IN THE SUPREME COURT OF OHIO

ROSE E. McDILL

Plaintiff-Appellee,

Supreme Court Case No. 1

On Appeal from the FourthDistrict Court of Appeals

vs.

SUNBRIDGE CARE ENTERPRISES,INC., et al.

Defendant-Appellants.

Court of AppealsCase No. 12CA8

NOTICE OF APPEAL OF DEFENDANT-APPELLANTS SUNBRIDGE CARE ENTERPRISES, INC.

AND SUNBRIDGE CIRCLEVILLE HEALTH CARE CORP.

..;.Martin T. Galvin (oo63624)Thomas A. Prislipsky (0067623)REMINGER Co., L.P.A.1o1 West Prospect Avenue, Suite 1400Cleveland, Ohio 44115(216) 430-2237(216) 687-1841 (FAX)

"E ;mail: mgalvin@reminger.comtprislipsky@reminger.com

Counsel for Defendant-AppellantsS'u-nB►i-dge Care Lnte-rpr-i-se-s, Inc, andSunBridge Circleville Health Care Corp.

Robert H. Huffer (oo8629)HUFFER AND HUFFER Co., L.P.A.

130 West Franklin StreetP.O. Box 464Circleville, Ohio 43113(740) 474-2179(740) 477-1778 (FAX)Email: rhhuffer@yahoo.com

James L. Mann (0007611)MANN & PRESTON, L.L.P.

18 East Second StreetChillicothe, Ohio 456o1(740) 755-2222(740) 775-2627 (FAX)Email: jmann@mannpreston.com

Counselfor Plaintiff-Appellee,Rose E. McDill

mAY 2 Q 2on

CLk.RK'OF COURTSUPREME COURT OF OHIO

1

Appellants, SunBridge Care Enterprises, Inc. and SunBridge Circleville Health Care

Corp. dba Circleville Rehabilitation Center, hereby give notice of their appeal to the

Supreme Court of Ohio from the Judgment of the Court of Appeals for the Fourth

Appellate District, Pickaway County, Ohio (Case No. 12CA8), journalized on April 11, 2013.

This case should be reviewed on its merits because it presents questions of public

and great general interest.

A true and complete copy of the Journal Entry and Opinion of the Court of Appeals

and the ruling of the Pickaway County Court of Common Pleas are attached hereto and are

incorporated herein.

Respectfully submitted,

^

MARTIN T. GALVIN (oo63624)

TxoMAs A. PRISLIPSKY (oo67623)

REMINGER CO., L.P.A.

lol West Prospect Avenue, Suite 1400Cleveland, Ohio 44115T: 216/687-1311 F: 216/687-1841Email: mgalvin@reminger.com

tprislipsky@reminger.com

Attorneys for Defendant-AppellantsSunBridge Care Enterprises, Inc. andSunBridge Circleville Health Care Corp. d/b/aCircleville Care and Rehabilitation Center

2

CERTIFICATE OF SERVICE

A copy of the foregoing was sent on this 2oth day of May, 2013, by regular U.S. Mail

to the following:

Robert H. HufferHuffer and Huffer Co., L.P.A.130 West Franklin StreetP.O. Box 464Circleville, Ohio 43113

James L. MannMann & Preston LLPi8 East Second StreetChillicothe, Ohio 456o1

Attorneysfor Plaintiff-AppellantRose E. McDill

+ LA-A^

MARTIN T . GALVIN (oo63624)TxoMAs A. PRISLIPSKY (oo67623)

3

";'...I'f.3 • t,'r Or APPi:A1. S

IN THE COURT 0F APPEALS OF OHIOFOURTH APPELLATE DISTRICT

PICKAWAY COUNTY

ROSE E. MCDILL, et al.,

Plaintiff-Appe7.lant,

vs.

SUNBR.T.DGE CARE ENTERPRISES.INC., et al., .

nefend.ants-Appellees.

2013APR I I AM ! i^^9

J A V:c.^;i ;4 . I,^' APd

PlCKAVYAY %aC1UNrY

: Case No. 12CA8

. DECISION AND JUDGMENT ENTRY

APPFARANCES :

COUNSEL FOR APPELLANT: Robert H. Huffer, Huffer & Nuffer Co.,L. P.A., 130 West Franklin Street, P.O.Box 464, Circleville, Ohio 43113, anddames L. Mann, Mann & Preston LLP, 18East Second Street, Chillicothe, Ohio45601

COUNSEL FOR APPELLEES: Marvin T. Galvin, Thomas A. Prislipskyand Brian D. Sullivan, Reminger Co.,L.P.A., 101 West Prospect Ave., Suite1400, Cleveland, Ohio 44115

CTV1L CASE FROM COMMON PLEAS COURTDATE 3'OURNALxZFb:ABELE, J.

This is an appeal from a Pickaway County Common Pleas Court

judgment that dismissed the complaint that Rose McDi].l, plaintiff

below and appellant herein, filed against Sunbridge Care

Enterprises, Inc., Sunbridge Circleville Iiealth Care Corp., and

C3,ra7.eville Care and Rehabilitation Center, defendants below and

appellees herein, for injuries she suffered while a patient at

appellees' facility.

E X HIBIT

A

P:[CKAWAY, . 12 GA$

Appellant assigns the following error for review:

2

"THE TRIAL COURT ERRED IN GRANTING DEFENDANTS'MOTION TO DISMISS PTaAxN'1.'IFH" S COMPLAINT."

