O'Dell v. Vrable III, Inc.

[Cite as O'Dell v. Vrable III, Inc., 2022-Ohio-4156.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
Mark O’Dell, Individually and as : Case No. 20CA18
Administrator of the Estate of
Bebea Joyce O’Dell, :
Plaintiff-Appellant, :
DECISION AND
v. : JUDGMENT ENTRY
VRABLE III, Inc., et al., :
RELEASED 11/15/2022
Defendants-Appellees. :
APPEARANCES:
Michael J. Fuller Jr., John R. Cummings, and D. Bryant Cummings, Hattiesburg,
Mississippi, for appellant.
Acacia B. Perko and Kenton H. Steele, Columbus, Ohio, for appellees.
Hess, J.
{¶1} Mark O’Dell, (“O’Dell”) individually and as administrator of the Estate of
Bebea Joyce O’Dell (“Bebea”) appeals the trial court’s judgment granting partial summary
judgment to Vrable III, Inc., Vrable Healthcare, Inc., and Jeremy Long. O’Dell raises the
following three assignment of errors: (1) the trial court erred when it dismissed all of his
claims except for a medical claim against Vrable III; (2) the trial court erred when it
dismissed all claims against Vrable Healthcare; and (3) the trial court erred when it
dismissed all claims against Jeremy Long.
{¶2} On O’Dell’s first assignment of error, we find that the trial court correctly
determined that only one claim survived the Defendants’ summary judgment motion.
Gallia App. No. 20CA18 2
However, the trial court incorrectly defined that claim as a “medical claim.” We find that
the single remaining claim is properly characterized as a general negligence claim.
Otherwise, we find that the trial court properly dismissed all the remaining claims (i.e.,
Counts Four/Five, Eight through Eleven, nursing home negligence, punitive damages,
fraud, breach of fiduciary duty, premises liability). The trial court incorrectly allowed the
case to proceed on Counts Six/Seven, the medical claim, and dismissed Counts
One/Two, the general negligence claim. We dismiss Counts Six/Seven and allow the case
to proceed on Counts One/Two. On O’Dell’s second and third assignments of error, the
trial court properly dismissed Vrable Healthcare and Jeremy Long because O’Dell failed
to establish a genuine issue of material fact concerning their negligence.
{¶3} We sustain in part and overrule in part, O’Dell’s first assignment of error.
We overrule O’Dell’s second and third assignments of error.
I. FACTS AND PROCEDURAL BACKGROUND
{¶4} Bebea O’Dell was a resident of Abbyshire Place Skilled Nursing & Rehab
Center (“Abbyshire”). Bebea’s son, Mark O’Dell, is the estate administrator and plaintiff.
Vrable III is the state-licensed operator of Abbyshire; Abbyshire and Vrable III are the
same entity. The personnel who work at Abbyshire are either employees of Vrable III or
Vrable Healthcare. Some Abbyshire personnel, such as the floor nurses and aides, are
employees of Vrable III, while certain management level staff, such as Long, the licensed
nursing home administrator of Abbyshire, are employees of Vrable Healthcare. Thus both
Vrable III and Vrable Healthcare employ persons who work at Abbyshire. In addition to
employing Long and other management level staff at Abbyshire, Vrable Healthcare is the
sole shareholder of Vrable III.
Gallia App. No. 20CA18 3
{¶5} Bebea O’Dell was an 84-year-old woman with dementia when she was
admitted to Abbyshire on August 21, 2018. Prior to that, Bebea lived with her son, Mark
O’Dell. According to O’Dell, for several years while Bebea lived with him she used a
wheeled walker to get around without problems. On August 2, 2018, Bebea had an
episode in which she became upset, violent, and threw a flowerpot at O’Dell, hitting him
in the head. Bebea was treated in the geriatric psychiatric unit at Holzer Medical Center.
It was that episode that triggered Bebea’s family to place Bebea in a nursing home for
her safety. According to O’Dell, they chose Abbyshire because it was the only one in the
area with a dementia ward. On September 6, 2018, approximately two weeks after she
was admitted to Abbyshire, Bebea suffered an unwitnessed fall in her room at about 1:30
a.m. She was taken to Pleasant Valley Hospital and then transferred to Charleston Area
Medical Center where she had surgery to repair a fractured right hip. She was transferred
to Holzer Senior Care and passed away on October 16, 2018.
{¶6} Mark O’Dell, individually and as administrator of Bebea’s estate, filed a
complaint against Vrable III, Vrable Healthcare, and Long (and other entities that were
subsequently dismissed and are not relevant to this appeal). Vrable III, Vrable Healthcare,
and Long were defined in the complaint as both “Defendants” and “Nursing Home
Defendants” and Long was additionally identified as “Administrator Defendant.” Vrable
III, Vrable Healthcare, and Long will be collectively referred to as “Defendants.”
Gallia App. No. 20CA18 4
{¶7} O’Dell’s complaint contained 11 counts, including two “Medical Malpractice”
claims even though none of the defendants were physicians.1 Though the correct term
here is “medical claim,” the parties and the trial court used the term “medical malpractice
claim” and “medical claim” interchangeably. We will use the term “medical claim.” The
complaint is summarized here:
Count One: Corporate Negligence for Non-Lethal Injuries against Vrable III, Vrable
Healthcare, and Long. Defendants owed a duty of care to provide oversight and
management for Abbyshire for (a) staffing, (b) implementing adequate guidelines,
policies and procedures governing licensure violations; (c) adopting adequate
guidelines, policies and procedures governing the numbers of nursing personnel;
(d) adopting adequate guidelines, policies and procedures for responding to
compliance complaints; (e) budgeting and resource allocation; (f) corporate
compliance and reporting.
Count Two: Same as Count One but for Lethal Injuries.
Count Three: Negligence against Long – Long owed a duty to prevent reasonably
foreseeable injuries via the departments he manages, such as nursing,
housekeeping, social services, and maintenance. Long failed this duty in areas of
staffing to assist with activities of daily living; staffing for medical care; hygiene and
sanitary care; safety measures; screening; budgeting and resource allocation;
compliance and reporting.
Count Four: Nursing Home Violations for Non-Lethal Injuries against Vrable III,
Vrable Healthcare, and Long. Defendants owed a duty to provide for the well-being
of residents by contract or law and they breached this duty in the areas of (a)
staffing; (b) implementing adequate guidelines, policies and procedures governing
licensure violations; (c) adopting adequate guidelines, policies and procedures
governing the numbers of nursing personnel; (d) adopting adequate guidelines,
policies and procedures for responding to compliance complaints; (e) compliance
with contracts and laws; (f) ensuring residents achieve highest level of well-being;
(g) budgeting and resource allocation; (h) corporate compliance and reporting.
1 A medical malpractice claim can only be brought against a physician. Natl. Union Fire Ins. Co. of Pittsburgh
v. Wuerth, 22 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, ¶ 15 (“ ‘[I]t is well-established common
law of Ohio that malpractice is limited to the negligence of physicians and attorneys.’ ”); Bartley v. Hearth
& Care of Greenfield, L.L.C., 4th Dist. Highland No. 12CA13, 2013-Ohio-279, ¶ 8 (“medical employees,
such as, nurses and laboratory technicians, are not subject to malpractice claims, but are subject to medical
claims”); Tisdale v. Toledo Hosp., 197 Ohio App.3d 316, 2012–Ohio–1110, 967 N.E.2d 280, ¶ 40 (6th Dist.).
Gallia App. No. 20CA18 5
Count Five: Same as Count Four but for Lethal Injuries.
Count Six: Medical Malpractice for Non-Lethal Injuries against Vrable III, Vrable
Healthcare, and Long. Defendants and their employees owed a duty to render care
and services as a reasonably prudent nursing home would render, but failed to do
so by (a) failure to notify doctor of significant changes in condition; (b) failure to
respond the changes; (c) failure to develop, implement and update adequate
resident care plan; (d) failure to maintain records; (e)-(j) failure to provide sufficient
supervision for and number of nursing and medication aide personnel to provide
various medical care; (k)-(m) failures with respect to the nursing care plan; (n)-(o)
failure to adopt guidelines, policies, and procedures for responding to complaints
and address deficiencies and problems; (p)-(r) failures with respect to infection
management; (s) failure to follow physician orders; (t)-(v) failures with respect to
fluid and nutritional needs; (w)-(y) failure to maintain medical records for diagnosis,
treatment, and establishment of plan of care; failure to adequately monitor health
status; and prevent the development of pneumonia.
Count Seven: Medical Malpractice for Lethal Injuries against Vrable III, Vrable
Healthcare, and Long. Same as Count Six except instead of alleging failure to
prevent the development of pneumonia, Count Seven specifically alleges a failure
to prevent and address the development of pressure sores and infection.
Count Eight: Malice and/or Gross Negligence/Willful, Wanton or Reckless
Disregard for Safety against Vrable III, Vrable Healthcare, and Long.
Count Nine: Fraud against Vrable III, Vrable Healthcare, and Long.
Count Ten (misnumbered “Eight” in the Complaint): Breach of Fiduciary Duty
against Vrable III, Vrable Healthcare, and Long.
Count Eleven: Premises Liability Claim against Vrable III, Vrable Healthcare, and
Long.
In each count, O’Dell described Bebea’s injuries as including falls, fractures, urinary tract
infections, lice infestations, extreme pain, suffering, mental anguish, embarrassment,
fright, and, in the counts for lethal injuries, death. The 60-page, 11-count complaint initially
Gallia App. No. 20CA18 6
named four Vrable corporate entities, Long, 10 unidentified John Does, and 10
unidentified “entities.”2
{¶8} After the parties engaged in extensive discovery, the Defendants filed a
motion for partial summary judgment. Vrable Healthcare and Long sought dismissal from
the case entirely on all counts, and Vrable III sought the dismissal of all claims except a
medical claim based on allegations that Abbyshire’s staff was negligent in their care and
treatment of Bebea. The Defendants argued that O’Dell’s complaint could be distilled into
a single medical claim: Bebea suffered pain and passed away as a result of a hip fracture
and Abbyshire negligently caused or failed to prevent that fracture. They argued that the
single medical claim, which is set forth in Counts Six and Seven, could not be transformed
into “multiple unrelated causes of action such as fraud, breach of fiduciary duty, premises
liability, when Ohio’s ‘medical claim’ statute plainly encompasses all of Plaintiff’s claims.”
{¶9} The Defendants argued: (1) all the claims alleged by O’Dell are “medical
claims” under R.C. 2305.113(E)(3); (2) Abbyshire is a “home” as defined in R.C.
2405.113(E)(3); (3) Vrable III is the owner/operator of Abbyshire; (4) Vrable III employed
the personnel at Abbyshire that provided direct care to Bebea; (5) Vrable Healthcare also
2Though we refrain from commenting on counsel’s pleading strategies, one court has harshly criticized
what it describes as the “kitchen sink” complaint:
This Court has repeatedly criticized the filing of “kitchen-sink” or “shotgun” complaints—
complaints in which a plaintiff brings every conceivable claim against every conceivable
defendant. Such complaints are pernicious for many reasons. For one thing, complaints
like the one in this case unfairly burden defendants and courts. The plaintiff who files
a kitchen-sink complaint shifts onto the defendant and the court the burden of identifying
the plaintiff's genuine claims and determining which of those claims might have legal
support. In this case, for example, plaintiffs have essentially coughed up an unsightly
hairball of factual and legal allegations, stepped to the side, and invited the defendants and
the Court to pick through the mess and determine if plaintiffs may have pleaded a viable
claim or two. (Citations omitted.)
Gurman v. Metro Hous. & Redevelopment Auth., 842 F.Supp.2d 1151, 1153 (D.Minn 2011); see also
McCain v. Jenkins, No. 2:15-cv-1262, 2020 WL 1904712, * 1, fn. 2 (S.D.Ohio Apr. 17, 2020).
