC. (Id.). As a result of Cramer’s removal of the Foley catheter, John

D. Birkmeier alleged that he developed numerous and continuing complications,

which led to permanent and partially disabling injuries. (Id.). In the second count

of their complaint, Charlotte alleged that she had suffered a loss of consortium with

John due to Cramer’s negligent actions in removing John’s catheter. (Id.).




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       {¶7} On December 24, 2015, Appellees filed their answer in the trial court.

(Doc. No. 6).

       {¶8} Thereafter, on January 4, 2017, Appellees filed a motion for summary

judgment with exhibits in support. (Doc. Nos. 19, 20). Appellants filed a brief in

opposition to Appellees’ motion for summary judgment on February 15, 2017.

(Doc. No. 26).

       {¶9} Pursuant to Civ. R. 56, the trial court issued its ruling on summary

judgment on February 17, 2017. (Doc. No. 31). Specifically, the trial court found

that the Ohio Supreme Court case of Frysinger v. Leech applied in this instance with

regards to the termination of the physician-patient relationship, and further found

that the point in time in which a physician-patient relationship terminates and the

statute of limitations commences depends upon the conduct of the parties, which is

a question of fact. (Id. at 4). However, the trial court further ruled that there was

no evidence of a physician-patient relationship between St. Rita’s Medical Center

and Appellants. (Id. at 5). Thus, the trial court denied Appellees’ motion for

summary judgment as to Cramer, Lima Urology, and St. Rita’s Professional

Services, but granted Appellees’ motion for summary judgment with respect to St.

Rita’s Medical Center, dismissing it as a party in this litigation. (Id.).

       {¶10} On October 25, 2017, the remaining Appellees filed a motion for

reconsideration of their motion for summary judgment, which Appellants opposed.


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(Doc. Nos. 43, 46). On November 7, 2017, the trial court issued its ruling on the

motion for reconsideration, pursuant to Civ. R. 56. (Doc. No. 62). In its decision,

the trial court found that reconsideration was permissible, and ruled that Appellants’

claim was a medical claim, not a medical malpractice claim.               (Id. at 3; 7).

Additionally, the trial court ruled that since Cramer was a Certified Medical

Assistant (“CMA”), the “termination rule” set forth in the Frysinger decision did

not apply. (Id. at 9). Lastly, the trial court ruled that even if the termination rule in

Frysinger did apply, Appellants’ were still beyond the statute of limitations for the

filing of their complaint. (Id. at 10). As a result, the trial court granted Appellees’

motion for summary judgment in its entirety, and dismissed Appellants’ complaint.

(Id.).

         {¶11} From this judgment Appellants appeal, and present the following

assignments of error for our review:

                        ASSIGNMENT OF ERROR NO. I

         THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’
         MOTION FOR RECONSIDERATION WHEN IT RULED
         THAT THE TERMINATION RULE SET FORTH IN
         FRYSINGER V. LEECH (1987), 32 OHIO ST.3d 38, ONLY
         APPLIES TO PHYSICANS [SIC] AND NOT TO OTHER
         MEDICAL CARE PROVIDERS AS SET FORTH IN O.R.C.
         2305.113(3).

                        ASSIGNMENT OF ERROR NO. II

         THE TRIAL COURT ERRED WHEN IT DETERMINED A
         QUESTION OF FACT – THAT BEING, WHEN THE

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        MEDICAL     PROVIDER-PATIENT                                      RELATIONSHIP
        TERMINATED IN THIS CASE.

        {¶12} Since both assignments of error are interrelated, we will address them

together.

                    Appellants’ First and Second Assignments of Error

        {¶13} In their first assignment of error, Appellants argue that the trial court

erred by granting Appellees’ motion for reconsideration.2                             In their second

assignment of error, Appellants argue that the trial court erred by determining a

question of fact on summary judgment. For the reasons that follow, we disagree.

                                         Standard of Review

        {¶14} An appellate court reviews a trial court’s decision on a motion for

summary judgment de novo. Hancock Fed. Credit Union v. Coppus, 2015-Ohio-

5312, 54 N.E.3d 806, ¶ 15 (3rd Dist.). Trial courts may grant a motion for summary

judgment when “(1) no genuine issue as to any material fact remains to be litigated,

(2) the moving party is entitled to judgment as a matter of law, and (3) it appears

from the evidence that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment

is made.” Hamilton v. Hector, 117 Ohio App.3d 816, 819, 691 N.E.2d 745, 747



2
  While the trial court’s entry is entitled “Motion for Reconsideration Civ. R. 56,” Appellants’ argument
actually addresses the merits of the trial court’s granting of summary judgment, contained within the motion
for reconsideration judgment entry. Accordingly, we address these assignments of error under a summary
judgment standard of review.

