DocketNumber: No. C.A. 24257.
Citation Numbers: 909 N.E.2d 714, 181 Ohio App. 3d 534, 2009 Ohio 1215
Judges: Per Curiam.
Filed Date: 3/18/2009
Status: Precedential
Modified Date: 1/13/2023
{¶ 20} I agree with the majority's reasoning and conclusions as far as they go. But, because the Kelleys' attempt to voluntarily dismiss the sexual-assault-and-battery claim was a nullity, I would consider the merits of the Kelleys' negligent-credentialing claim against Summa to the extent that it was premised on that pending claim against Dr. Ruf. I disagree with the majority's conclusion affirming the trial court's grant of summary judgment to Summa on the negligent-credentialing *Page 542
claim to the extent that it was based on the allegations of sexual assault and battery, because I believe there is a genuine issue of material fact regarding whether Summa knew that Dr. Ruf had developed a "pattern of * * * inappropriate behavior." R.C.
{¶ 22} On May 12, 2008, the Kelleys attempted to voluntarily dismiss their third claim, with prejudice, under Civ. R. 41(A). On that same day, the trial court entered a nunc pro tunc order, clarifying that it had granted summary judgment to the defendants on claims one, two, four, five, and six in the May 7 entry. In that same order, the trial court wrote that because the Kelleys had voluntarily dismissed their third claim for relief, its January and May rulings had become "final appealable Orders as they enter final judgment in favor of all Defendants." The trial court also included Civ. R. 54(B) language in its nunc pro tunc order, indicating that "[t]here is no just reason for delay." The order did not mention the loss-of-consortium claim that had remained pending after the May 7 judgment entry.
{¶ 23} Under Civ. R. 41(A)(1)(a), a plaintiff "may dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any time before the commencement of trial." The rule "does not allow for the dismissal of a portion of the claims against a certain defendant." Pattison v. W.W. Grainger Inc.,
{¶ 24} As the Kelleys' attempt to voluntarily dismiss the sexual-assault-and-battery claim was a nullity, that claim and the loss-of-consortium claim remain pending in the trial court. See id. at ¶ 19, citing Kildow v. HomeTown Improvements, 5th Dist. No. CT2001-0057, 2002-Ohio-3824, 2002 WL 1729936, at ¶ 11. Despite the fact that these claims are still pending in the trial court, however, the Kelleys have appealed from a final, appealable order because the trial court's May 12 judgment entry included Civ. R. 54(B) language. Therefore, this court has jurisdiction to consider this matter.
{¶ 26} Summa has argued that the Kelleys have not provided sufficient evidence to overcome the statutory presumption in favor of the hospital. R.C.
{¶ 27} Under R.C.
{¶ 28} Summa moved for summary judgment, pointing to the results of the trial court's in camera review of Summa's credentialing file for Dr. Ruf. The in camera inspection revealed "no complaints or disciplinary matters regarding inappropriate sexual contact with any patient at any time." Summa argued that the Kelleys could not point to any evidence in the record that would rebut the statutory presumption of non-negligence.
{¶ 29} In response, the Kelleys cited the deposition of their hospital administration expert, Robert Brueckner. Brueckner testified to various "red flags" that Summa should have investigated to ensure that it was credentialing a competent doctor, including "an extraordinary and inordinate number of claims" against Dr. Ruf. Although Brueckner did not know the precise allegations in each case, he knew they included repeated allegations of sexual misconduct involving other medical-care personnel. Brueckner testified that Summa should have investigated the details of each case, especially those involving payouts to plaintiff's, each of which would have been included in the results of Summa's mandatory inquiry to the National Practitioner's Data Bank. Brueckner further testified that in light of the public nature of the repeated allegations and the fact that many doctors worked at both Akron General and Akron City Hospitals, it was "inconceivable" that Summa would not have known that Dr. Ruf resigned his privileges from Akron General Medical Center in 2000, allegedly in lieu of discipline stemming from sexual-harassment allegations. The trial court held that "Brueckner's testimony falls short of evidence of actual knowledge by Summa as required by the statute."
{¶ 30} In addition to the Brueckner deposition, the Kelleys cited certified copies of various complaints filed against Dr. Ruf as evidence of Summa's negligence in credentialing him. Among those complaints were two sexual-harassment, assault, and battery lawsuits filed in Summit County by three separate plaintiff's. They were each filed less than three years before Dr. Ruf treated Kelley. The trial court also considered the testimony of Dr. Ruf, indicating that Summa knew about his litigation history. The trial court granted *Page 545 Summa summary judgment, ruling that Summa's knowledge of the lawsuits was not sufficient to overcome the statutory presumption in Summa's favor.
{¶ 31} R.C.
{¶ 32} A determination of whether a party's proof reaches the standard of a preponderance of the evidence necessarily requires a weighing of that evidence. Weighing evidence is forbidden at the summary-judgment stage.Stewart v. Urig,
{¶ 33} In this case, the question is whether, construing the evidence most strongly in the Kelleys' favor, a reasonable jury could find by a preponderance of the evidence that Summa knew that Dr. Ruf "had developed a pattern of * * * inappropriate behavior * * * which indicated that [his] staff membership [or] professional privileges * * * should have been limited or terminated prior to [his] provision of professional care to [Kelley]." R.C.
{¶ 34} I believe that there is a genuine issue of material fact as to whether Summa knew that Dr. Ruf had developed a pattern of inappropriate behavior. Therefore, I believe that the trial court should not have granted Summa's motion for summary judgment on the Kelleys' negligent-credentialing claim based on the allegations of sexual assault and battery. I would reverse the trial court's grant of summary judgment to Summa on the negligent-credentialing claim to the extent that it was based on the pending claim of assault and battery by Dr. Ruf. *Page 546