Gallia App. No. 20CA18 7
employed personnel at Abbyshire, but none of those personnel, including Long, provided
any care to Bebea; (6) Vrable Healthcare is not a proper party because it did not employ
personnel for Abbyshire who provided direct care to Bebea; (7) Vrable Healthcare is
entitled to summary judgment in its favor because O’Dell has no evidence supporting any
claims against Vrable Healthcare; (8) Long was the licensed nursing home administrator
of Abbyshire but he was responsible for oversight and management, not direct, hands-on
care to Bebea; and (9) Long is entitled to summary judgment in his favor because O’Dell
has no evidence supporting his claims against Long.
{¶10} Defendants argued that Counts One/Two, Corporate Negligence (or
ordinary negligence claims) is a medical claim that arose out of the medical care and
treatment of Bebea. And, even if they were ordinary negligence claims, O’Dell has failed
to provide evidence that the standard of care applicable to the Defendants was breached
or that any breach caused Bebea’s injuries and death. On Count Three, Long’s
Negligence, the Defendants argued that O’Dell’s experts did not know who Long was and
did not offer any opinion critical of Long. Thus, that claim should be dismissed for lack of
evidence. Defendants argued that Counts Four/Five, Nursing Home Violations, alleged a
claim based on contract terms, state rules, and federal regulations. Defendants argued
that federal nursing home regulations do not create a private cause of action and any
claim of breach of contract is subsumed by the medical claim. They also argued that
O’Dell failed to produce any evidence to support a nursing home violation claim against
Vrable Healthcare. As a result, they argued Claims Four/Five should be dismissed. On
Counts Six/Seven, Medical Malpractice, the Defendants argued that this was the single
medical claim that could be brought against Vrable III as operator of Abbyshire, based on
Gallia App. No. 20CA18 8
allegations that staff hired by Vrable III were negligent in providing care to Bebea. But
they contended it could not be brought against Long, the administrator of Abbyshire, or
his employer, Vrable Healthcare, due to lack of evidence. For Count Eight, Malice, the
Defendants argued that it was in essence a count for punitive damages, which could not
be brought on its own. And, O’Dell has provided no evidence that any of the Defendants
acted with actual malice or conscious disregard for Bebea’s well-being. On Count Nine,
Fraud, and Count Ten, Breach of Fiduciary Duty, the Defendants argued that these are
both medical claims disguised as fraud and fiduciary duty claims, there has been no
evidence regarding fraud, and no fiduciary relationship exists between nursing home
residents and the home or its administrator. Therefore, the Defendants were entitled to
summary judgment on these causes of action. Last, on Count Eleven, Premises Liability,
Defendants argued that this was another disguised medical negligence claim.
{¶11} To support their motion, Defendants included references to O’Dell’s
complaint, Abbyshire’s progress notes that described the incident in which Bebea fell,
medical documents from the hospital that performed surgery on Bebea’s hip, references
to deposition and deposition exhibits of: (1) O’Dell’s expert witnesses, Dr. Fannin and
Nurse Hill-O’Neill; (2) Civ.R. 30(B) witness James Merrill; and (3) Jeremy Long.
{¶12} O’Dell opposed the motion and argued that Defendants failed to meet their
burden under Civ.R. 56 by making conclusory assertions that the nonmoving party has
no evidence to prove their case. O’Dell argued that the Defendants must affirmatively
demonstrate that, with respect to every essential issue of each count in the complaint,
there is no genuine issue of material fact and the Defendants’ motion failed to do so.
Gallia App. No. 20CA18 9
{¶13} O’Dell argued that Vrable Healthcare was a proper party to the lawsuit
because, like Vrable III, it provided personnel for Abbyshire including the nursing home
administrator, Long, and the director of nursing. Vrable Healthcare, through its
management level employees, owed a duty to Bebea but breached that duty, which
resulted in injuries and death. O’Dell argued that his expert, Dr. William Fannin, testified
that all persons or entities responsible for the care of Bebea failed to adequately assess
her fall risk, did not provide adequate preventative measures and protective equipment
concerning falls, and did not create or modify an appropriate care plan concerning her
safety with respect to falls. O’Dell’s expert nurse, Kathleen Hill-O’Neill, testified that
Vrable Healthcare was involved in oversight of Abbyshire because the administrator of
Abbyshire reports to Vrable Healthcare and Vrable Healthcare provided policies and
procedures for Abbyshire.
{¶14} O’Dell also argued that Long, as the administrator of Abbyshire, was
responsible for oversight and management of Abbyshire, including supervision of staff.
Nurse Hill-O’Neill testified that the caregivers at Abbyshire fell below the standard of care
regarding fall risk and prevention. O’Dell contended that Long, as the administrator of
Abbyshire, had non-delegable duties, such as oversight of the daily operations of the
home and ensuring that the employees are competent to perform their job. He failed to
perform these duties, resulting in harm and death to Bebea.
{¶15} O’Dell argued that his claims were not just a single medical negligence
claim, because: (1) Vrable Healthcare is not a medical provider under R.C. 205.113(E)(3)
and, thus cannot have a medical claim asserted against it, and (2) not all claims arise
from medical diagnosis, care, or treatment. He argued that the Defendants’ negligence
Gallia App. No. 20CA18 10
related to the ordinary care provided to Bebea related to the provision of activities of daily
living. He explained that his use of the term “corporate negligence” meant “general
negligence” as distinct from “medical negligence.” The breach of duty concerning matters
related to staffing were general negligence claims and Nurse Hill-O’Neill testified that all
Defendants failed in this regard.
{¶16} O’Dell argued that his general negligence claims (Counts One, Two, and
Three), his two nursing home violations claims (Counts Four and Five) and his medical
negligence claims (Counts Six and Seven) all should survive summary judgment based
upon the deposition testimony provided by Dr. Fannin and Nurse Hill-O’Neill. He also
argued his malice claim (Count Eight), which asserted an entitlement to punitive damages
should also survive summary judgment because no enhanced interventions were put in
place to prevent Bebea’s fall even though Defendants knew that they should have done
so. Thus, he contends a jury could conclude that they acted with conscious disregard.
O’Dell also contended he had sufficient evidence of fraud (Count Nine) because the
admissions agreement for Abbyshire stated that Abbyshire would exercise reasonable
care and provide appropriate care and services, but it knew that it had issues providing
sufficient staffing and concealed this from Bebea and her family. Similarly, O’Dell argues
that there was sufficient evidence that Defendants breached a fiduciary duty (Count Ten)
and were liable under premises liability (Count Eleven).
{¶17} The trial court determined that all the claims asserted by O’Dell were
medical claims under R.C. 2305.113(E)(3)(d):
To clarify, the Court finds, as it relates to claims against Vrable Healthcare,
Inc., Vrable III, Inc, and Jeremy Long, Administrator of Abbyshire Place
Skilled Nursing and Rehab Center, they are “medical claims.” They all arise
out of the skilled nursing care or personal care services provided by
Gallia App. No. 20CA18 11
Abbyshire Place pursuant to the plan of care, medical diagnosis, or
treatment of Plaintiff’s decedent, Bebea Joyce O’Dell.
The trial court found that all the claims set forth in the complaint were either subsumed
by the medical claim or had no basis in law.
{¶18} The trial court interpreted the Defendants’ argument that Vrable Healthcare
should be dismissed from the case as a corporate veil-piercing argument: “Here,
Defendants appear to be arguing that Plaintiff, by bringing claims against Vrable
Healthcare, Inc., the parent, is attempting to pierce the corporate veil.” The trial court
dismissed Vrable Healthcare on the ground that O’Dell failed to bring sufficient evidence
regarding piercing the corporate veil. However, later in its decision, the trial court gave an
alternative ground for dismissing Vrable Healthcare. The court determined that O’Dell’s
witnesses failed to provide any evidence that Vrable Healthcare violated any standard of
care or caused injury to Bebea. Thus, the trial court determined that O’Dell failed to show
any genuine issue of material fact as to Vrable Healthcare’s liability.
{¶19} After extensive review of the deposition testimony of Dr. Fannin and Nurse
Hill-O’Neill, the trial court dismissed Jeremy Long from the case on the ground that
O’Dell’s witnesses did not know who he was, what he did, or why he was in the case.
They had no opinions that he violated any standard of care as administrator of Abbyshire.
{¶20} The trial court dismissed all the claims against the Defendants except for
the medical claim against Vrable III (Counts Six/Seven). The judgment included language
under Civ.R. 54(B) that there is no just reason for delay.
{¶21} O’Dell appealed. Vrable III filed a motion to dismiss the appeal on the
ground that the entry was not a final, appealable order. We denied the motion and found
that an interlocutory appeal is consistent with sound judicial administration and allowed
Gallia App. No. 20CA18 12
the appeal to proceed. O’Dell v. Vrable III, 4th Dist. Gallia No. 20CA18, Judgment Entry,
Mar. 22, 2021.
II. ASSIGNMENTS OF ERROR
{¶22} O’Dell identifies three assignments of error for review:
I. The Trial Court Erroneously Granted the Defendants’ Motion Partial Summary
Judgment as to all of Plaintiff’s Claims except for Medical Malpractice.
II. The Trial Court Erroneously Granted the Defendants’ Motion Partial Summary
Judgment as to Plaintiff’s claims against Defendant Vrable Healthcare, Inc.
III. The Trial Court Erroneously Granted the Defendants’ Motion Partial Summary
Judgment as to all of Plaintiff’s Claims against Defendant Jeremy Long,
Administrator.
III. Review of Summary Judgment
A. Standard of Review
{¶23} We review the trial court's decision on a motion for summary judgment de
novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12.
Accordingly, we afford no deference to the trial court's decision and independently review
the record and the inferences that can be drawn from it to determine whether summary
judgment is appropriate. Harter v. Chillicothe Long–Term Care, Inc., 4th Dist. Ross No.
11CA3277, 2012-Ohio-2464, ¶ 12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35,
2009-Ohio-3126, ¶ 16.
{¶24} Summary judgment is appropriate only when the following have been
established: (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 only one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R.
56(C); DIRECTV, Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶
15. In ruling on a motion for summary judgment, the court must construe the record and
Gallia App. No. 20CA18 13
all inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). The party moving
for summary judgment bears the initial burden to demonstrate that no genuine issues of
material fact exist and that they are entitled to judgment in their favor as a matter of law.
Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996). To meet its burden,
the moving party must specifically refer to “the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate that the
nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C);
Dresher at 293, 662 N.E.2d 264. Moreover, the trial court may consider evidence not
expressly mentioned in Civ.R. 56(C) if such evidence is incorporated by reference in a
properly framed affidavit pursuant to Civ.R. 56(E). Discover Bank v. Combs, 4th Dist.
Pickaway No. 11CA25, 2012-Ohio-3150, ¶ 17; Wagner v. Young, 4th Dist. Athens No.
CA1435, 1990 WL 119247, *4 (Aug. 8, 1990). Once that burden is met, the nonmoving
party then has a reciprocal burden to set forth specific facts to show that there is a genuine
issue for trial. Dresher at 293, 662 N.E.2d 264; Civ.R. 56(E). Am. Express Bank, FSB v.
Olsman, 2018-Ohio-481, 105 N.E.3d 369, ¶ 10-11 (4th Dist.).
B. Dismissal of All Claims Except Single Medical Claim
{¶25} For his first assignment of error, O’Dell contends that the trial court erred in
determining that all his claims were a single medical claim and in dismissing all his
remaining claims except the medical claim alleged in Counts Six/Seven.
1. Medical Claim
{¶26} O’Dell contends that the trial court erred in determining that all his claims
are medical claims. He argues that Vrable Healthcare and Long are not identified in R.C.
Gallia App. No. 20CA18 14
2305.113(E)(3) as persons or entities against which a medical claim may be filed. Thus,
the claims against them cannot be medical claims. He also argues that the trial court
incorrectly applied the definition of “medical claim” in R.C. 2305.113(E) too expansively
to include acts of ordinary negligence. He cited numerous cases, including one from our
district, in which a “fall” is not a medical claim. E.g., McDill v. Sunbridge Care Ents., Inc.,
4th Dist. Pickaway No. 12CA8, 2013-Ohio-1618.