Appellant's November 10, 2011 complaint asserted that as a

patient at appellees' facility on November 13, 2009, she received

rehabilitative care following her surgery for the installation of

a pacemaker. Appellant was instructed not to leave her bed

without assistance. Around 2:00 a.m., on November 13, 2009,

appellant requested assistance so that she could use 'the bathroom.

Two aides assisted. When appellant, with her walker, began to

wash her hands, appellant alleged that the two aides

"inattentively and negligently allowed [appellant] to fall

backwards, landing on her buttocks."

Appelleea subsequently filed a Civ.R. 12(B) (6) motion to

dismiss the coznplaint.' They asserted that the one-year statute

of limi.tations applicable to medical c].aims barred appellant's

complaint.

Appellant opposed appellees' motion and asserted that her

complaint did not assert a medical claim. Appellant argued that

her injury did not result from a medical diagnosis, treatment, or

care, but, instead, from the negligence of the two aides who

1 Appelleesi initially filed a motion for judgment on thepleadings, but, requested the court to permit them to withdrawthe motion for judgment on the pleadings and to accept theirCiv.R. 12(B)(6) motion instanter. Although the trial court didnot explicitly rule on the request, it considered the Civ.R.12(B)(6) motion and rendered a decision.

PIC:KAWAY. 12CAB 3

assisted her with walking to the sink after using the bathroom.

Appellant alleged that her injury occurred after the two aides

•,assisted her to the bathroom but then stood by talking while she

stood at the sink and washed her hands.i2

On March 6, 2012, the trial court granted appellees' motion

to dismiss the complaint. The court determined that appellant's

complaint alleged a"medical claim" sub7ect to the one-year

statute of limitations. This appeal followed.

In her sole assignment of error, appellant asserts that the

trial court erred kay granting appellees' motion to dismiss the

complaint. In particular, she claims that the tri.al court

improperly construed her complaint to assert a"medical claim"

subject to the R.C. 2305.113(A) one.-year statute of limitations.

Appellees argue that appellant's claim arises out of "the

failure of employees/medi.cal staff at the skilled nursing facility

to follow medical instructions," and, thus, constitutes a claim

that "ar.lse [s] out of the meda.cal diagnosis, care or treatment of

the patient." Appellees contend that because appellant's injury

arose out of the medical staff's failure to follow i.nstructa.ons,

her injuries arose ou•G of medical care or treatment.

2 Appellant did not include these same facts in her

complaint.

P CCKAWASC. ^.2CA8 4

A

STANDARD OF REVxEW

When considering a Civ.R. 12(B) (6) motion to dismiss for

failure to state a claim upon which relief can be granted, a court

must presume that all factual allegations contained in a complaint

are true and must construe all reasonable inferences in favor of

the nonmoving party. E.a., State ex rel Talwar v. State Med. Bd

f 0 io, 104 Ohio St.3d 290, 619 N.E.2d 654, 2004-phio-6•410, at

55; Perez v. C1evel.=d, 66 Ohio St.3d 397, 399, 613 N.E.2d 199

(1993) . Dismissal is proper only if it appears beyond doubt that

a plaintiff can prove no set of facts that would entitle him to

relief. Maitlancl v. Ford Motor Co., 103 Ohio St.3d 463, 816

N.E.2d 1061, 2004-Oha.ow5717, 111; York v. Ohio State Riahwav

P.• o, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991). When a

trial court considers a Civ.R. 12 (B) (6) motion to dismiss, it may

only Gonsider the allegations of the pleadings, not extraneous

evidence. StatQ ex rel. Fuqua v. A7.ex.ander, 79 Ohio St.3d 206,

207, 680 N.E.2d 985 (1997); State ex xel. The V. Cos ^r. Mars all,

81 Ohio St..3d 467, 470, 692 N.E.2d 198 (1998).

Appellate courts review dismissals for failure to state a

gsford, 103 Ohio St.3dclaim de novo. Pgrry_sbura .Twp. v. Ro,

79, 2004-OhioW4362, 814 N.E.2d 44, 15. In other words, appellate

courts afford no deference whatsoever to a trial court decision

and independently review the complaint to determine if the Civ.R.

P .,TCKlaW Y 12O;A8 ^

12 (B) (6) requirements have been satisf ied.

"A complaint may be dismissed under Civ.R. 12(3) (6) for

failing to compJ.y with the applicable statute of limitations when

the complaint on its face conclusively indicates that the action

is time-barred." g 1io Bux of 19erkers' Comp v. McRinlev, 130

Ohio St.3d 156, 2011-Ohio-4932, 956 NX.2d 814, 9113, citing oe v.

,arch.dioceae oL Ca.ncinnatJ,].09 Ohio St. 3d 491, 2006--Ohio-2625, 849

N.E.2d 268, 111.

In the case sub judice, appellees claim that appellant's

complaint, on its face, conclusively demonstrates that her claim

is time-barred. They argue that the complaint plainly shows that

her claim constitutes a "medical claim" subj ect 'to the one-year

statute of limitations and that appellant did not file her

complaint within that one year period.

