Metro Diplomat Healthcare , 2014 Ohio 3146 ( 2014 )

[Cite as Metro Diplomat Healthcare, 2014-Ohio-3146.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100799
JOANNE METRO
PLAINTIFF-APPELLANT
vs.
DIPLOMAT HEALTHCARE, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-802019
BEFORE: Stewart, J., Boyle, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: July 17, 2014
ATTORNEY FOR APPELLANT
Richard O. Mazanec
Wheeler & Mazanec
55 Public Square, Suite 850
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE DIPLOMAT HEALTHCARE
Leslie Moore Jenny
Jason P. Ferrante
Beau D. Hollowell
Marshall Dennehey Warner Coleman & Goggin
127 Public Square, Suite 3510
Cleveland, OH 44114
ATTORNEY FOR APPELLEE ABU SYED, M.D.
Brian D. Sullivan
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, OH 44115
MELODY J. STEWART, J.:
{¶1} Plaintiff-appellant Joanne Metro requested that this appeal be placed on this
court’s accelerated calendar pursuant to App.R. 11.1 and Loc.R.11.1. By doing so, she
has agreed that we may render a decision in “brief and conclusionary form.” App.R.
11.1(E).
{¶2} Metro brought this “medical malpractice” action against defendants-appellees
Diplomat Healthcare, Saber Health Group, and Abu N. Syed, M.D., collectively alleging
that they violated R.C. 3721.13, 5122.01, 5122.05, and 5122.10, by having her, a resident
in a Diplomat nursing home, involuntarily committed to a hospital for psychiatric care.
The court granted judgment on the pleadings to all defendants because Metro’s affidavit
of merit filed in support of the complaint was prepared by a nurse practitioner whom the
court believed to be unqualified to render an opinion regarding a psychiatrist’s standard
of care.1
{¶3} The court did not err by granting judgment on the pleadings as to Counts 1, 2
(subpart 4), and 3 of the complaint. Those counts alleged acts of medical malpractice
that were “medical claims” as defined by R.C. 2305.113(E)(3) and thus required an
Although an involuntary dismissal for failure to comply with Civ.R. 10(D)(2) is considered
1
without prejudice, Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897
N.E.2d 147, ¶ 15-18, Metro previously dismissed this case without prejudice and, given that the
statute of limitations had expired, she refiled the complaint under the savings statute, R.C. 2305.19.
In Brown v. Solon Pointe at Emerald Ridge, 8th Dist. Cuyahoga No. 99363, 2013-Ohio-4903, we
found that a second dismissal for failure to comply with Civ.R. 10(D)(2), coming after a party had
refiled the complaint under the savings statute, created a final order because a plaintiff can only use
the savings statute once, so the second dismissal was functionally a dismissal with prejudice from
which the time to appeal began to run. Id. at ¶ 8-9.
affidavit of merit. Subparts 1, 2, and 3 of Count 2 (paragraph 14 of the complaint) did
not raise medical claims, but instead asserted statutory claims under R.C. 3721.13
claiming that Metro had been subjected to “verbal, mental, and emotional abuse,” that her
mail had been improperly opened, and that the defendants failed to protect the
confidentiality of her medical records and information. The claims in subparts 1, 2, and
3 of Count 2 were not subject to the affidavit of merit requirement set forth in Civ.R.
10(D)(2).2
{¶4} Having found that some of the claims raised by Metro were medical claims
that required a supporting affidavit of merit, we next conclude that Metro failed to
support those claims in compliance with Civ.R. 10(D)(2) by offering an affidavit from a
person “familiar with the applicable standard of care[.]” Civ.R. 10(D)(2)(a)(ii). A
nurse practitioner is unqualified to give an opinion that a psychiatrist violated the relevant
standard of care. In reaching this conclusion, we reject Metro’s reliance on Disciplinary
Counsel v. Hilburn, 135 Ohio St.3d 1, 2012-Ohio-5528, 984 N.E.2d 940, for the
proposition that a nurse practitioner was qualified to give a professional opinion in
support of a finding of mental disability. Hilburn made it clear that the parties in that
case stipulated that a nurse practitioner could, consistent with the scope of practice
Diplomat’s reliance on Hubbard v. Laurelwood Hosp., 85 Ohio App.3d 607, 620 N.E.2d 8952
(11th Dist.1993), for the proposition that there is no exception to the affidavit of merit rule for
medical claims based on statutory violations is misplaced. Hubbard involved a wrongful death claim
brought pursuant to R.C. 2125.01. The substance of that claim was that the defendants acted
negligently in causing a death, so the affidavit of merit requirement did apply. Metro’s statutory
claims in Count 2, subparts 1, 2, and 3, do not involve any breach of a medical duty of care.
outlined in R.C. 4723.43(C), “provide an opinion on mental disability.” Id. at ¶ 30.
Being qualified to provide an opinion on whether a person has a mental disability is not
the same as being qualified to render an opinion on whether a psychiatrist breached the
standard of care applicable to that profession or whether a psychiatric hospital breached
its standard of care. With the nurse practitioner unqualified to render an opinion
regarding either standard of care, the court did not err by granting judgment on the
pleadings for Counts 1, 2 (subpart 4), and 3 of the complaint.
{¶5} Finally, we reject Metro’s argument that the court erred by granting judgment
on the pleadings to Diplomat because it did not file a motion for judgment on the
pleadings nor join in Syed’s motion. “A Civ.R. 12(C) motion for judgment on the
pleadings has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a
claim upon which relief can be granted.” Whaley v. Franklin Cty. Bd. of Commrs., 92
Ohio St.3d 574, 581, 752 N.E.2d 267 (2001). A court is allowed to grant sua sponte a
Civ.R. 12(B)(6) motion to dismiss after the parties are given notice of the court’s intent
and an opportunity to respond. Sheridan v. Metro. Life Ins. Co., 182 Ohio App.3d 107,
2009-Ohio-1808, 911 N.E.2d 950, ¶ 14 (10th Dist.). The court did not immediately rule
on Syed’s motion for judgment on the pleadings, but gave Metro time to file a
conforming affidavit of merit. In doing so, it gave her notice that a “failure to [file a
conforming affidavit of merit] will result in dismissing plaintiff’s claims, without
prejudice, in accordance with Civ.R. 41(B)(1) and Civ.R. 10(D)(2).” To the extent that
Diplomat did not file its own motion or join in Syed’s motion, the court could sua sponte
grant judgment on the pleadings.
{¶6} This cause is affirmed in part, reversed in part, and remanded to the trial court
for further proceedings consistent with this opinion.
It is ordered that appellant and appellees share 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 Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, JUDGE
MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR