Estate of Fleenor v. Ottawa Cty. , 2021 Ohio 2251 ( 2021 )

[Cite as Estate of Fleenor v. Ottawa Cty., 2021-Ohio-2251.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
Estate of Jennings Fleenor Court of Appeals No. OT-20-023
Appellant Trial Court No. 2018CV238
v.
County of Ottawa DECISION AND JUDGMENT
Appellee Decided: June 30, 2021
*****
William B. Eadie and Michael A. Hill, for appellant.
Teresa L. Grigsby and Jennerifer A. McHugh, for appellee.
*****
MAYLE, J.
{¶ 1} Plaintiff-appellant, the Estate of Jennings Fleenor, appeals the September 3,
2020 judgment of the Ottawa County Court of Common Pleas, granting summary
judgment in favor of defendant-appellee, the County of Ottawa, d/b/a Ottawa County
Riverview Nursing Home. For the following reasons, we reverse.
I. Background
A. Factual Background
{¶ 2} Jennings Fleenor was a 77-year-old man who resided at Ottawa County
Riverview Nursing Home. On the evening of July 29, 2016, nurse aide, T.M., was
preparing to shower Fleenor, a bilateral leg amputee who also suffered from dementia,
diabetes, peripheral vascular disease, among other conditions. She and another aide used
a Hoyer lift to transfer him from his wheelchair to a rollable shower chair. Once in the
shower chair, T.M. situated herself facing Fleenor and began pushing the chair into the
shower when it tipped backwards. T.M. grabbed the arms of the chair in an effort to stop
it from falling, but the arms were wet and slippery and she could not stop it. She “held
[Fleenor] as much as [she] could, with [her] knees braced,” preventing the chair from
slamming down, but ultimately, Fleenor landed on the tile floor still in the chair.
According to T.M., Fleenor realized that he was falling and lifted his head in anticipation
of the fall, preventing his head from hitting the ground.
{¶ 3} T.M. called for help and nurse, K.N., entered the shower room to assist. She
got down on the floor to assess Fleenor. She asked if he had hit his head and he said no.
She took his blood pressure, which was a little high, “looked him over, checked his
strength, looked at his eyes, [and] checked his head.” She observed some redness on his
shoulders from where his shoulders were lying against the shower chair, but observed no
other injuries and her assessment was otherwise negative. K.N., T.M., and another aide
lifted Fleenor off the floor.
2.
{¶ 4} Fleenor’s physician was notified of the fall and a voice mail was left for
Fleenor’s son, alerting him to the fact that his father had fallen. The nursing staff
performed regular neurological checks over the next 13 hours and completed 72-hour
post-fall check sheets. Fleenor’s vital signs were checked frequently during that time.
His blood pressure normalized during the night, the redness on his shoulders resolved,
and the neurological checks remained negative. Fleenor reported pain in his back and
neck, and Norco was administered and noted to be effective.
{¶ 5} On August 2, 2016, Fleenor was referred to occupational therapy for “OT
intervention for [wheelchair] positioning” because of staff concerns that he would “slide
out of [his wheelchair].” He was seen by occupational therapist, M.W., on August 3,
2016, for “modifications to [wheelchair] headrest with new rest constructed and mounted
for appropriate fit.” At that time, M.W. noted in her chart that Fleenor had “poor
alertness with nursing staff stating [that he] fell over [the] weekend.”
{¶ 6} The next morning, August 4, 2016, at 5:10 a.m., Fleenor was observed to be
diaphoretic. By 6:30 a.m., he was unresponsive to verbal and physical stimuli. He died
at 6:45 a.m. No autopsy was performed; his death certificate lists his manner of death as
natural, the immediate cause of his death as end-stage dementia, and other significant
contributing conditions as peripheral vascular disease and coronary artery disease.
Fleenor’s body was cremated.
3.
B. The Complaint
{¶ 7} Fleenor’s estate filed an action against the County of Ottawa d/b/a Ottawa
County Riverview Nursing Home, alleging negligence, wrongful death, and violations of
R.C. 3721.13, Ohio Nursing Home Patients’ Bill of Rights (“residents’ rights”). It
claimed that when Fleenor was dropped, he suffered severe injuries, and he was not sent
to the hospital for medical care despite a documented physical and mental decline
culminating in his death six days later.
{¶ 8} In support of its negligence claim, the estate alleged that Riverview’s staff
knew or should have known that it was unsafe to shower Fleenor using only a single aide;
fail to provide adequate assistance in the shower; fail to have a properly installed, tested,
and inspected shower chair; allow Fleenor to suffer skin breakdowns and falls; fail to
provide adequate and timely care; fail to adequately and timely notify his family and
doctor as to his condition and injuries; and fail to provide adequate treatment and care
after Fleenor’s final fall. It further alleged that Riverview chose to provide too little
nursing staff to ensure timely and adequate care to its residents, including Fleenor; it
knew or should have known that its policy of understaffing created a dangerous
environment for residents like Fleenor; it had a duty to—but chose not to—act reasonably
in budgeting and providing funding to hire, train, and supervise staff to care for and assist
residents like Fleenor; it had a duty to follow state and federal laws and regulations, the
violations of which resulted in harm to Fleenor; and as a direct and proximate result of its
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negligence, Fleenor sustained permanent injury and loss, including conscious pain and
suffering, disability, and death.
{¶ 9} In support of its wrongful death claim, the estate alleged that as a result of
the negligence previously described, Fleenor sustained physical injuries that caused his
wrongful and untimely death; and Fleenor’s heirs and next of kin have suffered loss and
damage as set forth in the Ohio wrongful death statute, including mental anguish and
grief, medical and funeral expenses, and loss of Fleenor’s support, services, society, and
companionship.
