Estate of Reardon v. OhioHealth Corp. , 2024 Ohio 48 ( 2024 )

[Cite as Estate of Reardon v. OhioHealth Corp., 2024-Ohio-48.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The Estate of Emily Reardon, :
Through its Administrator
James P. Reardon, : No. 23AP-148
&
Plaintiff-Appellee, : No. 23AP-154
(C.P.C. No. 20CV-4043)
v. :
(ACCELERATED CALENDAR)
OhioHealth Corporation, d.b.a :
Riverside Methodist Hospital et al.,
:
Defendants-Appellants.
:
D E C I S I O N
Rendered on January 9, 2024
On brief: Arnold Todaro Welch & Foliano, Co., L.P.A.,
Gerald J. Todaro, and Gregory B. Foliano for appellants
Carlynn Fulp, M.D., David Willman, CNP, and Mid-Ohio
Emergency Services, L.L.C.
On brief: Bricker Graydon, LLP, Bobbie S. Sprader, and
Karen L. Clouse, for appellants OhioHealth Corporation
d.b.a. Riverside Methodist Hospital, and Jacquelyn Murrer,
PA-C. Argued: Karin Long.
On brief: Cooper & Elliot, LLC, Rex H. Elliot, Charles H.
Cooper, Jr., and Sean R. Alto, for appellee The Estate of Emily
Reardon, James P. Reardon, Administrator. Argued: Kaela
King.
APPEALS from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} These are interlocutory appeals in a medical malpractice/wrongful death
action, arising from the denial of the defendants-appellants’ motions for summary
judgment based on immunity. The appellants’ motions argued that they were immune
Nos. 23AP-148 & 23AP-154 2
from suit as a result of the enactment of 2019 Ohio H.B. 606 Section 1(B)(1). That statute
was enacted on September 14, 2020, and expanded the qualified statutory immunity from
lawsuits previously set forth in R.C. 2305.2311 during the period of the COVID-19 health
emergency.
{¶ 2} On May 25, 2020, appellee’s decedent Emily Reardon—a 19-year-old healthy,
athletic, college student with no underlying medical conditions—reported to Riverside
Hospital Emergency Room (“Riverside ER”), complaining of fever, cough, and chest
discomfort. She had a telemedicine visit with her family care provider the day before but
was feeling progressively worse. At the time she reported to the Riverside ER, Emily had
an elevated heart rate but did not have a fever. She was treated at the Riverside ER by Dr.
Fulp and CNP Willman, tested negative for COVID-19, and was thereafter diagnosed with
enlarged thyroid, infectious pneumonia, and rapid heartbeat, and sent home with
prescriptions for antibiotics and acetaminophen.
{¶ 3} But Emily’s condition further deteriorated, and her parents took her to an
urgent care facility on May 27. The physician on duty at the urgent care examined Emily
and the imaging tests previously taken by Riverside, and immediately thereafter ordered
her sent back by ambulance to Riverside ER, telling her parents “she should never have
been discharged from Riverside on May 25th.” (June 22, 2020 Compl. at 18.)
{¶ 4} Emily arrived at Riverside ER at around 9 p.m. on May 27, with a primary
complaint of shortness of breath. She had, however, developed fluid in her lungs and an
infection; her heart rate was at 122, and her pulse oximetry reading was at 70—dangerously
low. She was placed on an oxygen mask and was again tested for COVID-19, but twice
tested negative. Emily was not immediately placed on a ventilator; Riverside ER instead
conducted additional diagnostic testing. She was ultimately intubated shortly before
midnight, but her condition did not stabilize, and she died at 4:23 a.m. on May 28, 2020.
{¶ 5} Plaintiff-appellee, James Reardon, the Administrator, filed a complaint for
medical negligence as to all defendants and respondeat superior as to OhioHealth
Corporation d.b.a. Riverside Methodist Hospital on June 22, 2020, arguing that the
defendants had failed to properly diagnose and treat Emily’s impending respiratory failure
and infection. On February 9, 2021, defendants Fulp, Willman, and Mid-Ohio Emergency
Services L.L.C. (“Mid-Ohio Emergency appellants”), filed a motion for summary judgment
Nos. 23AP-148 & 23AP-154 3
as to the medical negligence claim, and on February 22, 2021, defendant OhioHealth
Corporation d.b.a. Riverside Methodist Hospital and Jacquelyn Murrer, PA-C
(“OhioHealth appellants”) filed a similar motion arguing it was entitled to judgment on
both claims. Both motions argued that the defendants were immune from suit as a result of
2019 Ohio H.B. 606. The trial court denied both motions based on its conclusion that there
was a dispute of fact whether immunity applied to the defendants, and these appeals
directly followed.
