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Chalmers v. HCR Manorcare, Inc.
Citations: 2017 Ohio 5678; 93 N.E.3d 1237Docket: L-16-1143
Court: Ohio Court of Appeals; June 30, 2017; Ohio; State Appellate Court
Original Court Document: View Document
Kim Chalmers appeals the Lucas County Court of Common Pleas' summary judgment favoring HCR ManorCare, Inc. and related entities in a wrongful death case concerning her father, John Costell, Sr. The appeal involves claims of wrongful death, medical malpractice, breach of fiduciary duty, fraud, and premises liability. Key facts indicate that on May 11, 2013, Costell, who suffered from advanced COPD, was admitted to the University of Toledo Medical Center (UTMC) due to respiratory failure and was awaiting a lung transplant. Despite having no history of falls, he was later transferred to Heartland of Waterville nursing home on May 18, 2013, where he was diagnosed with pneumonia. On June 6, 2013, Costell reported dizziness at a doctor's appointment regarding his transplant. The next day, he was found on the bathroom floor at Heartland, having fallen and suffered a head injury. He experienced left hip pain but could not get an on-site x-ray at Heartland and was subsequently transferred back to UTMC, where he was diagnosed with a fractured hip and later developed a C. difficile infection that led to sepsis and his death on June 16, 2013. Chalmers filed a 61-page complaint on June 11, 2014, including allegations of corporate negligence against the nursing home entities, citing inadequate staffing and failure to address nursing deficiencies. A similar claim was made against Heartland's administrator, Becky Ziviski. Counts 4 and 5 allege that the appellees breached their contractual and statutory duty to provide Costell with certain residents’ rights, citing inadequate staffing, improper nursing home practices, misallocation of resources, and failure to address non-compliance with regulations. Counts 6 and 7 assert medical malpractice, claiming the appellees did not meet care standards by failing to notify a doctor of significant medical changes, respond appropriately, develop an adequate care plan, maintain proper records, ensure sufficient staffing, supervise nursing staff, prevent and treat infections, and prevent pneumonia, which allegedly caused Costell’s fall. The appellant characterized these failures as negligent and reckless. Count 8 is a "malice" claim based on the appellees' gross negligence towards Costell's safety. Counts 9 and 10 involve fraud and breach of fiduciary duty, alleging that the appellees misrepresented their commitment to provide care while intending to minimize care for profit, and alleging they accepted payment for unprovided services while concealing abuse and neglect. Count 11 is a premises liability claim, reiterating issues of insufficient staffing and resource allocation that allegedly led to Costell's fall. An attached affidavit from Holly Brown, a geriatric nurse practitioner, supports the claims, stating that appellees deviated from accepted nursing standards, resulting in severe injuries to Costell, including a hip fracture, dehydration, sepsis, and pneumonia, though she did not link these deviations directly to Costell's death. One month after the appellant filed her complaint, the appellees responded by denying the allegations and asserting affirmative defenses, including a claim that the statute of limitations barred the appellant’s claims. They argued that several counts in the complaint were medical claims subject to a one-year statute of limitations, which had expired before the complaint was filed. Additionally, they contended that the appellant's malice claim, which was seen as a request for punitive damages, should be dismissed since such claims are not recognized in Ohio law. They also claimed the complaint was deficient because the affidavit of merit provided did not establish the cause of the decedent's injury or death. In response, the appellant conceded that her malice claim could not stand independently but included it to indicate a request for punitive damages. She argued that the appellees failed to demonstrate that certain defendants were medical providers, thus exempting her claims from the one-year statute of limitations. Regarding the wrongful death claims, the appellant argued that an affidavit was not necessary for most claims as they were not medical in nature and that any deficiencies in the affidavit were remedied by the coroner's report and expert testimony. She maintained that the affidavit met the requirements of Civ.R. 10(D)(2) as the causation issue was within common knowledge. Alternatively, if the affidavit was deemed defective, she requested additional time to rectify the defect. On June 1, 2016, the trial court granted appellees' motion for summary judgment, determining that appellant's survivorship claims in Counts 1, 3, 4, 6, 9, 10, and 11 were classified as medical claims under R.C. 2305.113(E)(3), thus subject to a one-year statute of limitations, which had expired. The court also dismissed the wrongful death claims (Counts 2, 5, and 7) due to an inadequate affidavit of merit under Civ.R. 10(D)(2), specifically finding that Brown was incompetent to testify on the cause of Costell’s death, a critical element for wrongful