Appellant does not dispute that she did not file her

complaint within one year of the date of her injury. Rather, she

disputes appellees' assertion that her complaint alleges a

"medical claim." Thus, to deteacimine whether the trial court

properly dismissed appellant's complaint, we must examine whether

appellant's complaint plainly indicates that her claim constitutes

a "medical claim."

PrC KAWRx, 12C88

8

MEDICAL CLAIM

R.C. 2305. 7.13 (E) (3) defines "medicai claim" as follows:

"Medica7, claim" means any claim that is asserted inany civil action against a physician, podiatrist,hospital, home, or residential facility, against anyemployee or agent of a physician, podiatrist, hospital,home, or xesidential facility, or against a licensedpxactical nurse, registered nurse, advanced practicenurse, physical therapist, physician assistant,emergency medical technician-basic, emergency imedicaltechnician-intermediate, or emergency med.icaltechnician-paramedic, and that ariseg out gf themedicald:Laanos:is, care, or treatMent of any person. "Medicalclaim" includes the following:

(a) Derivative claims for relief that arise fromthe medical diagnosis, care, or treatment of a person;

(b) Claims that arise out of the medical diagnosis,care, or treatrnent-of any person and to which either ofthe •foli.ov^ing app].ies:

(:C) The claim results from acts or omissions inproviding medical care.

'(ii) The claim results i:rom the hiri.ng, training,supervision, retention, or termination of caregiversproviding medical diagnosis, care, or treatment.

(Emphasis added).

6

In the case at bar, neither party disputes whether appellees

meet the definition of the providers to which the statute applies.

Rather, the parties contest whether appellant's claim arose out of

her medical diagnosis, care, or treatment.

The term "'care' * * * should not be broadly interpreted."

Browning v. Burt, 66 Ohio St.3d 544, 557, 613 N.E.2d 993 ( 1993).

Rather, it must be considered in its particular context to

determine its specific legal meaning. Id, As used in R.C.

7: c Aw x:1 8 7

2305.1.13(E)(3) ► the term "care" means "the prevention or

alleviation of a physical or mental, defect or illness." Id.,

par.agraph one of the syllabus. The terms "`medi.cal diagnosis' and

`treatment' are terms of ax:t having a specific and particular

meaning relating to the identification and alleviation of a

physical or mental illness, dx.sease, or detect." ISL at 557.

In Bxownincr, for example, the court determined that a

negligent credentialing claim does not arise out of medical

,d, The court held that adiagnosis, care, or txeatment. I

negligent cfedentiaJ.i.ng claim arises "out of the hospital's

failure to satisfy its independent duty to grant and continue

staff privileges only to competent physicians." The court

concluded that the hospital's "independent duty does not directly

involve diagnosis or the medical care and treatment of a patient."

Zd. The court further explained that although a hospital's

failure to satisfy its independent duty "may ultimately lead to an

act of medical malpractice by the incompetent physician, the

physi.cian' s ultimate act of medical malpractice is factually and

legally severable and distinct from the hospital's acts or

omissions in negligently credentialing him or her with staff

membership or professional pri.vi.leges. " IqL.

In Romev.. E'lowerMem. Hosp., 70 Ohio St.3d 14, 635 N.E.2d

1239 (1994), the court held that the term "medi.cal claim" includes

a claim •for an injury suffered as a result of a hospital

PICKAWAX. 12C68

empl.oyee' s negligent use of hospital equipment. xd, at syllabus.

Rozne involved two separate actions that the court consolidated on

appeal. in the first case, the patient suffered an injury when a

hospitaJ, intern failed to properly secure the patient to a

radiology table. The court concluded that the patient's claim

8

that the hospital intern negligently secured her to the radiology

table arose out of the "•medical diagnosis, care, or treatment,'

relating to the identification and alleviation of a physical or

menta7. illness, disease, or defect." xd, at 16. The court

determined that "the process of securing [a patient] to a

radiology table is ancillary to and an inherently necess'ary part

of the administration of the X-ray procedurc which was ordered to

Td.. The courtidentify and alleviate her medical complaints." _

further observed that at the time of the patient's injury, the

employee who assisted the patient "was required to exercise a

certain amount of professional expertise in preparing the patient

for X-ray." U^;..

in the second case, the patient suffered an injury after his

wheelchair collapsed. At the time of his injury, the patient was

being transported to his physician-ordered physical therapy. The

Romo court concluded that the patient' s transport from physical

therapy "was ancillary to and an inherentJ.y necessary part of his

ph,ysical therapy treatment." J_cL The court additionally

recognized that the employee who assisted the patient "was

PTCKAWAY, 12CA8 9

required to use a certain amount of professional skill in

transporting the patient in the wheelchair." ,T.cl. at 16-17.

The First District Court of Appeals recently considered a

case that involves facts somewhat similar to those in the case at

bar. ConXin v. CHS-•Ohlo Vallev, .Inc., 7.at Dist. No. C-110660,

2012-Ohio-2816, appeal not allowed, 133 Ohio St.3d 1465, 2012W

in, the patient suffered anOhYo-•2616, 977 N.E.2d 693. In or k

injury when a hospita]_ employee failed to properly transfer the

patient to a"Hoyer lift" so that the patient could shower. The '

patient subsequently filed a negligence complaint against the

facility and the employee. The defendants filed a Civ.R. 12(B)(6)

motion that requested the court to dismiss the patient's

complaint. The defendants asserted that the patient failed to

file her complaint within the one-year statute applicable to

"medical claims." The trial court granted the defendants' motion

to dismiss the complaint, and the patient appealed.