{¶27} “Medical claim” is defined in R.C. 2305.113(E)(3). The version effective for
this case is set forth here:
(3) “Medical claim” means any claim that is asserted in any civil action
against a physician, podiatrist, hospital, home, or residential facility, against
any employee or agent of a physician, podiatrist, hospital, home, or
residential facility, or against a licensed practical nurse, registered nurse,
advanced practice registered nurse, physical therapist, physician assistant,
emergency medical technician-basic, emergency medical technician-
intermediate, or emergency medical technician-paramedic, and that arises
out of the medical diagnosis, care, or treatment of any person. “Medical
claim” includes the following:
(a) Derivative claims for relief that arise from the plan of care, medical
diagnosis, or treatment of a person;
(b) Claims that arise out of the plan of care, medical diagnosis, or treatment
of any person and to which either of the following applies:
(i) The claim results from acts or omissions in providing medical care.
(ii) The claim results from the hiring, training, supervision, retention,
or termination of caregivers providing medical diagnosis, care, or
treatment.
(c) Claims that arise out of the plan of care, medical diagnosis, or treatment
of any person and that are brought under section 3721.17 of the Revised
Code;
(d) Claims that arise out of skilled nursing care or personal care services
provided in a home pursuant to the plan of care, medical diagnosis, or
treatment.
Gallia App. No. 20CA18 15
{¶28} “The term ‘medical claim’ as defined in R.C. 2305.113(E)(3) has two
components that the statute states in the conjunctive: (1) the claim is asserted against
one or more of the specifically enumerated medical providers and (2) the claim arises out
of medical diagnosis, care, or treatment.” Estate of Stevic v. Bio-Med. Application of Ohio,
Inc., 121 Ohio St.3d 488, 2009-Ohio-1525, 905 N.E.2d 635, ¶ 18. Under R.C.
2305.113(E)(3)(d), claims that “arise out of skilled nursing care or personal care services
* * * pursuant to the plan of care, medical diagnosis and treatment” must still nevertheless
arise “out of the medical diagnosis, care, or treatment” as required by R.C.
2305.113(E)(3).
a. Vrable Healthcare and Long Are Persons or Entities
Against Whom a Medical Claim May be Brought
{¶29} O’Dell contends his claims against Vrable Healthcare and Long are not
medical claims, because those two defendants are not medical providers against whom
a medical claim may be asserted. The first component of the statute governs who are
“specifically enumerated medical providers.” Here, a medical claim can be asserted
against Vrable III as a “home” and against “any employee or agent of a * * * home.” Vrable
Healthcare provided management level services and employees to the home and direct
services to the home’s residents via its therapists. Thus, Vrable Healthcare could have
medical claims asserted against it if, through the services it provides the home’s
residents, it is acting as an “agent” of the home. And Vrable Healthcare, as the employer
of Long and certain other employees at Abbyshire, could have respondeat superior
liability for medical claims asserted against any employees it hires to provide medical care
to the home’s residents. See Weiler v. Knox Community Hosp., 5th Dist. Knox. No.
20CA18, 2021-Ohio-2098, ¶ 20 (“ ‘[g]enerally, an employer or principal is vicariously liable
Gallia App. No. 20CA18 16
for the torts of its employees or agents under the doctrine of respondeat superior.’ ” Clark
v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438, 628 N.E.2d 46 (1994));
Henik v. Robinson Mem. Hosp., 9th Dist. Summit No. 25701, 2012-Ohio-1169, ¶ 18-19
(medical claim against a nurse could be asserted against nurse’s employer under theory
of respondeat superior). Long was the administrator of the home. As a result, Long could
have medical claims asserted against him as an agent of the home. Howard v. HCR
ManorCare, Inc., 2018-Ohio-1053, 99 N.E.3d 429, ¶ 162 (2d Dist.) (an administrator of
the home could be considered an “agent,” and would, therefore fall within the statutorily
enumerated medical providers in R.C. 2305.113(E)(3)).
{¶30} We reject O’Dell’s argument that medical claims could not be brought
against Vrable Healthcare and Long. They, particularly Long, could be considered
“agents” of the home under R.C. 2305.113(E)(3). And, Vrable Healthcare, as the
employer of Long and other management level personnel at the home, could have
respondeat superior liability for medical claims brought against its employees. The trial
court correctly noted that Long was the administrator and could have medical claims
asserted against him as “the provider home’s employee or agent as administrator.” The
trial court also correctly recognized that Vrable Healthcare could have “vicarious liability”
for the acts of agents and employees. Ultimately, because the trial court determined that
O’Dell failed to present evidence that Vrable Healthcare or Long violated any standard of
care, it dismissed the claims against these two defendants – it dismissed them not
because they were not “medical providers” under the statute, but because there was
insufficient evidence to survive the summary judgment motion. O’Dell challenges the trial
Gallia App. No. 20CA18 17
court’s decision to dismiss Vrable Healthcare and Long on evidentiary grounds in his
second and third assignment of error and we will address those arguments then.
b. The Claim Must Arise Out of the Medical Diagnosis,
Care, or Treatment of Any Person
{¶31} The second prong of the statutory definition of “medical claim” is that the
claim must arise out of medical diagnosis, care, or treatment, where “care” is “the
prevention or alleviation of a physical or mental defect or illness.” Browning v. Burt, 66
Ohio St.3d 544, 557, 613 N.E.2d 993, 1003 (1993). “Care” does not have a broad, general
meaning, but refers to medical care – care to treat illnesses.
{¶32} As we explained in McDill,
The term “ ‘care’ * * * should not be broadly interpreted.” Browning v.
Burt, 66 Ohio St.3d 544, 557, 613 N.E.2d 993 (1993). Rather, it must be
considered in its particular context to determine its specific legal
meaning. Id. As used in R.C. 2305.113(E)(3), the term “care” means “the
prevention or alleviation of a physical or mental defect or
illness.” Id., paragraph one of the syllabus. The terms “ ‘medical diagnosis'
and ‘treatment’ are terms of art having a specific and particular meaning
relating to the identification and alleviation of a physical or mental illness,
disease, or defect.” Id. at 557, 613 N.E.2d 993.
McDill, 2013-Ohio-1618, at ¶ 16. “[N]ot all care that transpires in a hospital or nursing
home involves ‘medical care’ within the meaning of R.C. 2305.113(E)(3) * * * it is possible
to assert a claim for ordinary negligence against a nursing home or facility.” McFarren v.
Canton, 2016-Ohio-484, 59 N.E.3d 652, ¶ 44 (5th Dist.); Carte v. The Manor at Whitehall,
10th Dist. Franklin No. 14AP-568, 2014-Ohio-5670, ¶ 29.
{¶33} “To identify medical care, as opposed to general care, courts look at
whether the conduct was part of a medical test, procedure, or treatment, was ordered by
a medical professional, or required medical expertise or professional skill.” Wagers v.
Kettering Affiliated Health Servs., 2d Dist. Montgomery No. 28192, 2020-Ohio-11, ¶
Gallia App. No. 20CA18 18
11, appeal not allowed, 158 Ohio St.3d 1489, 2020-Ohio-1634, 143 N.E.3d 535. “Medical
claim” includes “a claim for a hospital employee's negligent use of hospital equipment
while caring for a patient which allegedly results in an injury to the patient.” Rome v.
Flower Mem. Hosp., 70 Ohio St.3d 14, 635 N.E.2d 1239 (1994), syllabus.
{¶34} The trial court determined that all the claims asserted by O’Dell were
medical claims. The trial court noted that Dr. Fannin was asked “Your opinions involved
the care provided to the patient, correct?” and he answered, “That’s correct. Yes.”
Similarly, the trial court noted that Nurse Hill-O’Neill was asked, “Would you agree with
me that your opinions in this case relates to the care and treatment that was provided to
Miss O’Dell at Abbyshire Place?” and she answered, “Yes.” The trial court then concluded
that all of O’Dell’s claims were medical claims, “They all arise out of the skilled nursing
care or personal care services provided by Abbyshire Place pursuant to the plan of care,
medical diagnosis, or treatment of Plaintiff’s decedent, Beabe [sic] Joyce O’Dell.”
{¶35} However, while we find that both experts discussed the “care” that Bebea
had at Abbyshire, their testimony was focused on fall prevention care. Here, the facts
involve an unwitnessed fall at approximately 1:30 a.m. in Bebea’s room. The Abbyshire
nursing note described the incident at 1:29 a.m. on September 6, 2018:
Standing at duty station and heard yelling from residents’ room. Went in to
assess and she [Bebea] was on the floor. Moderate size hematoma to back
of head and a dent in the bathroom door. Small skin tear to right lower arm
and slight discoloration to her right lower leg. She was complaining that her
right leg was hurting and attempting to get up off of the floor. She would not
lay still because she wanted to get up and call her son. AlsWheelchair was
placed behind her and she was placed sitting. She was unable to move her
right leg at that time as every time I touched it she screamed. Slight swelling
noted to right lower leg as well. Ice placed to back of head, neuro checks
started per policy and skin tear cleansed and dressing applied. VS initially
132/65, 98.4, 93, 16. Doctor Toothman notified and received order to send
to PVH for treatment and evaluation. DON notified as well as her sons which
Gallia App. No. 20CA18 19
will be meeting her at the hospital. Also once the EMTs got her on stretcher,
her right foot was turned outward.
{¶36} Both Dr. Fannin and Nurse Hill-O’Neill testified that Bebea was at an
increased risk for falling and Abbyshire did not place enough fall prevention measures in
place to prevent her fall. Dr. Fannin summed up his understanding of the case,
“[B]asically, the fact that [Bebea] was a high fall risk. That adequate measures weren’t
taken to prevent the fall. That adequate initial assessments to help prevent that and
reassessments and changes in regards to [Bebea] were not performed to prevent the fall.
[Bebea] had [a] fall-significant injury, subsequently had a marked decline because of that,
and ultimately died with some substantial contribution from that injury.” He stated that
Abbyshire did not “dignify the fall risk that she had” when Bebea was initially placed there.
“And then, as time went by, they did not provide adequate preventative measures to help
her not have falls and to hopefully lessen the injury if she did have one.” Dr. Fannin
opined that Abbyshire “considered her as a fall risk, but they didn’t dignify it with the
protective measures that I feel were appropriate.”
{¶37} Dr. Fannin testified that some safety measures were in place, such as “a
rolling walker as a safety measure,” but that there were not “adequate changes made in
her – in her care plan and approach to providing a safe environment.” Dr. Fannin testified
that “observant” and “experienced” people would have “put in some more protective
measures for [Bebea].” Dr. Fannin testified that the standard of care requires “that you
have to protect [Bebea] from harm and injury. You have to provide a safe environment.
That’s what it says.” Dr. Fannin testified that a bed alarm would have prevented Bebea’s
fall. He also believed that pads on the floor and a lower bed height would have helped
prevent the fall or minimize fall injuries but there was “nothing about changing any of the
Gallia App. No. 20CA18 20
safety features that would help [Bebea] in preventing the fall or help to lessen the injury if
it happened.” Dr. Fannin criticisms of Abbyshire’s fall intervention included the failure to
use blue fall mats next to the bed, failure to use a low bed, failure to use a defined
perimeter mattress or “scoop mattress,” failure to use an alarm on the bed and the
wheelchair, failure to use a motion sensor device, failure to put nonskid strips on the floor
of Bebea’s room, and the failure to use a bed bolster to keep Bebea in place.
{¶38} Similarly, Nurse Hill-O’Neill testified that Abbyshire “fell below the standard
of care in regard to fall risk and fall prevention as far as assessment and then care and
treatment to maintain [Bebea’s] safety and well-being.” She testified that the standard of
care required homes “to do everything we could to prevent [sic] resident safety.” Nurse
Hill-O’Neill was critical of Abbyshire for failing to use “tab alarms, sensor alarms, perimeter
mattresses, blue fall mats, low beds and many other interventions. We don’t see them
being responsive to that and doing that in her case, in Miss O’Dell’s case.”
