Everhart v. Coshocton Cty. Mem. Hosp. , 2024 Ohio 1671 ( 2024 )

[Cite as Everhart v. Coshocton Cty. Mem. Hosp., 2024-Ohio-1671.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Machelle Everhart, Individually and as :
Administrator of the Estate of
Todd Everhart, Deceased, :
Plaintiff-Appellant, :
No. 21AP-74
v. : (C.P.C. No. 08CV-1385)
Coshocton County Memorial : (ACCELERATED CALENDAR)
Hospital et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on April 30, 2024
On brief: Colley, Shroyer & Abraham Co. LPA, David I.
Shroyer, for appellant.
Argued: David I. Shroyer.
On brief: Reminger Co., L.P.A., David H. Krause, and
Thomas N. Spyker, for appellee Joseph J. Mendiola, M.D.
Argued: Thomas N. Spyker.
On brief: Poling Law, Frederick A. Sewards, and Patrick F.
Smith, for appellee Mohamed Hamza, M.D.
On brief: Poling Law, Brant Poling, and Zachary R. Hoover,
for appellees Coshocton County Memorial Hospital and
Medical Services of Coshocton, Inc.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, P.J.
{¶ 1} This matter is before this court on remand from the Supreme Court of Ohio
in Everhart v. Coshocton Cty. Mem. Hosp., __ Ohio St.3d __, 2023-Ohio-4670, for review
of our decision released March 3, 2022. The Supreme Court has remanded the matter to
No. 21AP-74 2
this court for consideration of the remaining assignment of error raised by plaintiff-
appellant, Machelle Everhart, individually and as administrator of the estate of Todd
Everhart, deceased. After a thorough review of the record and law, this court affirms the
judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This court has extensively discussed the facts and procedural history of this
case in both Everhart v. Coshocton Cty. Mem. Hosp., 10th Dist. No. 12AP-75, 2013-Ohio-
2210 (“Everhart I”) and Everhart v. Coshocton Cty. Mem. Hosp., 10th Dist. No. 21AP-74,
2022-Ohio-629 (“Everhart II”). The underlying facts of this case are as follows:
[A]ppellant is a widow and administrator for the estate of her late husband,
Todd Everhart. On December 21, 2003, Mr. Everhart was in an automobile
accident and transported to the emergency room at Coshocton County
Memorial Hospital (“Coshocton Hospital”). According to appellant, Drs.
Rajendra Patel and Mohamed Hamza treated Mr. Everhart. Chest x-rays
were ordered on Mr. Everhart at that time. Mr. Everhart was later
transported by Life Flight from Coshocton Hospital to The Ohio State
University Emergency Department (“Ohio State”). At Ohio State, new x-rays
were taken of Mr. Everhart. Appellant alleged the chest x-rays showed opacity
in the lung that required additional follow-up treatment to rule out
malignancy. Mr. Everhart recovered from the injuries sustained in the
automobile accident and was discharged from the hospital.
On August 11, 2006, nearly three years after the automobile accident, Mr.
Everhart presented at Coshocton Hospital. Mr. Everhart obtained a CT scan,
which revealed masses on the right lung that were later diagnosed as
advanced stage lung cancer. Mr. Everhart passed away on October 28, 2006.
On January 25, 2008, appellant filed the initial complaint alleging causes of
action for medical malpractice1 and wrongful death against Coshocton
Hospital and several physicians. Appellant argued Coshocton Hospital and
physicians deviated from the standard of medical care by failing to send,
receive, or act on Mr. Everhart’s x-ray films and radiology report as to the
lung opacity. On October 2, 2008, Dr. Hamza filed a motion for summary
judgment arguing that there was no physician-patient relationship with Mr.
Everhart and, therefore, Dr. Hamza did not owe him a duty of care.2
Appellant requested additional time to conduct discovery before responding
to the motion. Appellant ultimately filed a memorandum in opposition with
1 Appellant contends she sent multiple 180-day letters to appellees pursuant to R.C. 2305.113(B)(1).
2 On October 23, 2008, appellant filed an amended complaint. Appellant later filed a motion for leave to file
a second amended complaint, which was granted by the trial court. On August 10, 2009, appellant filed a
second amended complaint.
