         [Cite as Siegel v. Ringer, 2017-Ohio-6969.]
                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO


DANIEL SIEGEL,                                     :   APPEAL NO. C-160659
                                                       TRIAL NO. A-0907503
  and                                              :

FRANCES B. SIEGEL, Individually       :
and as Administratix of the Estate of                     O P I N I O N.
Jessica Ann Siegel,                   :

        Plaintiffs-Appellants,                     :

  vs.                                              :

ANDREW JOEL RINGER, M.D.,                          :

MAYFIELD CLINIC AND SPINE                          :
INSTITUTE,
                                                   :
TRIHEALTH, INC.,
                                                   :
TRIHEALTH INC., TRIHEALTH
LABORATORIES,                                      :

GOOD SAMARITAN HOSPITAL,                           :

AMIE SMITH, R.N.,                                  :

  and                                              :

DANIEL R. BECKMAN, M.D.,                           :

    Defendants-Appellees.                          :


Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 26, 2017


John H. Metz, for Plaintiffs-Appellants,

Trionna & Vollman, LTD., James P. Triona and Paul J. Vollman, for Defendants-
Appellees Joel Ringer M.D. and Mayfield Clinic & Spine Institute,
                      OHIO FIRST DISTRICT COURT OF APPEALS

Rendigs, Fry, Kiely & Dennis, Thomas M. Evans and Felix J. Gora, for Defendants-
Appellees TriHealth, Inc., TriHealth Laboratories, Good Samartin Hospital, Amie
Smith R.N., and Daniel Beckman, M.D.




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                        OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.


       {¶1}   The death of one’s child is an unimaginable loss. In reviewing this appeal,

we discharge our duty without passion or prejudice, recognizing that this case originates

from the death of Jessica Siegel at the age of 16, and that she is survived by both of her

parents.

       {¶2}   Plaintiffs-appellants Daniel and Frances B. Siegel (“Siegels”) appeal from

the trial court’s grant of summary judgment in favor of defendants-appellees Andrew

Ringer, M.D., (“Ringer”), Mayfield Clinic and Spine Institute (“Mayfield”), and

TriHealth, Inc., TriHealth Laboratories, Good Samaritan Hospital, Amie Smith, R.N.,

and Daniel R. Beckman, M.D., (collectively referred to as “Good Samaritan”) in a

medical-malpractice case involving the death of Jessica Siegel. We affirm the judgment

of the trial court, because the medical-malpractice claims and wrongful-death claim

were time barred by the statute of limitations, an autopsy-consent form does not create a

contract, and collateral estoppel prohibited the Siegels from relitigating whether Ringer

engaged in fraud and spoliation.

                            The Basis of the Law Suit

       {¶3}   When she was nine years old, Jessica Siegel was diagnosed with an

arteriovenous malfunction (“AVM”), a congenital condition which is an abnormal

tangle of blood vessels in the brain. She had undergone several embolizations to

treat the AVM following her diagnosis. On July 28, 2006, Ringer performed an

embolization, and Jessica was released that day.          Ringer performed a second

embolization on August 14, 2006.       During this procedure, Jessica suffered a small

perforation to a blood vessel, a known potential complication. In recovery, Jessica

complained of severe headaches and was placed in a medically-induced coma to

manage the intracranial pressure. When the pressure became difficult to treat,

Ringer performed a craniotomy, a procedure to remove a portion of the skull to




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                            OHIO FIRST DISTRICT COURT OF APPEALS


relieve the pressure. On August 23, 2006, a tracheostomy was performed to assist

her breathing. Jessica developed a fever of 108 degrees which led to a lack of heart

function and cardiopulmonary arrest. She died that evening.

        {¶4}   Following her death, Ringer suggested that Jessica’s father, Daniel Siegel,

consent to an autopsy because he suspected a clot had broken loose or Jessica suffered

from malignant hyperthermia, a rare, hereditary condition that can be triggered by

anesthesia exposure. Daniel consented, and Amie Smith, R.N., who was not present

during the conversation, gave Daniel an autopsy-consent form. After signing the form,

Daniel left the hospital.

        {¶5}   Smith filled out the signed autopsy form. She initially checked the box for

a brain autopsy, and Ringer explained the autopsy was to determine whether a genetic

marker existed for the malignant hyperthermia and whether a pulmonary embolism had

occurred. Ringer did not need to have the head or brain autopsied because he had

multiple imaging studies that showed the condition of her brain, so Smith corrected the

form.

