OHIO MEDICAL MALPRACTICE CASE-LAW UPDATE - 2014 Brant Poling, BA, JD Firm Owner, Poling Law Offices Columbus, OH Ohio Ethics Program and OSHRM/ SOHA Fall Conference September 19, 2014
STATUTE OF LIMITATIONS/ STATUTE OF REPOSE
1. Ander v. Clark, 2014-Ohio-2664, Case No. 14-AP-65 (Ohio 10th Dist. 2014) The trial court erred by prematurely dismissing plaintiff's complaint for optometric negligence as barred by the four-year statute of repose in R.C. 2305.113(C) because additional discovery was required to determine what defendant did and how much time should pass before a referral to a specialist; 2. York v. Hutchins, 2014-Ohio-988, Case No. CA-2013-09-173 (Ohio 12th Dist. 2014) The couple did not file their medical malpractice complaint until nearly 10 years after the occurrence of the tort, which was well outside the four-year statute of repose as found in R.C. 2305.113(C), and the trial court did not err by dismissing the couple's claims in this matter.
APPELLATE PROCEDURE
1. Barker v. Emergency Professional Services, 2014-Ohio-1368, Case No. 2013-T-0018 (Ohio 11th Dist. 2014) The trial court did not err by clarifying its internal inconsistency and issuing judgment, since it was clear that the trial court was following the directive of the appellate court to resolve any questions that might exist in that entry. 2. Geesaman v. St. Rita s Med. Ctr., 2014-Ohio-1480, Case No. 1-13-08 (Ohio 3rd Dist. 2014) The trial court erred by limiting the matter on remand to merely require retrial on the issue of loss of chance because the appellate court had reversed the trial court s judgment in favor of the doctor on the medical malpractice claim. Nowhere did the appellate court suggest that the trial should be limited on remand to the existence of loss of chance.
CLAIMS AND CAUSES OF ACTION
1. Cook v. Orr, 2014 US Dist. LEXIS 72473, Case No. 4-14-CV-42 (N.D. Ohio 2014) Allegations of medical malpractice, negligent diagnosis, or negligent treatment do not state a valid constitutional claim in an alleged Eighth Amendment claim by an inmate. Moreover, where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, "federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law." 2. Metro v. Diplomat Healthcare, 2014-Ohio-3146, Case No. 100799 (Ohio 8th Dist. 2014) The trial court did not err by granting judgment on the pleadings as to those portions of plaintiff's complaint that alleged medical claims as defined by as defined by R.C. 2305.113(E)(3) against defendants regarding plaintiff's involuntary commitment to a hospital for psychiatric care because those claims required a Civ.R. 10(D)(2) supporting affidavit of merit and the nurse practitioner who provided such an affidavit was unqualified to give an opinion that a psychiatrist violated the relevant standard of care; 3. Thompson v. United States, 2014 US Dist. LEXIS 1579, 1-13-CV-550 (N.D. Ohio 2014) Plaintiff, who brought suit pursuant to the Federal Torts Claims Act, failed to show expert evidence would establish the recognized standard of care in the medical community, or that it resulted from the VA doctor s care.
4. York v. Hutchins, 2014-Ohio-988, Case No. CA-2013-09-173 (Ohio 12th Dist. 2014) The couple's attempt to allege a separate so-called "fraud" claim independent of their other medical malpractice claims was an improper exercise in clever pleading, and the trial court did not err by finding the couple's so-called fraud claim was barred by the statute of repose 5. Boddie v. Van Steyn, 2014-Ohio-1069, 13-AP-623 (Ohio 10th Dist. 2014) A doctor did not breach doctor-patient confidentiality in discussing the patient's medical condition with the patient's attorney because the patient requested the doctor prepare a note to excuse the patient from his criminal proceedings, and by giving the note to his attorney, the patient was estopped as against the doctor from denying the attorney's authority to seek additional information; the doctor was justified to assume the attorney was authorized to seek further information regarding the patient's medical condition in order to secure permission for the patient's non-attendance; The doctor's conversation with the prosecutor was not improper because the attorney invited the doctor to call the prosecutor and the doctor did not disclose anything more than he disclosed in the second note requested by the attorney.
6. Fisher v. State, 2014-Ohio-2280, Case No. 13-AP-38 (Ohio 10 th Dist. 2014) The court of claims properly determined that the doctor was not a State employee entitled to personal immunity under R.C. 9.86 and 2743.02(F), since there was no contract of employment, written or oral, between the University and the doctor, when the doctor's appointment letter did not demonstrate that he was hired, appointed or credentialed by the University, and the doctor practiced at a private hospital and no evidence suggested that the hospital was owned or operated by the University. 7. Gharibshahi v. State, 2014-Ohio-1529, No. 13-AP-844 (Ohio 10th Dist. 2014) The court of claims properly held that defendant physician was not a state employee under R.C. 109.36 and thus was not entitled to immunity under R.C. 9.86 and 2743.02(F) with respect to plaintiffs' medical malpractice suit. She had no written contract with a state university's medical center, she was not paid by the university when the cause of action against her arose, and the hospital privileges the medical center granted her did not the give the university a sufficient degree of control over her to demonstrate an employment relationship. Her options to lecture and conduct research at the university did not qualify as sovereign functions sufficient to elevate her faculty appointment to a position with the state at the time the cause of action against her arose; therefore, she was not entitled to immunity as a state officer.
DISCOVERY
1. Gene a Griffith v. Aultman Hospital, 2014-Ohio-1218, Case No. 2013-CA-00142 (Ohio 5th Dist. 2014) There was no genuine issue of material fact as to whether defendant had produced a decedent's entire medical record under R.C. 3701.74, as information that a provider decided not to maintain was not part of the medical record and nothing indicated that the statute was intended to be used as a broad discovery device; The trial court properly denied plaintiff additional time to conduct discovery under Civ.R. 56(F), as the information sought either did not fall within the definition of a medical record and/or had already been provided by defendant. 2. Hogrefe v. Mercy St. Vincent Medical Center, 2014-Ohio-2687, Case No. L-13-1265 (Ohio 6th Dist. 2014) In an appeal stemming from a medical malpractice action, the trial court did not err in construing the evidence under Civ. R. 56, as the evidence included testimony from the nonmovant that, if believed, would result in summary judgment for the movant, and in order to escape such a result, appellants were attempting to "cherry pick" the portions of a doctor's testimony that suited their needs;
CIVIL PROCEDURE
1. Hayward v. Summa Health Systems, 2014-Ohio-1913, Case No. 2013-0021 (2014) Where plaintiff patient filed a malpractice suit against defendant surgeons and hospital, the intermediate appellate court erred in reversing the trial court's order denying plaintiff's motion for JNOV. As the jury's answers to interrogatories made it clear that the jury found that defendants were not negligent and the verdict was consistent with that finding, the trial court's remote-cause jury instruction, even if improper, could not have misled the jury in a manner materially affecting a substantial right; Because the interrogatory answers were consistent with the general defense verdicts, under Civ.R. 49(B), the trial court was required to enter judgment for the defendants. 2. Hudson v. Cincinnati Group Health Associates, 2014-Ohio-2161, App. Case No. C-130164, C-130181 (Ohio 1st Dist. 2014) The trial court properly found that the first doctor was entitled to a directed verdict under Civ.R. 50, but a verdict should have been directed for the second doctor as well because the patient failed to set forth evidence of causation he did not present any expert testimony about when the appendix rupture occurred, and was unable to show that, but for the conduct of either doctor, he would not have been injured to the same extent; The trial court employed the proper standard under Civ.R. 50(A)(4) because it did not weigh the evidence, but instead based its decision on the complete lack of testimony connecting the first doctor s alleged negligence to the patient s injuries.
3. Craig v. Reynolds, 2014-Ohio-3254, CA Case No. 14-AP-125 (Oh 10th Dist. 2014) Dismissal of malpractice claim affirmed where Plaintiff attempted service by ordinary mail to Doctor s alternate address, but failed to provide service of process to the same address as the prior unclaimed certified mail. 4. Tye v. Upper Valley Medical Center, 2014-Ohio-2822, CA Case No. 25997 (Ohio 2nd Dist. 2014) Order of the trial court modified to reflect post-settlement interest accrued as of July 21, 2012, the date the post-settlement agreement was reached, where trial court determined that post settlement interest accrued on November 8, 2012, the date of the court s entry and order. 5. Wilson v. Durrani, 2014-Ohio-1023, Case No. C-130234 (Ohio 1 st Dist. 2014) Plain language of a settlement agreement between a patient and a doctor s former employer released the patient s claims against the doctor and, in turn, his vicarious liability claim against a corporation.