The appellate court reversed. The court determined that the

patient's claims did not constitute "meda.ca.l claims," Ld, at 51:1.

In reaching its decision, the court examined four factors: (1)

whether the equipment "was used for `the prevention or alleviation

of a physical or mental defect or l11.ness; " (2 )"whether the

equipment was `an inherently necessary part of a medica].

procedure; "' (3) whether "use of the equipment "arose out of' a

physician ordered treatment;" and (4) whether "use of the

cx&wAy. 1 2Ae_ 10PL

equipment required a`ceri~ai.n amount' of professional expertise or

professional s1ci11." at 19, quoting DTQwnJag, 66 Ohio St.3d

at. 557, and Ro e, 70 Ohio St.3d at 16-17.

After considering the above factors, the court determined

that the patient's claims did not constitute "mcdical claims."

id, at 111. The court explained:

"Even if the Hoyer lift was used for thealleviation of prob].ems associated with [the pati.ent]' srange of motion, there is no indication at this point in'the proceedings that the use of the Hoyer lift was aninherent part of a medical procedure or that it aroseout of physician ordered treatment. And it is alsounclear whether a`certaa.n amount' of professionalexpertise or professa.onai, skii.l may have been reqtai.redto transfer Cthe patient) into the lift."

LCL

in the case sub judice, we agree with appellant that her

injury did not arise out of medical diagnosis, care, or treatment.

Unlike $_uXt and Rome, appellant's injury did not occur at a time

when she was being transported to or from a medical procodure, It

also did not occur due to an employee's alleged negligent use of

hospital equipment. Instead, according to the complaint,

appellant's injury occurred as she washed her hands ai:ter a

bathroom visit. Escorting appellant from the bathroom to the sink

to wash her hands did not involve "the prevention or alleviation

of a phys:lcal or mental defect or i.].lness." growninq, paragraph

one of the syllabus. It also did not relate to the

"identification and alleviation of a physical or mental illness,

i^PxCMWAY. 12C1^B

disease, or defect." Ld at 557.

We believe that the instant case is similar to ConkiA and

prior cases in which a patient suffered an injury due to afoxce

separate from the patient's medical care, diagnosit, or treatment.

The transportation of both appellant and the n in patient to the

bathroom was not an inherent part of a medical procedure, and it

did not arise from a physicianWordered treatment. Neither

appellant's nor the Qonk4A patient's injury occurred during the

course of receiving medical diagnosis, care, or treatment.

instead, appellant, like the g_o.lia patient, was in the process of

being transported to the bathroom to engage in an everyday,

routine function (showering, using the bathroom) when the injury

occurred. ccor Fiill v. G^sdswoxth-itt_m^ Axea BosP., 185 Ohio

App.3d 788, 2009-0hio-5421, 925 N.E.2d 1012 (91h Dist.) (holding

....... . .. ....... . . ... . .that, pata.ent' s injury..su^fexe

.. d when 'exiting whe' eJ,chaa,r during

hospital discharge did not result from medical diagnosis, care, or

as M Q . , 110 Ohiotreatment,) ; .3^a asc . S ^^

App.3d 83, 673 N.E.2d 651 (711 Dist. 1996) (determining that

patientr sinjury suffered when she slipped and fell on a piece of

plastic while using the bathroom did not arise out of medical

diagnosis, caxe, or treatment); Summexs v, M^dwest A1lexav

&ggociates, 1.011 Dist. No. 02AP-280, 2002-oh1o-7357 (concluding

that patient's injury suffered when cabinet fe].l on her head did

pTCKAWAY• 12CA8_

not arise out of medical diagnosis, care, or txeatment).3

12

Moreover, the process of helping appellant to the bathroom

and to the sink to wash her hands was not "ancillary to and an

inherently necessary part of" the alleviation of her physical

cond:Ltion. Appellant's injury arose because she had to use the

bathroom, not because she was in the process of receiving medical

diagnosis, care, or treatment. At the tirile of appellant's injury,

she was not undergoing a treatment or procedure to alleviate her

physical condition. Eler injury did not arise because the aides

failed to follow the physician's orders that appellant not leave

her bed without assistance. She already had left her bed and had

3 it may strike some as incongruous that a patient whosuffers an injury from the Hoyar liftr as the oi. n patient did,but suffers the injury while being transported to a medica].

pro^^^n^-transport is to the bathroom. Following the R^e logic, courtshave allowed recovexy for a hospital employee's negligent use ofhospital equipment if the equipment was not being used totransport the patient to a medical procedure, but it may not behad if that same equipment, in the same manner, is being used totransport the patient to a medical procedure. pomp4ra Hi11,.y;,.

W ds worth. ..'r'a, Xith G u v u C • aS- ., 117Ohio App.3d 670, 674, 691 N.E.2d 333 (holding that patient whosuffered injury after hospital employee requested the he get offa gurney and walk down stairs could not recover because he wasbeing transported to a medical procedure). Certainly, a lineexists between a medical claim and a general negligence claimthat happens to occur at a medical facility. The 7.irie aspresently drawn, however, does not appear entirely logical. Whyis it reasonable to deny recovery to the patient who suffers awheelchair injury due to employee negligence while beingtransported to a medical procedure or treatment, but the samepatient may recover if the injury occurs while being dischargedor transported to the bathroom? Perhaps the Ohio Supreme Courtwi1.1 clarify the seeming incongruity.