{¶39} Nurse Hill-O’Neill testified that every area in which Abbyshire failed to
provide the standard of care was related to its fall prevention efforts with Bebea. She
testified Abbyshire was “not doing everything you’re supposed to do to promote a safe
environment and the resident’s safety and well-being. You’re not addressing fall risk
adequately and coming up with proper interventions as we have been talking about, and
timely interventions.” She also testified that in her opinion Abbyshire’s lack of fall
prevention placed it out of compliance with state and federal regulations: “In regards to,
again, fall risk, accident prevention, maintaining a safe environment” and all assessment
and care planning related to fall prevention. Nurse Hill-O’Neill testified that Abbyshire
failed to protect Bebea from harm “by way of not adequately responding to her fall risk.”
Gallia App. No. 20CA18 21
Nurse Hill-O’Neill believed that an alarm coupled with other fall prevention measures
would have prevented Bebea’s fall: “I believe that it could have prevented the fall if they
would have put these interventions in place that we’re talking about that they had as part
of their policies. It could have prevented the fall. These measures could have prevented
the fall. * * * Low beds, mats and all the other things that they had available.”
{¶40} Falls can either be medical claims or general negligence claims, depending
upon the factual circumstances. When a person falls because of the negligent use of
medical equipment during a medical procedure, it is a medical claim. In Rome v. Flower
Mem. Hosp. 70 Ohio St.3d 14, 635 N.E.2d 1239 (1994), the Supreme Court of Ohio held
that the fall was a “medical claim” where a radiological intern failed to fasten the footboard
to the base of radiology table causing the patient to fall when table was tilted for the X-
ray procedure.
[W]e find that the process of securing Barbara Rome to a radiology table is
ancillary to and an inherently necessary part of the administration of the X-
ray procedure which was ordered to identify and alleviate her medical
complaints. Furthermore, at the time of her injury, Mrs. Rome was a patient
at Flower and was being assisted by an employee of Flower, which
employee was required to exercise a certain amount of professional
expertise in preparing the patient for X-ray. Accordingly, we conclude that
Rome's claim arises out of “medical diagnosis, care, or treatment” relating
to the identification and alleviation of a physical or mental illness, disease,
or defect. (Emphasis added.)
Id. at 16.
{¶41} Where a patient fell from a wheelchair during transport to physician-ordered
physical therapy, the Supreme of Ohio held that the fall was a medical claim.
This therapy was ordered by his physician as part of his rehabilitation from
knee surgery. Following standard practice, a hospital employee took Eager
to and from the physical therapy department in a wheelchair. Thus, we find
that the transport of Eager from physical therapy was ancillary to and an
inherently necessary part of his physical therapy treatment. Furthermore,
Gallia App. No. 20CA18 22
Eager was a patient of St. Vincent Medical Center and was assisted by an
employee of St. Vincent who was required to use a certain amount of
professional skill in transporting the patient in the wheelchair. Clearly, this
transport arose out of Eager's physical therapy treatment. Accordingly, we
conclude that Eager's injury resulted from his “care, or treatment” while at
St. Vincent Medical Center
Id. at 16-17; Long v. Warrant Gen. Hosp., 121 Ohio App.3d 489, 700 N.E.2d 364 (11th
Dist. 1997) (patient who fell after orderly directed him to walk from bed to gurney for
transport to doctor-ordered colonoscopy had a “medical claim” for the injuries sustained
in the fall because he was obtaining physician-ordered medical diagnostic testing and the
need to transport arose out of the diagnostic testing).
{¶42} However, where the fall does not arise out of medical diagnosis, care, or
treatment, the fall gives rise to a general negligence claim, not a medical claim. In McDill,
we found that a patient who fell while washing her hands in the bathroom of a skilled
nursing facility had a general negligence claim, not a medical claim. The patient had called
for assistance to use the bathroom at 2:00 a.m. Two aides assisted her, but when she
began to wash her hands, “the two aides ‘inattentively and negligently allowed [appellant]
to fall backwards, landing on her buttocks.’ ” (Brackets sic.) McDill, 2013-Ohio-1618, at ¶
3. We found that she did not have a medical claim because she was not being transported
to or from a medical treatment, nor did her fall arise out of the negligent use of medical
equipment during a medical procedure:
In the case sub judice, we agree with appellant that her injury did not arise
out of medical diagnosis, care, or treatment. Unlike Burt and Rome,
appellant's injury did not occur at a time when she was being transported to
or from a medical procedure. It also did not occur due to an employee's
alleged negligent use of hospital equipment. Instead, according to the
complaint, appellant's injury occurred as she washed her hands after a
bathroom visit. Escorting appellant from the bathroom to the sink to wash
her hands did not involve “the prevention or alleviation of a physical or
mental defect or illness.” Browning, paragraph one of the syllabus. It also
Gallia App. No. 20CA18 23
did not relate to the “identification and alleviation of a physical or mental
illness, disease, or defect.” Id. at 557, 613 N.E.2d 993.
McDill at ¶ 23.
{¶43} In reaching our conclusion in McDill, we analyzed a similar case from the
First District Court of Appeals, Conkin v. CHS-Ohio Valley, Inc., 1st Dist. Hamilton No. C-
110660, 2012-Ohio-2816. In Conkin, a nursing home resident fell when an employee
failed to properly transfer her to a “Hoyer lift” so that she could shower. The resident filed
a negligence complaint against the facility and the employee. The appellate court
determined that the resident’s claim was a general negligence claim, not a medical claim.
In McDill, we reviewed the four factors the First District Court of Appeals considered in
deciding whether the claim was a medical claim:
In reaching its decision, the court examined four factors: (1) whether the
equipment “was used for ‘the prevention or alleviation of a physical or
mental defect or illness;’ “ (2) “whether the equipment was ‘an inherently
necessary part of a medical procedure;’ “ (3) whether “use of the equipment
‘arose out of’ a physician ordered treatment;” and (4) whether “use of the
equipment required a ‘certain amount’ of professional expertise or
professional skill.” Id. at ¶ 9, quoting Browning, 66 Ohio St.3d at 557, 613
N.E.2d 993, and Rome, 70 Ohio St.3d at 16–17, 635 N.E.2d 1239After considering the above factors, the court determined that the patient's
claims did not constitute “medical claims.” Id. at ¶ 11, 635 N.E.2d 1239. The
court explained:
“Even if the Hoyer lift was used for the alleviation of problems
associated with [the patient]'s range of motion, there is no
indication at this point in the proceedings that the use of the
Hoyer lift was an inherent part of a medical procedure or that
it arose out of physician ordered treatment. And it is also
unclear whether a ‘certain amount’ of professional expertise
or professional skill may have been required to transfer [the
patient] into the lift.”
Id.McDill at ¶ 21-22.
Gallia App. No. 20CA18 24
{¶44} In Christian v. Kettering Med. Ctr., 85 N.E.3d 804, 2017-Ohio-7928 (2d
Dist.), a woman arrived in a private vehicle to the emergency department of a hospital.
She fell to the ground when she was dropped by a nurse who was attempting to transfer
her from the car to a wheelchair for transport into the hospital. The court determined that
the transfer from the car to the wheelchair was not an inherent part of a medical procedure
or physician-ordered treatment and did not give rise to a “medical claim.” The nurse’s act
of transferring the woman from the car to the wheelchair, “was simply for the purpose of
allowing [the woman] to enter the hospital, where she could then seek medical attention.”
Id. at ¶ 31.
{¶45} Christian included a summary of cases from other appellate districts which
found falls give rise to general negligence claims, not medical claims:
[C]ourts have held that the plaintiff did not assert a “medical claim” when
the injury allegedly arose from (1) falling out of a wheelchair while on the
way to lunch at an assisted living facility, Eichenberger v. Woodlands
Assisted Living Residence, L.L.C., 2014-Ohio-5354, 25 N.E.3d 355 (10th
Dist.); (2) falling while attempting to stand from a wheelchair outside the
hospital upon discharge, Hill v. Wadsworth–Rittman Area Hosp., 185 Ohio
App.3d 788, 2009-Ohio-5421, 925 N.E.2d 1012 (9th Dist.); (3) falling while
going from a hospital bed to the bathroom, Balascoe v. St. Elizabeth Hosp.
Med. Ctr., 110 Ohio App.3d 83, 673 N.E.2d 651 (7th Dist.1996); and (4)
falling backwards while washing hands in a bathroom while receiving
rehabilitative care following surgery, McDill v. Sunbridge Care Ents., Inc.,
4th Dist. Pickaway No. 12CA8, 2013-Ohio-1618 [2013 WL 1716748]. In
each of these cases, the injury did not arise out of medical diagnosis, care,
or treatment. (Brackets sic.)
Christian at ¶ 21.
{¶46} In Carte v. The Manor at Whitehall, 10th Dist. Franklin No. 14AP-568, 2014-
Ohio-5670, a 76-year-old man who was a resident at a nursing home fell while a staff
member was assisting him as he moved from the toilet to a bed. He allegedly had a
medical condition that placed him at an increased risk for falling. No medical equipment
Gallia App. No. 20CA18 25
was used to transfer Carte to and from the bathroom so the issue central to the court’s
analysis was whether the staff at the nursing home were “providing medical care within
the meaning of the statute when assisting Carte to and from the bathroom.” Id. at ¶ 19.
The Tenth District Court of Appeals reviewed several fall cases, including several
discussed by the Second District Court of Appeals in Christian, such as Rome, Conkin,
Eichenberger, Balasco, and McDill, supra, and determined that the fall gave rise to a
general negligence claim, not a medical claim:
Here, we agree with the reasoning of the court in McDill, that Carte's injury
arose because he had to use the bathroom not because he was in the
process of receiving medical diagnosis, care or treatment. We fail to see
how staff assistance to and from the bathroom involved “the prevention or
alleviation of a physical or mental defect or illness.” Browning at 557, 613
N.E.2d 993.
Carte at ¶ 25. The court also found that the alleged existence of a physician order for a
two-person transfer was not determinative to the analysis and did not convert the claim
to a medical claim. Id. at ¶28.
{¶47} In McFarren v. Canton, 2016-Ohio-484, 59 N.E.3d 652 (5th Dist.), a case
factually like the one here, a 91-year-old woman was a resident at a residential care
facility operated by Emeritus of Canton, which provided assisted living, memory care, and
respite/short term care. She suffered confusion and forgetfulness, required assistance
with mobility issues, required safety checks for fall prevention, had an unsteady gait, and
required assistance with transfers. One evening at approximately 6:40 p.m. an aide found
the woman lying beside her bed on the floor of her room. She fractured her left hip and
passed away five days later. Her estate brought a lawsuit and Emeritus of Canton moved
for summary judgment to dismiss the suit as a “medical claim” that was brought outside
the one-year statute of limitations.
Gallia App. No. 20CA18 26
{¶48} In analyzing the issue of whether the claim involved “medical care” under
R.C. 2305.113(E)(3), the appellate court reviewed many of the cases we discussed
above. It determined that the claim was a general negligence claim, not a medical claim,
because there was no evidence that she was undergoing medical care or treatment at
the time of her fall:
In this case, [plaintiff] claims that Mrs. Rinker fell and broke her hip because
Emeritus and its staff deviated from the standard of care. Based on the line
of cases examining injuries within residential facilities, nursing homes, and
hospitals, the issue to analyze is whether the injury occurred as part of some
type of medical test or procedure, was ordered by a doctor, or that it required
any medical expertise or professional skill. We review the facts in a light
most favorable to the non-moving party. The Emeritus staff found Mrs.
Rinker laying prostrate on the floor of her room. There is no Civ.R. 56
evidence that she was receiving medical care at the time of her fall. Simply
because Mrs. Rinker was a resident of Emeritus at the time of the fall does
not render her claim for negligence a medical claim. In this case, [plaintiff’s]
claim for negligence states a claim for common law negligence, not a
medical claim. [Plaintiff’s] claim for negligence was filed within the statute
of limitations.
McFarren at ¶ 47.
{¶49} Similarly, we find that Bebea’s claim was not a medical claim. Bebea was
found on the floor of her room at 1:30 a.m. No one witnessed her fall. She was not being
transported to or from a medical procedure. There was not any evidence that she was
being assisted with any medical equipment for the purpose of receiving medical
diagnosis, care, or treatment, nor was she using medical equipment that was ancillary to
and an inherently necessary part of a medical procedure. If we infer that she was
attempting to use the bathroom, her use of the bathroom did not involve the prevention
or alleviation of a physical or mental defect or illness. Her injury did not arise out of
medical diagnosis, care, or treatment and, therefore, did not give rise to a medial claim.