{¶ 6} Mid-Ohio Emergency appellants assert two assignments of error with the
trial court’s judgment:
[I.] The trial court erred in holding that immunity is a question
of fact.
[II.] The trial court erred in holding that HB 606 is
unconstitutionally retroactive. The temporary measures
provided in HB 606 are intentionally retroactive and
constitutional.
The OhioHealth appellants assert two similar assignments of error with the trial court’s
judgment:
[I.] The trial court erred in denying OhioHealth’s motion for
summary judgment because appellants are entitled to
immunity as a matter of law and no genuine issue of material
fact exists.
[II.] The trial court erred in concluding that H.B. 606
retroactively affected a substantive right.
But since these appeals are interlocutory, arising from the denial of appellants’ motions for
summary judgment, before we proceed to reach the merits of their arguments, we must
determine that the order they have challenged is final and appealable.
{¶ 7} “Section 3(B)(2), Article IV of the Ohio Constitution limits an appellate
court’s jurisdiction to the review of final orders of lower courts. An appellate court must
dismiss an appeal taken from an order that is not final and appealable.” Simek v.
Orthopedic & Neurological Consultants, Inc., 10th Dist. No. 17AP-671, 2019-Ohio-3901,
¶ 42, citing Farmers Mkt. Drive-In Shopping Ctrs., Inc. v. Magana, 10th Dist. No. 06AP-
532, 2007-Ohio-2653, ¶ 10. See generally Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-
Ohio-1221, ¶ 13 (“It is well-established that an order must be final before it can be reviewed
Nos. 23AP-148 & 23AP-154 4
by an appellate court. If an order is not final, then an appellate court has no jurisdiction.”).
The law generally governing whether a trial court’s order is final is set forth in R.C.
2505.02(B), which provides:
An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of
the following:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3) An order that vacates or sets aside a judgment or grants a
new trial;
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in
favor of the appealing party with respect to the provisional
remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
(5) An order that determines that an action may or may not be
maintained as a class action;
(6) An order determining the constitutionality of any changes
to the Revised Code made by Am. Sub. S.B. 281 of the 124th
general assembly, including the amendment of sections
1751.67, 2117.06, 2305.11, 2305.15, 2305.234, 2317.02,
2317.54, 2323.56, 2711.21, 2711.22, 2711.23, 2711.24, 2743.02,
2743.43, 2919.16, 3923.63, 3923.64, 4705.15, and 5111.018
(renumbered as 5164.07 by H.B. 59 of the 130th general
assembly), and the enactment of sections 2305.113, 2323.41,
2323.43, and 2323.55 of the Revised Code or any changes made
by Sub. S.B. 80 of the 125th general assembly, including the
amendment of sections 2125.02, 2305.10, 2305.131, 2315.18,
2315.19, and 2315.21 of the Revised Code;
Nos. 23AP-148 & 23AP-154 5
(7) An order in an appropriation proceeding that may be
appealed pursuant to division (B)(3) of section 163.09 of the
Revised Code.
Ohio courts have consistently held that the denial of a motion for summary judgment does
not fit within any of these statutory categories and is generally not appealable. See, e.g.,
Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, ¶ 9, citing State ex rel. Overmeyer
v. Walinski, 8 Ohio St.2d 23, 24 (1966). Compare Royal Paper Stock Co. v. Robinson, 10th
Dist. No. 12AP-455, 2013-Ohio-1206, ¶ 24 (citing cases and holding that a “denied
summary judgment motion, even if made in a special proceeding, does not affect a
substantial right under R.C. 2505.02 because an ‘order,’ within the statutory meaning of
that word, has not been made, and, instead, the court has retained the case for trial on the
merits.”). Moreover, where a pure question of law is presented in a denied motion for
summary judgment and there is a subsequent trial on the merits, courts of appeals will
address the question in an appeal following the trial judgment rather than via an
interlocutory appeal. See generally Gilson v. Am. Inst. of Alternative Medicine, 10th Dist.
No. 15AP-548, 2016-Ohio-1324, ¶ 47 (“an error in the denial of a summary judgment
motion that presents a purely legal question is not rendered harmless by a subsequent trial
on the merits.”).
{¶ 8} There are some exceptions—for example, “R.C. 2505.02(B)(7) provides that
an order in an appropriation proceeding may be appealed under R.C. 163.09(B)(3),” Mill
Creek Metro. Park Dist. Bd. of Commr. v. Less, __ Ohio St.3d. __, 2023-Ohio-2332, ¶ 11.
Similarly, an appellate court may review “an [interlocutory] order [that] adjudicates fewer
than all claims in a case, [and meets] the requirements of both R.C. 2505.02(B) and Civ.R.
