[Cite as Huntsman v. Aultman Hosp., 2011-Ohio-1208.]


                                     COURT OF APPEALS
                                    STARK COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


RUTH HUNTSMAN,                                            JUDGES:
ADMINISTRATRIX OF THE                                     Hon. William B. Hoffman, P.J.
ESTATE OF AURELIA HUNTSMAN                                Hon. Sheila G. Farmer, J.
                                                          Hon. John W. Wise, J.
        Plaintiff-Appellant/
        Cross-Appellee

-vs-
                                                          Case No. 2010CA00211
AULTMAN HOSPITAL

        Defendant-Appellee/
        Cross-Appellant                                   OPINION



CHARACTER OF PROCEEDING:                               Appeal from the Court of Common Pleas,
                                                       Case No. 2002CV03227



JUDGMENT:                                              Affirmed




DATE OF JUDGMENT ENTRY:                                March 14, 2011




APPEARANCES:

For Plaintiff-Appellant                                For Defendant-Appellee

TIMOTHY H. HANNA                                       RICHARD S. MILLIGAN
388 South Main Street                                  PHILIP E. HOWES
Suite 402                                              PAUL J. PUSATERI
Akron, OH 44311                                        4518 Fulton Drive, NW
                                                       P.O. Box 35548
                                                       Canton, OH 44735-5548
Stark County, Case No. 2010CA00211                                                     2

Farmer, J.

         {¶1}   On June 24, 1999, Aurelia Huntsman underwent surgery to repair a

hernia.    Her surgery was performed by Sajid Chughtai, M.D. at Aultman Hospital,

appellee herein. Ms. Hunstman died the next day.

         {¶2}   On December 15, 2000, appellant, Ruth Huntsman, Administratrix of the

Estate of Aurelia Huntsman, filed a complaint against appellee, alleging a claim for

negligent credentialing. Several other defendants and claims were included that are not

pertinent to this appeal, including a medical malpractice claim against Dr. Chughtai.

This complaint was voluntarily dismissed on September 24, 2001 and refiled on

September 20, 2002. In 2009, appellant amended her complaint to include a claim for

punitive damages against appellee.

         {¶3}   On February 22, 2010, appellee filed a motion for summary judgment on

the punitive damages claim. On June 1, 2010, appellee filed a motion for summary

judgment on the negligent credentialing claim. By judgment entry filed June 23, 2010,

the trial court granted the motion as to the punitive damages claim. By judgment entry

filed July 28, 2010, the trial court granted the motion as to the negligent credentialing

claim.

         {¶4}   On August 5, 2010, appellant filed a notice of appeal and assigned the

following errors:

                                            I

         {¶5}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT, RUTH HUNTSMAN, AS ADMINISTRATRIX OF THE ESTATE OF

AURELIA HUNTSMAN, BY GRANTING SUMMARY JUDGMENT IN FAVOR OF
Stark County, Case No. 2010CA00211                               3


DEFENDANT-APPELLEE, AULTMAN HOSPITAL, ON PLAINTIFF-APPELLANT'S

NEGLIGENT CREDENTIALING CLAIM."

                                     II

     {¶6}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT, RUTH HUNTSMAN, AS ADMINISTRATRIX OF THE ESTATE OF

AURELIA HUNTSMAN, BY GRANTING SUMMARY JUDGMENT IN FAVOR OF

DEFENDANT-APPELLEE, AULTMAN HOSPITAL, ON PLAINTIFF-APPELLANT'S

PUNITIVE DAMAGE CLAIM."

                                     III

     {¶7}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT, RUTH HUNTSMAN, AS ADMINISTRATRIX OF THE ESTATE OF

AURELIA HUNTSMAN, BY NOT CONSIDERING EVIDENCE OF THE COMPLAINTS

FILED IN MEDICAL NEGLIGENCE LAWSUITS FILED AGAINST DR. SAJID

CHUGHTAI BEFORE DR. CHUGHTAI WAS REAPPOINTED TO THE MEDICAL

STAFF ON JANUARY 27, 1999 IN GRANTING SUMMARY JUDGMENT IN FAVOR OF

DEFENDANT-APPELLEE, AULTMAN HOSPITAL, ON PLAINTIFF-APPELLANT'S

NEGLIGENT CREDENTIALING CLAIM AND PUNITIVE DAMAGE CLAIM."