        {¶6}   Dr. Beckman, a staff pathologist at Good Samaritan Hospital, conducted

the autopsy.    Before performing the autopsy, he called Ringer to discuss Ringer’s

concern and the limited nature of the autopsy. Beckman performed the autopsy and

received the results from the genetic testing on November 12, 2006. The completed

autopsy report was available on December 8, 2006, and a copy was given to the Siegels

shortly thereafter.

        {¶7}   In April 2007, the Siegels hired an attorney who requested Jessica’s

medical records for purposes of legal review. In January 2008, Daniel met with Ringer

to discuss the autopsy results.

        {¶8}   In January 2009, the Siegels filed a medical-negligence, wrongful-death,




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                          OHIO FIRST DISTRICT COURT OF APPEALS


and fraud suit against Ringer and Mayfield. The complaint alleged that defendants

interfered with the contract for the autopsy, intentionally altered a medical record to

avoid liability, and committed fraud and spoliation by ordering a medical record to be

altered. In December 2009, the Siegels filed a complaint against Good Samaritan for

medical negligence and fraud, also alleging that defendants failed to obtain a full and

informed consent for the autopsy and made false representations regarding the autopsy.

       {¶9}    In both cases, the Siegels claimed that the actions were timely because the

event that started the running of the statute of limitations occurred on December 17,

2008. On that date, the Siegels had deposed Smith and discovered that Ringer had

ordered a limited autopsy instead of a complete autopsy.

       {¶10} After the cases were consolidated in 2011, Ringer argued that he was

entitled to immunity under R.C. 2743.02(F) and 9.86 because he was an employee of the

University of Cincinnati. The matter was stayed until the immunity issue was resolved

in the Court of Claims.

                          The Court of Claims Proceeding

       {¶11} In the Court of Claims, the Siegels alleged that Ringer was not entitled
to immunity because their claims arose from Ringer’s deceptive and fraudulent

conduct. Specifically, they alleged that Ringer fraudulently changed the autopsy

form to order a limited autopsy instead of a complete autopsy, failed to notify the

coroner to ensure the autopsy was performed by Good Samaritan, deliberately

destroyed evidence of malpractice, and engaged in spoliation. The Siegels further

alleged that Ringer’s conduct was done with malicious purpose, in bad faith, and in a

wanton or reckless manner.

       {¶12} After discovery, the court conducted an evidentiary hearing to determine

if Ringer’s conduct in ordering the limited autopsy constituted fraud, and whether he

acted with malicious purpose, bad faith, or in a wanton or reckless manner. The court



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found that Ringer was entitled to immunity based on the following factual findings:

          Dr. Ringer approached Daniel and requested an autopsy to determine

           the cause of Jessica’s death.

          Daniel signed an autopsy authorization form that was blank except for

           Jessica’s name. As the nurse was completing the form, she checked

           the box for a full autopsy. Ringer corrected her, and she crossed out

           full autopsy and checked the correct box.

          Ringer’s correction of the autopsy-consent form did not demonstrate

           malice because Ringer was assisting Smith to complete the form in

           accordance with his orders.

          The coroner’s office was contacted, and the coroner declined to

           perform the autopsy as stated in the hospital discharge summary.

          When Daniel signed the consent form, he assumed a full autopsy

           would be done.

          If Ringer were trying to mislead or deceive the Siegels, he would not

           have requested an autopsy at all.      Ringer requested the autopsy

           because he genuinely wanted to determine the cause of Jessica’s

           death.

          Ringer did not autopsy the brain because he had numerous imaging

           studies that showed the condition of her brain at the time, including

           multiple CT scans and angiograms.

          Plaintiffs failed to prove Ringer acted with malicious purpose, bad

           faith, or in a reckless manner with regard to his treatment and care of

           Jessica.

       {¶13} The Siegels appealed to the Tenth District Court of Appeals, which



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                         OHIO FIRST DISTRICT COURT OF APPEALS


affirmed the Court of Claims judgment. See Siegel v. Univ. of Cincinnati College of

Medicine, 2015-Ohio-441, 28 N.E.3d 612 (10th Dist.). In reaching its decision, the Tenth

District Court of Appeals explained that the facts relevant to the immunity issues were

“appellant’s allegations of fraud and spoliation of evidence * * *.” Id. at ¶ 26. The court

reiterated that “[a]ppellants chiefly argue that Dr. Ringer’s decision not to order a

complete autopsy bespoke fraud, spoliation, and other conduct sufficient to avoid

immunity.” Id. at ¶ 40. Ultimately, the court concluded that the evidence supported a

finding that Ringer “did not act with malicious purpose, in bad faith, or in a wanton or

reckless manner during his treatment and care of Jessica.” Id. at ¶ 48. The Siegels

timely appealed to the Ohio Supreme Court, and the court declined jurisdiction. On

March 9, 2016, the Ohio Supreme Court denied the Siegels’ motion for reconsideration.