54(B).” Simek, 2019-Ohio-3901, at ¶ 46. And R.C. 2744.02(C) provides that “[a]n order
that denies a political subdivision or an employee of a political subdivision the benefit of an
alleged immunity from liability as provided in this chapter or any other provision of the law
is a final order.” Id. quoted in Hubbell at ¶ 9.
{¶ 9} The briefs of appellants’ cite Hubbell, and Summerville v. Forest Park, 128
Ohio St.3d 221, 2010-Ohio-6280, and read both cases very broadly to argue that a trial
court order denying any claimed immunity is final and immediately appealable. See Brief
of Mid-Ohio Emergency appellants at 13-14 (citing Hubbell and claiming without any other
support that “[d]enial of immunity affects a substantial right and is a denial of a provisional
Nos. 23AP-148 & 23AP-154 6
remedy”), and Brief of OhioHealth appellants at 10 (citing Summerville at ¶ 40 and
claiming that “the Supreme Court of Ohio has made clear that an order denying immunity
is a final appealable order”).
{¶ 10} But the law goes nowhere near that far. Both Hubbell and Summerville
specifically interpret R.C. 2744.02(C), and their holdings are limited to rulings made
pursuant to that statute. See Hubbell, syllabus (“[w]hen a trial court denies a motion in
which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that
order denies the benefit of an alleged immunity and is therefore a final, appealable order
pursuant to R.C. 2744.02(C)”), and Summerville, syllabus (“[a]n order denying a motion
for summary judgment in which an employee of a political subdivision sought immunity
from claims brought under Section 1983, Title 42 U.S. Code is a final, appealable order
pursuant to R.C. 2744.02(C)”). (Emphasis added.) In fact, all the cases relied upon by the
parties that allow an appeal from a denial of summary judgment based on immunity relate
only to political subdivision immunity under R.C. 2744.02(C). Of course, that is because
R.C. 2744.02(C) specifically and unequivocally makes those orders final and appealable.
And as the plaintiff correctly argues, the “conclusion that the Amended Decision is
therefore a ‘final order,’ and immediately appealable, does not follow, because [defendants]
are not public employees.” (Brief of Appellee The Estate of Emily Reardon at 12.)
{¶ 11} The Mid-Ohio Emergency appellants also reply upon this court’s decision in
Newton v. Ohio Univ. School of Osteopathic Medicine, 91 Ohio App.3d 703, 707-08 (10th
Dist.1993) for the proposition that “an immunity determination ‘is a final appealable order
pursuant to O.R.C. § 2505.02 and Civ.R. 54(B).’ ” (Brief of Mid-Ohio Emergency appellants’
at 14.) But Newton involved the appeal of a grant of immunity, not the denial of one. See
Newton at 707 (“The Ohio Court of Claims eventually found that Dr. Seifer was immune
and that no just cause for delay existed. The family [hereinafter “appellants”] have now
pursued an appeal to this court.”). When a trial court grants a defendant’s motion for
immunity from suit, the case must end as to that defendant. Accordingly, such an order is
usually final under R.C. 2505.02(B)(1), because it “affects a substantial right” and “in effect
determines the action.” Moreover, depending on the type of immunity granted, it may also
be “made in a special proceeding.” In Newton, we concluded that “a ruling which grants
immunity pursuant to R.C. 9.86 is an order that affects a substantial right made in a special
Nos. 23AP-148 & 23AP-154 7
proceeding.” Newton at 708. But those issues are obviously not at present here, where
immunity was denied rather than granted. Accordingly, the Mid-Ohio Emergency
appellants’ reliance on Newton is at best unhelpful to their cause.
{¶ 12} The appellants have not identified any statute, rule, or case which would
allow an immediate appeal of denial of the immunity they claim. And we do not believe
such a rule exists—rather, we agree with the Fifth District’s statement in Clapper v. Little
Sandy Creek Ruritan Club, Inc., 5th Dist. No. 2021 CA 00095, 2022-Ohio-1920, that
“[w]ith the exception of the statutory exception provided in R.C. 2744, Ohio courts do not
allow for a review of a denial of summary judgment based on immunity.” Id. at ¶ 23 (citing
comparison cases).
{¶ 13} We conclude that the trial court’s order denying the appellants’ motions for
summary judgment based on immunity is not a final order. This court lacks jurisdiction to
address the merits of this case, see Ohio Constitution, Article IV, Section 3(B)(2) and
Walburn at ¶ 13, and we accordingly dismiss these appeals.
Appeals dismissed.
JAMISON and BOGGS, JJ., concur.