death claims. The court rejected appellant’s argument that the defect could be remedied by Fannin’s testimony or the coroner’s report, noting these were not part of the original complaint. Furthermore, the trial court denied appellant's request for additional time to correct the affidavit, stating that Brown's incompetency was not a curable defect, and appellant failed to show good cause for an extension. Consequently, the court granted summary judgment for all claims in the complaint. Appellant appealed, assigning errors regarding the classification of her claims and the dismissal of her wrongful death claims due to the defective affidavit. The appellate court will review the summary judgment de novo, assessing whether there are genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. R.C. 2305.113(E)(3) defines a "medical claim" as any civil action against specified medical providers, including physicians, hospitals, and various healthcare professionals, arising from medical diagnosis, care, or treatment. This definition encompasses derivative claims related to the care plan, claims resulting from negligent acts in providing medical care, and claims concerning the hiring or management of caregivers. The term "medical claim" requires that two conditions be met: the claim must be against a listed medical provider and must arise from medical diagnosis, care, or treatment. In the case discussed, the appellant does not dispute the trial court's decision granting summary judgment in favor of one defendant but argues that the court failed to properly analyze whether the remaining defendants—HCR ManorCare, Inc., HCR Manor Care Services, Inc., and Heartland Employment Services, LLC—qualify as medical providers since they are not state-licensed to provide skilled nursing or personal care, and thus do not meet the definition of a "nursing home." The trial court noted that the appellant's claims against these corporate defendants could not be classified as medical claims due to their non-qualification under the relevant statutory definition. The court further established that any alleged negligence was tied directly to the medical care provided to Mr. Costell, and there was no evidence supporting a claim of ordinary negligence that could have caused his injuries. Consequently, the appellees argued that summary judgment was justified as the appellant failed to provide evidence for her non-medical claims against the corporate defendants. The trial court determined that the appellant's non-medical claims against the entities were unsupported by evidence. Specifically, the claims included allegations of inadequate staffing, failure to provide residents’ rights, misleading representations about care quality, and a lack of warnings regarding staffing issues. However, the evidence was insufficient to establish causation for these claims. The only viable argument was that Costell's injuries stemmed from inadequate supervision by Heartland’s nursing staff, which related to a time-barred medical claim against Heartland. Other claims, including negligence, fraud, breach of fiduciary duty, and premises liability, were dismissed due to lack of evidentiary support for causation. Consequently, the appellant's first assignment of error was rejected. Regarding the dissent's concerns, the appellate review is confined to the assignments of error and the trial court record, as outlined in App.R. 16 and App.R. 12(A)(1)(b). The focus of the arguments was whether the claims were medical in nature and if they were dismissed correctly for lack of evidentiary support. The court may affirm a decision for different reasons than those cited by the trial court but cannot reverse based on unassigned errors. In the second assignment of error, the appellant contended that the trial court wrongly granted summary judgment on the wrongful death claims, asserting that Brown's affidavit of merit failed to adequately establish the cause of Costell's death as required by Civ.R. 10(D)(2). Civ.R. 10(D)(2) mandates that a plaintiff's complaint involving medical, dental, optometric, or chiropractic claims must include an affidavit of merit for each defendant requiring expert testimony to establish liability. The affidavit must be completed by an expert witness who meets the criteria of Evid. R. 702 and, if applicable, Evid. R. 601(D). It must confirm that the expert has reviewed all relevant medical records, is familiar with the applicable standard of care, and believes that this standard was breached by the defendants, resulting in injury to the plaintiff. The affidavit serves to validate the complaint's adequacy and is not admissible as evidence or for impeachment purposes. Failure to comply with this requirement leads to a dismissal that is not on the merits, and the court may allow up to sixty days for the plaintiff to correct any defects in a filed affidavit. In the case of John Costell, Sr., the affidavit provided by Brown indicated that she reviewed all pertinent medical records and was knowledgeable about the standard of care due to her nursing experience. Brown opined that Heartland of Waterville and related entities deviated from accepted nursing standards, which led to severe injuries, including a left hip fracture, dehydration, sepsis, and pneumonia. However, she did not address