                                     IV

     {¶8}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT, RUTH HUNTSMAN, AS ADMINISTRATRIX OF THE ESTATE OF

AURELIA HUNTSMAN, BY NOT CONSIDERING EVIDENCE OF THE AMOUNTS

THAT WERE PAID ON BEHALF OF DR. SAJID CHUGHTAI TO SETTLE MEDICAL

NEGLIGENCE LAWSUITS BEFORE DR. CHUGHTAI WAS REAPPOINTED TO THE
Stark County, Case No. 2010CA00211                                   4


MEDICAL STAFF ON JANUARY 27, 1999 IN GRANTING SUMMARY JUDGMENT IN

FAVOR OF DEFENDANT-APPELLEE, AULTMAN HOSPITAL, ON PLAINTIFF-

APPELLANT'S NEGLIGENT CREDENTIALING CLAIM AND PUNITIVE DAMAGE

CLAIM."

                                       V

     {¶9}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT, RUTH HUNTSMAN, AS ADMINISTRATRIX OF THE ESTATE OF

AURELIA HUNTSMAN, BY NOT CONSIDERING EVIDENCE OF A NATIONAL

PRACTITIONER DATA BANK REPORT CONCERNING DR. SAJID CHUGHTAI THAT

WAS FILED WITH THE DATA BANK BEFORE DR. CHUGHTAI WAS REAPPOINTED

TO THE MEDICAL STAFF ON JANUARY 27, 2999 IN GRANTING SUMMARY

JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE, AULTMAN HOSPITAL, ON

PLAINTIFF-APPELLANT'S NEGLIGENT CREDENTIALING CLAIM AND PUNITIVE

DAMAGE CLAIM."

                                       VI

     {¶10} "THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT, RUTH HUNTSMAN, AS ADMINISTRATRIX OF THE ESTATE OF

AURELIA     HUNTSMAN, BY NOT         CONSIDERING EVIDENCE   OF MATTERS

AFFECTING DR. SAJID CHUGHTAI AFTER DR. CHUGHTAI WAS REAPPOINTED

TO THE MEDICAL STAFF ON JANUARY 27, 1999 IN GRANTING SUMMARY

JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE, AULTMAN HOSPITAL, ON

PLAINTIFF-APPELLANT'S PUNITIVE DAMAGE CLAIM."
Stark County, Case No. 2010CA00211                                                5


       {¶11} On August 13, 2010, appellee filed a cross-appeal and assigned the

following errors:

                         CROSS-ASSIGNMENT OF ERROR I

       {¶12} "THE TRIAL COURT ERRED IN DENYING AULTMAN HOSPITAL'S

MOTION FOR SUMMARY JUDGMENT THAT WAS BASED ON THE AGENCY LAW

PRINCIPLE THAT A CLAIM FOR SECONDARY LIABILITY IS EXTINGUISHED WHEN

THE PLAINTIFF SETTLES HER CLAIM AGAINST THE PRIMARILY LIABLE

DEFENDANT."

                         CROSS-ASSIGNMENT OF ERROR II

       {¶13} "THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON A CASE

TRIED AFTER IT WAS SETTLED."

                         CROSS-ASSIGNMENT OF ERROR III

       {¶14} "THE COURT ERRED IN DENYING AULTMAN'S MOTION TO EXCLUDE

EVIDENCE OF PRIOR LAWSUITS AND SETTLEMENTS."

       {¶15} This matter is now before this court for consideration.

                                    I, II, III, IV, V, VI

       {¶16} Appellant claims the trial court erred in granting summary judgment to

appellee. We disagree.

       {¶17} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

       {¶18} "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be
Stark County, Case No. 2010CA00211                                                     6


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

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,

364 N.E.2d 267, 274."

       {¶19} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

       {¶20} Appellant argues the trial court erred in concluding that "R.C. 2305.25

does not allow for a cause of action for negligent credentialing against a hospital where

a credentialing process was in place" and "a hospital cannot be held liable for 'sloppy'

credentialing, so long as the proper credentialing process was followed."           See,

Judgment Entry filed July 28, 2010. Appellant argues the trial court's interpretation of

R.C. 2305.25 is in error.

       {¶21} The applicable statute is R.C. 2305.25, effective September 29, 1995,

which stated the following in pertinent part:

       {¶22} "No hospital, no state or local society, and no individual who is a member

or employee of any of the following committees shall be liable in damages to any person

for any acts, omissions, decisions, or other conduct within the scope of the functions of

the committee:
Stark County, Case No. 2010CA00211                                                       7


       {¶23} "(B) A board or committee of a hospital or long-term care facility or of a

nonprofit health care corporation which is a member of the hospital or long-term care

facility or of which the hospital or long-term care facility is a member reviewing

professional qualifications or activities of the medical staff of the hospital or long-term

care facility or applicants for admission to the medical staff."

