Kelley v. Ruf , 181 Ohio App. 3d 534 ( 2009 )

{¶ 20} I agree with the majority's reasoning and conclusions as far as they go. But, because the Kelleys' attempt to voluntarily dismiss the sexual-assault-and-battery claim was a nullity, I would consider the merits of the Kelleys' negligent-credentialing claim against Summa to the extent that it was premised on that pending claim against Dr. Ruf. I disagree with the majority's conclusion affirming the trial court's grant of summary judgment to Summa on the negligent-credentialing claim to the extent that it was based on the allegations of sexual assault and battery, because I believe there is a genuine issue of material fact regarding whether Summa knew that Dr. Ruf had developed a "pattern of * * * inappropriate behavior." R.C. 2305.251(B)(2)(c). Therefore, I would affirm in part and reverse in part.

FINAL, APPEALABLE ORDER {¶ 21} Section 3(B)(2), Article IV of the Ohio Constitution provides that courts of appeals "shall have such jurisdiction as may be provided by law to review * * * judgments or final orders." Under Civ. R. 54(B), a trial court "may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay." In January 2008, the trial court granted Summa's motion for summary judgment on all the Kelleys' claims against it. On May 7, 2008, the trial court seemed to have granted summary judgment to Dr. Ruf and Walter R. Ruf M.D. Inc. on all claims against them except claim number three, sexual assault and battery, and claim number eight, Mr. Kelley's loss-of-consortium claim. There was, however, some confusion about the court's treatment of claim number four. Neither the trial court's January nor May 7 judgment entry included Civ. R. 54(B) language, nor did they dispose of all claims against all parties. Therefore, they were not final and appealable.

{¶ 22} On May 12, 2008, the Kelleys attempted to voluntarily dismiss their third claim, with prejudice, under Civ. R. 41(A). On that same day, the trial court entered a nunc pro tunc order, clarifying that it had granted summary judgment to the defendants on claims one, two, four, five, and six in the May 7 entry. In that same order, the trial court wrote that because the Kelleys had voluntarily dismissed their third claim for relief, its January and May rulings had become "final appealable Orders as they enter final judgment in favor of all Defendants." The trial court also included Civ. R. 54(B) language in its nunc pro tunc order, indicating that "[t]here is no just reason for delay." The order did not mention the loss-of-consortium claim that had remained pending after the May 7 judgment entry.

{¶ 23} Under Civ. R. 41(A)(1)(a), a plaintiff "may dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any time before the commencement of trial." The rule "does not allow for the dismissal of a portion of the claims against a certain defendant." Pattison v. W.W. Grainger Inc.,120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126, ¶ 18; see also Dohme v. Eurand Am. Inc., 121 Ohio St.3d 277,2009-Ohio-506, 903 N.E.2d 1174, ¶ 3. Thus, the Kelleys' attempt to dismiss only the sexual-assault-and-battery claim was a nullity because they attempted to dismiss some, but not all, of their claims against Dr. Ruf and Walter R. Ruf M.D. Inc.Pattison, 120 Ohio St.3d 142, 2008-Ohio-5276,897 N.E.2d 126, at ¶ 19. If the Kelleys wanted to abandon their sexual-assault-and-battery claim, the proper procedure would have been to seek leave of court or consent of the opposing parties to amend their complaint under Civ. R. 15(A). Id.

{¶ 24} As the Kelleys' attempt to voluntarily dismiss the sexual-assault-and-battery claim was a nullity, that claim and the loss-of-consortium claim remain pending in the trial court. See id. at ¶ 19, citing Kildow v. HomeTown Improvements, 5th Dist. No. CT2001-0057, 2002-Ohio-3824, 2002 WL 1729936, at ¶ 11. Despite the fact that these claims are still pending in the trial court, however, the Kelleys have appealed from a final, appealable order because the trial court's May 12 judgment entry included Civ. R. 54(B) language. Therefore, this court has jurisdiction to consider this matter.

HOSPITAL LIABILITY FOR PHYSICIAN'S SEXUAL MISCONDUCT {¶ 25} The Kelleys' second assignment of error is that the trial court incorrectly granted summary judgment to Summa on the negligent-credentialing claim. That claim was based both on the Kelleys' allegation that Dr. Ruf had fraudulently misrepresented Kelley's condition and that he had inappropriately touched her in a sexual manner while she was on the surgical table. The Kelleys argued that Summa was negligent in renewing Dr. Ruf's credentials when it knew or should have known that he had a history of reported offensive sexual behavior.

{¶ 26} Summa has argued that the Kelleys have not provided sufficient evidence to overcome the statutory presumption in favor of the hospital. R.C. 2305.251(B)(1) provides that a hospital "shall be presumed to not be negligent" in credentialing a physician if the hospital proves that at the time of the credentialing decision, the hospital was accredited by the Joint Commission on Accreditation of Healthcare Organizations. R.C. 2305.251(B)(1)(a). Summa presented an affidavit of Patricia Enos, indicating that Summa Health System has been so accredited since 1953. The Kelleys did not challenge that evidence.