13p7 CKAWAX, 12CAS

used the bathroom by the time her injury occurred. The complaint

alleges that her injury occurred around the time that she was

washing her hands at the si.nk. Hand washing is a wholly separate

process from any medical diagnosis, care, or treatment that she

had received at the facility. Appellant was not washing her hands

in preparation for medical diagnosis, care, or treatment. Thus,

we cannot state that appellant's bathroom use and hand washing was

an ancillary and inherently necessary part of her rehabilitative

care. Rather, using the bathroom and washing hands was

tangential, at best, to her rehabilitative care.

Moreover, even if the physician's order that appellant not

leave her bed unassisted was arguably an "ancillary and i.nhesently.

necessar,y part" of the rehabilitative care that she received,

appellant's injury did not occur as a result of leaving her bed. ..., ..,....M..._..........,. ... .. .. ._ ..... .... ....:......... ,....._.. _..__.._..._. __..__ _......_._..._.._.......,_.,__........ _...._ _._ ....._,... , __ . ._.....v_.. ,....._. _ _. __._. .. __.. _. ___. _ ......_._unassisted or with negl^gent assistance. lnstead, accord^ng to

the complaint, her injury occurred after she had left her bed wi th

assistance and after she had successfully navigated, with

assistance, to the bathroom and to the sink.

Thus, we reject appellees' argument that appellant's injury

arose out of the aides' failure to follow the physician's order

that appellant not leave her bed without assistance.

Consequently, appellant's injury did not arise out of medical

diagnosis, care, or treatment and appellant's complaint is not

subject to the one--year statute of limitations applicable to

pTCICAWAY. 12CAS_ 14

"medical claims. "

Accordingly, based upon the foregoing reasons, we hereby

sustain appe7.].ant' s sole assignment of error, reverse the trial

court's judgment, and remand the matter for fuxther proceedings

consistent with this opinion.

JUDGMENT RE'VERSED AND CAUSE REMAI4DEDFOR FURTHER PROCEEDINGS CONSISTENTWITH THIS QPTNTON.

p TCY 1.2CA8.15

JUDCMENT DNTRX

xt is ordered that the judgment be reversed and remanded for

further proceedings consistent with this opa.nion, Appellant shall

recover of appellees the costs herein taxed. ,

The Court finds there were reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this Court

directing the Pickaway County Common P7.eas Court to carry this

j udgment into executiori.

A certified copy of this entry shall constitute that mandate

pursuant to Rule 27 of the Rules of Appellate Procedur .

.^.onMcFarland, P.J. & Hoover, ^'., . Concur in Jud gme '& Opinion

the rt

BX:r B. Abel^e, Judge

NOTICE T0 COUNEL

Pursuant to Local Rule No. 14, this document constitutes afinal judgment entry and the time period for further appea7.commences from the date of filing with the clerk.

Fli.l+p• COMMOH•.!~L,E0

Rose E. M.eDill,

Vs.

IN THE COURT OF COMMON PLEASPYCKAWAX COUNTY, OHIU i xplZ MAR -b P I= 09

,1,^^1i:S W. f^^.A9^J^i.ERK OF Ct1t1V3fw

CASE NO. 2011-CT-04MCKAWAY COIJVY,

Plaintiff, JUDGE P. RANDA14L KNECE

SrtnBr3dge Care Enterprises, Ine., et al.,

Defendants.DECTSXON,AND ENTRY-

This rnatter is before the Court on a Motion to Dismiss filed on behalf of the Defendants

SunBridge Care Enterprises, Inc. and SunBridge Circleville Health Care Corp. d/b/a/ Cireleville

Care and Rehabilitation Center (hereinafter "Defendants" or °`SunBridge'°). Plaintiff Rose E.

McDill filed a Memorandum in Opposition to which Defendants filed theix reply.

A dismissal for failure to state a claim upon which relief can be granted is a question of

law. Cleveland F,lec Tllurn Co v, kilb Util. Comm, (1996), 76 Ohio St.3d 521. In determinitig

whether a complaint states a claun upon which relief may be granted, all factual allegations are

presumea to "o-e true, and all reasonable inferences are made in faavor of the nonmoving party,

&r-p•,ex rel Talwar y, State Med Bd Of Ohio,104 Ohio St.3d Z90, 2004-Ohio-6410. T-iowever,

unsupported conclusions are not considered admitted and are insufficient to withstand a motion

to dismiss. State ex re1. Hickman vt Capots (1989), 45 Ohio SQd 324. in order for a court to

dismiss a complaint pursaant to Civ,R. 12(13)(6), for failure to state a claim upoii which relief

can be granted, it inust appear beyond doubt that the plaintiff can prove no set of facts in support

of his claim, which would entitled him to relief, Maitland v, Fgrd Motor Co., 103 Ohio St,3d

463, 2004-Ohio-5717.EXHIBIT

. ^ ^

MAR0a 2012

Ohio courts have noted that "[o]:ften, the application of a statute of limitations involves a

mixed question of law and fact" and °`[tlherefore, the court may dismiss the complaint pursuant

to Civ,R. 12(B)(6) only if it can determine from the face of the complaint that the action is barred

by the statute of lirnitations:' Doe v. Robinsor^, Lucas App. No. L-07-1051, 2007-Ohio-5746,

citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohlo-2625. Further, <`[a)

