[Cite as Smith v. Wyandot Mem. Hosp., 2018-Ohio-2441.]




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


KYRA V. SMITH, ADMINISTRATOR
OF THE ESTATE OF SHAWN SMITH,
DECEASED,
                                                         CASE NO. 16-17-07
        PLAINTIFF-APPELLANT,
        v.
WYANDOT MEMORIAL HOSPITAL,                               OPINION
ET AL.,

        DEFENDANTS-APPELLEES.


               Appeal from Wyandot County Common Pleas Court
                          Trial Court No. 17 CV 0065

                                    Judgment Affirmed

                            Date of Decision: June 25, 2018


APPEARANCES:

        William P. Campbell for Appellant

        Douglas G. Leak for Appellee, Wyandot Memorial Hospital

        Jeanne M. Mullin for Appellee, Peter J. Schuler, M.D.

        Frederick A. Sewards for Appellees, Smith Clinic, et al.

        Taylor C. Knight for Appellees, Findlay Radiology Assoc., Inc., et al.
Case No. 16-17-07



PRESTON, J.

       {¶1} Plaintiff-appellant, Kyra V. Smith (“Kyra”), Administrator of the Estate

of Shawn A. Smith (“Shawn”) (collectively “Shawn’s estate”), appeals the

December 5, 2017 judgment of the Wyandot County Court of Common Pleas

granting summary judgment in favor of defendants-appellees, Wyandot Memorial

Hospital (“Wyandot Hospital”), Findlay Radiology Associates, Inc. (“Findlay

Radiology”), Young C. Choy, M.D. (“Dr. Choy”), and Peter J. Schuler, M.D. (“Dr.

Schuler”), dismissing under Civ.R. 12(B)(6) Shawn’s estate’s complaint against

defendants-appellees, Frederick C. Smith Clinic, Smith Clinic, and Roberto S.

Concepcion, M.D. (“Dr. Concepcion”), and dismissing its complaint against

Wyandot Specialty Healthcare (collectively “defendants”). We affirm.

       {¶2} In a previous appeal, this court recited much of the factual and

procedural background relevant to this case, and we will not duplicate those efforts

here. Smith v. Wyandot Mem. Hosp., 3d Dist. Wyandot No. 16-14-07, 2015-Ohio-

1080. In sum, in that case, after Shawn was diagnosed with terminal cancer, Shawn,

Kyra, and Shawn and Kyra’s three children alleged medical negligence and loss of

consortium claims against a number of the same parties named as defendants in this

case. Id. at ¶ 3. After the claims against the other named defendants were dismissed,

the trial court granted summary judgment in favor of Findlay Radiology and Dr.

Choy after concluding that there was no genuine issue of material fact that Shawn,

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Case No. 16-17-07


Kyra, and Shawn and Kyra’s three children filed their claims beyond Ohio’s statute

of repose under R.C. 2305.113(C). Id. at ¶ 6. See also id. at ¶ 1, fn. 1. This court

affirmed the trial court’s decision granting summary judgment in favor of Findlay

Radiology and Dr. Choy. Id. at ¶ 19.

       {¶3} Following that appeal, Shawn succumbed to his cancer on July 22,

2015. (Doc. No. 1). Kyra, Shawn’s spouse, was appointed the administrator of

Shawn’s estate on September 24, 2015. (Id.).

       {¶4} On July 21, 2017, Shawn’s estate filed a wrongful-death action

asserting a medical claim against Wyandot Hospital, Findlay Radiology, Dr. Choy,

Dr. Schuler, Dr. Concepcion, OhioHealth Marion Area Physicians (“OhioHealth”),

Wyandot Specialty Healthcare, Frederick C. Smith Clinic, and Smith Clinic. (Doc.

No. 1).

       {¶5} Dr. Choy and Findlay Radiology filed their answer on August 7, 2017.

(Doc. No. 19). Dr. Concepcion, Smith Clinic, and Frederick C. Smith Clinic filed

their answer on August 17, 2017. (Doc. No. 22). Wyandot Hospital filed its answer

that same day. (Doc. No. 26). On August 21, 2017, OhioHealth filed its answer.

(Doc. No. 29). After he was granted an extension of time to file his answer, Dr.

Schuler filed his answer on September 7, 2017. (Doc. No. 36). (See Doc. Nos. 18,

30). Wyandot Specialty Healthcare failed to answer the complaint. (See Doc. No.

49).


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      {¶6} Also on August 17, 2017, Dr. Concepcion, Smith Clinic, and Frederick

C. Smith Clinic filed a motion to dismiss Shawn’s estate’s complaint under Civ.R.

12(B)(6). (Doc. No. 24). On August 30, 2017, Shawn’s estate filed a memorandum

in opposition to Dr. Concepcion, Smith Clinic, and Frederick C. Smith Clinic’s

motion to dismiss. (Doc. No. 32). Dr. Concepcion, Smith Clinic, and Frederick C.

Smith Clinic filed its reply to Shawn’s estate’s memorandum in opposition to their

motion to dismiss. (Doc. No. 35).

      {¶7} Wyandot Hospital filed a motion for summary judgment on September

14, 2017. (Doc. No. 37). Dr. Choy and Findlay Radiology filed a motion for

summary judgment on October 5, 2017. (Doc. No. 40). On October 10, 2017, Dr.

Schuler filed a motion for summary judgment. (Doc. No. 42). OhioHealth filed a

motion for summary judgment on October 12, 2017. (Doc. No. 44).

      {¶8} On October 19, 2017, Shawn’s estate voluntarily dismissed its

complaint against OhioHealth under Civ.R. 41(A)(1)(a). (Doc. No. 47).

      {¶9} On October 23, 2017, Shawn’s estate filed a memorandum in

opposition to Dr. Choy and Findlay Radiology’s, Dr. Schuler’s, and Wyandot

Hospital’s motions for summary judgment. (Doc. No. 48).

      {¶10} On December 5, 2017, the trial court granted Dr. Choy and Findlay

Radiology’s, Dr. Schuler’s, and Wyandot Hospital’s motions for summary

judgment and Dr. Concepcion, Smith Clinic, and Frederick C. Smith Clinic’s


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motion to dismiss, and dismissed Shawn’s estate’s complaint against defendants.

(Doc. No. 49). In its entry, the trial court also dismissed Shawn’s estate’s complaint

against Wyandot Specialty Healthcare. (See id. at 3, fn. 1). In dismissing Shawn’s

estate’s complaint, the trial court concluded that Shawn’s estate’s wrongful-death

action asserted a medical claim and was barred by Ohio’s medical-malpractice

statute of repose.

       {¶11} Shawn’s estate filed its notice of appeal on December 20, 2017. (Doc.

No. 50). It raises two assignments of error for our review.

                            Assignment of Error No. I

       The Trial Court Erred in Holding Plaintiff-Appellant’s Wrongful
       Death Claim Was Barred by the Statute of Repose Set Forth in
       Ohio Revised Code §2305.113

       {¶12} In its first assignment of error, Shawn’s estate argues that the trial

court erred by dismissing its wrongful-death claim against Wyandot Hospital,

Findlay Radiology, Dr. Choy, Dr. Schuler, Frederick C. Smith Clinic, Smith Clinic,

and Dr. Concepcion after concluding that Ohio’s medical-malpractice statute of

repose bars Shawn’s estate’s wrongful-death action. Specifically, Shawn’s estate

argues that the trial court erred by applying Ohio’s medical-malpractice statute of

repose under R.C. 2305.113(C) to bar a wrongful-death action under R.C. 2125.01.

       {¶13} Because the trial court dismissed Shawn’s estate’s wrongful-death

action using two procedural vehicles—summary judgment and Civ.R. 12(B)(6)—


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Case No. 16-17-07


we must apply different standards to review the methods of dismissal. We review

a decision to grant summary judgment and a judgment on a Civ.R. 12(B)(6) motion

to dismiss for failure to state a claim upon which relief can be granted de novo. Doe

v. Shaffer, 90 Ohio St.3d 388, 390 (2000); Bd. of Health of Defiance Cty. v.

McCalla, 3d Dist. Defiance No. 4-12-07, 2012-Ohio-4107, ¶ 33, citing Perrysburg

Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. “Under de novo

analysis, we are required to ‘accept all factual allegations of the complaint as true

and draw all reasonable inferences in favor of the nonmoving party.’” McBroom v.