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(3rd Dist.1997).    The party moving for summary judgment bears the burden of

showing that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-93, 1996-

Ohio-107, 662 N.E.2d 264. Additionally, “‘upon appeal from summary judgment,

the reviewing court should look at the record in the light most favorable to the party

opposing the motion.’” Hector, supra quoting Campbell v. Hosp. Motor Inns, Inc.,

24 Ohio St.3d 54, 58, 493 N.E.2d 239 (1986). Once the moving party satisfies its

burden, the nonmoving party “may not rest upon the mere allegations or denials of

the party’s pleadings, but the party’s response, by affidavit or as otherwise provided

in this rule, must set forth specific facts showing that there is a genuine issue for

trial.” Civ.R. 56(E).

                             Nature of Appellants’ Claims

       {¶15} R.C. 2305.113, entitled “time limitations for bringing medical * * *

claims,” states, in pertinent part:

       (A) Except as otherwise provided in this section, an action upon a
       medical, dental, optometric, or chiropractic claim shall be commenced
       within one year after the cause of action accrued.

       ***

       (E) As used in this section:

       ***

       (2) “Physician” means a person who is licensed to practice medicine
       and surgery or osteopathic medicine and surgery by the state medical

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       board or a person who otherwise is authorized to practice medicine
       and surgery or osteopathic medicine and surgery in this state.
       (3) “Medical claim” means any claim that is asserted in any civil
       action against a physician, podiatrist, hospital, home, or residential
       facility, against any employee or agent of a physician, podiatrist,
       hospital, home, or residential facility, or against a licensed practical
       nurse, registered nurse, advanced practice 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. “Medical claim” includes the
       following:

              (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(A);(E).

       {¶16} In interpreting R.C 2305.113, the 6th Dist. Court of Appeals held that

“medical employees, such as nurses, technicians or other assistants, are not subject

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to malpractice claims but are amenable to ‘medical claims,’ including those that

assert that they negligently acted or omitted ‘in providing medical care.’”

(Emphasis deleted.) Tisdale v. Toledo Hosp., 197 Ohio App.3d 316, 2012-Ohio-

1110, 967 N.E.2d 280, ¶ 40; see also R.C. 2305.133(E)(3)(b)(i).

      {¶17} Appellants assert their claims against Cramer, as an agent of St. Rita’s

Professional Services, LLC and Lima Urology. Further, Appellants assert that since

John’s injury arose during the course of his medical care and/or treatment, it is a

“medical claim” subject to a one-year statute of limitations pursuant to R.C.

2305.113(A);(E)(3). Furthermore, Cramer (a Certified Medical Assistant) does not

meet the statutory definition of “physician” as provided in R.C. 2305.113(E)(2).

                           Frysinger Termination Rule

      {¶18} The Ohio Supreme Court, in Frysinger v. Leech, discussed the rule

regarding the one-year statute of limitations in medical malpractice actions. In

Frysinger, the Supreme Court held that: “[u]nder R.C. 2305.11(A), a cause of action

for medical malpractice accrues and the one-year statute of limitations commences

to run (a) when the patient discovers, or in the exercise of reasonable care and

diligence should have discovered, the resulting injury, or (b) when the physician-

patient relationship for that condition terminates, whichever occurs later.

(Emphasis added.) Frysinger v. Leech, 32 Ohio St.3d 38, 512 N.E.2d 337 (1987),

paragraph one of the syllabus.      The Supreme Court’s justification for this


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“termination rule” under subsection (b) of R.C. 2305.11(A) was the public policy

of strengthening the physician-patient relationship. Id. at 41. Furthermore, the

Court held that the “termination rule” “encourages the parties to resolve their

dispute without litigation, and stimulates the physician to mitigate the patient’s

damages.” (Emphasis added). Id. Lastly, “[e]ither party to the physician-patient

relationship may terminate the relationship if the terminating party takes affirmative

steps to do so.” Kiser v. Rubin, 2nd Dist. Montgomery No. 15254, 1995 WL

526380, *4.      Such affirmative steps may include the patient refusing further

treatment. Id.

       {¶19} Appellants argue that because they did not terminate treatment with

St. Rita’s Professional Services, LLC until April 21, 2015, the statute of limitations

for filing their cause of action did not commence until that date. However, we find

this interpretation of Frysinger misplaced under the facts presented.

       {¶20} Notably, Appellants failure to file suit against a specific physician is

problematic to their Frysinger argument because the discovery depositions revealed

that John had no complaints regarding the medical care he received from any

physician during the course of his treatment. (11/10/2016 Tr., John D. Birkmeier

Dep. at 120). One of John’s treating physicians, Dr. Mark Dabagia, confirmed that

John’s catheter removal (by Cramer) fell below the proper standard of care.