the cause of Costell's death and later acknowledged her inability to provide an opinion on that matter during her deposition. In medical malpractice cases, plaintiffs generally must provide expert testimony to establish causation, demonstrating that the injury was likely caused by the defendant’s negligence. This principle is supported by Ohio case law, including Roberts v. Ohio Permanente Med. Group and Segedy v. Cardiothoracic, which require expert testimony in wrongful death claims due to medical negligence. An exception exists where the negligence is evident and understandable by laypersons, known as the "common knowledge" exception, but it is rarely applied in Ohio. In the present case, the appellant argues that expert testimony was unnecessary because Costell's injuries and subsequent death from a fall were apparent to laypeople. The appellant references Dimora v. Cleveland Clinic, where the court allowed a case to proceed without expert testimony due to the clear negligence of a nurse who left a patient with documented balance issues unattended. However, the circumstances in Dimora differ significantly from Costell’s situation. Unlike Dimora, Costell did not have a documented history of falls, and the causal relationship between his fall and subsequent death was not direct, complicated by preexisting health conditions. Additionally, understanding how Costell's fall led to severe health complications, such as sepsis and pneumonia, would not be evident to a layperson. Consequently, the common knowledge exception does not apply in this case, necessitating expert testimony to establish proximate cause. Expert testimony is essential under Civ.R. 10(D)(2) to establish causation in wrongful death claims, specifically regarding the cause of death. The appellant contends that the rule does not necessitate expert testimony for the ultimate cause, asserting that an affidavit from Brown, which states that the appellees’ negligence caused severe injuries, suffices for the complaint. However, the case of Tranter v. Mercy Franciscan Hosp. supports the appellant's viewpoint that an expert need only demonstrate that negligence caused some injury, not necessarily the death itself. In contrast, the McKay v. Ohio State Univ. Med. Ctr. case illustrates that an affidavit lacking specific expert testimony on the cause of death is inadequate, even if it discusses proximate cause of injury. In this case, Brown's acknowledgment of her incompetence to opine on the cause of Costell's death leads to the conclusion that the affidavit does not meet the requirements set forth in Civ.R. 10(D)(2). Consequently, the trial court's determination that the affidavit of merit was deficient is upheld, as expert testimony on the cause of death is mandated in wrongful death actions. Appellant attempted to counter a legal conclusion by introducing evidence from the discovery phase, including deposition testimony from a physician expert and a coroner's report. However, the court emphasized the importance of adhering to Civ.R. 10(D)(2), which aims to filter out frivolous medical claims at the start of litigation. Consequently, the court declined to consider evidence submitted post-complaint regarding causation, as it violated Civ.R. 10(D)(2). In appellant's second assignment of error, she contended that the trial court wrongly denied her the chance to rectify a defect in her affidavit of merit before granting summary judgment. The court concurred, noting that under Civ.R. 10(D)(2)(e), a plaintiff must be given up to sixty days to correct a defective affidavit. The trial court had deemed the affidavit submitted by a nurse insufficient for failing to provide an expert opinion on causation, leading it to rule that no opportunity to amend was necessary. The case of Chapman v. South Pointe Hosp. was cited, where the court reversed a dismissal despite a defective affidavit, asserting that plaintiffs should be allowed time to cure such defects. The court found that the trial court erred by dismissing appellant's claims without giving her a chance to submit a valid affidavit of merit. It clarified that the requirement to cure the defect does not depend on the competency of the original affiant, nor must the new affidavit come from the same person. Thus, appellant should be allowed to obtain a new, competent affidavit addressing the causation issue, underscoring the principle that cases should be resolved based on merits rather than technicalities. Decisions in legal proceedings should prioritize substantive justice over procedural technicalities, emphasizing that pleading serves to facilitate proper merit-based decisions. In Baker v. McKnight, the court addressed the appellant's second assignment of error, noting that the appellees' arguments related to Civ.R. 10(D)(2) were improperly introduced during their summary judgment motion, as they should have been raised in a motion to dismiss under Civ.R. 12(B)(6). The court limited its analysis to arguments presented at the trial court level and in briefs submitted to the appellate court, ultimately ruling in favor of the appellant on this issue. The court affirmed in part and reversed in part the judgment of the Lucas County Court of Common Pleas. Specifically, it reversed summary judgment regarding the appellant’s wrongful death claims in