                     The Motions for Summary Judgment

       {¶14} The case resumed in Hamilton County against Mayfield and Good
Samaritan. Mayfield filed a motion for summary judgment alleging that the claims

were time barred, the Siegels were estopped from arguing that Ringer committed

fraud and spoliation, and the fraud and spoliation claims were medical claims

subject to the one-year statute of limitations. Good Samaritan filed a motion and

supplemental motion for summary judgment alleging that the claims were time

barred, Smith and Beckman did not commit any fraudulent conduct, the Siegels were

estopped from arguing that Ringer committed fraud and spoliation, and the autopsy-

consent form did not create a contractual obligation.

       {¶15} With respect to the statute of limitations, Mayfield alleged that the
cognizable event that started the time running was the complication, and the statute

of limitations expired on August 23, 2007, one year after Jessica’s death and the

termination of her minority status. Good Samaritan argued the claims accrued when

the Siegels received the autopsy report in December 2006, or, in the alternative,

when the Siegels read the autopsy report in December 2007.




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                        OHIO FIRST DISTRICT COURT OF APPEALS


       {¶16} The trial court granted the motions for summary judgment, finding
that the actions were time barred under the statutes of limitations and the

authorization form to complete an autopsy did not create a contractual obligation.

Finally, the court found that collateral estoppel barred the plaintiffs from alleging

fraud and spoliation since the Court of Claims and Tenth District Court of Appeals

had found that Ringer had not committed fraud and had not acted with malicious

purpose, in bad faith, or in a wanton or reckless manner. This appeal followed.

                             Statute of Limitations

       {¶17} In their first assignment of error, the Siegels claim that the trial court
erred in granting summary judgment because there was a factual dispute as to when

the statute of limitations began to run. Specifically, the Siegels claim the cognizable

even occurred on December 18, 2008, the date that they alleged they discovered that

Ringer fraudulently ordered a limited autopsy instead of a complete autopsy.

       {¶18} An appellate court reviews the granting of a summary judgment de
novo. Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175, 722

N.E.2d 108 (8th Dist.1999). Summary judgment is appropriate when, looking at the

evidence as a whole (1) there is no genuine issue as to any material fact, (2)

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, and therefore,

(3) the moving party is entitled to judgment as a matter of law. Civ.R. 56(C); Horton

v. Harwick Chem. Corp., 73 Ohio St.3d 679, 686-687, 653 N.E.2d 1196 (1995). If any

doubts exist, the issue must be resolved in favor of the nonmoving party. Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

       {¶19} The Siegels were required to file the wrongful-death action within two
years of Jessica’s death. R.C. 2125.02(D). With respect to the medical-malpractice

claims, the Siegels were required to file the claims within one year after the cause of

action accrued. R.C. 2305.113(A).




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                         OHIO FIRST DISTRICT COURT OF APPEALS


       {¶20} Under the discovery rule, a cause of action for medical malpractice
accrues “when the patient discovers, or, in the exercise of reasonable care and

diligence should have discovered, the resulting injury.” Oliver v. Kaiser Community

Health Found., 5 Ohio St.3d 111, 449 N.E.2d 438 (1983), syllabus. To establish when

a person should have discovered the injury, the court must review the facts to

determine (1) when the injured party became aware, or should have become aware,

of the extent and seriousness of his condition; (2) whether the injured party was

aware, or should have been aware, that such condition was related to a specific

professional medical service previously rendered him; and (3) whether such

condition would put a reasonable person on notice of need for further inquiry as to

the cause of such condition. Hershberger v. Akron City Hosp., 34 Ohio St.3d 1, 5-6,

516 N.E.2d 204 (1987).

       {¶21} The accrual of the cause of action depends upon the existence of a
“cognizable event.” “A ‘cognizable event’ is the occurrence of facts and circumstances

which lead, or should lead, the patient to believe that the physical condition or injury

of which she complains is related to a medical diagnosis, treatment or procedure that

she previously received.” Flowers v. Walker, 63 Ohio St.3d 546, 549, 589 N.E.2d

1284 (1992), citing Allenius v. Thomas, 42 Ohio St.3d 131, 538 N.E.2d 93 (1989),

syllabus. “Constructive knowledge of facts, rather than actual knowledge of their

legal significance” is sufficient under the discovery rule. Flowers at 549.         The

“cognizable event * * * puts the plaintiff on notice to investigate the facts and

circumstances relevant to her claim in order to pursue her remedies.” Id.