Safford, 10th Dist. Franklin No. 11AP-885, 2012-Ohio-1919, ¶ 9, quoting Grey v.

Walgreen Co., 8th Dist. Cuyahoga No. 96846, 2011-Ohio-6167, ¶ 3, citing Byrd. v.

Faber, 57 Ohio St.3d 56 (1991).

       {¶14} Summary judgment is proper where there is no genuine issue of

material fact, the moving party is entitled to judgment as a matter of law, and

reasonable minds can reach but one conclusion when viewing the evidence in favor

of the non-moving party, and the conclusion is adverse to the non-moving party.

Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio

St.3d 217, 219 (1994).

       {¶15} “A [Civ.R. 12(B)(6)] motion to dismiss for failure to state a claim

upon which relief can be granted is procedural and tests whether the complaint is

sufficient.” McCalla at ¶ 33, citing State ex rel. Hanson v. Guernsey Cty. Bd. of


                                         -6-
Case No. 16-17-07


Commrs., 65 Ohio St.3d 545, 548 (1992). “In order for a trial court to grant a motion

to dismiss for failure to state a claim upon which relief can be granted, it must appear

‘beyond doubt from the complaint that the plaintiff can prove no set of facts entitling

her to relief.’” McBroom at ¶ 7, quoting Grey at ¶ 3, citing LeRoy v. Allen, Yurasek

& Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14.

       {¶16} The trial court dismissed Shawn’s estate’s wrongful-death action

against Wyandot Hospital, Findlay Radiology, Dr. Choy, Dr. Schuler, Frederick C.

Smith Clinic, Smith Clinic, and Dr. Concepcion after concluding that its claim is

barred by Ohio’s medical-claim statute of repose. Accordingly, we must determine

whether Ohio’s medical-claim statute of repose applies to wrongful-death actions

under R.C. Chapter 2125.

       {¶17} Under the rules of statutory interpretation, “‘[t]he paramount goal in

the interpretation or construction of a statute is to ascertain and give effect to the

legislature’s intent in enacting the statute.’” Antoon v. Cleveland Clinic Found.,

148 Ohio St.3d 483, 2016-Ohio-7432, ¶ 20, quoting Brooks v. Ohio State Univ., 111

Ohio App.3d 342, 349 (10th Dist.1996). “To determine legislative intent, we must

first examine the plain language of the statute.” Id., citing State ex rel. Burrows v.

Indus. Comm., 78 Ohio St.3d 78, 81 (1997). “‘[W]e must apply a statute as it is

written when its meaning is unambiguous and definite.’” Id., quoting Portage Cty.

Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, ¶ 52, citing State ex


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Case No. 16-17-07


rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545

(1996). “‘An unambiguous statute must be applied in a manner consistent with the

plain meaning of the statutory language * * *.’” Id., quoting Burrows at 81.

       {¶18} Applying the rules of statutory interpretation, the Supreme Court of

Ohio has concluded that Ohio’s medical-claim statute of repose “applies to a cause

of action that ha[s] vested for an act or omission allegedly constituting medical

malpractice that took place more than four years earlier.” Id. at ¶ 1. The court

further concluded that “the plain language of the statute is clear, unambiguous, and

means what it says.” Id. at ¶ 23. That is, “[i]f a lawsuit bringing a medical * * *

claim is not commenced within four years after the occurrence of the act or omission

constituting the basis for the claim, then any action on that claim is barred.”

(Emphasis added.) Id.

       {¶19} Application of the rules of statutory interpretation to the issue

presented by this case produces the same result. R.C. 2305.113(C), Ohio’s medical-

claim statute of repose, provides:

       (C) Except * * * as provided in division (D) of this section, both of

       the following apply:

       (1) No action upon a medical, dental, optometric, or chiropractic

       claim shall be commenced more than four years after the occurrence




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       of the act or omission constituting the alleged basis of the medical,

       dental, optometric, or chiropractic claim.

       (2) If an action upon a medical, dental, optometric, or chiropractic

       claim is not commenced within four years after the occurrence of the

       act or omission constituting the alleged basis of the medical, dental,

       optometric, or chiropractic claim, then, any action upon that claim is

       barred.