(06/14/2017 Tr., Dr. Mark Dabagia Dep. at 27). Similar to Dr. Dabagia’s testimony,


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Appellants’ expert witness, Dr. Tony Luongo, testified that he had no criticisms of

any medical provider’s care of John, other than Cramer. (08/23/2017 Tr., Dr. Tony

Luongo Dep. at 34). Lastly, John’s medical records introduced during depositions,

failed to indicate that the treatment of John by any physician fell below the

appropriate standard of care. (See generally, (06/14/2017 Tr., Dr. Mark Dabagia

Dep., Ex. A, B).

       {¶21} Thus, our review of the record reveals that Appellant’s claims: a) do

not meet the statutory definition of “medical malpractice” claims, and b) do not

encompass negligent acts performed by a physician upon John. We therefore find

that due to the lack of the existence of a physician-patient relationship in Appellants’

suit, Frysinger’s termination rule does not apply here.

       {¶22} Nonetheless, Appellants try to portray Frysinger’s termination rule to

further control the termination of “the medical provider-patient relationship” and

not the termination of the relationship with the specific negligent provider. (Br. of

Appellant at 6). To demonstrate that Frysinger termination rule should be expanded

to cover a “medical provider-patient” relationship, Appellants direct us to several

cases in support of their position. However, in our examination of the case law

cited, we find that Appellants’ cases are either inapplicable to Frysinger or are

distinguishable. Specifically, three of Appellants’ cases pre-date the Frysinger

ruling. (See, Ables v. Riverside Methodist Hosp., 10th Dist. Franklin No. 81AP-76,


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1981 WL 3392 (decided in 1981); Niklos v. Riverside Methodist Hosp., 10th Dist.

Franklin No. 79AP-225, 1980 WL 353247 (decided in 1980); Graham v. Riverside

Methodist Hosp., 10th Dist. Franklin No. 79AP-169, 1979 WL 209247 (decided in

1979)).

       {¶23} Further, Appellants cite Ram v. Cleveland Clinic Foundation, in

support of their argument when Frysinger was applied to a medical clinic and not

the individual negligent actor. However, in reviewing Ram, we note that the nature

of the suit was a medical malpractice claim, not a medical claim. Ram v. Cleveland

Clinic Found., 8th Dist. Cuyahoga No. 80447, 2002-Ohio-3644, ¶ 15. Additionally,

the patient in Ram was treated by a negligent physician who left the medical clinic

practice, which resulted in the patient’s continued treatment with the medical

practice. (Emphasis added). Id. at ¶ 21.

       {¶24} Similarly, in Findlay v. Rubin, the nature of the patient’s lawsuit was

a dental malpractice claim, not a “medical claim.” Findlay v. Rubin, 2nd Dist.

Montgomery No. 15315, 1995 WL 783665, *1 (Patient brought a dental malpractice

action against a dentist who crowned two of the patient’s teeth). In ruling that the

statute of limitations did not commence when the negligent dentist left the practice

of dentistry, Findlay held:

       [P]hysicians and dentists frequently practice in professional groups.
       Patients whose health care plans require them to use a particular group
       have a continuing relationship with the group, as well as with any
       single member of it. An individual patient might be seen by several

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       members of the group in succession for a single course of treatment.
       Interchangeability of providers and patients in that respect is one of
       the goals of group practice. Tolling the limitations time while an
       injured patient is treated by another physician or dentist in the group
       would serve the goals of Frysinger v. Leech; to encourage resolution
       of the dispute without litigation and to stimulate the physician to
       mitigate the patient's damages. Though the treating physician is not
       the one whose negligence caused the injury, the group of which he or
       she is a member is liable for the patient's injury, and from the patient's
       perspective the distinction may be of slight significance.

(Emphasis added.) Id. at *2. Thus, in Findlay, the Second District Court of Appeals

never analyzed whether a dental assistant’s negligence would be subject to the

Frysinger termination rule when the patient continued to treat with the supervising

dentist. As such, we find no compelling reason to expand the holding of Findlay to

the case before us.

       {¶25} Lastly, Appellants cite Amadasu v. O’Neal in support of their

proposition that the termination rule applies when a plaintiff ceases treatment with

a medical entity, and not the specific negligent provider. Similar to Ram and

Findlay, Amadasu involved a lawsuit against physicians and a hospital. Amadasu

v. O’Neal, 176 Ohio App.3d 217, 2008-Ohio-1730, 891 N.E.2d 802, ¶¶ 1-2.

Accordingly, we are not persuaded by Appellants’ argument that case law supports

expanding Frysinger’s termination rule to a situation where no negligence is alleged

on the part of a physician.