       {¶22} The Siegels contend that the cognizable event did not occur until they
deposed Smith and learned that Ringer ordered a limited autopsy instead of a

complete autopsy. On the record before us, we conclude the trial court did not err

when it found that the cognizable event could have occurred at the time of the

complication on August 14, 2006, or the death on August 23, 2006, when the Siegels




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requested the autopsy, or when they received the report in December 2006. A

reasonable person should have been aware that the complication and death were

related to medical services rendered to Jessica, especially when Ringer requested an

autopsy immediately after her death. Moreover, the Siegels began a “further inquiry”

when they requested a copy of the autopsy and hired an attorney to review Jessica’s

medical records.

       {¶23} It is not necessary for purposes of this appeal to pinpoint exactly when
the cognizable event occurred. The Siegels filed their negligence claims in January

2009 against Mayfield and in December 2009 against Good Samaritan.               If a

cognizable event occurred before January 2008 and December 2008, respectively,

the complaints were filed after the expiration of the statute of limitations. There is

no question that a cognizable event occurred by December 2006 when the Siegels

obtained the autopsy report.     Accordingly, we find that by December 2006, a

cognizable event occurred that was sufficient to put the Siegels on notice of the need

for further inquiry.

       {¶24} The Siegels’ negligence claims filed in January 2009 against Mayfield
and in December 2009 against Good Samaritan are barred by the one-year statute of

limitations pursuant to R.C. 2305.11(A). The wrongful-death action against Mayfield

was also time barred because it was filed more than two years after Jessica’s death.

See R.C. 2125.02(D).

       {¶25} The trial court properly determined that the complaints were filed
after the expiration of the statute of limitations. The Siegels’ first assignment of

error is overruled.

                                 Contract Claim

       {¶26} In their second assignment of error, the Siegels claim that the trial
court erred in concluding that the authorization to perform an autopsy did not create

a contractual obligation for Good Samaritan. This claim is without merit. The




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                        OHIO FIRST DISTRICT COURT OF APPEALS


existence of an enforceable contract is a prerequisite to a contract claim.           An

authorization to complete an autopsy did not create a contractual obligation for Good

Samaritan to conduct the autopsy. See Federman v. Christ Hosp., 1st Dist. Hamilton

No. C-120484, 2013-Ohio-5507, ¶ 14. Consequently, we overrule the Siegels’ second

assignment of error.

                                Collateral Estoppel

       {¶27} In their third and fourth assignments of error, the Siegels argue that
the trial court erred in applying collateral estoppel to bar them from relitigating

whether Ringer’s limitation of the autopsy constituted fraud and spoliation, because

Mayfield was not a party in the Court of Claims and the issues of fraud and spoliation

were not litigated.

       {¶28} Collateral estoppel, also known as issue preclusion, provides that facts
or issues that were fully, fairly, and necessarily determined in a prior judicial setting

may not be relitigated in a later action, regardless of whether the claims in the two

actions are identical or different. See Ft. Frye Teachers Assn. OEA/NEA v. State

Emp. Relations Bd., 102 Ohio St.3d 283, 2004-Ohio-2947, 809 N.E.2d 1130, ¶

10, citing Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989). Collateral

estoppel applies when (1) the party against whom estoppel is sought was a party to

the prior action; (2) there was a final judgment on the merits in the prior action after

a full and fair opportunity to litigate the issue; (3) the issue was decided and was

necessary to the final judgment; and (4) the issue was identical to the issue involved

in the new action. Mitchell v. Internatl. Flavors & Fragrances, Inc., 179 Ohio

App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, ¶ 14 (1st Dist.).

       {¶29} The Siegels first argue that collateral estoppel does not apply because
Mayfield and Good Samaritan were not parties to the Court of Claims action. That

argument is contrary to the application of collateral estoppel, because Mayfield and

Good Samaritan are seeking to assert the doctrine against the Siegels. Therefore, the




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                        OHIO FIRST DISTRICT COURT OF APPEALS


question is whether the Siegels were a party to the prior action, and the Siegels were

parties to the Court of Claims action.

