Pelletier v. Mercy Health Youngstown, L.L.C. ( 2024 )

[Cite as Pelletier v. Mercy Health Youngstown, L.L.C., 2024-Ohio-2131.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
LESLIE PELLETIER,
Plaintiff-Appellant,
v.
MERCY HEALTH YOUNGSTOWN, LLC ET AL.
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0110
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2020 CV 1822
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed in Part, Reversed in Part, and Remanded.
Atty. Ryan J. Melewski, Rafidi, Pallante & Melewski, LLC, and Atty. Norman A. Moses,
for Plaintiff-Appellant and
Atty. Holly Marie Wilson and Atty. Brianna M. Prislipsky, Reminger Co., L.P.A., for
Defendants-Appellees.
Dated: June 4, 2024
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HANNI, J.
{¶1} Plaintiff-Appellant, Leslie Pelletier (Pelletier), Administratrix for the Estate of
Paulette Sitnic, appeals from a Mahoning County Common Pleas Court judgment finding
that Pelletier’s wrongful death and survival claims are barred by the statute of repose for
medical claims.
{¶2} On August 17, 2016, the decedent, Paulette Sitnic (Sitnic), was admitted to
St. Elizabeth’s Hospital, a facility operated by Mercy Health Youngstown, LLC (Mercy
Health). Before Sitnic could be discharged, she required a tunneled catheter to be
inserted for later dialysis treatment. Dr. Jason Delatore and Dr. Rachel Juchnowski
(Doctors) attempted to insert the tunneled catheter into Sitnic’s vein. The catheter
insertion was attempted without the use of live fluoroscopy to display the position of the
catheter in relation to the vein it was being inserted into, despite use of live fluoroscopy
being standard practice. Alternatives to live fluoroscopy were not employed. The
insertion failed and Sitnic began to bleed internally. A trauma surgery team was called,
but was unable to stop the bleeding. On August 25, 2016, Sitnic died.
{¶3} Pelletier filed a complaint against Mercy Health and the Doctors (together,
Appellees) on August 25, 2017, consisting of two claims: a survivorship claim under R.C.
2305.113, and a wrongful death claim under R.C. 2125.01. The complaint was voluntarily
dismissed on November 13, 2019 and re-filed on November 10, 2020, four years and 78
days from the date of Sitnic’s death.
{¶4} Appellees filed a Motion for Judgment on the Pleadings asking the trial court
to dismiss the complaint pursuant to Civ.R. 12(C) and R.C. 2305.113(C), Ohio’s statute
of repose for medical claims. They alleged Pelletier’s claims were re-filed more than four
years after the underlying negligent act and thus were time barred under the statute of
repose.
{¶5} On November 5, 2021, the trial court granted Appellees’ Motion for
Judgment on the Pleadings, holding that both the wrongful death and survivorship claims
were medical claims. The court then held that both claims were barred by the statute of
repose in R.C. 2305.113(C), which precludes any legal action to begin more than four
years after the underlying medical act. The trial court found neither the one-year savings
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statute in the Wrongful Death Act nor the tolling provision in R.C. 2305.15 applied to the
statute of repose.
{¶6} On December 3, 2021, Pelletier timely filed this appeal. She initially raised
three assignments of error.
{¶7} This appeal was then stayed pending the Ohio Supreme Court’s resolution
of Everhart v. Coshocton Cnty. Mem. Hosp., 2023-Ohio-4670, which was released
December 28, 2023. Everhart held:
We reiterate here that R.C. 2305.113(C) is a true statute of repose and that
it means what it says. Wrongful-death claims based on medical care are
clearly and expressly included in R.C. 2305.113(E)(3)’s broad definition of
“medical claim.” They are claims that are “asserted in any civil action against
a physician * * * that arise[ ] out of the medical diagnosis, care, or treatment”
of a patient. Id. Therefore, they are expressly within the scope of the
medical-claim statute of repose unless another statutory provision negates
their inclusion.
Id. at ¶ 13.
{¶8} A statute of repose is a limitation on bringing legal action “after a specified
time since the defendant acted” regardless of when or whether the plaintiff was injured.
Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, ¶ 9. This
contrasts with a statute of limitations, which restricts legal action based on “when the
injury occurred or was discovered.” Id. (quoting Black's Law Dictionary 1707 (11th
Ed.2019)).
{¶9} After the Everhart decision, the parties filed a Stipulated Withdrawal of First
Assignment of Error on January 18, 2024. Thus, we will proceed to address Pelletier’s
second and third assignments of error.
{¶10} The standard of review for a Civ.R. 12(C) motion for judgment on the
pleadings is de novo. Ahmed v. Sargus, 7th Dist. No. 03-BE-63, 2005-Ohio-2382, ¶ 7.
In reviewing a Civ.R. 12(C) ruling, the court may grant judgment on the pleadings only
where no material issue of fact exists and the moving party is entitled to judgment as a
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matter of law. State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 592–593, 635 N.E.2d
26 (1994).