       {¶20} Addressing the constitutionality of Ohio’s medical-claim statute of

repose, the Supreme Court of Ohio concluded that R.C. 2305.113(C) is “a true

statute of repose.” Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, ¶ 19.

Unlike a statute of limitations which “establishes ‘a time limit for suing in a civil

case, based on the date when the claim accrued (as when the injury occurred or was

discovered),’” “[a] statute of repose bars ‘any suit that is brought after a specified

time since the defendant acted * * * even if this period ends before the plaintiff has

suffered a resulting injury.” Antoon at ¶ 11, quoting Black’s Law Dictionary 1636

and 1637 (10th Ed.2014). Generally, statutes of limitations and repose have been

favorably received by “courts and legislatures sharing the common beliefs that

plaintiffs should litigate their claims as swiftly as possible and that defendants

should not face potential liability indefinitely.” Id. at ¶ 12. Indeed, the Supreme

Court of Ohio historically has enforced such statutes. See id. at ¶ 17, quoting Kerper


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Case No. 16-17-07


v. Wood, 48 Ohio St. 613, 620 (1891); Id. at ¶ 17 (“It is not the province of the courts

to make exceptions to meet cases not provided for by the legislature. It is no longer

the habit of courts to view with disfavor the plea of the statutes of limitations. Being

statutes of repose, designed to secure the peace of society, and protect the individual

from being prosecuted upon stale claims, they are to be construed in the spirit of

their enactment.”), quoting Townsend v. Eichelberger, 51 Ohio St. 213, 216 (1894).

Moreover, the court,

       like the United States Supreme Court, [has] respected the public

       policy choices embodied in statutes of repose:

            Many policy reasons support this legislation. Just as a plaintiff

       is entitled to a meaningful time and opportunity to pursue a claim, a

       defendant is entitled to a reasonable time after which he or she can be

       assured that a defense will not have to be mounted for actions

       occurring years before. The statute of repose exists to give medical

       providers certainty with respect to the time within which a claim can

       be brought and a time after which they may be free from the fear of

       litigation.

            Forcing medical providers to defend against medical claims that

       occurred 10, 20, or 50 years before presents a host of litigation

       concerns, including the risk that evidence is unavailable through the


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Case No. 16-17-07


       death or unknown whereabouts of witnesses, the possibility that

       pertinent documents were not retained, the likelihood that evidence

       would be untrustworthy due to faded memories, the potential that

       technology may have changed to create a different and more stringent

       standard of care not applicable to the earlier time, the risk that the

       medical providers’ financial circumstances may have changed—i.e.,

       that practitioners have retired and no longer carry liability insurance,

       the possibility that a practitioner’s insurer has become insolvent, and

       the risk that the institutional medical provider may have closed.

            Responding to these concerns, the General Assembly made a

       policy decision to grant Ohio medical providers the right to be free

       from litigation based on alleged acts of medical negligence occurring

       outside a specified time period.

Id., quoting Ruther, 134 Ohio St.3d 408, 2012-Ohio-5686, at ¶ 19-21.

       {¶21} Re-codifying R.C. 2305.113, the General Assembly explained the

purpose of the legislation. In its statement of findings and intent, the General

Assembly discussed the distress posed to Ohio’s health-care industry caused by

growing medical-malpractice litigation. See S.B. 281, 2002 Ohio Laws File 250,

Section 3(A)(1)-(3). Based on that concern, the General Assembly addressed the

specific rationale behind the statute of repose:


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Case No. 16-17-07


      (6)(a) That a statute of repose on medical, dental, optometric, and

      chiropractic claims strikes a rational balance between the rights of

      prospective claimants and the rights of hospitals and health care

      practitioners;

      (b) Over time, the availability of relevant evidence pertaining to an

      incident and the availability of witnesses knowledgeable with respect

      to the diagnosis, care, or treatment of a prospective claimant becomes

      problematic.

      (c) The maintenance of records and other documentation related to

      the delivery of medical services, for a period of time in excess of the

      time period presented in the statute of repose, presents an

      unacceptable burden to hospitals and health care practitioners.