Civ;R. 12(B)(6) motion to dismiss based upon a statute of limitations should be granted only

where the complaint conclusively shows on its face that the action is so barred." rack v

5uniiyside Toyota Inc. Cuyahoga App, No. 89503, 2008-ahio-687, citing Doe v. C^tholic

Dioce e,158 Ohio App.3d 49, 2004-Ohio-3470,

For the following reasons, Defendants' Motion to Dismiss is hereby granted,

Plaintiff brought this action against Defendants after she fell and was injured while a

patient at Defendants' facility. Plaintiff claims that two of the Defendants' employees assisted

her to the bathroom but then stood by talking while she stood at the sink and washed her hands.

While doing so, Plaintiff fell and injured her hip.

Plaintiffs Complaint states that Plaintiff was a patient in the Defendants' facility for

purposes of undergoing rehabilitation after having undergone surgery for installation of a

paceznaker. The Complaint further states that on November 13, 2009, having been instructed to

not get out of bed without assistaiice, at approximately 2:00 a.m. she called for help so that she

oould go to the bathroom. Two aides assisted Plaintiff with her walker to the bathroom and then

when Plaintiff exited the bathroom to wash her hands at the sink, Plaintiff claims that the two

aides were inattentive and allowed Plaintiff to fall backwards.

This Court will first address Defendants' assertion that Plaintiff was required to file an

affidavit of nzerit with lier complaint. Defendants argue that Civ.R. 10(D)(2)(a) provides that a

2

medical claim as defined in O.R.C. Section 2305,1 13 "shall include an affidavit of merit relative

to each defendant named in the complaint for whom expert testimony is neeessary to establish

liability; ° The rule specifies that the affidavit must include "fflhe opinion of the affiant that the

standard of care was breached by one or more of tiie defendants to the action and that the broaah

caused injuty to the plaintiff." Civ.R, 10(D)(2)(a)(iii).

Although expert testimony is generally necessary to establish the applicable standard of

care [n a malpractice claim, "matters of common knowledge and experience, subjects that are

with the ordinary, common and general knowledge and experience of manlcind, need not be

established by expert opinion testimony," See, Bruni v. Takumi (1976), 46 Ohio St.2d 127;

R&mage v CeLtral Ohio Emeraenoy_ Services.. Inc. (1992), 64 Ohio St.3d 97, citing Johnson y,.

Grant Hosn. (1972), 31 Ohio App.2d 118, "It has been held, for example, that when a patient's

fall is caused by the inattentiveness of a nurse, the plaintiff need not produce expert testimony to

establish that iWuries were caused by the nurse's negligence." Tranter v, Mercy Francisc.an

Hosp. Wesleim BiXis, (Ohio App. 1 Dist.), 2007-Oliio-5132 relying on J4nes y, Hqwkes. Hosn,

NIt, Carmel (1964), 175 Ohio St. 503, paragraph two of the syllabus.

This Court emphasizes that, under the language of Civ.R. 10(D)(2)(e), the purpose of an

affidavit of inerit is "solely to establish tlie adequaay of the complaint and shall not otherwise be

admissible as evidence or used for purposes of iinpeachrnent." The requirement of the affidavit,

then, is to avoid tmnecessary filing of utterly frivolous claims; its purpose is not to test the

suffioiency of Plaintiff s evidence on the ultimate issue of Defendants' liability. See, Tr er (Ja

112,

Defendants further assert that P[aintiff s complain.t should h.ave been filed within one

year after the action accrued. According to the Complaint, Plainti^frs fall ocourred November

3

13, 2009, and her Complaint was flled November 10, 2011, almost two years after the action

accrued. Plaintiff argues that this is a simple negligence claim and not one that falls under the

requirements of O,R.C. Sections 2305.11 and 2305.113.

O,R,C. Section 2305.113(E)(3) defines a medical claim as;

44* * * fA]ny 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 nurse, physical therapist, physician assistant, emergency medical teohnician-basia, emergency medical technician-intermediate, or emergency medical technician-paramedic,and that arises out of the lnedical diagnosis, care, or'treatment of any person. 'Medical claim'

includes the following:

(a) Derivative claims for relief that arise from the medical dia$nosis, care, or treatment

of a person;

(b) Claims that arise out of the medical diagnosis, care, or treatment of any person and to

which either of the following applies;

(i) The claim restats ftom aots or omissions in providing medical care.

(ii) The claim results from the hiri.ng, training, supervision, retention, ortermination of caregivers providing medical diagnosis, oare, or treatment.

(c) Claims that arise out of the medical diagnosis, care, or treatment of alxy person andthat are brought under section 3721,17 of the Revised Code."

O.R.C. Section 2305.113(A) provides that an action upon a medical, dental, optometric, or

chiropractic claim shall be commenced within oiie year after the cause of action accrued, unless

certain exceptions, not present -here, apply.

This Court notes that the "named" Defendants in this matter are SunBridge Care

Enterprises, Inc., SunBridge Circleville Health Care CoiT., and Circleville Care and

Rehabilitation Center. In Es1ate of Stevic v Bio-Nied Abplication of Ohio, Richland App, No.