{¶ 27} Under R.C. 2305.251(B)(2), the presumption of non-negligence may be rebutted only by proof of certain circumstances including, among others, that the hospital, "sufficiently in advance to take appropriate action, knew that a previously competent individual had developed a pattern of incompetence or otherwise inappropriate behavior, either of which indicated that the individual's staff membership, professional privileges, or participation as a provider should have been limited or terminated prior to the individual's provision of professional care to the plaintiff." R.C. 2305.251(B)(2)(c). The Kelleys argued to the trial court that proof that the hospital either knew or should have known that a physician has developed a pattern of incompetence or otherwise inappropriate behavior rebuts the R.C. 2305.251(B)(1) presumption. The trial court, however, disagreed, holding that R.C. 2305.251(B)(2)(c) requires that a hospital have actual knowledge of such a pattern of behavior. This court will not add to a statute words that the legislature did not include. See Kraynak v.Youngstown City School Dist. Bd. of Edn.,118 Ohio St.3d 400, 2008-Ohio-2618, 889 N.E.2d 528, ¶ 15; Wachendorfv. Shaver (1948), 149 Ohio St. 231, 237, 36 O.O. 554,78 N.E.2d 370. R.C. 2305.251(B)(2)(c) requires proof that the hospital actually knew that the credentialed individual had developed a pattern of incompetence or otherwise inappropriate behavior.

{¶ 28} Summa moved for summary judgment, pointing to the results of the trial court's in camera review of Summa's credentialing file for Dr. Ruf. The in camera inspection revealed "no complaints or disciplinary matters regarding inappropriate sexual contact with any patient at any time." Summa argued that the Kelleys could not point to any evidence in the record that would rebut the statutory presumption of non-negligence.

{¶ 29} In response, the Kelleys cited the deposition of their hospital administration expert, Robert Brueckner. Brueckner testified to various "red flags" that Summa should have investigated to ensure that it was credentialing a competent doctor, including "an extraordinary and inordinate number of claims" against Dr. Ruf. Although Brueckner did not know the precise allegations in each case, he knew they included repeated allegations of sexual misconduct involving other medical-care personnel. Brueckner testified that Summa should have investigated the details of each case, especially those involving payouts to plaintiff's, each of which would have been included in the results of Summa's mandatory inquiry to the National Practitioner's Data Bank. Brueckner further testified that in light of the public nature of the repeated allegations and the fact that many doctors worked at both Akron General and Akron City Hospitals, it was "inconceivable" that Summa would not have known that Dr. Ruf resigned his privileges from Akron General Medical Center in 2000, allegedly in lieu of discipline stemming from sexual-harassment allegations. The trial court held that "Brueckner's testimony falls short of evidence of actual knowledge by Summa as required by the statute."

{¶ 30} In addition to the Brueckner deposition, the Kelleys cited certified copies of various complaints filed against Dr. Ruf as evidence of Summa's negligence in credentialing him. Among those complaints were two sexual-harassment, assault, and battery lawsuits filed in Summit County by three separate plaintiff's. They were each filed less than three years before Dr. Ruf treated Kelley. The trial court also considered the testimony of Dr. Ruf, indicating that Summa knew about his litigation history. The trial court granted Summa summary judgment, ruling that Summa's knowledge of the lawsuits was not sufficient to overcome the statutory presumption in Summa's favor.

{¶ 31} R.C. 2305.251(B)(3) provides that "[i]f the plaintiff fails to rebut the presumption[,] * * * upon the motion of the hospital, * * * the court shall enter judgment in favor of the hospital * * * on the claim of negligent credentialing." Summa argued, based on this provision, that the trial court was required to enter summary judgment on its behalf because the Kelleys "[could not] rebut the presumption with evidence that satisfie[d] the requirements of R.C. § 2305.251(B)(2)." Under R.C. 2305.251(B)(2), the presumption "may be rebutted only by proof by a preponderance of the evidence."

{¶ 32} A determination of whether a party's proof reaches the standard of a preponderance of the evidence necessarily requires a weighing of that evidence. Weighing evidence is forbidden at the summary-judgment stage.Stewart v. Urig, 176 Ohio App.3d 658, 2008-Ohio-3215,893 N.E.2d 245, ¶ 10, citing Harry London Candies Inc.v. Bernie J. Kosar Greeting Card Co. (Feb. 6, 2000), 9th Dist. No. 20655, 2002 WL 185305, *3. "``Rather, the court must evaluate the evidence, taking all permissible inferences and resolving questions of credibility in favor of the non-moving party.'" Id., quoting Harry London Candies, 2002 WL 185305, at *3. Civ. R. 56(C) provides that "summary judgment shall not be rendered unless it appears from the evidence * * * that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion is made."

{¶ 33} In this case, the question is whether, construing the evidence most strongly in the Kelleys' favor, a reasonable jury could find by a preponderance of the evidence that Summa knew that Dr. Ruf "had developed a pattern of * * * inappropriate behavior * * * which indicated that [his] staff membership [or] professional privileges * * * should have been limited or terminated prior to [his] provision of professional care to [Kelley]." R.C. 2305.251(B)(2)(c). A reasonable jury could find that Summa's knowledge of two sexual-assault-and-battery lawsuits filed against Dr. Ruf by three separate plaintiff's within three years of his treatment of Kelley is sufficient to overcome the presumption in Summa's favor.

{¶ 34} I believe that there is a genuine issue of material fact as to whether Summa knew that Dr. Ruf had developed a pattern of inappropriate behavior. Therefore, I believe that the trial court should not have granted Summa's motion for summary judgment on the Kelleys' negligent-credentialing claim based on the allegations of sexual assault and battery. I would reverse the trial court's grant of summary judgment to Summa on the negligent-credentialing claim to the extent that it was based on the pending claim of assault and battery by Dr. Ruf.