       {¶30} Next, the Siegels argue that the only issue adjudicated in the prior
action was whether Ringer was entitled to immunity. In the prior proceeding, the

Siegels argued that Ringer had engaged in fraud and spoliation by limiting the

autopsy, and as a result, was not entitled to statutory immunity. They further argued

that Ringer had acted with malicious purpose, in bad faith, or in a wanton, reckless

manner by changing the autopsy consent form. “Bad faith” is defined as “involving

actual or constructive fraud or a design to mislead or deceive another.” Siegel, 2015-

Ohio-441, 28 N.E.3d 612, at ¶ 31. In order to determine whether Ringer was entitled

to immunity, the court had to decide if Ringer had committed fraud.

       {¶31} The premise of the Siegels’ fraud claim is that Ringer altered the
autopsy form to conceal evidence of malpractice. However, both the Court of Claims

and the Tenth District Court of Appeals found that Ringer did not engage in fraud or

spoliation in limiting the autopsy. Both courts concluded that Ringer instructed

Smith to complete the autopsy form in accordance with his orders, the purpose of the

autopsy was to determine the cause of death, Ringer did not mislead or deceive the

Siegels, and Ringer did not act with malicious purpose, in bad faith, or in a wanton or

reckless manner.

       {¶32} In order to prove fraud, the Siegels must show “(a) a representation or,
where there is a duty to disclose, concealment of a fact, (b) which is material to the

transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter

disregard and recklessness as to whether it is true or false that knowledge may be

inferred, (d) with the intent of misleading another into relying on it, (e) justifiable

reliance upon the representation or concealment, and (f) a resulting injury

proximately caused by the reliance.” Wiley v. Good Samaritan Hosp., 1st Dist.

Hamilton Nos. C-030131 and C-030181, 2004-Ohio-763, ¶ 9, quoting Burr v. Stark




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                         OHIO FIRST DISTRICT COURT OF APPEALS


Cty. Bd. of Commrs., 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986), paragraph two of the

syllabus.

         {¶33} Because the issue of whether Ringer altered the autopsy form in an
attempt to deceive or mislead the Siegels was directly litigated and decided in the

previous action, the trial court correctly applied collateral estoppel to prevent the

Siegels from relitigating whether Ringer had altered the autopsy form to mislead the

Siegels. Accordingly, we must overrule the Siegels’ third and fourth assignments of

error.

                                  Denial of Motions

         {¶34} In their fifth assignment of error, the Siegels claim that the trial court
abused its discretion by denying their motion to compel discovery and their motion

to postpone consideration of the summary-judgment motions to allow for adequate

discovery.     Specifically, the Siegels sought additional discovery regarding the

alteration of the autopsy form.       We cannot say that the trial court abused its

discretion, because the Siegels were provided ample opportunities for discovery,

including taking depositions of Ringer, Smith, and Beckman.

         {¶35} Moreover, the Tenth District Court of Appeals rejected this argument
when the Siegels alleged that the Court of Claims had unreasonably restricted

discovery in that action. The Tenth District found that the Siegels had been allowed

to depose Ringer regarding the allegations of fraud and spoliation. Siegel, 2015-

Ohio-441, 28 N.E.3d 612, at ¶ 26. And, in fact, the Court of Claims afforded the

Siegels “wide berth in seeking information” to support the allegations of fraud and

spoliation by Ringer. Id. Accordingly, we overrule this assignment of error.

                  Constitutionality of the Immunity Statutes

         {¶36} In their sixth and final assignment of error, the Siegels argue that the
immunity statutes unconstitutionally deprived them of the right to a jury trial in the

Court of Claims. The Siegels raised this exact issue in their appeal to the Tenth




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District Court of Appeals. The court overruled the assignments of error, concluding

that the Siegels had waived the issue by failing to request a jury or object to the

statutory scheme in the Court of Claims. Id. at ¶ 20. The court further found that

the Ohio Supreme Court had rejected the Siegels’ arguments in Conley v. Shearer, 64

Ohio St.3d 284, 595 N.E.2d 862 (1992). Id. Because this issue was litigated and

decided by the Tenth District Court of Appeals, the Siegels are collaterally estopped

from relitigating the issue. See Mitchell, 179 Ohio App.3d 365, 2008-Ohio-3697, 902

N.E.2d 37, at ¶ 14. Therefore, we must overrule this assignment of error.
       {¶37} The judgment of the trial court is affirmed
                                                                 Judgment affirmed.


MYERS and MILLER, JJ., concur.


Please note:

       This court has recorded its own entry this date.




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