No. 21AP-74 3
an affidavit by Dr. Harlan D. Meyer. Dr. Meyer stated that Dr. Hamza had a
duty to review reports that are distributed to him, regardless of whether he
saw the patient. On April 21, 2010, the trial court granted Dr. Hamza’s motion
for summary judgment. Appellant filed a motion for reconsideration of the
trial court’s decision on August 25, 2011. On January 3, 2012, the trial court
denied appellant’s motion for reconsideration but issued a nunc pro tunc
entry as to the April 21, 2010 decision and entry granting summary judgment
with Civ.R. 54(B) certification.
On May 30, 2013, this court reversed the trial court’s decision finding it erred
granting summary judgment in favor of Dr. Hamza and remanded the case
for further proceedings as there was a genuine issue of material fact whether
Dr. Hamza received the x-rays and read the radiology report and, therefore,
whether a physician-patient relationship existed between the parties.
Everhart I at ¶ 1.
In September 2017, appellees sought leave to file motions for judgment on
the pleadings based on the Supreme Court of Ohio’s decision in Antoon v.
Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432. Appellees
argued that appellant’s claims were precluded by the four-year statute of
repose under R.C. 2305.113(C). Appellant opposed the motions for leave
contending that the statute of repose argument was waived as the defense
was not asserted in the appellees’ answers. Appellees proceeded to request
leave to amend their answers in order to add statute of repose as an
affirmative defense. On November 30, 2017, the trial court stayed the case
based on Coshocton Hospital initiating bankruptcy proceedings. The case
was reinstated on April 3, 2019. (May 16, 2019 Nunc Pro Tunc Entry.)
The trial court granted appellees’ motions for leave to file amended answers
and motions for leave to file motions for judgment on the pleadings on
August 25 and August 27, 2020, respectively. On September 4, 2020, Dr.
Mendiola filed a motion for judgment on the pleadings arguing that
appellant’s wrongful death cause of action was a medical claim and,
therefore, barred by the four-year statute of repose set forth in R.C.
2305.113(C). A memorandum in opposition was filed on September 16, 2020.
A reply was filed on September 23, 2020.
On September 15, 2020, appellant filed a motion for leave to file a third
amended complaint. The motion was opposed by Coshocton Hospital and Dr.
Mendiola on September 21 and September 23, 2020, respectively. A reply
brief was filed on September 28, 2020. The trial court denied appellant’s
motion for leave to amend on December 11, 2020. On January 26, 2021, the
trial court granted Dr. Mendiola’s motion for judgment on the pleadings
finding that appellant’s wrongful death claim was a medical claim under R.C.
2305.113(E) and, thus, barred by the statute of repose.
Appellant filed a timely appeal.
No. 21AP-74 4
Everhart II at ¶ 3-10.
{¶ 3} In Everhart II, appellant asserted two assignments of error. First, appellant
alleged that the trial court erred when it applied the statute of repose for medical claims to
a statutory wrongful death claim. Appellant’s second assignment of error concerned
appellant’s claim that the trial court erred by denying appellant leave to file a third amended
complaint. On March 3, 2022, we sustained appellant’s first assignment of error finding
that the four-year statute of repose for medical claims under R.C. 2305.113(C) did not
include a statutory wrongful death claim. Everhart II at ¶ 52. Consequently, we denied as
moot appellant’s remaining assignment of error and remanded the matter back to the trial
court for further proceeding. Everhart II at ¶ 54. On March 11, 2022, appellees filed
motions to certify conflict, which we granted. Everhart II (Apr. 14, 2022 Memo Decision.)
On December 28, 2023, the Supreme Court reversed our decision in Everhart II finding
that appellant’s cause of action for wrongful death based on medical care was a “medical
claim” as defined by R.C. 2305.113(E) and therefore was subject to the four-year statute of
repose provided in R.C. 2305.113(C). Everhart, 2023-Ohio-4670, at ¶ 1. The Supreme
Court remanded the matter back to this court to resolve the remaining assignment of error.
Id. at ¶ 32 (“we must remand the case to the Tenth District for it to address Everhart’s
assignment of error that the trial court erred when it denied her request to amend her
complaint for a third time. That issue is not before this court and must be resolved by the
Tenth District.”).
II. REMAINING ASSIGNMENT OF ERROR
{¶ 4} Appellant assigned the following as trial court error:
The trial court erred by denying Everhart leave to file a Third
Amended Complaint.
