Moore v. Mount Carmel Health Sys.

164 N.E.3d 1041

Michael MOORE, Conservator of the Person and Estate of Justin T. Moore, Plaintiff-Appellant

v.MOUNT CARMEL HEALTH SYSTEM dba Mount Carmel St. Ann's Hospital, et al., Defendants-Appellees

No. 2017APE-10-754

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on December 15, 2020

DAVID I. SHROYER, Atty. Reg. No. 0024099, 536 South High Street, Columbus, Ohio 43215, Attorney for Plaintiff-Appellant.

GRIER D. SCHAFFER, Atty. Reg. No. 0039695, 2075 Marble Cliff Office Park, Columbus, Ohio 43215, Attorney for Defendant-Appellee, Mount Carmel Health System dba Mount Carmel St. Ann's Hospital.

THEODORE M. MUNSELL, Atty. Reg. No. 0022055, JOEL E. SECHLER, Atty. Reg. No. 0076320, and EMILY M. VINCENT, Atty. Reg. No. 0086931, 280 Plaza, Suite 1300, 280 North High Street, Columbus, Ohio 43215, Attorneys for Defendants-Appellees, Central Ohio Anesthesia, Inc. and Eric Humphreys, M.D.

OPINION

WELBAUM, J.

{¶ 1} This case is before the court pursuant to a remand from the Supreme Court of Ohio. See Moore v. Mt. Carmel Health Sys. , 2020-Ohio-4113, 164 N.E.3d 376, decided on August 20, 2020. After remand, this matter was reinstated to the regular docket of the Tenth District Court of Appeals on September 10, 2020. Based on the Supreme Court of Ohio's instructions, we will consider the assignment of error that was rendered moot by our prior opinion. Before doing so, we will briefly discuss the factual and procedural background of the case.

I. Facts and Course of Proceedings

{¶ 2} Our prior opinion set forth the following background:

This case arose from the Appellees' medical treatment of Justin Moore ("Justin") in December 2013 and January 2014. According to the complaint, Justin received medical care from Dr. Wesley Forgue, the Dialysis Center of North Columbus, The Little Clinic, and two nurses during December 2013 through January 2014. The complaint further alleged that these parties failed to properly treat Justin when he presented for treatment of a cough and during hemodialysis, which caused Justin to be transferred on an emergency basis to Mouth Carmel [Mount Carmel Health System dba Mount Carmel St. Ann's Hospital] on January 20, 2014. In addition, the complaint alleged that when Justin was treated at Mount Carmel on January 20, 2014, Dr. Humphreys and others failed to properly and timely perform endotracheal intubation, which resulted in hypoxia, cardiac and respiratory arrest, and a permanent anoxic brain injury. These events, in turn, allegedly caused Justin permanent injury, including loss of his ability to walk and care for himself, impairment of his speech and communication ability, and other debilitating injuries.

On July 10, 2014, the Cuyahoga County Probate Court appointed [Michael] Moore conservator of Justin's person and estate. Moore subsequently filed a pro se medical malpractice action against Mount Carmel, COA [Central Ohio Anesthesia, Inc.], Dr. Humphreys, Dr. Wesley Forgue, the Dialysis Center of North Columbus, The Little Clinic, and two nurses who had treated Justin before his admission to Mount Carmel. COA was the medical practice that employed Dr. Humphreys.

Moore v. Mt. Carmel Health Sys. , 2018-Ohio-2831, 117 N.E.3d 89, ¶ 3-4 (10th Dist.), reversed by 2020-Ohio-4113, 164 N.E.3d 376.

{¶ 3} Moore later dismissed various defendants without prejudice, leaving Mount Carmel, COA, and Dr. Humphreys as the remaining defendants. Although the complaint had been filed within the applicable statute of limitations, Moore failed to serve Dr. Humphreys within the one-year service period designated in Civ.R 3(A). As a result, Dr. Humphreys and COA filed a motion for summary judgment in February 2017, contending that Moore's action was barred. Id. at ¶ 12. Although Mount Carmel was properly served with the complaint, it filed a motion for summary judgment based on the fact that the lack of service on Dr. Humphreys meant that Moore had no viable claim for vicarious liability against Mount Carmel. Id. After the motions were filed, Moore requested service by personal and certified mail on Dr. Humphreys, and service was eventually obtained in March 2017. Id. at ¶ 13.

{¶ 4} In September 2017, the trial court rendered summary judgment in favor of Mount Carmel, COA, and Dr. Humphreys, and dismissed the case with prejudice. Id. at ¶ 16. "The court concluded that service was not properly made on Dr. Humphreys until March 2017, and that the savings statute in R.C. 2305.19 did not apply. Additionally, the court held that Mount Carmel could not be held liable because Dr. Humphreys was not an employee and the expiration of the statute of limitations against Dr. Humphreys extinguished any secondary liability of the hospital." Id. at ¶ 16-17.