2006-CA-0095, 2008-Ohio-33, the plaintiff alleged einployees of Riohland County Kidney

Center failed to secure the patient in a Hoyer device causing him to fall. The plaintiff did not sr.re

4

any of the individuals, only the employer. The Court of Appeals found that the record was

unclear as to whether the employer was an entity named in O.R.C. Section 2305.113. However,

In this case, it Is clear that the "named" Defendants are facilities covered by the statue.

This Court finds that 1'laintiff's claiins against these Defendants meet the definition of a

"medical claim." Even if the Plaintiffs argued that the alleged negligent act was an act of

omission, rather than commission, and does not fall within the statutory de:^inition, this Court

finds that acts of omission are included in the definition of a "medical claim." See also, ]?occi v,

Aultman HosbiW, Stark County App. No. 2008-CA-00101, 2008-4hio-5951,

In a inedical malpractice action, the statute of limitations starts to run upon the

occurrence of a"aoganizable event" which leads or should lead a plaintiff to believe that his or

her injuiy is related to a medical diagnosis, treatment, care, or proceduxe. See, Evans v Sauthern

Ohio Medical Center (1995), 103 Ohio App.3d 250; Flo ers v,Wker (1992), 63 Ohio St.3d

546; Allenius V, Thomas (1989), 42 Ohio St.3d 131, In this case, the eognizable event occurred

when Plaintiff, while under the care of Defendants' employees, fell and received her injurles,

Acoorditgly, the one-year statute of limitations applies against Defendants SunBridge

Care Enterprises, Inc. and SunBridge Circleville Health Care Corp. d/b/a/ Circleville Care and

Rehabilitation.

Defendants' Motion to Dismiss is hereby GRA.NTE, D.

This is a^'inal appealable order and within three (3) days of the entering of this Judgment

upon the Journal, the Clerk oFthis Court shall serve the parties as provided for in Civil Rule 5(B)

with notice of the filing of a final appealable order and note such sei°vice upon the appearance

docket purstiant to Civil Rule 58.

5

IT IS SO ORDERE.D. Costs to Plaintiff,

P. RANDALL KNECE, JUDGE

Date:^---

COPIE S TO:

Robert E, Huffer, Esq.Post Office Box 464Circleville, OH 43113

J'ames L. Mann, Esq.Mann & Preston, LLP18 East Second StreetC1iilIzoothe, .O1-1 45601

Thomas A. Prislipsky, I'.sq,R.eminger Co., L.P.A.I 1 Federal Plaza. Central, Suite 300Youngstown, OH 44503

6

Lawriter - ORC - 3721.01 Nursing home and residential care facility definitions and class... Page 1 of 4

3721.01 Nursing home and residential care facility definitions and

classifications.

(A) As used in sections 3721.01 to 3721.09 and 3721.9 of the Revised Code:

(1)

(a) "Home" means an Institution, residence, or facility that provides, for a period of more than twenty-four hours, whether for a consideratlon or not, accommodations to three or more unrelated individualswho are dependent upon the services of others, including a nursing home, residential care facility,home for the aging, and a veterans' home operated under Chapter 5907. of the Revised Code.

(b) "Home" aiso means both of the following:

(i) Any facility that a person, as defined in sectlon 3702.51 of the Revised Code, proposes forcertification as a skilled nursing facility or nursing facility under Title XVIII or XIX of the "Social

Security Act, " 49 Stat. 620 (1935), 42 U.S.C.A. 301, as amended, and for which a certificate of need,

other than a certificate to recategorize hospital beds as described in section 3702.521 of the RevisedCode or division (R)(7)(d) of the version of section 3702.51 of the Revised Code in effect immediateiyprior to April 20, 1995, has been granted to the person under sections 3702. 1 to 3702.62 of the

Rev.ised Code after August 5, 1989;

(li) A county home or district home that is or has been licensed as a residential care facility.

(c) "Home" does not mean any of the following:

(i) Except as provided in division (A)(1)(b) of this section, a pubiic hospital or hospital as defined in

section 3701.01 or 5122,.01 of the Revised Code;

(fi) A residentiai facility as defined in section 5119.22 of the Revised Code;

(ili) A residential facility as defined In section 5123.1 of the Revised Code;

(iv) An alcohol or drug addiction program as defined In section 3793.01 of the Revised Code;

(v) A faciiity licensed to provide methadone treatment under section 3793.11 of the Revised Code;

(vl) A faciilty providing services under contract with the department of developmental disabiiities under

sectlon 5123.18 of the Revised Code;

(vii) A facility operated by a hospice care program licensed under section 3712.04 of the Revised Code

that is used exclusively for care of hospice patients;

(viii) A faciiity operated by a pediatric respite care program licensed under section 3712 041 of the

Revised Code that is used exclusively for care of pediatric resplte care patients;

(ix) A facility, infirmary, or other entity that is operated by a religious order, provides care exclusivelyto members of religious orders who take vows of celibacy and live by virtue of their vows within theorders as if related, and does not participate In the medlcare program established under Title XVIII of

the "Social Security Act" or the medical assistance program established under Chapter 5111. of the

Revlsed Code and Title XIX of the "Social Security Act," If on January 1, 1994, the facility, infirmary, or

entity was provlding care exclusively to members of the religious order;

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(x) A county home or district home that has never been licensed as a residential care facility.