{¶ 10} And in support of its claim for residents’ rights violations, the estate
alleged that Riverview directly or through its employees violated Fleenor’s rights as a
resident of the facility under R.C. 3721.13; these violations constitute negligence per se
and give rise to a statutory action; and as a direct and proximate result of Riverview’s
violations of R.C. 3721.13, Fleenor endured conscious pain and suffering, disability, and
an untimely death.
C. Summary Judgment
{¶ 11} Riverview moved for summary judgment on all of the estate’s claims. It
argued that (1) the estate cannot establish a breach of a duty to Fleenor or causation for
purposes of its negligence, wrongful death, and residents’ rights claims; (2) its wrongful
death claim was not brought in the name of the personal representative of the estate as
required by R.C. 2125.02(A)(1); (3) Riverview is immune from liability under R.C.
5.
2744.01 et seq.; and (4) the estate failed to bring the action against an entity capable of
being sued.
{¶ 12} With respect to the “breach” element of the estate’s negligence and
wrongful death claims, Riverview argued that it had no duty to prevent all falls, there was
no evidence that T.M. caused the shower chair to tip, T.M. did her best to try to prevent
and ultimately slow the fall, assessments were performed immediately after the fall, and
it is mere conjecture whether the presence of a second aide would have prevented the fall.
{¶ 13} With respect to the causation elements of the estate’s claims, Riverview
argued, again, that there was no evidence that its employees caused the chair to tip and
T.M. did her best to try to prevent injury to Fleenor. It also argued that there was no
evidence that Fleenor hit his head or suffered a head injury; there was no evidence that
Fleenor suffered a brain bleed or a subdural hematoma; there was no evidence that an
undiagnosed brain bleed or subdural hematoma caused Fleenor’s death; and even if
Fleenor had an undiagnosed brain bleed or subdural hematoma, there was no evidence
that it was caused by his fall in the shower.
{¶ 14} Respecting its claim of immunity, Riverview acknowledged that although it
is a political subdivision under R.C. 2744.01(F) and its operation of the nursing facility
constitutes a proprietary function under 2744.01(G)(1) generally rendering it immune
from liability, an exception to immunity applies under R.C. 2744.02(B)(2) such that it
may be liable “for injury, death, or loss to person or property caused by the negligent
performance of acts by [its] employees with respect to proprietary functions of the
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political subdivision[].” It argued, however, that it is nevertheless immune from liability
under R.C. 2744.03(A)(5) because Fleenor’s injury “resulted from the exercise of
judgment or discretion in determining whether to acquire, or how to use, equipment,
supplies, materials, personnel, facilities, and other resources” and there was no evidence
that “the judgment or discretion was exercised with malicious purpose, in bad faith, or in
a wanton or reckless manner.”
{¶ 15} And respecting the estate’s failure to bring the action against an entity
capable of being sued, Riverview maintained that it could only be held accountable via a
lawsuit against the county’s board of commissioners.
{¶ 16} The estate responded that it had offered the opinions of expert witnesses,
creating genuine issues of material fact as to whether the care rendered to Fleenor
violated the standard of care and whether the injuries he sustained as a result of those
violations caused his death. It argued that the trial court was obligated to construe this
evidence in its favor.
{¶ 17} With respect to Riverview’s claim of immunity, the estate maintained that
(1) claims based on violations of the residents’ rights statute are themselves an exception
to political subdivision immunity; (2) the discretion exercised here was unrelated to
“whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities,
and other resources;” and (3) it properly alleged that Riverview acted recklessly, thereby
negating the defense asserted by Riverview under R.C. 2744.03(A)(5).
7.
{¶ 18} And as to Riverview’s claim that the wrongful death claim was required to
be brought in the name of the personal representative and the county was not an entity
capable of being sued here, the estate argued that Riverview had not been prejudiced by
these alleged errors and they are easily capable of being remedied under Civ.R. 15(A) by
amending the complaint. It emphasized that the county had hired counsel to respond to
the complaint, designated witnesses, participated in discovery, produced medical records,
and made claims of attorney-client privilege, therefore, Riverview was not prejudiced and
the estate should be permitted to amend the complaint to name the board of
commissioners. The estate also pointed out that Riverview had filed suit in other cases
seeking to collect facility fees and had done so as “Ottawa County d/b/a Ottawa County
Riverview Nursing Home.”
{¶ 19} Riverview replied that the estate’s expert witnesses had relied on
inadmissible evidence in forming their opinions. It insisted that the admissible evidence
demonstrates that no genuine issue of material fact exists. Riverview also denied that the
estate had properly pled reckless conduct by Riverview employees. And it disputed the
estate’s claim that it should be permitted to amend the complaint to sue in the name of the
personal representative and to properly name the board of commissioners.
D. Trial Court Judgment
{¶ 20} The trial court granted Riverview’s motion. It determined that the
operation of Riverview, a county home, is a proprietary function, entitling it to political
subdivision immunity under R.C. 2744.02(A)(1). It recognized that under R.C.
8.
2744.02(B)(2), a political subdivision may be liable for injury or death caused by the
negligent performance of acts by its employees if none of the exceptions in R.C. 2744.03
apply. But it found that such an exception does apply here—R.C. 2744.03(A)(5).
{¶ 21} The court concluded that here, Riverview exercised discretion in creating
and implementing Mr. Fleenor’s care plan. It further concluded that no evidence had
been presented that Riverview exercised its discretion with malicious purpose, in bad
faith, or in a wanton or reckless manner. It, therefore, found that Riverview was
protected from liability by political subdivision immunity and was entitled to judgment as
a matter of law.
{¶ 22} The estate appealed. It assigns the following errors for our review.
