IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

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1 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO BROOKE B. DEMAREE, Plaintiff-Appellant, vs. UNIVERSITY HOSPITAL, Defendant-Appellee, APPEAL NO. C TRIAL NO. A JUDGMENT ENTRY. We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court. 1 Plaintiff-appellant Brooke B. DeMaree appeals from the trial court s entry of summary judgment for Defendant-appellee University Hospital. She raises three assignments of error for our review. In her first and second assignments of error, DeMaree argues that the trial court erred in dismissing her claims against University Hospital on the basis that they were time-barred by the one-year statute of limitations for medical claims. DeMaree first argues that because University Hospital did not rely on evidence beyond the face of the complaint in arguing that her claims were timebarred by the one-year statute of limitations for medical claims, its motion, although 1 See S.Ct.R.Rep.Op. 3(A), App.R. 11.1(E), and Loc.R. 12.

2 captioned as one for summary judgment, was really a Civ.R. 12(B)(6) motion to dismiss. We agree. We review a trial court s ruling on a Civ.R. 12(B)(6) motion to dismiss de novo. [Citations omitted.] We must consider the plaintiff s factual allegations to be true, and all reasonable inferences must be drawn in favor of the plaintiff. [Citations omitted.] A motion to dismiss under Civ.R. 12(B)(6) should be granted when a plaintiff can prove no set of facts that would entitle her to relief. 2 DeMaree next argues that she did not plead any medical claims against University Hospital, but in the first instance asserted an ordinary negligence claim based upon premises liability, and that the trial court, in dismissing that claim, held her to a higher standard than that required under notice pleading. We agree. R.C (E)(3) defines a medical claim as any claim * * * asserted * * * against a * * * hospital * * * that arises out of the medical diagnosis, care, or treatment of any person. Care as defined in R.C (E)(3) means the prevention or alleviation of a physical or mental illness or defect. 3 A number of Ohio appellate courts have rejected the argument that University Hospital makes in this case that a patient who is injured on hospital premises following treatment has automatically asserted a medical claim against the hospital. Those courts have held that where a patient s injuries were not the result of any medical diagnosis, care, or treatment, and the patient s transport was not ancillary to or an inherently necessary part of treatment, as interpreted by the Ohio Supreme Court in Browing v. Burt 4 and 2 Myrick v. Cincinnati, 1st Dist. No. C , 2008-Ohio-6830, at 7. 3 See Rome v. Flower Mem. Hosp., 70 Ohio St.3d 14, 16, 1994-Ohio-574, 635 N.E.2d Ohio St.3d 544, 557, 1993-Ohio-178, 613 N.E.2d

3 Rome v. Flowers, 5 the patient has instead asserted a premises-liability claim against the hospital subject to the two-year statute of limitations in R.C Similarly in this case, in count one of her complaint, DeMaree, a blind woman, alleged that she had sustained injuries when she fell down stairs at University Hospital following treatment for a urinary-tract infection. DeMaree further alleged that University Hospital had failed to warn her of the potentially dangerous conditions, including the condition of the steps. These allegations were sufficient under Ohio s liberal notice-pleading rules to state a premises-liability claim against University Hospital. 7 As a result, we hold that the trial court erred in dismissing the first count of DeMaree s complaint on the basis that it asserted a medical claim that was barred by the one-year statute of limitations. In the second count of her complaint, DeMaree asserted a cause of action for violation of hospital procedures. But DeMaree has cited no Ohio authority recognizing such a cause of action. In our view, count two was not a separate theory of recovery, but an essentially duplicative way of pleading the alleged breach of duty that University Hospital allegedly owed to DeMaree within the context of her premises-liability claim. 8 As a result, the trial court properly dismissed the second count of DeMaree s complaint. Accordingly, DeMaree s first and second assignments of error are sustained as they relate to count one of the complaint, but overruled as to count two of her complaint. 5 Rome, supra, 70 Ohio St.3d at See Hill v. Wadsworth-Rittman Area Hosp., 185 Ohio App.3d 788, 2009-Ohio-5421, at 13-17; Tayerle v. Hergenroeder (Dec. 10, 1999), 11th Dist. No. 98-G-2195; Balascoe v. St. Elizabeth Hosp. Med. Ctr. (1996), 110 Ohio App.3d 83, 85-86, 673 N.E.2d Morris v. Children s Hosp. Medical Ctr. (1991), 73 Ohio App.3d 437, , 597 N.E.2d See Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, at 20 (stating that administrative rule violations are admissible as evidence of negligence, but nothing further). 3

4 In her third assignment of error, DeMaree argues that the trial court erred in granting summary judgment to University Hospital on the alternative basis that even if she had pleaded an ordinary negligence claim against University Hospital, University Hospital was still entitled to summary judgment on the claim because she had failed to present any evidence to support her allegation that the steps were potentially dangerous. We agree. University Hospital argued that it was entitled to summary judgment on DeMaree s negligence claim because she had set forth no evidence to prove her claim. But University Hospital did not point to any specific factual evidence that would have demonstrated the absence of a genuine issue of material fact on the claim. 9 As a result, the burden never shifted to DeMaree to present factual evidence to support her claim. Because University Hospital failed to carry its burden of presenting Civ.R.56(C) evidence to demonstrate that it was entitled to judgment as a matter of law, and thus to shift the burden to DeMaree, it was not entitled to summary judgment on her negligence claim. 10 As a result, we sustain DeMaree s third assignment of error. We, therefore, reverse that part of the trial court s judgment dismissing count one of DeMaree s complaint and remand this cause for further proceedings on that 9 Although University Hospital attached its responses to DeMaree s interrogatories in its supplemental memorandum in opposition to DeMaree s motion for reconsideration, these interrogatory answers were not before the court at the time it granted University Hospital s motion for summary judgment. Moreover, the court did not rely on the interrogatory responses in overruling DeMaree s motion for reconsideration. Instead, the court overruled the motion for reconsideration on the basis that it was a legal nullity. 10 See Vahila v. Hall (1997), 77 Ohio St.3d 421, , 674 N.E.2d 1164, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 295, 662 N.E.2d 264; Beachwood Pointe Care Ctr. v. Bealer, 10th Dist. No. 09AP-1171, 2010-Ohio-5080, at

5 count consistent with this judgment entry and the law. With respect to count two, the trial court s judgment is affirmed. A certified copy of this judgment entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. HILDEBRANDT, P.J., SUNDERMANN and MALLORY, JJ. To the Clerk Enter upon the Journal of the Court on December 22, 2010 per order of the Court. Presiding Judge 5

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