      (d) Over time, the standards of care pertaining to various health care

      services may change dramatically due to advances being made in

      health care, science, and technology, thereby making it difficult for

      expert witnesses and triers of fact to discern the standard of care

      relevant to the point in time when the relevant health care services

      were delivered.




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Case No. 16-17-07


      (e) This legislation precludes unfair and unconstitutional aspects of

      state litigation but does not affect timely medical malpractice actions

      brought to redress legitimate grievances.

      (f)   This legislation addresses the aspects of current division (B) of

      section 2305.11 of the Revised Code, the application of which was

      found by the Ohio Supreme Court to be unconstitutional in Gaines v.

      Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54. In Dunn v. St.

      Francis Hospital, Inc. (Del. 1982), 401 Atl.2d 77, the Delaware

      Supreme Court found the Delaware three-year statute of repose

      constitutional as not violative of the Delaware Constitution’s open

      courts provision.

      (B) In consideration of these findings, the General Assembly

      declares its intent to accomplish all of the following by the enactment

      of this act:

      (1) To stem the exodus of medical malpractice insurers from the

      Ohio market;

      (2) To increase the availability of medical malpractice insurance to

      Ohio’s hospitals, physicians, and other health care practitioners, thus

      ensuring the availability of quality health care for the citizens of this

      state;


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Case No. 16-17-07


       (3) To continue to hold negligent health care providers accountable

       for their actions;

       (4) To preserve the right of patients to seek legal recourse for

       medical malpractice.

Id. at Section 3(A)(6), (B).

       {¶22} Based on those principles, the Supreme Court of Ohio “and the United

States Supreme Court agree that statutes of repose are to be read as enacted and not

with an intent to circumvent legislatively imposed time limitations.” Antoon at ¶

19. For those reasons, we conclude that wrongful-death actions based on medical

claims are barred by Ohio’s medical-claim statute of repose for an act or omission

allegedly constituting medical malpractice that took place more than four years

earlier. The Supreme Court of Ohio stated that Ohio’s medical-claim statute of

repose clearly and unambiguously bars “any action” bringing a medical claim

commenced more than four years after the occurrence of the act or omission

constituting the basis for the claim. (Emphasis sic.) Id. at ¶ 23. Because any action

bringing a medical claim is barred by Ohio’s medical-claim statute of repose if it is

not timely commenced, we conclude that wrongful-death actions fall within the

scope of “any action” and are subject to the time restraints of the statute of repose.

       {¶23} However, similar to the issue presented in Daniel v. United States,

Shawn’s estate argues that Ohio’s medical-claim statute of repose does not apply to


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wrongful-death actions because a wrongful-death action is subject to its own statute

of limitations under R.C. 2125.02(D)(1). 977 F.Supp.2d 777, 780 (N.D.Ohio 2013).

R.C. 2125.02(D)(1) “requires wrongful death claims to be commenced within two

years of the date of decedent’s death.” Id., citing R.C. 2125.02(D)(1).1

         {¶24} In Daniel, the federal district court concluded that Ohio’s statute of

repose does not apply to wrongful-death actions. Id. at 781. The court, disagreeing

with the Eighth District Court of Appeals’ decision in Fletcher v. Univ. Hosps. of

Cleveland, reasoned that Ohio’s statute of repose does not apply to wrongful-death

actions based on the Supreme Court of Ohio’s “discussion of the relation of medical

malpractice and wrongful death statutes of limitations.” Id., citing 172 Ohio App.3d

153, 2007-Ohio-2778, ¶ 8, rev’d on other grounds, 120 Ohio St.3d 167, 2008-Ohio-

5379.

         {¶25} We disagree with the court’s reasoning.                        It is well-settled that

“[s]tatutes of repose and statutes of limitation have distinct applications.” Antoon,

148 Ohio St.3d 483, 2016-Ohio-7432, at ¶ 11, citing CTS Corp. v. Waldburger, ___

U.S. ___, 134 S.Ct. 2175, 2182 (2014). See also York v. Hutchins, 12th Dist. Butler

No. CA2013-09-173, 2014-Ohio-988, ¶ 10 (discussing the applicability of Ohio’s

statute of repose to medical claims “regardless of the applicable statute of

limitations”). Indeed, as we noted above, a statute of limitations relates to a


1
 It is undisputed that Shawn’s estate filed its wrongful-death action within the time parameters established
by R.C. 2125.02(D)(1).