ASSIGNMENT OF ERROR NUMBER 1
The Trial Court erred in granting summary judgment.
ASSIGNMENT OF ERROR NUMBER 2
The Trial Court erred in disregarding evidence of recklessness in the
Defendant-Appellee’s staff disregarding Mr. Fleenor’s decline after his fall
until his death.
ASSIGNMENT OF ERROR NUMBER 3
The Trial Court erred in adopting the moving-party (Defendant-
Appellee’s) facts and disregarding facts favoring Plaintiff-Appellant,
construing facts in favor of the moving-party (Defendant-Appellee), and
drawing inference in favor of the moving-party (Defendant-Appellee).
9.
II. Standard of Review
{¶ 23} Appellate review of a summary judgment is de novo, Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same
standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,
572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 24} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526
N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,
662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is
made, an adverse party may not rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a genuine issue of material fact.
Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A
10.
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,
675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).
III. Law and Analysis
{¶ 25} In its first assignment of error, the estate argues that the trial court erred in
granting summary judgment to Riverview. In its second assignment of error, it argues
that the trial court erred in disregarding evidence of the recklessness of Riverview’s staff
in failing to take appropriate action in response to Fleenor’s decline following his fall.
And in its third assignment of error, the estate argues that the trial court erred in adopting
Riverview’s version of the facts and in construing the facts and drawing inferences in
Riverview’s favor. The estate’s assignments of error are interrelated and will be
discussed together.
A. The Immunity Analysis
{¶ 26} The trial court dismissed all of the estate’s claims on one basis: political
subdivision immunity. The court held—and the parties agree—that Riverview is a
political subdivision engaged in a proprietary function but that R.C. 2744.02(B)(2)
applies, potentially stripping it of its immunity. The estate adds that under R.C.
2744.02(B)(5), its claim for residents’ rights violations provides another basis to strip
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Riverview of its immunity. The parties dispute whether R.C. 2744.03(A)(5) operates to
reinstate immunity here, and it is that issue that is critical, initially, in resolving the
estate’s appeal.
{¶ 27} As the Ohio Supreme Court explained in Cramer v. Auglaize Acres, 113
Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 14, “[d]etermining whether a political
subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a three-
tiered analysis.” (Internal citations and quotations omitted.) Under the first tier, if the
political subdivision is performing a governmental or proprietary function, it will
generally be immune from liability. Id. Under the second tier, the court must determine
whether any exceptions to immunity listed in R.C. 2744.02(B) apply, exposing the
political subdivision to liability. Id. at ¶ 15. If any of those exceptions apply, under the
third tier, the court must determine whether any of the defenses in R.C. 2744.03 apply,
thereby reinstating political subdivision immunity. Id. at ¶ 16.
{¶ 28} The court found that R.C. 2744.03(A)(5), in fact, provided a defense,
thereby reinstating Riverview’s immunity.
1. R.C. 2744.03(A)(5)
{¶ 29} Under R.C. 2744.03(A)(5), “[i]n a civil action brought against a political
subdivision * * * to recover damages for injury, death, or loss to person or property
allegedly caused by any act or omission in connection with a governmental or proprietary
function, the following defenses or immunities may be asserted to establish nonliability *
* *”:
12.
The political subdivision is immune from liability if the injury,
death, or loss to person or property resulted from the exercise of judgment
or discretion in determining whether to acquire, or how to use, equipment,
supplies, materials, personnel, facilities, and other resources unless the
judgment or discretion was exercised with malicious purpose, in bad faith,
or in a wanton or reckless manner.
{¶ 30} The court found that the negligence alleged here arose from the exercise of
discretion of Riverview’s employees in creating and implementing Fleenor’s care plan. It
also found that there was no evidence that that discretion was exercised with a malicious
purpose, in bad faith, or in a wanton or reckless manner. The estate challenges both of
these conclusions.
{¶ 31} As to the issue of discretion, the estate denies that the injury here arose
from “the exercise of judgment or discretion in determining whether to acquire, or how to
use, equipment, supplies, materials, personnel, facilities, and other resources.” It
maintains that the nurse aide did not decide to tip Fleenor out of his chair, and the staff
who identified significant changes in Fleenor’s condition in the following days—but who
failed to chart their observations, tell Fleenor’s family doctor, or take him to the
hospital—were not exercising discretion in determining how to use equipment or
facilities. The estate insists that if R.C. 2744.03(A)(5) is interpreted to encompass
“negligent care far outside the care plan,” this would result in de facto immunity for all
nursing home negligence committed in county-owned nursing homes.
13.
{¶ 32} The Ohio Supreme Court addressed the issue of immunity of county-owned
nursing homes in examining a claim for violations of residents’ rights under R.C.
3721.13. In Cramer, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, plaintiff’s
decedent was a 71-year-old resident of Auglaize Acres, a county home created by the
Auglaize County Board of County Commissioners. Two nurses employed by the home
were helping him into bed using a Hoyer lift, when they apparently dropped him.
Approximately five hours later, another nurse observed that the resident was in pain, his
left leg and foot were swollen, and his leg was deformed above the knee. The resident
was taken to the hospital, where he was diagnosed with a fractured left femur. He
underwent surgery to repair the break, but died two days later.
{¶ 33} The resident’s estate filed a complaint against the home, the board of
commissioners, and nurses employed by the home, alleging negligence, falsification of
medical records, intentional infliction of emotional distress, residents’ rights violations,
respondeat superior liability, and agency by estoppel. The defendants asserted the
defense of governmental immunity and moved for summary judgment on this basis.