III. STANDARD OF REVIEW
{¶ 5} A trial court’s denial of a motion for leave to amend a complaint is reviewed
under an abuse of discretion analysis. Leatherwood v. Medco Health Solutions of
Columbus, 10th Dist. No. 13AP-242, 2013-Ohio-4780, ¶ 9, citing Csejpes v. Cleveland
Catholic Diocese, 109 Ohio App.3d 533, 541 (8th Dist.1996), citing Wilmington Steel
Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120 (1991). An abuse of discretion
No. 21AP-74 5
connotes that the trial court’s decision was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
IV. LEGAL ANALYSIS
A. Appellant’s Sole Remaining Assignment of Error
{¶ 6} In appellant’s remaining assignment of error, she argues that the trial court
erred by denying her motion for leave to amend the complaint.
{¶ 7} Pursuant to Civ.R. 15(A), a party may amend a complaint “once as a matter
of course within twenty-eight days after serving it,” after which “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave.” Civ.R. 15(A);
State ex rel. Hook-N-Haul, LLC v. Ohio Dept. of Pub. Safety, 10th Dist. No. 22AP-29, 2023-
Ohio-4432, ¶ 24, citing Morrissette v. DFS Servs., L.L.C., 10th Dist. No. 10AP-633, 2011-
Ohio-2369, ¶ 30. The Supreme Court has found that it is preferable for cases to be resolved
on the merits and not upon deficiencies in the pleadings. Peterson v. Teodosio, 34 Ohio
St.2d 161, 175 (1973). “Although the grant or denial of leave to amend a pleading is
discretionary, where it is possible that the plaintiff, by an amended complaint, may set forth
a claim upon which relief can be granted, and it is tendered timely and in good faith and no
reason is apparent or disclosed for denying leave, the denial of leave to file such amended
complaint is an abuse of discretion.” Id. A trial court abuses its discretion by denying a
motion to amend pleadings when a plaintiff makes a prima facie showing of support for
new matters sought to be pleaded. Wilmington Steel Prods, Inc. at syllabus.
{¶ 8} While “ ‘Civ.R. 15(A) provides that leave of court shall be freely given when
justice so requires, there is no absolute or unlimited right to amend a complaint.’ ”
Rosenberger v. Paduchik, 10th Dist. No. 22AP-320, 2023-Ohio-3898, ¶ 15, quoting Rose
v. Cochran, 4th Dist. No. 14CA3445, 2014-Ohio-4979, ¶ 20. “Because Civ.R. 15(A)
expresses a preference for liberality with respect to amendments, a motion for leave to
amend should be granted absent a finding of bad faith, undue delay, or undue prejudice to
the opposing party.” Hook-N-Haul at ¶ 24, citing Hoover v. Sumlin, 12 Ohio St.3d 1, 6
(1984); see also Samas v. Holliman, 10th Dist. No. 02AP-947, 2003-Ohio-1647, ¶ 21. When
considering a plaintiff’s motion for leave to amend its complaint, “ ‘a trial court’s “primary
consideration is whether there is actual prejudice to the defendants because of the
delay.” ’ ” Darby v. A-Best Prods. Co., 102 Ohio St.3d 410, 2004-Ohio-3720, ¶ 20, quoting
No. 21AP-74 6
Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231, 251 (7th Dist.2000), quoting Schweizer
v. Riverside Methodist Hosps., 108 Ohio App.3d 539, 546 (10th Dist.1996). The “ ‘spectre
of prejudice’ ” occurs when plaintiff requests leave to amend the complaint after a
defendant has filed a dispositive motion. Hook-N-Haul at ¶ 24, quoting State ex rel. N.
Ohio Chapter of Assoc. Builders & Contrs., Inc. v. Barberton City School Bd. of Edn., 9th
Dist. No. C.A. 24898, 2010-Ohio-1826, ¶ 28, citing Brown v. FirstEnergy Corp., 9th Dist.
No. C.A. 22123, 159 Ohio App.3d 696, 2005-Ohio-712, ¶ 6.
{¶ 9} In the motion for leave to amend, appellant alleged leave was necessary to
include additional facts that were fleshed out during the discovery process and the
amendment would serve to have the complaint conform with the evidence in the case.