{¶11} Pelletier’s second assignment of error states:
THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE ONE-YEAR
SAVINGS STATUTE IN THE WRONGFUL DEATH ACT (O.R.C. 2125.04)
SUPERSEDES THE FOUR-YEAR STATUTE OF REPOSE IN O.R.C.
2305.113.
{¶12} Pelletier claims that the savings statute in the Wrongful Death Act overrides
the statute of repose. The savings statute identified, R.C. 2125.04, allows a plaintiff in a
wrongful death action to refile within one year if the action fails for a reason other than on
the merits. If we were to apply the savings statute, the wrongful death claim would be
timely filed.
{¶13} In response, Mercy Health contends that the Ohio Supreme Court’s
decision in Wilson, 2020-Ohio-6827, holds that the statute of repose for medical
malpractice cannot be superseded by a savings statute. Mercy Health argues the statute
of repose is limited only by its own stated exceptions. It asserts Pelletier’s claim is
therefore barred because it was filed over four years from the date the medical action
occurred.
{¶14} In Wilson, the Supreme Court of Ohio addressed the question of whether a
general savings statute can be applied to the statute of repose in R.C. 2305.113, but not
the savings statute specifically in the Wrongful Death Act. The issue in this case is
whether the wrongful death savings statute should have applied to prevent R.C.
2305.113(C)(1) from barring Pelletier’s wrongful death claim.
{¶15} In Wilson, Wilson and others filed complaints against Dr. Durrani and his
practice for malpractice claims arising from a spinal surgery. Wilson and others
voluntarily dismissed their claims without prejudice and later refiled them, incurring the
four-year limit imposed by the statute of repose. They then argued that the one-year
general savings statute in R.C. 2305.19 allowed their claims to be timely filed. The Ohio
Supreme Court, conversely, found that the statute of repose was clear and unambiguous
in barring any action upon a medical claim after the time limit. Id. at 424. The Court
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stated that in light of the purpose of a statute of repose, to temporally insulate a defendant,
an exception to a statute of repose would require a direct indication by the legislature. Id.
at ¶ 29. The Court further pointed out that it had previously found that re-filing a claim
does not cause the new claim to relate back to the filing date for the original claim. Antoon
v. Cleveland Clinic Found., 148 Ohio St.3d 483, 490, 2016-Ohio-7432, 71 N.E.3d 974.
The statute of repose for medical claims then is only limited by its own exceptions or a
statute that the legislature indicates overrides statutes of repose. Wilson, at ¶ 29-30.
{¶16} None of the exceptions to the statute of repose detailed in R.C. 2305.113
apply to Pelletier’s claims. See R.C. 2305.113. Wilson did not specifically address
wrongful death claims, but given that they are medical claims for the purpose of this
analysis, they are not meaningfully distinct from the malpractice claims brought in Wilson.
The facts in Wilson are similar to the facts in this case. Both plaintiffs brought, voluntarily
dismissed without prejudice, and refiled claims after the medical statute of repose had
run. Pelletier argues that the wrongful death savings statute itself was not addressed in
Wilson, and further that it then supersedes the statute of repose. However, the savings
statute for wrongful death does not mention, nor indicate, an exception to R.C. 2305.113.
See R.C. 2125.04. Thus, the trial court correctly found that the statute of repose for
medical malpractice is not affected by the savings statute in the Wrongful Death Act.
{¶17} Accordingly, Pelletier’s second assignment of error is without merit and is
overruled.
{¶18} Pelletier’s third assignment of error states:
THE TRIAL COURT ERRED BY DISMISSING APPELLANT’S
SURVIVORSHIP CLAIM AGAINST THE INDIVIDUAL DOCTORS
WITHOUT PERMITTING APPELLANT TO CONDUCT DISCOVERY
PURSUANT TO O.R.C. 2305.15 TO DETERMINE IF THE STATUTE OF
REPOSE WAS TOLLED.
{¶19} Pelletier argues her survivorship claim may not be barred by the statute of
repose because that statute is subject to R.C. 2305.15(A), a tolling provision that extends
time limits on bringing an action if the defendant spends time out of state. R.C.
2305.15(A) provides:
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When a cause of action accrues against a person, if the person is out of the
state, has absconded, or conceals self, the period of limitation for the
commencement of the action as provided in sections 2305.04 to 2305.14,
1302.98, and 1304.35 of the Revised Code does not begin to run until the
person comes into the state or while the person is so absconded or
concealed. After the cause of action accrues if the person departs from the
state, absconds, or conceals self, the time of the person's absence or
concealment shall not be computed as any part of a period within which the
action must be brought.
{¶20} The survivorship claim is accepted as a medical claim. Pelletier contends
that the tolling provision affects the time period designated by the statute of repose for
medical claims. As such, the trial court should have permitted discovery for Pelletier to
explore whether or not the Doctors had left Ohio during the four-year statute of repose.