Her claim states a common law general negligence claim, not a medical claim.
Gallia App. No. 20CA18 27
{¶50} Bebea’s complaint initially included medical claims in Counts Six and Seven
which alleged that the Defendants failed to prevent, monitor, and treat the development
of pneumonia, bedsores, and urinary tract and lice infections. The failure to treat physical
illness or properly treat infections is a claim based on the omission of medical treatment
and care and satisfies the definition of medical claim under R.C. 2305.113(E). Wagers v.
Kettering Affiliated Health Servs., 2d Dist. Montgomery No. 28192, 2020-Ohio-11, ¶ 12-
13; Lerner v. Broadview NH, LLC, 2017-Ohio-8001, 98 N.E.3d 1014 ¶ 16 (10th Dist.)
(failure to treat bed sores, failure to insure nasal cannula stayed in place, and failure to
deliver medications were medical claims.)
{¶51} However, O’Dell failed to present any evidence in response to the summary
judgment motion to support these medical claims. There was no evidence that Bebea
suffered bed sores or any infections other than a urinary tract infection and a lice
infestation. Dr. Fannin testified that Abbyshire’s treatment of Bebea’s urinary tract
infection was appropriate. Dr. Fannin testified, “She had a urinary tract infection which
was addressed appropriately and treated appropriately.” When asked for her opinions
related to Bebea’s urinary tract infection, Nurse Hill-O’Neill had no criticism of Abbyshire’s
diagnosis and treatment of it. Instead, she testified that it was another fall indicator. The
only other potential medical issue Dr. Fannin addressed was Bebea’s head lice, but he
admitted that he did not know enough to render an opinion, “I don’t know the time frame
of it. It could’ve been that she had them before she got there. I don’t know.” He offered
no opinion that Abbyshire had been negligent in any manner in the treatment and care of
Bebea’s head lice.
Gallia App. No. 20CA18 28
{¶52} Concerning the allegation that Abbyshire failed to prevent the development
of pneumonia, Dr. Fannin and Nurse Hill-O’Neill acknowledged that Bebea developed
pneumonia after she left Abbyshire and it was a consequence of immobility from the fall.
Dr. Fannin testified, “It’s more likely than not, in all medical probability, that the reason
she continued to decline and ultimately develop pneumonia and ultimately died was
substantially contributed to by that injury at Abbyshire.” Nurse Hill-O’Neill testified, “she
suffered a very common complication following that hip fracture that relates to the overall
associated decline in mobility to hip fractures and the elderly. That would be pneumonia.”
Therefore, the pneumonia was allegedly additional damages she suffered because of the
fall and did not give rise to a separate medical claim. In other words, there was no
evidence that Abbyshire failed to properly prevent, diagnosis, or treat Bebea’s
pneumonia; it was part of Bebea’s injuries resulting from Abbyshire’s alleged negligence.
{¶53} For these reasons we find that the trial court erred when it found the only
surviving claim was a medical claim. We find that the claim that Abbyshire’s negligence
resulted in Bebea’s fall, injuries, and death is a general negligence claim, not a medical
claim. Therefore, instead of dismissing the general negligence claim in Counts One/Two
and allowing the medical claim in Counts Six/Seven to proceed, the trial court should have
dismissed the medical claim in Counts Six/Seven and allowed the general negligence
claim in Counts One/Two to proceed.
{¶54} As for Counts Four/Five (nursing home breaches of duty of care – nonfatal
and fatal), it appears that the trial court dismissed these claims because it determined
they stated the same medical claim as the one asserted in Counts Six/Seven. We agree
that Counts Four/Five should be dismissed as redundant, but for a different reason. We
Gallia App. No. 20CA18 29
find no legal distinction between Counts Four/Five and Counts One/Two. All four claims
state a negligence claim against the Defendants. O’Dell’s experts testified that Abbyshire
breached its duty of care to Bebea in the way it assessed her fall risk and implemented
fall prevention measures. This general negligence claim is set forth in Counts One/Two.
If O’Dell has any evidence that Abbyshire’s fall prevention measures violated a
government regulation, it might use the alleged violations as evidence of negligence (to
support the claim in Counts One/Two)3 but it cannot be used to assert a claim for
negligence per se. See Lang v. Beachwood Pointe Care Ctr., 2017-Ohio-1550, 90 N.E.3d
102, ¶ 74. O’Dell appears to concede as much in its brief. Therefore, we find that Counts
Four/Five were, for a different reason, properly dismissed.
2. Malice Claim – Punitive Damages
{¶55} Count Eight is a claim for punitive damages and asserts that the defendants
acted with malice and gross negligence, with a willful, wanton, or reckless disregard for
Bebea’s safety.
{¶56} Ohio recognizes no separate cause of action for punitive damages:
In Ohio, no civil action may be maintained simply for punitive damages.
Rather, punitive damages are awarded as a mere incident of the cause of
action in which they are sought. Thus, compensable harm stemming from a
cognizable cause of action must be shown to exist before punitive damages
can be considered.
Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 650, 635 N.E.2d 331, 342 (1994);
Whetstone v. Binner, 146 Ohio St.3d 395, 2016-Ohio-1006, 57 N.E.3d 1111, ¶ 20
(“Punitive damages are not an independent cause of action; rather, they arise incident to
compensable harm”).
3 We take no position on whether O’Dell may introduce government regulations as evidence at trial as
that issue is not before us.
Gallia App. No. 20CA18 30
{¶57} Under R.C. 2315.21(C) punitive damages cannot be recovered in a tort
action unless the jury has awarded compensatory damages and the plaintiff can show
malice:
(C) * * * , punitive or exemplary damages are not recoverable from a
defendant in question in a tort action unless both of the following apply:
(1) The actions or omissions of that defendant demonstrate malice or
aggravated or egregious fraud, or that defendant as principal or master
knowingly authorized, participated in, or ratified actions or omissions of an
agent or servant that so demonstrate.
(2) The trier of fact has returned a verdict or has made a determination
pursuant to division (B)(2) or (3) of this section of the total compensatory
damages recoverable by the plaintiff from that defendant.
{¶58} The Supreme Court of Ohio has described malice required for an award of
punitive damages as:
[A]ctual malice, necessary for an award of punitive damages, is (1) that
state of mind under which a person's conduct is characterized by hatred, ill
will or a spirit of revenge, or (2) a conscious disregard for the rights and
safety of other persons that has a great probability of causing substantial
harm.
Preston v. Murty, 32 Ohio St.3d 334, 336, 512 N.E.2d 1174, 1176 (1987).
{¶59} O’Dell argued in his opposition to the summary judgment motion that he had
sufficient evidence to support punitive damages because “there were known staffing
issues,” “the repeated failures related to [Bebea’s] care” and “Nurse Hill-O’Neill’s opinion
that [Bebea] suffered abuse and neglect, supports punitive damages in this matter.”
However, Nurse Hill-O’Neill provided no testimony that Bebea suffered abuse as that term
is defined in R.C. 3721.21. The term “abuse” includes physical, psychological, or sexual.
Under R.C. 3721.21(H)-(J):
Gallia App. No. 20CA18 31
(H) “Physical abuse” means knowingly causing physical harm or recklessly
causing serious physical harm to a resident through either of the following:
(1) Physical contact with the resident; (2) The use of physical restraint,
chemical restraint, medication that does not constitute a chemical restraint,
or isolation, if the restraint, medication, or isolation is excessive, for
punishment, for staff convenience, a substitute for treatment, or in an
amount that precludes habilitation and treatment.
(I) “Psychological abuse” means knowingly or recklessly causing
psychological harm to a resident, whether verbally or by action.
(J) “Sexual abuse” means sexual conduct or sexual contact with a resident,
as those terms are defined in section 2907.01 of the Revised Code
The term “neglect” is defined in R.C. 3721.21(D):
(D) “Neglect” means recklessly failing to provide a resident with any
treatment, care, goods, or service necessary to maintain the health or safety
of the resident when the failure results in serious physical harm to the
resident. “Neglect” does not include allowing a resident, at the resident's
option, to receive only treatment by spiritual means through prayer in
accordance with the tenets of a recognized religious denomination.
{¶60} When we review the portion of her deposition testimony cited by O’Dell in
support of punitive damages, we find that Nurse Hill-O’Neill simply confirms that it is
“anticipated” that she will testify that Abbyshire’s conduct constituted abuse and neglect.
Further, she conflates the terms “abuse” and “neglect” as though they share a singular
meaning. She includes the definition of neglect as part of the definition of abuse:
Again, to the best of my recollection, I think that the definition that they have
here in this policy on abuse comports with that deprivation of an individual,
including a caretaker of goods or services that are necessary to obtain or
maintain physical, mental and psychosocial well-being. It goes on from
there about verbal abuse, sexual abuse, physical and mental abuse.
Nurse Hill-O’Neill incorrectly testified that “abuse” is the deprivation of goods or services
necessary to maintain physical, mental, or psychosocial well-being, but that is the
definition of “neglect” (when done recklessly), not the definition of “abuse.” Moreover,
even if Nurse Hill-O’Neill believed that Abbyshire’s conduct constituted “abuse and
Gallia App. No. 20CA18 32
neglect,” she identified no abusive conduct by Abbyshire. And, there is nothing in Nurse
Hill-O’Neill’s testimony that provides evidence that Abbyshire acted out of hatred, ill-will,
or a spirit of revenge. Likewise vague allegations of “staffing issues” and “repeated
failures in Bebea’s care” are not evidence of hatred, ill-will, or a spirit of revenge. Finally,
O’Dell claimed that Abbyshire’s director of nursing testified that there must be a new
intervention with each fall and that a new intervention for Bebea was not put in place after
Bebea had a knee buckling incident about a week before the fall that fractured her hip.
O’Dell argued that this testimony was sufficient to establish an entitlement to punitive
damages. However, in the testimony O’Dell references, the nursing director appears to
testify that Abbyshire did, in fact, implement a new intervention – a gait belt for assistance:
Q. And what was the intervention you’re referring to on the care plan?
A. “Staff educated to use the gait belt to assist in the UA,” the urinalysis.
However, even if O’Dell is correct and Abbyshire’s nursing director testified that no
intervention was put in place after Bebea’s knee buckling incident, the failure to implement
an intervention may, depending upon the facts, be evidence of negligence, but it is not
evidence of hatred, ill-will, a spirit of revenge, or a conscious disregard for Bebea.
{¶61} None of the witnesses O’Dell identified to support his request for punitive
damages provided evidence that Abbyshire’s conduct rose to the level of hatred, ill-will,
revenge, or a conscious disregard for the safety of Bebea. We find that the trial court
properly dismissed O’Dell’s request for punitive damages in Court Eight because it is not
an independent cause of action and because there is no genuine issue of material fact
about the lack of evidence of malice.
Gallia App. No. 20CA18 33
3. Fraud
{¶62} Count Nine alleges a fraud claim in which O’Dell contends that the
Defendants intentionally fraudulently concealed material facts from Bebea and her family
during the admissions process.
{¶63} Under Ohio law, common law fraud requires proof of the following six
elements:
(a) a representation or, where there is a duty to disclose, concealment
of a fact, (b) which is material to the transaction at hand, (c) made falsely,
with knowledge of its falsity, or with such utter disregard and
recklessness as to whether it is true or false that knowledge may be
inferred, (d) with the intent of misleading another into relying upon it, (e)
justifiable reliance upon the representation or concealment, and (f) a
resulting injury proximately caused by the reliance.
Russ v. TRW, Inc., 59 Ohio St.3d 42, 49, 570 N.E.2d 1076 (1991).