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Case No. 16-17-07


plaintiff’s ability to pursue a claim, while a statute of repose affords defendants

certainty of “a time after which they may be free from the fear of litigation.” Ruther,

134 Ohio St.3d 408, 2012-Ohio-5686, at ¶ 19.

       {¶26} Moreover, based on the different motivations of a statute of limitations

and a statute of repose, any argument asserting that Ohio’s medical-claim statute of

repose does not apply to wrongful-death actions because wrongful-death actions and

medical-malpractice actions are separate causes of action is erroneous. Stated

another way, a statute of limitations governs the time in which a plaintiff may assert

a cause of action. A cause of action is based on a plaintiff’s injury. Conversely, a

statute of repose focuses on a defendant’s alleged acts and governs the time in which

a defendant may be held accountable for his or her alleged negligent acts. Based on

that distinction, any separate-causes-of-action argument necessarily fails.

Accordingly, because statutes of repose and limitation are fundamentally different,

any reasoning based on the interplay of two statute of limitations is not persuasive.

Thus, we decline to follow Daniel.

       {¶27} Although it is not directly on point, our sister appellate district’s

decision in Fletcher is instructive to our analysis. In that case, the court concluded

that Fletcher was required to file an affidavit of merit with respect to her wrongful-

death action because it was based on a medical claim. Fletcher, 172 Ohio App.3d




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153, 2007-Ohio-2778, at ¶ 8.2 Applying the court’s rationale that an affidavit of

merit is required to support a wrongful-death action based on a medical claim, it

reasons that the other statutory provisions applicable to medical claims, including

Ohio’s medical-claim statute of repose, also apply to wrongful-death actions. For

the above reasons, we hold that Ohio’s medical-claim statute of repose applies to

wrongful death actions under R.C. Chapter 2125, which assert medical claims.

        {¶28} Turning to Shawn’s estate’s wrongful-death action, we must

determine whether it is based on a medical claim to determine whether Ohio’s

medical-claim statute of repose applies. A medical claim under R.C. 2305.113 is

defined as

        any claim that is asserted in any civil action against a physician,

        podiatrist, hospital, home, or residential facility, against any employee

        or agent of a physician, podiatrist, hospital, home, or residential

        facility, or against a licensed practical nurse, registered nurse,

        advanced practice registered nurse, physical therapist, physician

        assistant, emergency medical technician-basic, emergency medical

        technician-intermediate, or emergency medical technician-paramedic,




2
  Reversing the Eighth District Court of Appeals’ decision for other reasons, the Supreme Court of Ohio
specifically noted that the Eighth District’s “ruling that [Fletcher’s] wrongful-death claim requires an
affidavit” of merit was not before the court because “Fletcher did not cross-appeal” that determination.
Fletcher v. Univ. Hosps. Of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, ¶ 9, fn. 2.

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Case No. 16-17-07


      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(E)(3).

      {¶29} Shawn’s estate’s complaint alleges that defendants “provided medical

treatment and/or were responsible for supervising the medical treatment of Shawn


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Smith.” (Doc. No. 1). It further alleges that Wyandot Hospital, Findlay Radiology,

Frederick C. Smith Clinic, and Smith Clinic are businesses that “held themselves

out to the public * * * as competent and qualified to provide safe and adequate

medical care and treatment,” and that Dr. Choy, Dr. Schuler, and Dr. Concepcion

are “practicing as medical doctors and held themselves out to the public * * * as

competent and qualified to provide safe and adequate medical care and treatment.”

(Id.). Shawn’s estate specifically alleged that “Defendants were negligent [by]

failing to properly diagnose and treat Shawn A. Smith and failed to provide

appropriate follow-up care to Shawn”; “Defendants took on the responsibility of

caring and treating for [sic] Shawn Smith, but failed to make appropriate and

differential decisions and failed to administer proper care and treatment to Shawn”;

“[t]he care and treatment provided to Shawn A. Smith, by the Defendants, fell below

acceptable standards of medical care and treatment and said Defendants were

negligent”; and “Defendants negligently failed to use that degree of care, skill and

diligence in providing Shawn A. Smith with proper and/or appropriate medical care

and treatment ordinarily used by hospitals, physicians, and other medical personal

in like and similar circumstances which ultimately caused the death of Shawn A.