{¶ 5} "Finally, the court rejected Moore's claims against COA on two grounds. The first ground was that if no action could be maintained against Dr. Humphreys, COA would not be liable on the basis of respondeat superior. The court's second ground was that, even if claims could be brought against an employer for the acts of traditional employees who had been dismissed from an action under the statute of limitations, Dr. Humphreys was a part-owner of COA rather than a traditional employee." Id. at ¶ 18.

{¶ 6} Moore then appealed the summary judgment decision. On appeal, he claimed that the trial court erred by failing to apply the savings statute when the original complaint failed otherwise than on the merits and his request for service on Dr. Humphreys acted as a refiling of the complaint within one year of the failure. Id. at ¶ 1. Based on this reasoning, Moore also argued that the trial court erred in dismissing the vicarious liability claims against Mount Carmel and COA. Id. Moore's final assignment of error maintained that the trial court erred in dismissing his respondeat superior claims against COA because Dr. Humphreys was an employee, not a partner or co-owner of the corporation. Id.

{¶ 7} Our opinion, which was issued in July 2018, sustained Moore's first two assignments of error and reversed the judgment of the trial court. Because this allowed Moore to pursue his claims against all three defendants, we found the third assignment of error to be moot. Id. at ¶ 141-146.

{¶ 8} Concerning the first assignment of error, we held that R.C. 2305.19 (the savings statute) requires only that an action be filed within the statute of limitations, that the plaintiff commence or attempt to commence the action with the one-year service period in Civ.R. 3(A), and that the action fail otherwise than on the merits after the limitations period has expired. Furthermore, we held that while Moore did not dismiss the action and refile it, his request for service on Dr. Humphreys resulted in a dismissal of the complaint and a refiling. Such a dismissal was a failure otherwise than on the merits, and service was properly made on Dr. Humphreys within one year after the failure otherwise than on the merits, even though the statute of limitations for the medical malpractice action expired in 2015. Id. at ¶ 26-94.

{¶ 9} Alternatively, we held that "even if we concluded that the trial court should have dismissed the complaint because service was not obtained within one year, we would modify the judgment so that the dismissal would be without prejudice." Id. at ¶ 94.

{¶ 10} Our opinion also rejected Mount Carmel's claim that the complaint was a nullity and the action was never "commenced" within the statute of limitations because Moore was not a real party in interest and could not legally file a pro se action on Justin's behalf. Id. at ¶ 96-132. Mount Carmel, COA, and Dr. Humphreys did not challenge this holding when appealing to the Supreme Court of Ohio.

{¶ 11} After our opinion was issued, Mount Carmel filed a notice of appeal and a memorandum in support of jurisdiction with the Supreme Court of Ohio on August 30, 2018. The appeal was docketed as Supreme Court Case No. 2018-1233. The sole proposition of law Mount Carmel raised was that:

R.C. 2305.19 Does Not Extend the Time to Obtain Personal Jurisdiction to Commence an Action as Provided by Civ.R. 3(A) and the Applicable Statute Of Limitations.

Appellant Mount Carmel Health dba Mount Carmel St. Ann's Hospital's Memorandum in Support of Jurisdiction, p. 8.

{¶ 12} On August 31, 2018, COA and Dr. Humphreys filed a "second notice of appeal" and a memorandum in support of jurisdiction in Case No. 2018-1233. Their sole proposition of law, similar to the one Mount Carmel raised, stated that:

A Plaintiff's Failure To Serve The Defendant Before the Expiration Of the Statute of Limitations and the One-Year Commencement Period Set Forth in R.C. 2305.17 and Civ.R. 3(A) Is a Failure on the Merits as a Matter of Law.

Memorandum In Support of Jurisdiction of Appellants Eric Humphreys, M.D. and Central Ohio Anesthesia, Inc., p. 9.

{¶ 13} Subsequently, on October 17, 2018, Mount Carmel filed a notice of certification of a conflict, and the appeal was docketed as Supreme Court Case No. 2018-1479. COA and Dr. Humphreys joined that appeal as well on October 18, 2018. Again, the only issue raised related to the interplay of R.C. 2305.17 and Civ.R 3(A).

{¶ 14} On November 28, 2018, the Supreme Court of Ohio issued an order certifying a conflict and directed the parties to brief the following issue:

"Does the Ohio savings statute, R.C. 2305.19(A), apply to an action in which a plaintiff attempts, but fails to perfect service on the original complaint within one year pursuant to Civ.R. 3(A) ? If so, when a plaintiff files instructions for service after the Civ.R. 3(A) one-year period, does the request act as a dismissal by operation of law and also act as the refiling of an identical cause of action so as to allow the action to continue?"

Moore v. Mt. Carmel Health Sys. , 154 Ohio St.3d 1436, 2018-Ohio-4732, 112 N.E.3d 922. On the same day, the court also accepted the discretionary appeals of Mount Carmel, COA, and Dr. Humphreys, and consolidated the two cases. See ...