       {¶24} It is appellant's position that despite the apparent "cloak of immunity"

granted by the 1995 statute, appellee is liable because it did not follow the procedures

mandated by its own code of regulations and bylaws. Appellant argues despite the

appearance of appropriate peer review and credentialing, appellee violated its duty.

Appellant argues appellee must of known of Dr. Chughtai's lack of competency because

of its own participation in the settlement of some eleven medical malpractice claims; the

brevity of the credentials committee's meeting of November 24, 1998 wherein Dr.

Chughtai and some 454 other physicians were reviewed; the fact that the committee

consisted of only one surgeon (an eye surgeon); and the testimony of a hospital

administrator that the committee did not review the current competencies of the

applicants, but rather made sure the physicians met certain standards. Pryce depo. at

8-9.

       {¶25} It is appellee's position despite those aforementioned claims, there was a

medical staff coordinator, Jo Bortz (previously Tongret), who oversaw the re-

credentialing process to "make sure all the pertinent requested information is attached"

including number of surgeries and admissions. Bortz depo. at 39. This activity was

governed by appellee's rules and regulations and bylaws. Bortz depo. at 24; Bortz aff.

at ¶4. All the required and pertinent information was assembled by Ms. Bortz and given
Stark County, Case No. 2010CA00211                                                     8


to the chairs of the specific departments (in this case, general surgery). Bortz depo. at

39. Included in the packets were a peer review report, a quality assurance report, the

physician's application, and data bank information. Bortz depo. at 83.

      {¶26} Raymond Candage, Jr., M.D. was the chair of the General Surgery

Department in 1998.     Candage depo. at 3-4.      He testified that after receiving the

assembled packets, he met with a team consisting of a representative from the medical

staff affairs office, someone from the quality performance office, and a hospital

administrator to review and confer on the applications. Candage depo. at 7, 12. Dr.

Candage admitted his review included the current competency of the applicants.

Candage depo. at 43-44.

      {¶27} After a chair of a department recommended re-credentialing, the

recommendations were forwarded to the credentials committee. Bortz depo. at 40.

Alexis Sayoc, M.D., chair of the credentials committee in 1998, testified Dr. Chughtai

would have been recommended for re-credentialing by the chair of his department and

the credentials committee would have verified that everything in the application packet

was "filled up accurately and completely." Sayoc depo. at 8-9, 32. Thereafter, the

recommendations would have been passed on to the medical policy board. Sayoc

depo. at 9.

      {¶28} Charles Kraus, M.D., a member of the medical policy board in 1999,

testified the board reviewed the recommendations, and questions about specific issues

would be discussed. Kraus depo. at 6, 36-37, 50. If there was an issue concerning a

physician's competency, a discussion would be held. Krause depo. at 48-50. The

matter then went to the board of trustees. Kraus depo. at 40-41. The board of trustees,
Stark County, Case No. 2010CA00211                                                       9


in compliance with the bylaws, considered the re-credentialing applications and

approved the recommendations of the medical policy board. Bortz aff. at ¶4; Bortz

depo. at 25-26, 42.

       {¶29} It is within these facts that the applicability of appellee's immunity under

R.C. 2305.25(B) will be reviewed.

       {¶30} The case law that has evolved since the 1995 statute, as the trial court

noted, is not specifically helpful to the ultimate question posed in this case.

       {¶31} In Jacobs v. Frank (1991), 60 Ohio St.3d 111, the Supreme Court of Ohio

found R.C. 2305.25 provided a qualified immunity to those who submitted information to

review committees; however, the issue addressed in Jacobs was a letter submitted to

the credentials committee by Franks and whether such communication was privileged.

       {¶32} Albain v. Flower Hospital (1990), 50 Ohio St.3d 251, overruled by Clark v.