       {¶26} In our review of the issue presented, we find other courts have

addressed the issue of a medical employee’s alleged negligence. Specifically, the

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Tenth District Court of Appeals in Grubb v. Columbus Community Hospital held

that a claim arising from an orderly’s negligence was a “medical claim” for purposes

of the one-year statute of limitations. Grubb v. Columbus Community Hosp., 117

Ohio App.3d 670, 674, 691 N.E.2d 333 (10th Dist.1997). The Grubb court further

held that Frysinger’s termination rule “does not apply * * * where the alleged

tortfeasor is a[n] * * * employee who does not have an ongoing professional

relationship with the patient.” Id. at 677.

       {¶27} Lastly, this Court, in Grandillo v. Montesclaros, discussed the

Frysinger termination rule when we held that:

       [T]he Frysinger rule specifically addressed the relationship between
       a physician and patient. When a hospital or hospital employee does
       not have an on-going relationship with the patient, this rule has no
       logical application.

(Emphasis added.) Grandillo v. Montesclaros, 137 Ohio App.3d 691, 701, 2000-

Ohio-1839, 739 N.E.2d 863. Because the record before us fails to implicate

negligence by any physician, we cannot apply the Frysinger termination rule in this

appeal. Moreover, as Appellants were aware, or should have been aware, that

John’s injury occurred on December 19, 2013, their complaint filed on November

30, 2015 was outside of the one-year statute of limitations set forth in R.C.

2305.113(A).

       {¶28} Nevertheless, even if we were to find Frysinger applicable here,

Appellants’ testimony demonstrates that John unequivocally terminated his

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treatment with Cramer in March, 2014. (See, 11/10/2016 Tr., John D. Birkmeier

Dep. at 125) (John and Charlotte informed Cramer on March 3, 2014 that she

(Cramer) was not touching John, as she (Cramer) was the cause of John’s medical

problems); (11/10/2016 Tr., Charlotte E. Birkmeier Dep. at 44) (Charlotte informed

Cramer that she (Cramer) was not permitted to remove John’s catheter). As the

record affirmatively supports that Appellants terminated their treatment with

Cramer on March 3, 2014, the filing of Appellants’ complaint on November 30,

2015, was outside of the one-year statute of limitations for filing a medical claim.

                                  Question of Fact

       {¶29} Appellants next argue that the trial court improperly decided an issue

of fact. Specifically, Appellants argue that the determination of a medical provider-

patient relationship is a question of fact for the jury to decide. In support of their

argument, Appellants direct us to the trial court’s first judgment entry on summary

judgment, dated February 17, 2017, wherein the trial court ruled:

       Since plaintiffs [Appellants] pointed to evidence that showed Mr.
       Birkmeier continued to submit to further treatment related to the issue
       of the removal of the catheter by medical providers or personnel
       employed by St. Rita’s Professional Services until April 21, 2015,
       there is a genuine issue of fact as to whether the medical provider-
       patient relationship terminated prior to a year before the lawsuit was
       filed.

(Doc. No. 31 at 4). We find Appellants’ argument lacks merit for two reasons. First,

as we held above, the medical provider-patient relationship does not apply under the


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plain language of Frysinger. And secondly, we agree with the Second District Court

of Appeal’s decision in Findlay, wherein it determined that the termination of a

dentist patient relationship did not present a question of fact when it was undisputed

that the dentist patient relationship ceased on June 28, 1993. Findlay, 2nd Dist.

Montgomery No. 15315, 1995 WL 783665, *3. Similar to the facts present in

Findlay, our record contains no evidence that John was treated by Cramer after

March 3, 2014.3 As such, there is no evidence that John was ever treated by Cramer

after March 3, 2014. Thus, the filing of Appellants’ lawsuit on November 30, 2015

was not within the one-year statute of limitations as set forth in R.C. 2305.113(A).

         {¶30} Accordingly, we overrule Appellants’ first and second assignments of

error.

                                                 Conclusion

         {¶31} Having found no error prejudicial to the Appellants herein in the

particulars assigned and argued, we overrule Appellants’ first and second




3
  We acknowledge that Appellants did present evidence that Cramer signed one of John’s medical records
on April 17, 2015. However, Appellants did not properly submit this evidence to the trial court, and as a
result, this document cannot be considered by this Court on review. See generally, Dunigan v. State Farm
Mut. Auto Ins. Co., 9th Dist. Lorain No. 03CA008283, 2003-Ohio-6454, ¶ 10 quoting Civ.R. 56(C) (upon a
motion for summary judgment, the court is only to consider the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact). While
a trial court may consider other documents under certain circumstances, Appellants did not follow the proper
procedure to allow their evidence to be considered by the trial court.

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assignments of error and affirm the judgment of the trial court.

                                                                   Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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