{¶ 34} The home and the commissioners argued that they were immune from
liability under the defenses available in R.C. 2744.03(A)(3) and (5), and the individual
nurses argued that they were immune from liability under R.C. 2744.03(A)(6). The trial
court granted summary judgment to the nurses on plaintiff’s negligence claim. It granted
summary judgment to the home and the commissioners on plaintiff’s claim of intentional
infliction of emotional distress and on the claims of negligence and violation of patient
14.
rights, but only insofar as punitive damages were sought. It denied the summary
judgment motion in all other respects, finding that (1) the allegation of wanton and
reckless conduct precluded the employees’ defense of immunity on the claim for
intentional infliction of emotional distress, (2) R.C. 3721.17(I)(1) created a cause of
action against the nurses for allegedly violating the resident’s rights, and (3) the home
and the commissioners were not immune for their employees’ negligence.
{¶ 35} Plaintiff appealed to the Third District Court of Appeals, challenging the
trial court’s application of governmental immunity and the constitutionality of R.C.
Chapter 2744. The court of appeals affirmed the granting of summary judgment to the
home and commissioners on the claim for intentional infliction of emotional distress; it
agreed that plaintiff could not collect punitive damages against the home or the
commissioners; and it affirmed the holding that the nurses were not protected against
intentional tort allegations. But the court of appeals held that the trial court erred in
failing to grant summary judgment to the home and commissioners on plaintiff’s claims
for the nurses’ intentional actions, in failing to consider a defense under R.C.
2744.0[3](A)(5) that the nurses’ decisions in providing medical care were discretionary,
and in holding that R.C. 3721.17(I)(1) imposed liability on the nurses for residents’ rights
violations.
{¶ 36} The Ohio Supreme Court accepted plaintiff’s request for a discretionary
appeal and agreed to determine whether governmental immunity applies to unlicensed
county nursing homes and its employees when they are sued for residents’ rights
15.
violations. Ultimately, the court held that R.C. 3721.17(I)(1) specifically grants a cause
of action to residents of county nursing homes, including unlicensed homes, against a
political subdivision for residents’ rights violations under the exception
to immunity found in R.C. 2744.02(B)(5). It concluded, however, that R.C.
3721.17(I)(1) does not expressly impose liability on the employees of
a county nursing home under R.C. 2744.03(A)(6)(a).
{¶ 37} After reaching these conclusions and acknowledging that both R.C.
2744.02(B)(2) and (5) may operate as exceptions to the home and commissioners’
immunity, the Ohio Supreme Court explained that the next step in the analysis is to
consider whether any defense under R.C. 2744.03 reinstates that immunity.
{¶ 38} The plaintiff argued that as a matter of law, the defense in R.C.
2744.03(A)(5) is not available because although the nurses had discretion to decide
whether to use the Hoyer lift to put the resident in bed, once they decided to use the lift,
there was no discretion left because there is only one method for using it. The plaintiff
also contended that after the resident fell, the nurses failed to follow the home’s policy
regarding falls.
{¶ 39} The Ohio Supreme Court disagreed that the decision to use the Hoyer lift
was the only discretionary act involved—it noted that the nurses’ treatment decisions
were also discretionary. But it recognized that “the proper method for using the Hoyer
lift and the issue of whether the nurses properly followed the home’s policy concerning
patient falls” were disputed. Id. at ¶ 35. It determined that “[b]ecause there are material
16.
issues of fact as to whether the nurses acted maliciously, in bad faith, wantonly, or
recklessly,” it cannot be concluded as a matter of law that R.C. 2744.03(A)(5) is
inapplicable * * *.” Id. The court held that resolution of these questions was for the
factfinder to decide.
{¶ 40} Here, the estate’s claims revolve around whether Fleenor’s care plan
required two people to roll his shower chair into the shower, whether the appropriate
shower chair was used, whether appropriate care was rendered to Fleenor after the
shower chair tipped backwards, whether staff took appropriate measures to have Fleenor
evaluated, whether nursing notes reflected an accurate assessment of Fleenor’s condition
in the days after his fall, and whether appropriate information was communicated to
Fleenor’s physician and family. Based on the Ohio Supreme Court’s interpretation of
R.C. 2744.03(A)(5), in regards to the estate’s allegations of merely negligent conduct, we
are constrained to find that the actions of the nursing staff constitute exercises of
judgment or discretion. Accordingly, Riverview can be held liable only to the extent that
such judgment or discretion was exercised with malicious purpose, in bad faith, or in a
wanton or reckless manner.
2. Malicious Purpose, Bad Faith, or Wantonness and Recklessness
{¶ 41} The estate maintains that it presented evidence that the county’s employees
exercised their judgment or discretion in a manner that was reckless or wanton, thus
rendering Riverview’s defense under R.C. 2744.03(A)(5) unavailable. It claims that it
was reckless for T.M. to roll Fleenor into the shower backwards, knowing that he was top
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heavy due to the amputation of his legs. It also claims that two days before his death, as
his brain injury worsened, Fleenor became less responsive and stopped all complaints of
pain—a significant change in condition—yet the nursing staff failed to alert anyone or
seek medical treatment. Instead, it contends, despite understanding the danger of falls
and delayed head injuries, Riverview staff chose not to report this information to anyone
who could help, tried to hide it by failing to document Fleenor’s worsening condition,
then failed to report his death to the coroner.
{¶ 42} The Ohio Supreme Court has considered the meaning of “reckless” and
“wanton.” “Reckless conduct” is “characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable under the
circumstances and is substantially greater than negligent conduct.” Anderson v. City of
Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 33, reconsideration
denied, 133 Ohio St.3d 1511, 2012-Ohio-6209, 979 N.E.2d 1289. “Wanton misconduct
is the failure to exercise any care toward those to whom a duty of care is owed in
circumstances in which there is great probability that harm will result.” Id. Issues
regarding wanton or reckless behavior are generally questions presented to the jury unless
the record lacks evidence demonstrating that the political subdivision employee acted in
such a manner. Schoenfield v. Navarre, 164 Ohio App.3d 571, 2005-Ohio-6407, 843
N.E.2d 234, ¶ 24 (6th Dist.); Price v. Telb, 6th Dist. Lucas No. L-08-1099, 2009-Ohio-
3496, ¶ 9.