Southview Hospital and Family Health Center, 68 Ohio St.3d 435, 1994-Ohio-519, on

other grounds, centered upon the creation of a hospital's duty of care that had granted

staff privileges to a physician and the need to prove a causal connection between the

granting of staff privileges and the foreseeability of potential harm. The Albain court at

258 specifically quoted the following language from Johnson v. Misericordia Community

Hospital (1981), 99 Wis. 2d 708, 723, 301 N.W.2d 156:

       {¶33} " '[T]he issue of whether***[the hospital] should be held to a duty of care in

the granting of medical staff privileges depends upon whether it is foreseeable that a

hospital's failure to properly investigate and verify the accuracy of an applicant's

statements dealing with his training, experience and qualifications as well as to weigh

and pass judgment on the applicant would present an unreasonable risk of harm to its
Stark County, Case No. 2010CA00211                                                       10


patients.   The failure of a hospital to scrutinize the credentials of its medical staff

applicants could foreseeably result in the appointment of unqualified physicians and

surgeons to its staff.    Thus, the granting of staff privileges to these doctors would

undoubtedly create an unreasonable risk of harm or injury to their patients. Therefore,

the failure to investigate a medical staff applicant's qualifications for the privileges

requested gives rise to a foreseeable risk of unreasonable harm and***a hospital has a

duty to exercise due care in the selection of its medical staff.' "

       {¶34} In Browning v. Burt, 66 Ohio St.3d 544, 562, 1993-Ohio-178, Justice

Douglas seized upon language in R.C. 2305.25, "[n]othing in this section shall relieve

any individual or hospital from liability arising from treatment of a patient," to find that

there was no "blanket immunity" for a hospital:

       {¶35} "The purposes of R.C. 2305.25 are clear. The statute extends limited

protection to those who provide information to certain review boards and committees to

encourage the free flow of information without threat of reprisal in the form of civil

liability. See, generally, Jacobs v. Frank (1991), 60 Ohio St.3d 111, 113, 573 N.E.2d

609, 612.     The statute also seeks to protect those serving on committees and

committee employees for the obvious reason that it could be difficult to staff a

committee absent such protections.         However, the cases at bar do not involve a

situation where SEMC has been either the provider of information to a committee (see,

e.g., R.C. 1742.141), or the participant on a committee. It is clear to us that R.C.

2305.25 does not provide blanket immunity to a hospital for negligence in granting

and/or continuing staff privileges of an incompetent physician."
Stark County, Case No. 2010CA00211                                                     11

      {¶36} The Browning case was issue specific as to whether the negligent

credentialing claim was a medical claim and the applicable statute of limitations. We

note the language from R.C. 2305.25 relied upon by Justice Douglas referred to non-

credentialing claims.

      {¶37} The statute in this case is explicit and states "[n]o hospital***shall be

liable" when the claimed action is a result of the hospital's qualification committee. The

credentialing procedures, as explained and testified to by the witnesses, Ms. Bortz, Dr.

Candage, Dr. Sayoc, and Dr. Kraus, fall within subsection (B) of the statute.        It is

unrefuted that there were regulated, specific credentialing procedures in place and they

were followed in Dr. Chughtai's re-credentialing process. Once procedures are in place

and followed, the statute shields the hospital from negative credentialing claims.

Without regulated procedures or a review process, a hospital has no immunity.

      {¶38} We find appellee established the existence of a regulated and formulated

re-credentialing process for all of its physicians and took Dr. Chughtai through the

process. As such, appellee's judgment to re-credential Dr. Chughtai cannot give rise to

a damages claim.

      {¶39} Assignments of Error I, II, III, IV, V, and VI are denied. Because the

punitive damages claim is dependent upon the existence of compensatory damages,

the arguments pertaining to punitive damages are moot.

                   CROSS-ASSIGNMENTS OF ERROR I, II, AND III

      {¶40} Based upon our decision supra, the cross-assignments are moot.
Stark County, Case No. 2010CA00211                                         12


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

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                      _s/ Sheila G. Farmer__________________




                                      _s/ William B. Hoffman________________




                                      s/ John W. Wise______________________


                                                     JUDGES

SGF/sg 211
Stark County, Case No. 2010CA00211                                            13


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT



RUTH HUNTSMAN, ADMINISTRATRIX            :
OF THE ESTATE OF                         :
AURELIA HUNTSMAN                         :
                                         :
       Plaintiff-Appellant/              :
       Cross-Appellee                    :
                                         :
-vs-                                     :       JUDGMENT ENTRY
                                         :
AULTMAN HOSPITAL                         :
                                         :
       Defendant-Appellee/               :
       Cross-Appellant                   :       CASE NO. 2010CA00211



       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                         _s/ Sheila G. Farmer__________________




                                         _s/ William B. Hoffman________________




                                         s/ John W. Wise______________________


                                                         JUDGES