Smith.” (Id.). Based on those allegations, Shawn’s estate’s wrongful-death action

is based on a medical claim within the meaning of R.C. 2305.113(E)(3). Compare

Fletcher, 172 Ohio App.3d 153, 2007-Ohio-2778, at ¶ 8 (“The wrongful-death claim


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asserted by appellant was a medical claim as defined by R.C. 2305.113. It was a

claim against a physician and a hospital that arose out of the medical diagnosis, care,

or treatment of the decedent, and the claim resulted from alleged acts or omissions

in providing medical care.”).

       {¶30} Moreover, as further evidence that Shawn’s estate’s wrongful-death

action is based on a medical claim, Shawn’s estate included with its complaint

affidavits of merit as required by Civ.R. 10(D)(2). (Doc. No. 1, Exs. A, B). See,

e.g., Fletcher at ¶ 8. Therefore, Shawn’s estate’s wrongful-death action asserts a

medical claim. As such, based on our conclusion above, it is subject to Ohio’s

medical-claim statute of repose.

       {¶31} Under Ohio’s medical-malpractice statute of repose, “‘“a person must

file a medical claim no later than four years after the alleged act of malpractice

occurs or the claim will be barred.”’” Smith, 2015-Ohio-1080, at ¶ 9, quoting York,

2014-Ohio-988, at ¶ 10, quoting Ruther, 134 Ohio St.3d 408, 2012-Ohio-5686, at ¶

2 (“The statute establishes a period beyond which medical claims may not be

brought even if the injury giving rise to the claim does not accrue because it is

undiscovered until after the period has ended.”).          There is no dispute that

defendants’ alleged acts of medical malpractice occurred in 2004. Because Shawn’s

estate filed its wrongful death action in 2017, it is well outside the four-year statute

of repose. Compare York at ¶ 11 (concluding that the trial court did not err by


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dismissing the Yorks’ medical claims filed “nearly a decade” after the alleged

medical negligence “regardless of when the Yorks’ claims actually accrued”).

        {¶32} For the foregoing reasons, there is no genuine issue of material fact

that Shawn’s estate filed its wrongful-death action well outside Ohio’s medical-

claim statute of repose. As such, the trial court did not err in granting summary

judgment in favor of Dr. Choy, Findlay Radiology, Wyandot Hospital, and Dr.

Shuler.3 Moreover, the trial court did not err by dismissing Shawn’s estate’s

wrongful-death action against Frederick C. Smith Clinic, Smith Clinic, and Dr.

Concepcion for failing to state a claim for which relief can be granted since the

wrongful-death action was filed well outside the four-year statute of repose.

        {¶33} Shawn’s estate’s first assignment of error is overruled.

                                   Assignment of Error No. II

        The Trial Court Erred by Dismissing, Sua Sponte, a Non-Moving
        Defendant Where Appellant Was Provided No Notice or No
        Opportunity to Oppose the Dismissal

        {¶34} In its second assignment of error, Shawn’s estate argues that the trial

court erred by dismissing its complaint against Wyandot Specialty Healthcare

without providing Shawn’s estate notice and an opportunity to respond.4



3
  Based on our conclusion that summary judgment was proper in favor of Dr. Choy and Findlay Radiology,
we need not and do not express an opinion as to whether Shawn’s estate was precluded from pursuing any
part of its wrongful-death action against Dr. Choy and Findlay Radiology based on this court’s conclusion in
Smith v. Wyandot Mem. Hosp. 3d Dist. Wyandot No. 16-14-07, 2015-Ohio-1080.
4
  Wyandot Specialty Healthcare failed to file an appellee’s brief in this appeal. Under those circumstances,
App.R. 18(C) provides that we “may accept the appellant’s statement of the facts and issues as correct and

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        {¶35} Civ.R. 41(B) governs involuntary dismissals of civil actions. Under

Civ.R. 41(B)(1), “Where the plaintiff fails to prosecute, or comply with these rules

or any court order, the court * * * on its own motion may, after notice to the

plaintiff’s counsel, dismiss an action or claim.” “A dismissal under division (B) of

this rule and any dismissal not provided for in this rule * * * operates as an

adjudication upon the merits * * *.” Civ.R. 41(B)(3).