6. Foster v. Sullivan, 2014-Ohio-2909, Case No. 13-AP-876 (Ohio 10th Dist. 2014) Summary judgment was proper where plaintiff failed to properly disclose her expert, resulting n the exclusion of the expert s affidavit under the Court s local rules. In the absence of the expert s affidavit, the physician s affidavit opposing malpractice was unopposed. 7. Mays v. Toledo Hospital, 2014-Ohio-1991, CA Case No. L-13-1233 (Ohio 6th Dist. 2014) The action was properly dismissed due to her failure to file a file an affidavit of merit, as she was not relieved of her duty to comply with Ohio Civ. R. 10 due to the hospitals' alleged default because had not been required to file a responsive pleading. The trial court did not abuse its discretion in denying plaintiff's Ohio Civ. R. 60(B) motion for relief from its judgment dismissing her pro se complaint asserting medical negligence and wrongful death claims against hospitals, because R.C. 4705.01 prohibited her from litigating claims on behalf of the estate, pro se. 8. Metro v. Diplomat Healthcare, 2014-Ohio-3146, App. Case No. 100799 (Ohio 8 th Dist. 2014) Trial court properly granted judgment of the pleadings regarding plaintiff s alleged medical claims (as defined by RC 2305.113(E)) against defendant regarding plaintiff s involuntary commitment to a hospital for psychiatric care, because those claims required a supporting affidavit of merit from a psychiatrist, and plaintiff s expert was a nurse practitioner.
9. Hubiak v. Ohio Family Practice Center, Inc. 2014-Ohio-3116, CA Case No. 26949 (Ohio 9th Dist. 2014) Amendment to Civ. R. 4.1, which became effective during litigation of case, rendered previously improper service effective to create jurisdiction for defendants. New amendment permits service by commercial carrier, so long as there is a signature receipt. Service was therefore perfected within a year of filing, as evidenced by signed receipts. 10. Kinasz v. Southwest General Health Center, 2014-Ohio-402, CA. Case No. 100182 (Ohio 8th Dist. 2014) Trial court erred in dismissing a pro se personal representative s medical malpractice complain with prejudice because the representative filed the Complaint in violation of RC 4705.01, requiring dismissal without prejudice. Appellate jurisdiction was therefore proper over the claim, even though the representative had not expressly abandoned them. Compliance with Ohio Civ. R. 54(B) was not necessary.
JURISDICTION 1. Hogrefe v. Mercy St. Vincent Medical Center, 2014-Ohio-2687, Case No. L-13-1265 (Ohio 6th Dist. 2014) The trial court did not abuse its discretion in denying appellants' motion to amend under Civ.R. 15(A); because the trial court lacked subject matter jurisdiction over a university, the amendment would not have withstood a motion to dismiss.
CAUSATION 1. Hogrefe v. Mercy St. Vincent Medical Center, 2014-Ohio-2687, Case No. L-13-1265 (Ohio 6th Dist. 2014) The trial court did not err when it found the law of intervening superseding cause applicable to the case in its decision on appellants' motion for reconsideration;
RULES OF EVIDENCE 1. Blinn v. Balint, 2014-Ohio-3114, CA Case No. 26733 (Ohio 9th Dist. 2014) Doctor s expert opinion was properly included under Evid. R. 703, as it was shown the doctor relied largely on medical information admitted into evidence (Plaintiff s medical history, clinical exam findings, etc.) Evid. R. 702(c) was not violated by expert testimony where, regardless of plaintiff's statement that there was no evidence that he had an impingement by an acromial spur or a superior migration of the humeral head, which plaintiff asserted would be diagnostic for a chronic rotator cuff tear, the doctor testified that he did not think plaintiff had a chronic rotator cuff tear.
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