(2) "Unreiated individual" means one who Is not related to the owner or operator of a home or to thespouse of the owner or operator as a parent, grandparent, chiid, grandchild, brother, sister, niece,

nephew, aunt, uncle, or as the child of an aunt or uncle.

(3) "Mental impairment" does not mean mental Illness as defined in section 5122.01 of the Revised

Code or mental retardation as defined in section 5123.01 of the Revised Code.

(4) "Skilled nursing care" means procedures that require technical skilis and knowledge beyond thosethe untrained person possesses and that are commonly employed in providing for the physical, mental,and emotional needs of the Ili or otherwise Incapacitated. "Skilled nursing care" inciudes, but is not

limited to, the following:

(a) irrigatlons, catheterizations, application of dressings, and supervision of special diets;

(b) Objective observation of changes in the patient's condition as a means of analyzing anddetermining the nursing care required and the need for further medical diagnosis and treatment;

(c) Special procedures contributing to rehabilitation;

(d) Administration of inedication by any method ordered by a physician, such as hypodermically,rectally, or orally, including observation of the patient after receipt of the medication;

(e) Carrying out other treatments prescribed by the physician that Involve a similar level of compiexity

and skill in administration.

(5)

(a) "Personal care services" means services including, but not Ilmited to, the following:

(i) Assisting residents with activities of daily Iiving;

(ii) Assisting resldents with seif-administration of inedication, in accordance with rules adopted under

section 3721.04 of the Revised Code;

(iii) Preparing special diets, other than complex therapeutic diets, for residents pursuant to the

instructions of a physician or a Ilcensed dietitian, in accordance with rules adopted under section

3721.04 of the Revised Code.

(b) "Personal care services" does not inciude "skilled nursing care" as defined in division (A)(4) of thissection. A facility need not provide more than one of the services listed in division (A)(5)(a) of this

section to be considered to be providing personal care services.

(6) "Nursing home" means a home used for the reception and care of individuals who by reason ofIllness or physical or mental impalrment require skilled nursing care and of individuals who requirepersonal care services but not skilled nursing care. A nursing home Is licensed to provide personal care

services and skilled nursing care.

(7) "Residential care facility" means a home that provides either of the following:

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Lawriter - ORC - 3721.01 Nursing home and residential care facility definitions and class... Page 3 of 4

(a) Accommodatlons for seventeen or more unrelated Individuals and supervision and personal careservices for three or more of those individuals who are dependent on the services of others by reason

of age or physicai or mental Impairment;

(b) Accommodations for three or more unrelated individuals, supervision and personal care services forat least three of those individuais who are dependent on the services of others by reason of age orphysical or mental impairment, and, to at least one of those Individuals, any of the skilled nursing care

authorized by section 3721.011 of the Revised Code.

(8) "Home for the aging" means a home that provides services as a residential care facliity and anursing home, except that the home provides its services only to individuals who are dependent on the

services of others by reason of both age and physical or mental impairment.

The part or unit of a home for the aging that provides services only as a residential care facility Islicensed as a residential care facility. The part or unit that may provide skllled nursing care beyond the

extent authorized by section 3721.0 11 of the Revised Code is licensed as a nursing home.

(9) "County home" and "district home" mean a county home or district home operated under Chapter

5155, of the Revised Code.

(B) The director of health may further classify homes. For the purposes of this chapter, any residence,institution, hotel, congregate housing project, or similar facility that meets the definition of a homeunder this section is such a home regardless of how the facility holds itself out to the publlc.

(C) For purposes of this chapter, personal care services or skilled nursing care shall be considered tobe provided by a faciiity if they are provided by a person employed by or associated with the facility orby another person pursuant to an agreement to which neither the resident who receives the services

nor the resident's sponsor is a party.

(D) Nothing in division (A)(4) of this section shall be construed to permit skllled nursing care to be

imposed on an individual who does not require skilied nursing care.

Nothing in division (A)(5) of this section shall be construed to permit personal care services to beimposed on an individual who is capable of performing the activity in question -vv'ithout assistance.

(E) Division (A)(1)(c) (ix) of this section does not prohibit a facility, infirmary, or other entity described

in that division from seeking ficensure under sections 3721.01 to 3721- 09 of the Revised Code or

certification under Title XVIII or XIX of the "Social Security Act." However, such a facility, infirmary, orentity that applies for licensure or certification must meet the requirements of those sections or titlesand the rules adopted under them and obtain a certificate of need from the director of health under

section 3702 ,5 of the Revised Code.

(F) Nothing in this chapter, or rules adopted pursuant to it, shall be construed as authorizing thesupervision, regulation, or control of the spiritual care or treatment of residents or patients in anyhome who rely upon treatment by prayer or spiritual means in accordance with the creed or tenets of

any recognized church or religious denomination.

Amended by 129th General AssemblyFile No.194,HB 303, §1, eff. 3/20/2013.

Amended by 129th General AssemblyFile No.127,HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28,HB 153, §101.OlSee act for effective dates.

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LawTiter - ORC - 3721.01 Nursing home and residential care facility definitions and class... Page 4 of 4

Amended by 128th General AssemblyFile No.9,HB 1, §101.01, eff. 10/16/2009.

Amended by 128th General Assemblych.9,SB 79, §1, eff. 10/6/2009.

Effective Date: 03-14-2003; 07-01-2005

http://codes.ohio.gov/orc/3721.01 5/17/2013