18.
{¶ 43} To support its claim that Riverview’s staff acted recklessly and wantonly,
the estate relies heavily on an August 2, 2016 referral to occupational therapy, an August
3, 2016 note of occupational therapist, M.W., and M.W.’s testimony describing her
observations and assessment of Fleenor. The estate maintains that the August 2, 2016
referral and August 3, 2016 note demonstrate that Fleenor experienced a change in
cognition caused by the fall in the shower chair. Riverview responds that M.W. lacked
personal knowledge of the fall, she offered only inadmissible hearsay, her opinions were
speculative, she was not designated as an expert medical witness, and she was asked to
provide opinions to false hypotheticals that misrepresented the facts. It also maintains
that the OT referral was made before the fall.
{¶ 44} The occupational therapy records reveal that Fleenor—who used a tilt-in-
space wheelchair equipped with a seatbelt—saw M.W. on August 2, 2016. At her
deposition, M.W. explained that she received a request for an occupational therapy
evaluation on August 2, 2016, for wheelchair positioning because the nursing staff was
concerned that Fleenor was sliding out of his wheelchair. M.W. confirmed that this was a
change from Fleenor’s prior condition. She was not told at that time that Fleenor had
fallen backwards in his shower chair. M.W. charted that staff was reporting “increased
trunk thrusting posteriorly with forward slide in [wheelchair].” She further indicated that
Fleenor had “poor stability with [wheelchair] posture and ability to remain upright sit[.]”
{¶ 45} Fleenor was seen for therapy by M.W. the following day. M.W. observed
that his alertness was poor and he was having trouble keeping his head up. Again, she
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confirmed that in her experience with Fleenor, this was a new issue for him. M.W.
commented about Fleenor’s poor alertness to the member of the nursing staff who
brought him to her (whose identity she could not recall). That employee told M.W. that
the reason Fleenor was not alert was because he had fallen. M.W. charted: “modification
to [wheelchair] headrest with new rest constructed and mounted for appropriate fit.
[Patient] with poor alertness with nursing staff stating [patient] fell over weekend.”
{¶ 46} Riverview denies that “anyone ever said Fleenor’s poor alertness was
‘because of’ the shower room incident.” But M.W.’s testimony makes clear that this is
indeed what her note meant:
Q: * * * You mount a headrest to help * * * him keep his head up,
right?
A: Correct.
Q: Because he’s having trouble keeping his head up at this point?
A: I indicate that, yes.
Q: And then you identify that he is not at his normal level of
alertness?
A: I identified his alertness as poor.
Q: And you’re noting that because that’s not what you would expect
from him?
A: Correct.
20.
Q: So that’s a change in his condition that you thought was
important to note?
A: Yes.
Q: And you either ask or the nursing staff volunteers an explanation
for that; correct?
A: Correct.
Q: Do you remember who you were talking with about that?
A: I do not.
Q: Would you expect that if nursing staff is communicating with
you about these types of things they would be documenting in their own
notes?
A: Yes.
Q: And what do they communicate to you as to the explanation as to
why Jennings Fleenor is not alert?
A: He fell.
(Emphasis added.)
{¶ 47} So even if M.W.’s note did not specifically say that Fleenor had poor
alertness because he fell, M.W. made clear at her deposition that this was exactly what
she meant when she wrote the therapy note. Given this testimony, we cannot agree with
Riverview that no one said Fleenor’s poor alertness was because of his fall.
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{¶ 48} Riverview also characterizes the statements made to M.W. as inadmissible
hearsay. Riverview merely cites to Evid.R. 801 and 802 without citing any case law or
explaining the basis for its argument, but it apparently takes issue with M.W. relaying the
statement of the unnamed member of the nursing staff that Fleenor exhibited poor
alertness due to his fall. We disagree with Riverview that the statement from this
employee constituted inadmissible hearsay. Rather, we find that (1) the statement falls
within the exception in Evid.R. 803(4) as a statement made for the purpose of medical
diagnosis or treatment, and (2) the statement is non-hearsay under Evid.R. 801(D)(2)
because it was an admission of a party-opponent.
{¶ 49} Under Evid.R. 803(4) “[s]tatements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present symptoms, pain,
or sensations, or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment” are not excluded by the hearsay
rule. In State v. Nasser, 10th Dist. Franklin No. 02AP-1112, 2003-Ohio-5947, ¶ 54, the
Tenth District made clear that “Evid.R. 803(4) does not require that a statement made for
medical purposes be made by the patient. * * * [S]tatements by others, most often close
family members, may be received if the relationship or the circumstances give
appropriate assurances.” Id., citing McKenna v. St. Joseph Hosp., 557 A.2d 854, 858
(R.I.1989) (finding that unidentified “bystanders’ statements c[a]me within the exception
embodied in Rule 803(4) [because they were] * * * statements * * * made by an
22.
individual to emergency personnel with no motive to fabricate or lie, describing with
particularity a specific situation”).
{¶ 50} Here, M.W. was attempting to render occupational therapy to Fleenor and
the nursing staff—speaking for a resident who was unable to speak for himself—
provided information to M.W. concerning the general character of the cause or external
source of Fleenor’s symptoms. This employee had no motive to fabricate or lie. The
statement falls under Evid.R. 803(4).