{¶64} O’Dell admitted in his response to the summary judgment motion that “there
has been scant evidence of verbal affirmative representations by Defendants.” However,
he claims that written fraudulent representations were made in a 2017 “Heath Care
Center Residency Agreement,” which states “Abbyshire * * * shall exercise reasonable
care toward the Resident based on his or her known condition” and, “Abbyshire Place is
committed to making reasonable efforts to provide the resident with appropriate care and
services with respect to his or her known condition.” O’Dell also argued that there were
“issues with providing sufficient staff” and that Bebea’s family members testified that “a
patient advocate at Holzer helped us talk to different places * * * Abbyshire was one that
basically was the only one local that could accept her because they have a * * * dementia
ward.” O’Dell argued that this evidence satisfied the first element of the fraud claim, a
concealment of a fact.
Gallia App. No. 20CA18 34
{¶65} We disagree. Even if the 2017 Residency Agreement applied to Bebea’s
August 2018 residency, the failure of Abbyshire to honor statements made in the
agreement might give rise to a breach of contract claim; but, without evidence that
Abbyshire made those statements knowing that they were false when they were made
and with the intent of misleading Bebea and her family, they are not evidence of fraud.
Moreover, O’Dell’s response included no evidence to establish any of the other five
remaining elements of fraud. He simply alleges that the concealed facts were material,
were made with the knowledge they were false, with the intent to mislead Bebea’s family
and have them place her at Abbyshire.
{¶66} The trial court rejected O’Dell’s argument because: (1) O’Dell conceded
there was of “scant evidence of verbal affirmative representations” and (2) the Health
Care Residency Agreement was dated and signed on January 20, 2017. Bebea was
admitted in August 2018. Thus, the trial court found the agreement had no evidentiary
value and was irrelevant.4
{¶67} We find that O’Dell has failed to establish a genuine issue of material fact
concerning his fraud claim. There is no evidence that any of the Defendants knowingly
made a false representation or made it with such utter disregard and recklessness as to
whether it is true or false that knowledge may be inferred, or that they did so with the
intent of misleading Bebea and her family into relying upon it. The trial court properly
dismissed O’Dell’s fraud claim.
4 According to the deposition testimony of Gary O’Dell, Bebea was placed in Abbyshire twice. Once in late
2016 or early 2017 for approximately two to four weeks for physical therapy due to a bleeding ulcer.
Therefore, the Health Care Center Residency Agreement O’Dell submitted dated January 20, 2017 was
likely executed for Bebea’s first stay in 2017. The record contains no similar agreement for Bebea’s August
2018 residency.
Gallia App. No. 20CA18 35
4. Breach of Fiduciary Duty
{¶68} Count Ten alleges that the Defendants owed Bebea a fiduciary duty which
they breached by failing to provide the appropriate level of care to her. Defendants
argued that Ohio does not recognize a fiduciary relationship between a nursing home and
its residents. The Defendants also cite an Ohio case that rejected a breach of fiduciary
claim brought by a patient against a physician. See Lykins v. Miami Valley Hosp.,157
Ohio App.3d 291, 323, 2004-Ohio-2732 (2d Dist.2004). In response, O’Dell conceded
that there is no Ohio authority establishing a fiduciary relationship between a resident and
a nursing home, but he cited a Louisiana case in which a fiduciary relationship was
recognized. See Petre v. Living Ctrs.-East, Inc. 935 F.Supp. 808 (E.D. La 1996).
{¶69} Very few courts across the country have imposed a fiduciary relationship
upon a resident and a nursing home. In Manor Care, Inc. v. Douglas, 234 W.Va. 57, 763
S.E.2d 73 (2014) the court dismissed a claim for breach of fiduciary duty by a nursing
home resident and explained that a fiduciary relationship can only arise when both parties
to the relationship agree to it:
It is well established that
“[t]he fiduciary duty is ‘[a] duty to act for someone else's
benefit, while subordinating one's personal interests to that of
the other person. It is the highest standard of duty implied by
law [.]’ ” Elmore v. State Farm Mut. Auto. Ins. Co., 202 W.Va.
430, 435, 504 S.E.2d 893, 898 (1998) (quoting Black's Law
Dictionary 625 (6th ed.1990)).
Napier v. Compton, 210 W.Va. 594, 598, 558 S.E.2d 593, 597 (per curiam)
(2001). See also McKinley v. Lynch, 58 W.Va. 44, 57, 51 S.E. 4, 9 (1905)
(observing that a fiduciary relationship exists “whenever a trust, continuous
or temporary, is specially reposed in the skill or integrity of another”).
Furthermore, this Court has explained that,
Gallia App. No. 20CA18 36
“[a]s a general rule, a fiduciary relationship is established only
when it is shown that the confidence reposed by one person
was actually accepted by the other, and merely reposing
confidence in another may not, of itself, create the
relationship.” 36A C.J.S. Fiduciary, p. 385 (1961).
Elmore v. State Farm Mut. Auto. Ins. Co., 202 W.Va. 430, 436, 504 S.E.2d
893, 899 (1998).
This Court has not previously recognized a cause of action for breach of
fiduciary duty against a nursing home. In other words, we have not ruled
that a nursing home owes a fiduciary duty to its residents or what the
parameters of such a duty would be. Based upon the particular facts of the
instant matter, and the small number of jurisdictions who have expressly
recognized such a cause of action,27 we decline Mr. Douglas' invitation to
recognize such a cause of action at this time. See, e.g., Howard v. Estate
of Harper ex rel. Harper, 947 So.2d 854, 861–62 (Miss.2006) (“ ‘If the Court
were to find a fiduciary relationship between Plaintiff and [the nursing home
licensee and administrators], then a reasonable inference could be made
that each and every employee of [the nursing home], from the janitorial staff
who cleaned Plaintiff's room to the chief executive officer who established
policies and procedures for [the nursing home], owed a fiduciary duty to the
Plaintiff. The [nursing home licensee and administrators] were primarily
responsible for the management of [the nursing home], a responsibility that
typically does not create a fiduciary duty.’ ” (quoting Gray v. Beverly Enters.-
Miss., Inc., 261 F.Supp.2d 652, 662–63 (S.D.Miss.2003), rev'd on other
grounds, 390 F.3d 400 (5th Cir.2004))). Accordingly, we conclude that the
circuit court erred in recognizing a cause of action for breach of fiduciary
duty against a nursing home, and we dismiss this cause of action. (Brackets
sic.)
Manor Care, Inc. at 77 (In footnote 27, the “small number of jurisdictions” the court
referred to were three cases that allowed a breach of a fiduciary duty claim brought by a
nursing home resident to survive a motion for judgment on the pleadings or a summary
judgment motion: Petre v. Living Ctrs.-East, Inc., 935 F.Supp. 808, 812 (E.D.La.1996)
(allowing a breach of fiduciary duty claim to survive summary judgment, “The burden of
proving that a fiduciary relationship existed in this case still lies with the plaintiff but such
a factual determination in [sic] more properly handled at trial and not on a motion for
summary judgment”); Greenfield v. Manor Care, Inc., 705 So.2d 926, 932
Gallia App. No. 20CA18 37
(Fla.Dist.Ct.App.1997) (reversing the trial court’s dismissal of entire complaint and
concluding that because the plaintiff “properly alleged a fiduciary duty between Manor
Care and it [sic] residents, which arose out of a special relationship independent of the
contract, and a breach of same,” the trial court erred in dismissing the breach of fiduciary
duty claim); and Zaborowski v. Hospitality Care Ctr. of Hermitage, Inc., 60 Pa. D. & C.
4th 474, 488–89 (Pa.Com.Pl.2002) (trial court allowed a breach of fiduciary duty claim to
survive a demurrer, but noted “[t]his court, however, is reluctant to broadly hold that a
nursing home resident is always subject to the ‘overmastering dominance’ of the nursing
home. Instead, like other courts that have previously addressed this issue, this court holds
that the nature of the relationship between the nursing home and its resident must be
determined on a case by case basis and the burden of establishing such a relationship
rests with the plaintiff”); see also Cunningham v. Kentmere Rehab. & Healthcare Ctr.,
Inc., C.A. No. N20C-10-287 VLM, 2021 WL 1157991, *4 (Del. Supr. Ct. Mar. 25, 2021)
(allowing a breach of fiduciary duty claim against a nursing home to survive a motion to
dismiss, “the burden of proving that the relationship exists remains on Plaintiff, but the
claim cannot be dismissed at this stage. Defendants may renew their dispositive motion
after discovery, if appropriate”).
{¶70} A Connecticut federal court declined to impose a fiduciary relationship upon
a long-term care facility and its resident. It dismissed a breach of fiduciary duty claim
asserted by an adult mentally disabled client against Chapel Haven, a facility that
provided lifetime care services to developmentally disabled adults, reasoning that it is “a
task for the legislature” to impose “a heightened duty upon an entire industry”:
The plaintiffs may be arguing more generally that because decisions made
by entities that provide care to the mentally disabled have such an outsize
Gallia App. No. 20CA18 38
impact on the recipients of their services, those entities owe a special duty
to make all such decisions with care and a bias towards the needs of the
recipient. See Petre, 935 F. Supp. at 810 (using that reasoning to impose a
general fiduciary duty on a nursing home, which it found was breached by
providing inadequate care). That argument does not, however, seem
appropriate for a fiduciary duty claim. First, imposing a heightened duty on
an entire industry is a task for the legislature or, at least, the Connecticut
Supreme Court—as discussed above, Connecticut already has a list of “per
se” fiduciary relationships, not including care providers. Second, the
foreseeable harms caused by an allegedly arbitrary and capricious
termination of services are already addressed through several of the other
causes of action raised in this complaint, including the breach of contract
and the implied covenant claims, and the negligent infliction of emotional
distress claim. Accordingly, I grant the motion to dismiss the breach of
fiduciary duty claim. (Emphasis sic.)
Edelson v. Chapel Haven, Inc., D. Conn. No. 3:15-cv-1862 (SRU), 2017 WL 810274, *19
(D. Conn.).
{¶71} In Lykins, supra, the Ohio case cited by the Defendants, the court stated
that a patient’s action arising out of a physician’s negligence is based in malpractice, not
contract. Therefore, where the plaintiff has raised a malpractice claim in the complaint, it
was proper to dismiss the plaintiff’s claim for breach of a fiduciary duty. The breach of
fiduciary duty claim was encompassed in the negligence claim.
{¶72} In Aristocrat Lakewood Nursing Home v. Mayne, 133 Ohio App.3d 651, 729
N.E.2d 768, (8th Dist. 1999), a nursing home alleged that a resident’s stepdaughter, who
was the resident’s attorney-in-fact, had a fiduciary duty to the resident via the power of
attorney and therefore also had a fiduciary duty to the nursing home to ensure that the
resident’s nursing home bills were paid. The court rejected this argument and granted
summary judgment dismissing the nursing home’s claim for breach of fiduciary duty. The
court recognized that an attorney-in-fact has a fiduciary duty to the principal, but the
nursing home failed to show how this duty extended beyond the principal to third parties
Gallia App. No. 20CA18 39
like the nursing home. In discussing the relationships between the parties, the court
describe the relationship between a nursing home and its resident as one of “debtor and
creditor.”
At most, the relationship between that of the nursing home and [its resident]
Nelson was that of debtor and creditor. The Ohio Supreme Court has
repeatedly held that, without more, the relationship of debtor and creditor
does not constitute a fiduciary relationship. See, e.g., Stone v.
Davis (1981), 66 Ohio St.2d 74, 78, 20 O.O.3d 64, 66–67, 419 N.E.2d 1094,
1097–1098 (citing Umbaugh Pole Bldg. Co. v. Scott [1979], 58 Ohio St.2d
282, 12 O.O.3d 279, 390 N.E.2d 320.) A fiduciary relationship arises only
when the parties, by contract or less formal relationship, understand that a
special trust or confidence has been reposed. Id.No such understanding between any parties was alleged or established in
the case at bar. Because [the resident] Nelson did not owe any fiduciary
duty to the nursing home, and the nursing home has not shown any
independent basis for establishing such a relationship directly with [the
attorney-in-fact] Mayne, it has not shown that it can recover against Mayne
derivatively on this theory. (Brackets in Umbaugh citation sic.)
Id. at 674.
