Gomez v. Summa Physicians, Inc. ( 2024 )

[Cite as Gomez v. Summa Physicians, Inc., 2024-Ohio-1674.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ANA GOMEZ C.A. No. 30749
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SUMMA PHYSICIANS INC., et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV-2022-12-4312
DECISION AND JOURNAL ENTRY
Dated: May 1, 2024
CARR, Judge.
{¶1} Plaintiff-Appellant Ana Gomez, as the Administrator of the Estate of Victor Prieto,
Sr., appeals the decision of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} Mr. Pietro was admitted to a Summa facility on November 15, 2020, and was
diagnosed with Covid-19. He was intubated on November 22, 2020, and died on December 14,
2020.
{¶3} On December 22, 2022, Ms. Gomez filed a complaint for wrongful death, which
also included a claim seeking punitive damages. Ms. Gomez named Appellees Summa Physicians,
Inc., dba Summa Health Medical Group, Summa Health System, Summa Health System Corp.,
Summa Health System Community, and Summa Health (collectively “Summa”) as Defendants.
In the complaint, Ms. Gomez alleged negligence on the part of Summa.
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{¶4} Summa filed an answer denying the allegations and asserted, inter alia, the
affirmative defense of the statute of limitations. On March 24, 2023, Summa filed a motion for
judgment on the pleadings. Among other arguments, Summa argued that Ms. Gomez’s claims
were barred by the statute of limitations.
{¶5} Ms. Gomez responded in opposition and Summa filed a reply. Ultimately, the trial
court granted the motion for judgment on the pleadings and dismissed the complaint.
{¶6} Ms. Gomez has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DISMISSING THE ACTION UPON
STATUTE OF LIMITATIONS GROUNDS AS IT WAS TIMELY FILED
BASED UPON THE SAVING SECTION OF THE WRONGFUL DEATH
STATUTE AND OTHER GROUNDS LISTED IN THIS REPLY BRIEF[.]
{¶7} Ms. Gomez argues in her sole assignment of error that the trial court erred in
dismissing the action as it was not barred by the statute of limitations. Specifically, Ms. Gomez
maintains that she presented a wrongful death claim based upon a product liability claim and, thus,
the statute of limitations would extend until November 2024. She also maintains that the discovery
rule applies to toll the statute of limitations.
{¶8} The review of a lower court’s decision granting judgment on the pleadings under
Civ.R. 12(C) is de novo. Thomas v. Logue, Slip Opinion No. 2023-Ohio-3522, ¶ 9, citing New
Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d
164, 2019-Ohio-2851, ¶ 8. “Granting judgment on the pleadings, especially when filed by a
defendant, generally results in dismissal.” Thomas at ¶ 9.
{¶9} “Dismissal is appropriate under Civ.R. 12(C) when (1) the court construes as true,
and in favor of the nonmoving party, the material allegations in the complaint and all reasonable
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inferences to be drawn from those allegations and (2) it appears beyond doubt that the plaintiff can
prove no set of facts that would entitle him or her to relief.” (Internal quotations omitted.) Thomas
at ¶ 9, quoting Maternal Grandmother, ADMR v. Hamilton Cty. Dept. of Job & Family Servs., 167
Ohio St.3d 390, 2021-Ohio-4096, ¶ 13, quoting Reister v. Gardner, 164 Ohio St.3d 546, 2020-
Ohio-5484, ¶ 17.
{¶10} Here, the complaint alleged that:
[] After receiving an abbreviated copy of Mr. Prieto’s medical records on
September 29, 2022[], including but not limited to, the following was discovered[:]
[] On November 15, 2020[,] [Mr.] Prieto [] was admitted into Defendant’s facility
via the Emergency Department for cough and shortness of breath. Intake personnel
note no pertinent past medical history on the admission sheet. Admission diagnosis
was Acute Respiratory Failure with Hypoxia, with Elevation of levels of liver
transaminase levels.
[] On November 15, 2020[,] Sars-Cov-2 was detected in [Mr. Prieto] using The
Biofire Upper Respiratory Pathogens PCR Panel in violation of its Emergency Use
Authorization.
[] Remdesiver (Veklury) was initiated on November 16, 2020[,] and discontinued
on November 20, 2020[,] not in accordance with Emergency Use Authorization
dated June 20, 2020. Hepatic testing was not done on [Mr. Prieto] before initiation
of Remdesiver (Veklury) per Emergency Use Authorization, and Prothrombin
Time testing was not done on [Mr. Prieto] before initiation of Remdesiver
(Veklury).
[] On November 18, 2020, and on subsequent testing, the Biofire Upper Respiratory
Pathogens PCR Panel was not used for testing anymore and was replaced with the
Biofire Pneumonia PCR Panel which did not detect Sars-Cov-2 in [Mr. Prieto] on
multiple occasions.
[] On November 22, 2020[,] [Mr. Prieto] received Orotracheal intubation until
discharge.
[] [Mr. Prieto’s] death certificate states that his date of death was December 14,
2020[,] and that his cause of death was Respiratory Failure.
[] Discharge diagnosis states the following conditions [Mr. Prieto] suffered from[:]
1. Acute respiratory failure with hypoxia and hypercarbia[;] 2. ARDS[;] 3 Covid
19 pneumonia[;] 4. AKI[;] 5. DMII poorly controlled[;] 6. Anemia[;] 7. Liver
failure.
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[] Despite not having timely ordered blood tests, to a reasonable degree of medical
probability, accordance with the Emergency Use Authorization empowering the
use of Remdesiver (Veklury) [Mr. Prieto] died as a result of Defendants’ error in
the administration of medication.
[] Further, [Mr. Prieto] died as a direct and proximate result of Defendants’ lack of
appropriate monitoring, supervision, treatment, and care.