{¶ 51} In any event, the statement of the unidentified Riverview employee was not
hearsay under Evid.R. 801(D)(2) because it was an admission by a party-opponent. See,
e.g., Davis v. Sun Refining & Marketing Co., 109 Ohio App.3d 42, 53, 671 N.E.2d 1049(2d Dist.1996) (concluding that statement of unidentified employee concerning matter in
the scope of his employment was not hearsay under Evid.R. 801(D)(2)). We, therefore,
disagree that M.W.’s note and testimony—connecting Fleenor’s poor alertness to his
fall—are barred as inadmissible hearsay.
{¶ 52} Riverview also claims that M.W. was provided with false hypotheticals and
her opinions were speculative. T.M. testified that when Fleenor’s chair tipped
backwards, Fleenor was able to anticipate the fall and brace himself so that his head did
not strike the tile floor. Counsel for the estate sought to determine if this was plausible.
He asked M.W.—based on her familiarity with Fleenor through her treatment of him as
an occupational therapist—if Fleenor was sitting in a shower chair, “and the whole chair
23.
tipped backwards,” whether it would be fair to say that he lacked the core strength and
ability to prevent himself from falling backwards and to control his body to avoid hitting
the ground. Based on her personal observations of Fleenor, M.W. opined that he lacked
this strength and control. We would not characterize the hypotheticals posed to M.W. as
“false,” nor would we discount her opinions as speculative.
{¶ 53} As for M.W.’s lack of personal knowledge, the estate never claimed that
M.W. possessed personal knowledge of the fall. Its examination of M.W. focused on her
observations of Fleenor’s cognition on August 2-3, 2016, and tested the plausibility of
T.M.’s description of the fall, specifically that Fleenor braced himself to protect against
hitting his head as the shower chair tipped backwards.
{¶ 54} In Cramer, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, the Ohio
Supreme Court concluded that whether the employees who dropped the resident properly
used the Hoyer lift and followed the home’s policy concerning patient falls presented
disputed issues of material fact “as to whether the nurses acted maliciously, in bad faith,
wantonly, or recklessly” under R.C. 2744.03(A)(5). Id. at ¶ 35. Here, in addition to
issues raised concerning the appropriateness of one aide rolling Fleenor into the shower
backwards, the estate also raised concerns about the staff’s response to the fall, the
absence of charting, and the extent to which the staff may have observed—but ignored—
a significant change in condition indicative of a head injury. As in Cramer, we cannot
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say as a matter of law that Riverview’s nursing staff exercised its discretion in a manner
that was not reckless or wanton.1 This must be determined by the trier of fact.
B. Causation
{¶ 55} Riverview insists that even if its immunity defense fails, it is nonetheless
entitled to summary judgment because the estate is unable to establish causation.
Specifically, it argues that the estate cannot identify the cause of Fleenor’s fall or
demonstrate that the fall caused his death. In connection with its position, Riverview
contends that the estate’s medical experts’ opinions must be rejected because they are not
supported by the evidence in the factual record, they disregard T.M. and K.N.’s
testimony, and they are speculative.
1. Cause of the Fall
{¶ 56} Riverview insists that “when a plaintiff is unable to identify or explain the
cause of a fall, the element of causation” fails. The estate responds that Riverview staff
conceded at their depositions that a resident’s shower chair should not tip backwards
while being rolled into the shower. It maintains that the cause of the fall was T.M.’s
failure to control the shower chair in such a manner that it would not tip; the specific
1
Riverview also argues that the estate failed to allege recklessness. The estate did, in
fact, allege recklessness at ¶ 19 of its complaint and identified evidentiary materials in its
motion for summary judgment that it argued demonstrated recklessness. See Brannon v.
Austinburg Rehab. & Nursing Ctr., 190 Ohio App.3d 662, 2010-Ohio-5396, 943 N.E.2d
1062 (11th Dist.), fn. 1 (finding that plaintiff preserved the question of an exception to
governmental immunity when it alleged in its complaint that the defendant’s actions were
performed in a “grossly negligen[t] manner and recklessly,” however, it failed to supply
evidentiary materials demonstrating recklessness).
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reason for it tipping—a locked wheel, movement by Fleenor, pushing the chair too fast—
does not matter. We agree with the estate. Under the circumstances of this case, given
that T.M. was in control of the shower chair when it tipped backwards and fell, it cannot
be credibly disputed that her action or inaction caused the fall. It is of no matter that the
precise mechanism of the fall is unexplained.
{¶ 57} In reaching this conclusion, we find the cases cited by Riverview in support
of its position—Miller v. Toledo Hosp., 6th Dist. Lucas No. L-16-1211, 2017-Ohio-2691,
and McFarren v. Canton, 2016-Ohio-484, 59 N.E.3d 652, ¶ 82 (5th Dist.)—
distinguishable.
{¶ 58} In Miller, a 77-year-old patient admitted to the hospital’s cardiac step-down
unit fell, fracturing his right hip. He had been noted to have memory issues and was
assessed to be at “high risk” for falls, thereby requiring hospital staff to implement fall
precautions, including assigning him a room near the nurse’s station, leaving the door
open, instructing him to call for assistance, providing assistance with transfers and
ambulation, and considering the use of a bed alarm. One night, the patient fell. There
was one nurse who witnessed the fall, but she died before providing a statement
regarding the incident. She had charted: “[Patient] found walking into bathroom per self.
Was asked if he needed any help. [Patient] proceeded towards toilet, lost balance and
fell. Was asked if anything hurt, said only [right] inner upper leg. Abrasion noted on
[right] fa. No other apparent injuries noted.” Id. at ¶ 3.