{¶73} In In re Estate of Hill, we explained that a formal written agreement is
generally required to create a fiduciary relationship. However, a fiduciary relationship may
arise informally when both parties understand that a special trust has been reposed:
A fiduciary relationship is “one in which special confidence and trust is
placed in the integrity and fidelity of another, who acquires a resulting
position of superiority or influence by virtue of this special trust.” A fiduciary
relationship generally is formed through a formal document. A fiduciary
relationship may be created out of an informal relationship, but only “when
both parties understand that a special trust or confidence has been
reposed.” However, a mere friendship in which a person renders gratuitous
assistance to a friend does not give rise to a confidential or fiduciary
relationship. (Citations omitted.)
In re Estate of Hill, 4th Dist. Scioto No. 99CA2663, 2000 WL 326134, *3 (Mar. 15, 2000).
{¶74} To maintain a claim of breach of a fiduciary duty, a plaintiff must prove: (1)
the existence of a duty arising from a fiduciary relationship; (2) a failure to observe the
Gallia App. No. 20CA18 40
duty; and (3) an injury resulting proximately therefrom. Strock v. Pressnell, 38 Ohio St.3d
207, 216, 527 N.E.2d 1235 (1988). O’Dell has failed to present any evidence of a formal
document creating a fiduciary relationship between Bebea and Abbyshire. Similarly,
O’Dell has failed to present any evidence that the parties mutually, bilaterally and
informally established a fiduciary relationship. See Hanick v. Ferrara, 2020-Ohio-5019,
161 N.E.3d 1, ¶ 77-78 (7th Dist.) (factors considered when determining if a fiduciary
relationship has been created out of an informal relationship is the number of years the
relationship existed, whether the party alleging the existence of a fiduciary relationship
communicated a reliance that indicated that the party reposed a special trust in the other,
and whether there was any evidence of a bilateral or mutual understanding that the
ordinary business relationship had been converted into a fiduciary one).
{¶75} Ohio does not recognize a common law or statutory fiduciary relationship
between a nursing home and its residents. O’Dell presented no evidence the parties,
either formally or informally, contractually created a fiduciary relationship. Therefore, the
trial court did not err when it dismissed the breach of fiduciary duty claim.
5. Premises Liability
{¶76} Count Eleven alleges a claim for premises liability. O’Dell contends that
Abbyshire created and knew of a dangerous condition and failed to warn or remedy the
dangerous condition. The Defendants argued that this was simply a medical negligence
claim disguised with another name and asked to have it dismissed. O’Dell argued that his
expert testimony established this claim, though he did not state which expert’s testimony
supported it and he did not cite to portions of deposition testimony that he believed
Gallia App. No. 20CA18 41
supported this claim. The trial court determined that the premises liability claim was the
same as the medical claim and dismissed it.
{¶77} To survive summary judgment, O’Dell had to establish that a genuine issue
of material fact existed on each of the elements of premises liability. “In Ohio, the status
of the person who enters upon the land of another (i.e., trespasser, licensee, or invitee)
continues to define the scope of the legal duty that the landowner owes the entrant.
Invitees are persons who rightfully come upon the premises of another by invitation,
express or implied, for some purpose which is beneficial to the owner.” Gladon v. Greater
Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287, 291 (1996).
A business owes invitees a duty of ordinary care in maintaining the premises in a
reasonably safe condition so that its customers are not unnecessarily and unreasonably
exposed to danger. The business is not, however, an insurer of the customer's safety.
Further, a business is under no duty to protect business invitees from dangers “which are
known to such invitee or are so obvious and apparent to such invitee that he may
reasonably be expected to discover them and protect himself against them.” Paschal v.
Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203–04, 480 N.E.2d 474, 475 (1985). A
resident of a senior-living home offering assisted living and skilled nursing care is “at least
owed the due care as exercised by a reasonably prudent person under the circumstance
to prevent foreseeable harm.” Perko v. Healthcare Servs. Group, Inc., 8th Dist. Cuyahoga
No. 110267, 2021-Ohio-4216, ¶ 7 (resident slipped on waxed floor of community room;
court found landlord tenant duties established under R.C. 5321.04 inapplicable to nursing
homes, granted summary judgment to nursing home where it hired independent
contractor to wax floors).
Gallia App. No. 20CA18 42
In a premises liability case against an owner or occupier, an injured plaintiff
must show 1) that the owner or one of its employees had actual knowledge
of the hazard and neglected to give adequate notice of it or remove it
promptly; or 2) that the danger had existed for a period of time sufficient to
justify the conclusion that the failure to warn against it or remove it was
attributable to a lack of ordinary care.
Cohen v. Meridia Health Sys., 8th Dist. Cuyahoga No. 87001, 2006-Ohio-3593, ¶ 14.
In Cohen, a woman transporting herself in an electric wheelchair down an aisle in the
waiting area of a hospital turned her wheelchair around and bumped into a nearby chair.
Shortly thereafter the woman noticed that her leg was bleeding profusely. However, there
was no evidence of the cause of the cut. The woman contended there must have been a
sharp metal sticking out of the chair she bumped into that caused her injuries. However,
she had seen nothing abnormal about the chair and did not see any metal protruding from
it. The court granted summary judgment against her and in favor of the hospital on her
premises liability claim because she was unable to identify any hazard.
“Negligence shall not be presumed absent an affirmative
demonstration from the evidence.” Thus, in the context of injuries to
plaintiffs resulting from a fall, this court and others have clearly held
that mere speculation about the cause of an injury is insufficient to
establish liability on a negligence claim. In Johnson v.
Duncan, Cuyahoga App. No. 86074, 2005-Ohio-5726, at ¶ 11, this
court stated:
“ ‘As such, a plaintiff will be prevented from establishing negligence
when he, either personally or with the use of outside witnesses, is
unable to identify what caused the fall. In other words, a plaintiff must
know what caused him to slip and fall. A plaintiff cannot speculate as
to what caused the fall.” ’
The same reasoning applies here. Cohen cannot identify any defect
with the chair at issue. She assumes that a piece of metal sticking
out from the chair caused her injury when she bumped the chair, but
such an assumption is nothing more than mere speculation. She
does not know what caused her injury and consequently, presented
no evidence of a defect on the premises. (Citations omitted.)
Gallia App. No. 20CA18 43
Cohen at ¶ 11-13.
{¶78} Here it is not known what hazard, if any, caused Bebea’s fall. There is no
evidence that Bebea slipped and fell on anything hazardous on the floor. O’Dell does not
cite to any witness testimony that identified any hazard that caused Bebea to slip and fall.
He devotes one sentence in his brief arguing that all the elements of premises liability
“are met by the expert testimony described herein * * *.” Yet, as in his opposition to the
summary judgment motion, he failed to identify any specific witness testimony that meets
any of the elements of premises liability. The premises liability claim has no merit and
does not even seem to fit O’Dell’s general theory of the case. Eastley v. Volkman, 4th
Dist. Scioto No. 09CA3308, 2012-Ohio-4528, ¶ 21 (finding that premises liability
principles did not seem to fit the plaintiff's theory of the case, i.e., the decedent was not
injured by any physical defects on the premises but by medical malpractice related to
improperly prescribed drugs.). The trial court did not err when it dismissed the premises
liability claim in Count Eleven.
6. Summary
{¶79} We find that O’Dell presented sufficient evidence to survive summary
judgment on one claim: the claim that Abbyshire’s negligence resulted in Bebea’s fall,
injuries, and death. This is a general negligence claim, not a medical claim, because
Bebea’s fall occurred at approximately 1:30 a.m. while she was alone in her room and did
not involve the use of medical equipment and did not occur as part of a medical test,
procedure, or treatment. O’Dell’s general negligence claim is set forth in Counts One/Two.
The trial court erred in dismissing Counts One/Two and we reverse the dismissal of those
counts. The nursing home negligence claim in Counts Four/Five is redundant and was
Gallia App. No. 20CA18 44
properly dismissed. The medical negligence claim set forth in Counts Six/Seven should
have been dismissed. The trial court erred in determining that O’Dell’s single claim was
a medical claim and in allowing Counts Six/Seven to stand. We dismiss Counts
Six/Seven. In other words, we agree with the trial court that there is only one claim, but
we find that it is a general negligence claim, not a medical claim. Therefore, we allow the
case to proceed on Counts One/Two rather than Counts Six/Seven.
{¶80} The remaining claims for punitive damages, fraud, breach of fiduciary duty
and premises liability were properly dismissed by the trial court because O’Dell failed to
raise a genuine issue of material fact as to any of those claims. The trial court properly
dismissed Counts Eight, Nine, Ten, and Eleven. We sustain, in part, and overrule, in part,
O’Dell’s first assignment of error.
C. Dismissal of Vrable Healthcare, Inc.
{¶81} In his second assignment of error, O’Dell contends that the trial court erred
in dismissing Vrable Healthcare. Vrable Healthcare provided certain management level
employees to Abbyshire, like administrator Long, and direct services to the home’s
residents via its therapists. Vrable Healthcare is also the sole shareholder of Vrable III
(i.e., Abbyshire), though this irrelevant fact has done nothing but spawn a red herring –
corporate veil piercing.
{¶82} The trial court found that Vrable Healthcare, as the sole shareholder of
Vrable III, was not liable for alleged torts committed by Vrable III under a corporate veil-
piercing theory. However, we found no attempt by O’Dell to use corporate veil piercing
to hold Vrable Healthcare liable for Vrable III’s alleged torts. And, despite the trial court’s
reference to “Defendants citing Belvedere” we found nowhere in the Defendants’
Gallia App. No. 20CA18 45
summary judgment motion or their reply brief where Belvedere Condominium, 67 Ohio
St.3d 274, 1993-Ohio-119, 617 N.E.2d 1075, the leading corporate veil piercing case,
was cited or discussed to defend against a veil piercing attempt. To the contrary, at the
oral argument on the motion, defense counsel stated that plaintiff was not raising
corporate veil-piercing:
What seems kind of unclear is this control factor. Um, is something that’s
relevant if a claim is based on veil piercing. That a corporate parent is going
to be held liable for the actions of a subsidiary because they are an alter
ego of the subsidiary. Plaintiff’s never made that kind of claim so this control
analysis, I don’t know where it fits in * * *. (Emphasis added.)
{¶83} The trial court seemed to incorrectly infer that a corporate veil piercing
theory was being raised in this case, “Here, Defendants appear to be arguing that Plaintiff,
by bringing claims against Vrable Healthcare, Inc. the parent, is attempting to pierce the
corporate veil.”
{¶84} We find no attempt by O’Dell to pierce the corporate veil and argue that,
as the sole shareholder, Vrable Healthcare is liable for the alleged negligence of Vrable
III. Instead, O’Dell is attempting to hold Vrable Healthcare liable in two other ways: (1)
directly liable for what he alleges are negligent acts by Vrable Healthcare and (2) liable
via respondeat superior for the alleged negligent acts of Long. Nevertheless, we find the
trial court’s corporate veil piercing analysis irrelevant because it ultimately dismissed
Vrable Healthcare on other grounds (i.e., it found no evidence of negligence).
{¶85} In its summary judgment motion, the Defendants argued that Vrable
Healthcare should be dismissed because none of the staff it employed at Abbyshire
provided care to Bebea. They argued that O’Dell’s expert witnesses provided no
testimony of any specific act or omission of Vrable Healthcare that constituted a breach
Gallia App. No. 20CA18 46
of the standard of care that was a proximate cause of injury to Bebea. O’Dell responded
by arguing that Vrable Healthcare’s Civ.R. 30(B) witness testified that Vrable Healthcare
oversaw Abbyshire to ensure regulation compliance, reviewed the budget, provided
employee handbooks, and employed certain management level employees at Abbyshire.
O’Dell also argued that Dr. Fannin and Nurse Hill-O’Neill both “offered opinions related to
any entity involved in the operation of the facility, thus including Vrable Healthcare, Inc.”