{¶21} The two issues for the Court to address here are: (1) whether the tolling
provision in R.C. 2305.15(A) affects the statute of repose in R.C. 2305.113, and (2)
whether discovery should be granted for Pelletier to investigate whether the Doctors had
been out of state long enough to overcome the statute of repose time limit on her
survivorship claim.
{¶22} The standard of review of a trial court's decision in a discovery matter is
abuse of discretion. All Erection & Crane Rental Corp.v. Bucheit, 7th Dist. Mahoning No.
05 MA 16, 2006-Ohio-889, ¶ 32. If any purely legal issues arise during the analysis of a
discovery issue, however, the Court employs a de novo standard. Id.{¶23} The Ohio Supreme Court in Wilson emphasized that an exception to the
statute of repose would require an express statutory indication. Wilson, 2020-Ohio-6827,
at ¶ 31. The tolling provision in R.C. 2305.15 directly states that it applies to “the period
of limitation for the commencement of the action as provided in sections 2305.04 to
2305.14[.]” (Emphasis added). At first glance, this might seem to not include a period of
repose. But the First District’s rulings on the tolling issue support the interpretation that
the phrase “period of limitation” has frequently encompassed both statutes of limitation
and statutes of repose. Elliot v. Durrani, 2021-Ohio-3055, 178 N.E.3d 977, ¶ 17 (1st Dist.),
citing Wilson at ¶ 17. The General Assembly has also directly identified the tolling
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provision as applicable to “civil actions upon a medical claim.” Wilson v. Durrani, 1st Dist.
Hamilton No. C-180196, 2021-Ohio-3226, ¶ 9.
{¶24} The potential counterargument to this construction is the canon of
interpretation “expressio unius est exclusio alterus”, which states that the inclusion of one
exception to a rule is “assumed to exclude all other exceptions” if the exceptions are of
the same class. Summerville v. Forest Park, 128 Ohio St.3d 221, 228–229, 2010-Ohio-
6280, 943 N.E.2d 522. However, this is an unpersuasive argument because the canon
is an aid in interpretation that “must yield whenever a contrary legislative intent is
apparent.” Baltimore Ravens, Inc. v. Self-Insuring Emp. Evaluation Bd., 94 Ohio St.3d
449, 455, 764 N.E.2d 418, 424 (2002). The legislative intent for the tolling provision to
apply to the medical malpractice statute supersedes the canon. The tolling provision in
R.C. 2305.15 therefore applies to the statute of repose in R.C. 2305.113.
{¶25} Pelletier’s assignment of error then centers on the trial court not allowing
her to undertake discovery as to whether the statute of repose was tolled long enough to
allow her to bring her survivorship claim. The tolling provision allows a period of limitation
for bringing an action to essentially pause if a defendant “is out of the state, has
absconded, or conceals self.” R.C. 2305.15. Both Pelletier and Mercy Health
acknowledge that the tolling provision could only apply to the behavior of the Doctors,
and not to Mercy Health itself. Pelletier does not accuse the Doctors of intentionally
absconding or concealing themselves, but rather wishes to conduct discovery to
determine whether they ever left Ohio at all, and if so, whether they did so long enough
to overcome the 78 days past the statute of repose that Pelletier filed her survivorship
claim.
{¶26} Ohio permits a right to liberal discovery, although in consideration of
“whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Civ. R. 26 (B)(1); Ward v. Summa Health Sys., 128 Ohio St. 3d 212, 2010-Ohio-6275,
943 N.E.2d 514. Using time out of state gathered from discovery to apply a tolling
provision has generally been permitted by the Supreme Court of Ohio. See Johnson v.
Rhodes, 89 Ohio St.3d 540, 541, 733 N.E.2d 1132 (2000). Time pieced together from
vacations and weekend trips to toll has been allowed by the Seventh District as well. See
Pittman v. Boley, 7th Dist. Carroll No. 600, 1991 WL 66189. Discovery as to whether the
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Doctors left Ohio for a period adding up to over 78 days over four years may produce
enough time to toll the statute of repose.
{¶27} Accordingly, Pelletier’s third assignment of error has merit and is sustained.
{¶28} For the reasons above, the trial court’s judgment is hereby affirmed as to
the wrongful death claim. It is reversed and remanded for discovery as to whether the
statute of repose was tolled for the filing of the survivorship claim.
Waite, J., concurs.
Robb, P.J., concurs.
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For the reasons stated in the Opinion rendered herein, Pelletier’s first assignment
of error is withdrawn. Her second assignment of error is overruled. Pelletier’s third
assignment of error is sustained. It is the final judgment and order of this Court that the
judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed as to the
wrongful death claim. It is reversed as to the survivorship claim and remanded for
discovery as to whether the statute of repose was tolled for the filing of the survivorship
claim and for further proceedings according to law and consistent with this Court’s
Opinion. Costs to be taxed against the Appellees.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 MA 0110