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{¶ 59} The hospital moved for summary judgment, the trial court granted the
motion, and we affirmed. We found that causation could not be established because there
were too many unanswered questions as to the cause of the fall, including:
Was [the nurse] close to [the patient] (or even present in his room)
when she spotted him out of bed, or was she farther away, perhaps in the
hallway, when she saw him? How quickly did [he] fall after [she] first
spotted him: was it instantaneous, or did [he] only fall after an appreciable
moment or more? Was [she] standing still or moving toward [him] when
she asked if he needed assistance? Was there some “logistical” impediment
delaying [the nurse’s] ability to get to [the patient] ([Her] chart note stated
that he was walking into the bathroom and that he proceeded to the toilet,
as opposed to a more general observation that he was walking to or
towards the bathroom)? Did [the nurse], in fact, have a failed attempt to
assist [him], causing him to “land on bottom?” Did [she] simply stand (in
some unknown location) and watch these events unfold? Did she dart in
[his] direction but fail to reach him in time? What else might have
happened that [she] did not record in her note? There are no established
facts to support reasonable answers to any of these, or similar questions.
Id. at ¶ 26.
{¶ 60} In McFarren, a resident of a residential care facility was found on
the floor of her room with a fractured hip. She died the next week. The appellate
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court affirmed summary judgment in favor of the facility on plaintiff’s negligence
claim because there was no evidence in the record to establish a genuine issue of
material fact as to how the resident fell and it was, therefore, speculative whether
instituting different fall precautions would have prevented her fall.
{¶ 61} Unlike Miller and McFarren, we know what caused Fleenor’s fall:
the nurse aide failed to prevent his shower chair from tipping backwards as she
rolled him into the shower. The precise reason the chair tipped backwards—a
locked wheel, a raised tile, movement by Fleenor, rolling the chair too fast—is of
no matter under these circumstances.
2. Expert’s Opinions
{¶ 62} The estate identified as medical experts Theodore Homa, M.D., Richard
Stefanacci, D.O., and Erica Armstrong, M.D. All of these medical experts testified that
in their opinion, Fleenor sustained a subdural hematoma when he fell backwards in the
shower chair. They opined that his death was caused by this subdural hematoma—not
dementia.
{¶ 63} Dr. Armstrong, a forensic pathologist, concluded, based on her review of
the evidence and her specialized knowledge, skill, experience, training, and education,
that in the six days following Fleenor’s fall, his “health did not return to baseline but
instead deteriorated with signs of increased muscle weakness, decreased alertness, and
increased confusion.” She opined that these signs and symptoms “are indicative of a
progressively evolving pathophysiological process that temporally occurred after the fall”
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and “to a reasonable degree of medical probability, that sequela of head, neck, and/or
torso injury from that fall caused Mr. Fleenor’s death.” In Dr. Armstrong’s view,
Fleenor’s death should have been reported to the Ottawa County coroner, and the failure
to do so “precluded the opportunity for a postmortem examination and determination of
cause and manner of death.”
{¶ 64} Drs. Homa and Stefanacci testified that they based their opinions on their
review of the medical records, the testimony of the nurses, aides, and therapists who
cared for Fleenor, and their education, training, and experience in working with geriatric
patients with the same or similar conditions as Fleenor. They testified that it was
incumbent on Riverview to seek an order for imaging of Fleenor’s head or take him to the
hospital to obtain imaging after his fall. They also testified that as a result of his head
injury, Fleenor’s cognition deteriorated in the days that followed, also requiring action by
the nursing staff. They opined to a reasonable degree of medical certainty that Fleenor
most likely suffered a subdural hematoma and that was the ultimate cause of his death,
despite the fact that Fleenor’s death certificate reported otherwise.
{¶ 65} One of Riverview’s challenges to the experts’ testimony was that they
rejected T.M. and K.N.’s testimony. In particular, because the medical records and the
testimony of Fleenor’s medical providers reflect that Fleenor was weak and often not in
control of his movement, Drs. Homa and Stefanacci were skeptical of T.M.’s testimony
that Fleenor was able to brace himself so that his head would not hit the ground. And
even though both T.M. and K.N. testified that Fleenor said he did not hit his head, Drs.
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Homa and Stefanacci were skeptical that Fleenor reliably answered T.M. and K.N.’s
questions. This was because several members of the nursing staff testified at deposition
that because of his dementia, Fleenor often provided inaccurate information and even
denied being in pain when he was clearly exhibiting non-verbal manifestations of pain
that the staff had come to recognize.
{¶ 66} Under Evid.R. 705, an “expert may testify in terms of opinion or inference
and give the expert’s reasons therefor after disclosure of the underlying facts or data.”
This court has recognized that in eliciting an expert’s opinions, it is not necessary to
include “all of the conflicting statements made by various witnesses.” Community
Traction Co. v. Wandtke, 32 Ohio App. 207, 214, 167 N.E. 701, 704 (6th Dist.1929). To
the contrary, a party is entitled to provide its experts with its version of the disputed facts
in obtaining their opinions. Lawson v. Song, 4th Dist. Scioto No. 97 CA 2480, 1997 WL
596293 (Sept. 23, 1997). See also Community Traction at 214 (“[I]t is sufficient if the
question assumes the existence of facts which the evidence fairly and reasonably tends to
establish in support of the claim or theory for which the party asking the question is
contending.”).
{¶ 67} Here, the estate’s experts fully disclosed both that they had discounted
T.M. and K.N.’s testimony in reaching their conclusions and why they discounted it.