{¶86} The trial court closely examined Dr. Fannin and Nurse Hill-O’Neill’s
testimony concerning Vrable Healthcare. After quoting significant portions of relevant
deposition testimony of both witnesses, the trial court determined that neither expert could
identify any negligent act by Vrable Healthcare that caused Bebea to fall and suffer
injuries:
Neither of Plaintiff’s experts had specific criticism of Vrable Healthcare, Inc.
They were unable to identify this Defendant separate and distinct from the
others. They had no opinion relating to Vrable Healthcare, Inc., specifically
and gave no opinion regarding this defendant that it violated any standard
of care. Furthermore, even if a standard of care violation had been shown,
they gave no opinion that it specifically caused injury to Bebea Joyce O’Dell.
{¶87} On appeal, O’Dell contends that “Vrable Healthcare, Inc. owed a duty to
Bebea O’Dell, breached that duty, and such breach was the proximate cause of her
injuries.” O’Dell explains that Vrable Healthcare had certain oversight duties to ensure
Abbyshire followed government regulations, engaged in union negotiations, provided
employee handbooks, and reviews its budgets. But he makes no connection between
these duties and Bebea’s fall. There is no evidence that any of these oversight and
management duties created any duty to Bebea or involved her care in any way. We
reviewed and summarized both experts’ testimony previously. They testified that Bebea’s
fall was caused by inadequate fall prevention measures, with Dr. Fannin opining that the
Gallia App. No. 20CA18 47
fall would have been prevented by a bed alarm and Nurse Hill-O’Neill stating that a bed
alarm, along with blue floor mats, and a lower mattress would have prevented the fall.
There was no testimony that Vrable Healthcare had any duties or responsibilities to make
fall risk assessments of or implement fall prevention measures for the residents at
Abbyshire.
{¶88} Instead, several witnesses testified that employees of Vrable III were
responsible for fall assessment and prevention. Amber Frum, the director of nursing at
the time of Bebea’s fall, testified that Abbyshire’s nursing staff performed the MDS
(Minimum Data Set) assessment, the admissions evaluation, and a baseline care plan
upon admission which included fall risk assessments and fall interventions for Bebea
when she was admitted in August 2018.
{¶89} The Civ.R. 30(B) witness, James Merrill, testified about the corporate
structure of Vrable III and Vrable Healthcare. He testified that Vrable III is the employer
of all employees at Abbyshire, except for the administrator, the director of nursing, the
senior business office manager, and the therapists. Therefore, the nursing staff that
performed the fall risk assessment and fall intervention were employees of Vrable III, not
Vrable Healthcare.
{¶90} O’Dell attempts to hang liability on Vrable Healthcare with Dr. Fannin’s
“whole ball of wax” theory:
Q. Would it be fair to say that your opinions regard the Abbyshire Place
caregivers in this case?
A. I don’t think that’s fair. I think that it’s –it’s the whole ball of wax. You can’t
– whoever owns it, runs it, operates it, and is involved in it, they’re all
responsible, okay. And so I don’t pick out who’s responsible for what,
particularly. I look at the total sum of the care that’s given or not given to the
patient and arrive at my opinion.
Gallia App. No. 20CA18 48
* * *
Q. Okay. Do you have any opinions with regard to Vrable Healthcare, Inc.
one of the defendants in this case?
A. I don’t know who that is.
Q. Okay. And you don’t know what the entity does, fair?
A. I don’t.
However, in Dr. Fannin’s own words, he does not “pick out who’s responsible for what” –
he only renders an opinion about “the care that’s given or not given to the patient.” Dr.
Fannin opined that Babea’s fall was caused by a failure to accurately assess her fall risk
and take adequate measures to prevent the fall. O’Dell cannot rely on Dr. Fannin to make
the connection between Vrable Healthcare and Bebea. Dr. Fannin did not know what
Vrable Healthcare was or what it did.
{¶91} Similarly, Nurse Hill-O’Neill did not identify the role, if any, Vrable
Healthcare had in the residents’ fall assessment and prevention. She was aware that
Vrable Healthcare was somehow involved because she saw the Vrable Healthcare name
on “forms” and “policies and procedures” and “that would mean that they’re involved in
the facility [Abbyshire]. That’s the only way I can tell you right now.” Other than her vague
understanding that Vrable Healthcare was “involved” with Abbyshire, Nurse Hill-O’Neill
did not testify that Vrable Healthcare conducted Bebea’s fall risk assessment or
implemented fall prevention measures.
{¶92} O’Dell has presented no evidence that Vrable Healthcare had any duties to
Abbyshire residents to conduct fall risk assessments and implement prevention
measures. Instead, those duties were the responsibility of Vrable III employees. Because
Gallia App. No. 20CA18 49
Vrable Healthcare had no duties to Bebea, it cannot be held directly liable for the injuries
Bebea suffered. However, Vrable Healthcare could have liability under respondeat
superior if an employee it hired at Abbyshire, specifically administrator Long, conducted
Bebea’s fall risk assessment and implemented her fall prevention. However, as we
determined below in reviewing O’Dell’s third assignment of error concerning Long’s
dismissal, Vrable Healthcare has no respondeat superior liability to Bebea because there
was no evidence that Long was responsible for the Bebea’s fall risk assessment or fall
prevention. Because Long was not negligent, Vrable Healthcare does not have
respondeat superior liability and was properly dismissed as a party in this case.
{¶93} The trial court did not err when it dismissed Vrable Healthcare. We overrule
O’Dell’s second assignment of error.
D. Dismissal of Jeremy Long
{¶94} In his third assignment of error, O’Dell contends that the trial court erred in
dismissing the claims against Jeremy Long, Abbyshire’s administrator, set forth in Count
Three. The Defendants argued that, as Abbyshire’s administrator, Long “was responsible
for oversight and management at the facility including business operations, budgetary
compliance, and supervision of staff” but he “does not provide direct, hands-on care to
residents at Abbyshire Place.” O’Dell argued that Long is liable for Bebea’s fall because
he “was responsible for planning, organizing, directing, controlling, and operating
Abbyshire Place during [Bebea’s] residency.” O’Dell argued that Bebea’s injuries “were
a direct and proximate result of [Long’s] negligent conduct, which evidenced a disregard
for the health and safety of [Bebea].”
Gallia App. No. 20CA18 50
{¶95} O’Dell makes a very broad argument that because Long was responsible
for oversight and management of Abbyshire and Bebea fell while he was the
administrator, then he engaged in negligent conduct that resulted in her fall. O’Dell also
argues that because Long was responsible for ensuring adequate staffing and there were
“staffing issues” mentioned in an email, then this “creates a genuine issue of material fact
as to whether Defendant Long ensured that Abbyshire Place was adequately staffed, and
therefore, whether he breached his duty to operate that facility in a manner that ensured
[Bebea’s] highest practicably physical, mental, and psychosocial well-being.”
{¶96} Long testified that he conducted daily staff meetings with the director of
nursing, the clinical manager, and the human resource manager to discuss any call-offs
or other open positions and decide if there are staff shortages. If they identify a shortage,
then they call in staff to fill those spots. Long testified that he shared staffing oversight
duties with the director of nursing and the clinical manager. However, if a staff member
called off after the schedule was set, the staffing vacancy was handled by the nurse
supervisor for the evening shift. Long also explained that Abbyshire had “PRN staff”
which were staff members who would be called in to work on an as-needed basis if a
vacancy arose due to a vacation or other absence. Long testified that during the time
Bebea was at Abbyshire, he could not recall receiving any complaints about lack of
staffing.
{¶97} Amber Frum, corporate director of nursing at Vrable Healthcare and the
director of nursing at Abbyshire from 2011 to December 2018, testified that Abbyshire
had a low staff turnover rate and received quality points from the government in 2018 for
their low turnover. Frum was unaware of any complaints about Abbyshire having
Gallia App. No. 20CA18 51
insufficient staffing. O’Dell argued that Frum testified that there were staff shortages on
several days, including the day Bebea fell. However, in the deposition testimony O’Dell
cites, Frum testified that the records she reviewed for early September 2018 included
budgeted and actual staffing hours, and that some days appeared to have excess staffing
hours and other days appeared to have insufficient staffing hours. Frum testified that,
based upon the documents shown to her at her deposition, she could not determine
whether adjustments were made to correct the over and under staffing hour figures shown
on the report: “We could have made adjustments that aren’t listed here. Like, there’s
managers on the floor that might not be shown here.” Frum confirmed that for a staffing
report for September 5, 2018, she could not tell based on the document whether budget
shortages were corrected:
Q. And this document indicates, at least on its face, that they were 24 hours short
of the budgeted PPD [per person, per day]; right?
A. Yes.
Q. And you can’t tell me from looking at this that shortage was corrected; is that
right?
A. Correct.
* * *
Q. And my client suffered a fall on or about September 6 th at sometime around
1:00 to 2:00 a.m. in the morning, * * *. But I just wanted for completeness to show
you this. So on the next day, September 6th, it appears that there was a shortage
of 2.25 hours for that day; correct?
A. Yes.
{¶98} Construing Frum’s testimony most strongly in O’Dell’s favor, the most we
can determine is that Abbyshire may have been understaffed by 24 and 2.25 staffing
hours the day prior to and the day of Bebea’s fall, respectively. However, even if we
Gallia App. No. 20CA18 52
assume Abbyshire was understaffed during the time Bebea fell, there is no testimony that
understaffing caused or contributed to Bebea’s fall. There was no testimony about the
appropriate staffing ratio required to meet a standard of care. There was no testimony
that understaffing occurred in the “Living Center” area of Abbyshire, which was the
secured Alzheimer unit where Bebea resided. And, neither of O’Dell’s expert witnesses
blamed Bebea’s fall on understaffing problems. Instead, they blamed inappropriate fall
risk assessment during admission and inadequate and improper fall intervention
implementation.
{¶99} As we discussed previously, Dr. Fannin testified “I don’t pick out who’s
responsible for what” and when asked if he had any opinions with regard to Jeremy Long,
he responded, “Who is that?”
{¶100} Nurse Hill-O’Neill was very vague in her testimony concerning the
administrator. She testified that she believed Abbyshire was not in compliance with
certain state and federal regulations governing fall risk assessment and implementation,
though she did not identify this with any specificity. She testified that it is the
administrator’s role to ensure that a facility is compliant though she did not testify how this
related to any staffing issue or to Bebea’s fall. She gave no opinion that Long was
negligent in carrying out his role. Even if we assume that there was a violation of a
regulation, it does not establish Long was negligent per se. Lang v. Beachwood Pointe
Care Ctr., 2017-Ohio-1550, 90 N.E.3d 102, ¶ 74 (8th Dist.) (violation of regulation not
negligence per se). In other words, a nursing home may violate a regulation without any
negligence on the part of its administrator. Nurse Hill-O’Neill did not testify how the
Gallia App. No. 20CA18 53
administrator’s duties related to, caused, or contributed to Bebea’s fall. She did not know
who Jeremy Long was:
Q. Do you have any opinions with regard to Jeremy Long, one of the defendants
in this case?
A. Only if he’s responsible for oversight or management of the building. Anybody
that’s responsible or involved in that.
Q. But as you sit here today, you do not know what he does specifically?
A. Correct.
{¶101} We find no genuine issue of material fact concerning Long’s
negligence. There was no evidence that Long was negligent in carrying out his duties as
administrator. The trial court did not err in dismissing Count Three and in dismissing Long
as a party to the case. We overrule O’Dell’s third assignment or error.
IV. CONCLUSION
{¶102} We sustain in part and overrule in part O’Dell’s first assignment of
error. We reverse the dismissal of Counts One/Two, dismiss Counts Six/Seven and affirm
the trial court’s dismissal of Counts Four/Five and Counts Eight through Eleven. We
overrule O’Dell’s second assignment of error and affirm the trial court’s dismissal of
Vrable Healthcare, Inc. We overrule O’Dell’s third assignment of error and affirm the trial
court’s dismissal of Jeremy Long and Count Three. The case is remanded for further
proceedings consistent with this opinion.
JUDGMENT REVERSED IN PART,
AFFIRMED IN PART. CAUSE REMANDED.
Gallia App. No. 20CA18 54
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED IN PART, AFFIRMED IN PART,
CAUSE REMANDED and that appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.