counts two, five, and seven, remanding the case for the appellant to rectify deficiencies in the affidavit of merit within 60 days. The ruling on the remaining claims was upheld, with appellees ordered to cover the appeal costs. In a separate opinion, Judge Mayle concurred with the majority's affirmation of summary judgment for the HCR Corporate Defendants, arguing these entities bore no legal duty to the plaintiff. While agreeing on the reversal of summary judgment for Heartland of Waterville, she dissented regarding the requirement to address affidavit deficiencies, asserting that Civ.R. 10(D)(2) does not apply to summary judgment motions. The appellant argued that her claims against the HCR Corporate Defendants were ordinary negligence claims, not medical claims as defined under R.C. 2305.113, a stance the trial court rejected, deeming the claims time-barred and lacking merit. The appellate court, however, was not restricted by the trial court’s causation analysis. Appellate courts conduct a de novo review of summary judgment rulings, allowing them to replace the trial court's analysis with their own. In negligence claims, establishing causation requires proof of both a legal duty and a breach of that duty. The analysis begins by assessing whether the HCR Corporate Defendants owed a duty to Costell that supports an ordinary negligence claim. Although the trial court did not address this issue, both parties presented arguments and evidence regarding it during summary judgment. In its motion for summary judgment, HCR ManorCare, Inc. contended it was solely the parent company of Heartland of Waterville, OH, LLC and lacked sufficient evidence for piercing the corporate veil. The court agreed, noting that the entities are distinct, and the allegedly negligent care was provided by Heartland of Waterville, which negates HCR ManorCare's independent duty unless the corporate veil is pierced. In Ohio, to pierce the corporate veil, a plaintiff must demonstrate: (1) complete control by the parent over the subsidiary, (2) that such control facilitated fraud or illegal acts, and (3) resultant injury or unjust loss to the plaintiff. The evidence indicated HCR ManorCare exercised some control over Heartland of Waterville, such as budget approvals and quality oversight; however, it did not prove that Heartland lacked its own separate identity. Furthermore, there was no sufficient evidence that HCR ManorCare's control led to fraud or illegal acts. Thus, the court found no basis to hold HCR ManorCare liable for Heartland's actions. HES had a direct duty to Costell based on a leasing agreement with Heartland of Waterville, OH, LLC, which employed its staff through an Amended and Restated Employee Leasing Agreement. Under the loaned servant rule, a servant lent for a specific purpose is treated as the servant of the borrowing party, irrespective of payment arrangements. However, the record does not show that HES exercised its right to direct or control the nursing staff at Heartland in their care of Costell, nor is there evidence that HES influenced staffing levels, leading to the conclusion that HES had no duty to Costell and cannot be held vicariously liable for any alleged negligence. Regarding HCR Manor Care Services, Inc., the entity argued for dismissal on the grounds that it ceased to exist in 2009 after converting to a limited liability company. However, the appellant countered that its successor, HCR Manor Care Services, LLC, was active during Costell’s treatment in 2013 and appeared in the case. The appellant's claim that HCR Manor Care Services, LLC had a contractual relationship with Heartland does not grant the appellant any rights under that contract, as a third party cannot claim benefits from a contract between others. Finally, a Civ.R. 10(D)(2) affidavit of merit aims to eliminate frivolous claims rather than assess the sufficiency of evidence regarding the defendant's liability, which the court agrees with. A Civ.R. 56 motion for summary judgment is intended to evaluate the sufficiency of the evidence, making it inappropriate for the trial court to consider a Civ.R. 10(D)(2) affidavit of merit, as it does not constitute evidence. Civ.R. 56(C) permits summary judgment only when the evidence allows for one reasonable conclusion. Civ.R. 10(D)(2)(d) states that an affidavit of merit is required to validate the complaint but cannot be used as evidence or for impeachment. The Ohio Supreme Court has ruled that failure to submit the required affidavit should lead to a Civ.R. 12(B)(6) motion to dismiss, not a summary judgment motion. The appellees opted for a Civ.R. 56 motion, which the trial court granted based solely on the absence of expert testimony regarding the cause of death in the affidavit of merit. This approach overlooked admissible evidence, including expert testimony and the coroner’s reports, that should have been the focus for determining causation under Civ.R. 56. The author agrees with the majority's decision to reverse the summary judgment for the remaining defendant, Heartland of Waterville, on the wrongful death claims, but dissents from the requirement that the appellant must correct the affidavit of merit in response to the summary judgment motion. The decision may be subject to further revisions by the Supreme Court of Ohio.