And even though T.M. was the only observer of Fleenor’s fall, the accuracy of T.M.’s
version of events is itself a fact question, particularly in light of M.W.’s testimony that
Fleenor lacked the control and strength to protect his head in anticipation of the chair
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tipping backwards. See Killilea v. Sears, Roebuck & Co., 27 Ohio App.3d 163, 167, 499
N.E.2d 1291 (10th Dist.1985) (“If an issue is raised on summary judgment, which
manifestly turns on the credibility of the witness because his testimony must be believed
in order to resolve the issue, and the surrounding circumstances place the credibility of
the witness in question—for example, where the potential for bias and interest is
evident—then, the matter should be resolved at trial, where the trier of facts has an
opportunity to observe the demeanor of the witness.”).
{¶ 68} Riverview also challenged the estate’s experts’ opinions on the basis that
their CVs were outdated and counsel for the estate assisted in drafting their expert
reports. We reject both of these challenges. To the extent that the experts’ CVs were
outdated, Drs. Homa and Stefanacci testified at deposition and provided updated
information about their professional experience. And concerning counsel’s participation
in drafting the experts’ reports, Dr. Homa testified that the estate’s lawyer drafted his
report, but he explained that he “had a conversation that included my entire review and
summary, my conclusions, the way I saw things come together, and from there notes
were taken and then this was typed up, and then sent back to me for approval.” He
confirmed that he found nothing in the report that was incorrect and there were no
substantive errors. Civ.R.26(B)(7) does not prohibit counsel from assisting in drafting an
expert’s report, particularly where, as here, the reports were generated based on the
information provided by the experts about the substance and reasons for their opinions,
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the experts adopted the contents of the reports by signing them, and the experts testified
at deposition to opinions and conclusions that were consistent with what was expressed in
their reports.
{¶ 69} Given the experts’ opinions concerning the sequela of events that often
occurs when a person sustains a head injury, and construing all evidence in the estate’s
favor as required under Civ.R. 56, we cannot conclude that the sequence of events here—
Fleenor’s fall, his poor alertness just a few days later, culminating in his death six days
after the fall—was a mere “coincidence of timing,” as Riverview would have us do.
Rather, we find that the evidence presents a question of fact concerning causation that
cannot be resolved on summary judgment.
C. Sui Juris
{¶ 70} Riverview contends that the claims against it were properly dismissed
because Ottawa County is not sui juris. It argues that “[u]nless a county has adopted a
charter or alternative form of government—which Ottawa County has not—it may be
held accountable only when sued through its Board of County Commissioners.” We
disagree.
{¶ 71} R.C. 2744.02(B)(2) and (5) set forth circumstances under which a “political
subdivision” may be liable for injury, death, or loss to person or property. R.C.
2744.01(F) defines “political subdivision” to include a county. In Plate v. Johnson, 149
F.Supp.3d 827 (N.D.Ohio 2016), Judge Carr considered the question of whether the
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plaintiff properly brought suit against Lucas County—which was itself named a
defendant and was not sued through its board of county commissioners.
{¶ 72} Judge Carr acknowledged that “[a]s a political subdivision entitled, under
Ohio law, to sovereign immunity, a county ‘cannot sue or be sued except as specially
authorized by statute.’” Id. at 829, quoting Smith v. Grady, 960 F.Supp.2d 735, 740
(S.D.Ohio 2013). He recognized that R.C. 301.22 (which provides that “[e]very county
adopting a charter or an alternative form of government is a body politic and corporate
for the purpose of enjoying and exercising the rights and privileges conveyed under it by
the constitution and the laws of this state” and “is capable of suing and being sued”) is
one such Ohio statute that authorizes suit against a county. He explained, however, that
R.C. 301.22 “does not define [a] County’s capacity (or lack thereof) to sue, or its status as
a juridical entity.” Id. Rather, he concluded, “the question of a county’s suability is not
conceptually distinct from the county’s sovereign immunity as a political subdivision of
the state.”
{¶ 73} Here, R.C. 2744.02(B)(2) and (5) provide exceptions to political
subdivision immunity and render a county potentially liable for torts or statutory
violations resulting in injury or death. In other words, a county is suable for claims
falling within these exceptions to political subdivision immunity. We, therefore,
conclude that Ottawa County was properly named a defendant to this action. See also
Clark v. Campbell, 4th Dist. Ross No. 19CA3673, 2020-Ohio-3333, ¶ 43 (finding that
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county board of developmental disabilities was a political subdivision under R.C.
2744.01(F) that was capable of being sued); Rankin v. Cuyahoga Cty. Dept. of Children
& Family Servs., 8th Dist. Cuyahoga No. 86620, 2006-Ohio-6759, ¶ 18, aff’d in part,
rev’d in part, on other grounds, 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 5(rejecting Cuyahoga County Department of Children and Family Services’ position that it
was not sui juris because it was not a political subdivision).
{¶ 74} For these reasons, we agree with the estate that the trial court erred in
granting summary judgment in favor of Riverview; we find its first assignment of error
well-taken. We agree that the trial court erred in failing to find that a genuine issue of
material fact exists concerning whether the nursing staff exercised its discretion in a
manner that was reckless; we find its second assignment of error well-taken. And we
agree that the trial court erred in disregarding evidence offered by the estate that raised
genuine issues of material fact; we find its third assignment of error well-taken.
IV. Conclusion
{¶ 75} We conclude that the trial court erred in granting summary judgment to
Riverview because genuine issues of material fact exist concerning whether R.C.
2744.03(A)(5) provides a defense to immunity. Specifically, there are issues of fact
concerning whether Riverview’s nursing staff exercised its discretion in a reckless
manner and whether such recklessness resulted in Fleenor’s injury and death. We find
the estate’s three assignments of error well-taken.
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{¶ 76} Accordingly, we reverse the September 3, 2020 judgment of the Ottawa
County Court of Common Pleas and remand this matter to the trial court for proceedings
consistent with this decision. Riverview is ordered to pay the costs of this appeal under
App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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