        {¶36} We review an involuntary dismissal with prejudice for an abuse of

discretion. See Cecil & Geiser, L.L.P. v. Plymale, 196 Ohio App.3d 322, 2011-

Ohio-5468, ¶ 25 (10th Dist.) (noting that a dismissal under Civ.R. 41(B)(3) is

discretionary). See also Clay v. Lakeview Farms, Inc., 3d Dist. Allen No. 1-09-55,

2010-Ohio-603, ¶ 19. An abuse of discretion suggests the trial court’s decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

        {¶37} Although Wyandot Specialty Healthcare did not appear or move for

dismissal, the trial court dismissed Shawn’s estate’s wrongful-death action against

Wyandot Specialty Healthcare.                  The trial court dismissed Shawn’s estate’s

wrongful-death action without notifying Shawn’s estate that it intended to dismiss

its complaint against Wyandot Specialty Healthcare and providing Shawn’s estate

an opportunity to respond.


reverse the judgment if appellant’s brief reasonably appears to sustain such action.” Heilman v. Heilman, 3d
Dist. Hardin No. 6-12-08, 2012-Ohio-5133, ¶ 16.

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       {¶38} The Supreme Court of Ohio has concluded “that the notice

requirement of Civ.R. 41(B)(1) applies to all dismissals with prejudice.” (Emphasis

sic.) Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101 (1986). See also Cecil

& Geiser, L.L.P. at ¶ 24 (noting that “when a party has been informed that dismissal

is a possibility, it must be given a reasonable opportunity to defend against

dismissal”), citing Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 49

(1997). “This requirement stems from and reflects a basic tenet of Ohio

jurisprudence that cases should be decided on their merits.” Cecil & Geiser, L.L.P

at ¶ 23. “What constitutes notice and an opportunity to respond must be examined

on a case-by-case basis.” Id. at ¶ 24. “Notice needs to be formal but can be

implied.” Id., citing Sazima v. Chalko, 86 Ohio St.3d 151, 155-156 (1999).

       {¶39} Unlike involuntary dismissals that are fundamentally unfair to

litigants, the trial court did not abuse its discretion by involuntarily dismissing

Shawn’s estate’s wrongful-death action against Wyandot Specialty Healthcare.

Based on the specific facts and circumstances of this case, Shawn’s estate was not

prejudiced by the dismissal of its wrongful-death action. See id. at ¶ 33 (discussing

whether Cecil & Geiser was prejudiced by the involuntary dismissal without notice

of its claims). In involuntarily dismissing Shawn’s estate’s complaint against

Wyandot Specialty Healthcare, the trial court stated,




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      According to Plaintiff’s Complaint, this entity had either an agency

      relationship with one of the named physicians or was the employer of

      one of the named physicians. Because the named physicians have all

      been dismissed by virtue of this order, the claims against this entity

      will be similarly dismissed.

(Doc. No. 49). Shawn’s estate’s wrongful-death action against Wyandot Hospital,

Findlay Radiology, Dr. Choy, Dr. Schuler, Frederick C. Smith Clinic, Smith Clinic,

and Dr. Concepcion were dismissed for the same reason—the claims were barred

by Ohio’s medical-claim statute of repose. Shawn’s estate’s wrongful-death action

against Wyandot Specialty Healthcare would have likewise been dismissed as being

barred by Ohio’s medical-claim statute of repose had Wyandot Specialty Healthcare

appeared and moved for dismissal. Stated differently, this is not a case in which

Shawn’s estate was prevented from having its complaint against Wyandot Specialty

Healthcare decided on its merits. For that reason, the trial court did not abuse its

discretion by dismissing Shawn’s estate’s wrongful-death action against Wyandot

Specialty Healthcare.

      {¶40} Shawn’s estate’s second assignment of error is overruled.




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       {¶41} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr




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