Appellant also contends that the third amended complaint was envisioned to address issues
raised in the motion for judgment on the pleadings. According to appellant, the third
amended complaint was intended to address the motions for judgment of the pleadings by
“(1) further clarifying certain issues relative to the ongoing acts of negligence, and (2)
pleading that the Defendants were timely served with 180-day letters, even though
Defendants, and specifically Dr. Mendiola, had taken a contrary position in the motions for
judgment on the pleadings.” (Appellant’s Brief at 33.) Appellant noted that amending the
complaint would also serve to remove parties that have been dismissed from the case and
clarify the loss of consortium claim. (Appellant’s Brief at 33-34.); (Dec. 11, 2020 Decision
& Entry at 3.)
{¶ 10} Upon review, we cannot find that the trial court abused its discretion by
denying appellant’s motion for leave to amend. As noted by the trial court, appellant did
not file her motion until 11 years from the second amended complaint and more than 5
years since the discovery period concluded. The trial court noted, and we agree, that there
was no explanation for waiting so long to seek leave to amend the complaint. Appellant
also only sought leave to amend the complaint after the motion for judgment on the
pleadings was filed. Moreover, the motion for leave to amend was brought approximately
six months from the March 29, 2021 trial date. (Dec. 11, 2020 Decision & Entry at 8.) Thus,
we understand the trial court’s reasoning that additional concerns with reopening discovery
and additional dispositive motions would result in prejudice to appellees. (Dec. 11, 2020
Decision & Entry at 5.)
No. 21AP-74 7
{¶ 11} This court has consistently affirmed the trial court’s denial of motions for
leave to amend under analogous circumstances. See Lundeen v. Graff, 10th Dist. No. 15AP-
32, 2015-Ohio-4462, ¶ 30 (finding the denial of a motion to amend was not an abuse of
discretion when the motion was brought after appellees filed a motion for summary
judgment, the motion to amend was filed two years after the prior complaint, the discovery
period had concluded, and trial was approximately four months away); Leatherwood,
2013-Ohio-4780, at ¶ 12 (finding denial of motion to amend was not an abuse of discretion
as it was made after the motion for summary judgment was filed, the motion was brought
nearly nine months after the complaint, the discovery cutoff period had concluded, and trial
was three months away); Nationwide Mut. Ins. Co. v. Am. Elec. Power, 10th Dist. No.
08AP-339, 2008-Ohio-5618, ¶ 21 (concluding a grant of plaintiff’s motion for leave to
amend would result in prejudice to the defendant because discovery was complete, and
defendant had already filed a motion for summary judgment).
{¶ 12} Appellant also argues that it is inequitable that her motion was denied while
appellees’ motion for leave was granted. While we agree that this argument is compelling
to an extent, it is ultimately unpersuasive as the two motions are distinguishable. Appellees
filed their motion in response to the Supreme Court ruling in Antoon, 2016-Ohio-7432.
Here, appellant waited over a decade from the last amended complaint, without
explanation, to seek leave to file a third amended complaint. The potential prejudice to
appellees is apparent. As we have recognized in our prior cases, granting a motion for leave
would likely have required reopening of discovery, a delay of the trial to permit additional
pre-trial preparations, the filing of new dispositive motions, and potentially a need for
further expert testimony to address appellant’s new claims. Lundeen at ¶ 30; Leatherwood
at ¶ 12; Nationwide Mut. Ins. Co. at ¶ 21.
{¶ 13} To be sure, under the facts of this case, this panel could have certainly reached
a different conclusion if looking at the motion in the first instance. However, under an
abuse of discretion analysis, we may not substitute our judgment for that of the trial court.
Retirement Mgt. Co. v. Nsong, 10th Dist. No. 15AP-876, 2017-Ohio-5869, ¶ 15, citing Berk
v. Matthews, 53 Ohio St.3d 161, 169 (1990) (“When applying an abuse of discretion
standard, an appellate court may not substitute its judgment for that of the trial court.”).
No. 21AP-74 8
For the forgoing reasons, we cannot say that the trial court’s denial of leave to amend was
an abuse of discretion.
{¶ 14} Appellant’s remaining assignment of error is overruled.
V. CONCLUSION
{¶ 15} Having overruled appellant’s remaining assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and LELAND, JJ., concur.
_____________