{¶11} Within the claim itself, Ms. Gomez asserted that, “[a]s a direct and proximate result
of the negligence” of Summa, Ms. Gomez and the next of kin suffered various damages.
{¶12} “With the exception of a products liability claim, a cause of action for wrongful
death ‘shall be commenced within two years after the decedent’s death.’” Rossiter v. Smith, 9th
Dist. Wayne No. 12CA0023, 2012-Ohio-4434, ¶ 7, quoting former R.C. 2125.02(D)(1); see also
R.C. 2125.02(F)(1).1 Essentially, Ms. Gomez asserts that her action is not barred because she is
asserting a wrongful death action based upon a product liability claim. However, a product liability
claim
means a claim or cause of action that is asserted in a civil action pursuant to sections
2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory
damages from a manufacturer or supplier for death, physical injury to person,
emotional distress, or physical damage to property other than the product in
question, that allegedly arose from any of the following:
(a) The design, formulation, production, construction, creation, assembly,
rebuilding, testing, or marketing of that product;
(b) Any warning or instruction, or lack of warning or instruction, associated with
that product;
(c) Any failure of that product to conform to any relevant representation or
warranty.
“Product liability claim” also includes any public nuisance claim or cause of action
at common law in which it is alleged that the design, manufacture, supply,
1
Although the current version of R.C. 2125.02(F)(1) references R.C. 2125.02(D)(2), it is
apparent that this is a typographical error, and the reference should be to R.C. 2125.02(F)(2). See
former R.C. 2125.02(D)(1); State ex rel. Bowling v. DeWine, 10th Dist. Franklin No. 21AP-380,
2021-Ohio-2902, ¶ 37, fn. 5.
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marketing, distribution, promotion, advertising, labeling, or sale of a product
unreasonably interferes with a right common to the general public.
R.C. 2307.71(A)(13); R.C. 2125.02(I)(6); former R.C. 2125.02(G)(6). None of Ms. Gomez’s
allegations in the complaint, even under a broad reading, provide notice that she is claiming that
the wrongful death involved a product liability claim as that term is defined in the Ohio Revised
Code. Instead, Ms. Gomez’s complaint alleges negligence based on a “lack of appropriate
monitoring, supervision, treatment, and care” by Summa. While the claim includes allegations
that Summa failed to follow certain Emergency Use Authorizations related to certain drugs and
tests, she does not allege any faults with the drugs or tests themselves. See R.C. 2307.71(A)(13).
Thus, we cannot say that Ms. Gomez’s wrongful death action is based on a product liability claim.
{¶13} In her briefing in the trial court, and on appeal, Ms. Gomez also pointed to R.C.
2125.02(F)(2)(g), which relates to wrongful death actions based on a product liability claim
founded upon a substance or device described in another section of the revised code. R.C.
2125.02(F)(2)(g) indicates that
the cause of action that is the basis of the action accrues upon the date on which the
claimant is informed by competent medical authority that the decedent’s death was
related to the exposure to the product or upon the date on which by the exercise of
reasonable diligence the claimant should have known that the decedent’s death was
related to the exposure to the product, whichever date occurs first. A civil action
for wrongful death based on a cause of action described in division (F)(2)(g) of this
section shall be commenced within two years after the cause of action accrues and
shall not be commenced more than two years after the cause of action accrues.
{¶14} Along with her discussion of this section, Ms. Gomez argued that, upon reasonable
diligence, the cause of action was not discovered until November 2022, following her review of
medical records, and therefore she had until November 2024 to bring her claim. However, this
argument fails because Ms. Gomez’s claim is not a wrongful death claim based upon a product
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liability claim and, therefore, the language she relies upon in R.C. 2125.02(F)(2)(g) is not
applicable to her claim.
{¶15} Additionally, Ms. Gomez asserts that the more general discovery rule applies to her
action and tolled the running of the statute of limitations. This rule provides that, “[d]epending on
the claim and the applicable statute, the date of discovery may toll the running of the governing
statute of limitations until the plaintiff discovers or, in the exercise of reasonable care, should have
discovered the complained-of injury.” Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 180
(1989). However, Ms. Gomez did not raise this argument below. “It is axiomatic that a litigant
who fails to raise an argument in the trial court forfeits his right to raise that issue on appeal.”
Lloyd v. Rogerson, 9th Dist. Wayne No. 18AP0024, 2019-Ohio-2606, ¶ 68; see also Tchankpa v.
Ascena Retail Group, Inc., 10th Dist. Franklin No. 19AP-760, 2020-Ohio-3291, ¶ 16. While Ms.
Gomez could have argued plain error, she has not done so, and this Court will not create an
argument on her behalf. Lloyd at ¶ 68.
{¶16} Further, to the extent that Ms. Gomez has made additional arguments in her reply
brief, including raising additional assignments of error, we note that reply briefs are not the
appropriate place to make new arguments. See Scala v. Scala, 9th Dist. Medina No. 21CA0047-
M, 2023-Ohio-2232, ¶ 41. Accordingly, Ms. Gomez was required to bring her cause of action
within two years after Mr. Prieto’s death and she failed to do. See Rossiter, 2012-Ohio-4434, at ¶
7, quoting former R.C. 2125.02(D)(1); see also R.C. 2125.02(F)(1).
{¶17} Ms. Gomez has not demonstrated that the trial court erred in dismissing the
complaint. Ms. Gomez’s assignment of error is overruled.
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III.
{¶18} Ms. Gomez’s assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
STEVENSON, J.
CONCUR.
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APPEARANCES:
ROSEL C. HURLEY, III, Attorney at Law, for Appellant.
ROCCO D. POTENZA, Attorney at Law, for Appellees.