Ackman v. Mercy Health West Hosp., L.L.C.

[Cite as Ackman v. Mercy Health West Hosp., L.L.C., 2023-Ohio-2075.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JENNIFER ACKMAN, Personal : APPEAL NO. C-220507
Representative and TRIAL NO. A-2000845
Administrator of the Estate :
of Janet M. Sollmann,
deceased, :
Plaintiff-Appellant, : O P I N I O N.
vs. :
MERCY HEALTH WEST HOSPITAL, :
LLC, et al.,
:
Defendants,
:
and
:
MUHAMMAD RIAZ AHMAD, M.D.,
:
and
:
HOSPITALIST MEDICINE PHYSICIANS
OF OHIO P.C., :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 23, 2023
Colleen M. Hegge, F. Joseph Shiavone Co., LPA, and Frank Schiavone III, for
Plaintiff-Appellant,
Calderhead, Lockemeyer & Peschke Law Office, and Joshua F. DeBra, for
Defendants-Appellees Muhammad Riaz Ahmad, M.D., and Hospitalist Medicine
Physicians of Ohio, P.C.,
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Plaintiff-appellant Jennifer Ackman, the personal representative and
administrator of the estate of Janet M. Sollmann, appeals the trial court’s entry of
summary judgment dismissing defendants-appellees Muhammad Riaz Ahmad, M.D.,
(“Ahmad”) and Hospitalist Medicine Physicians of Ohio, P.C., (“Hospitalist”) for lack
of proper service. For the following reasons, we affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} In February 2020, Ackman filed medical-malpractice and wrongful-
death claims against several defendants, including Ahmad and Hospitalist. According
to the complaint, Ahmad is an employee of Hospitalist and provided care for Janet
Sollmann in April 2019 at Mercy Health West Hospital. Ackman tried to serve Ahmad
through certified mail at a business address for Mercy Hospital on Kipling Avenue in
Cincinnati, Ohio. But service failed because that hospital was demolished in 2015.
{¶3} In March 2020, Ahmad and Hospitalist answered Ackman’s complaint,
raising several defenses, including insufficient process and insufficient service of
process under Civ.R. 12(B)(4) and (5). Weeks later, the certified mail envelope
addressed to Ahmad was returned to the Hamilton County Clerk’s office marked
“RETURN TO SENDER, VACANT, UNABLE TO FORWARD, RETURN TO SENDER.”
{¶4} After some participation in the case, Ahmad and Hospitalist moved for
summary judgment in June 2022, requesting that the court dismiss Ahmad and
Hospitalist based on Ackman’s failed service. The trial court granted summary
judgment to Ahmad, finding no genuine issue of material fact. Specifically, the trial
court ruled that Ahmad properly preserved his insufficient-process and insufficient-
service-of-process defenses despite his active participation in the case. Because the
case was never commenced against Ahmad within the statute of limitations and the
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claims against defendant Hospitalist were premised on vicarious liability, the trial
court dismissed defendants Ahmad and Hospitalist from the case.
II. Law and Analysis
{¶5} Ackman challenges the trial court’s grant of summary judgment in a
single assignment of error. First, Ackman maintains that Ahmad’s active participation
in the case waived his service-based affirmative defenses. Second, Ackman contends
that summary judgment is improper when an issue of fact exists involving the clerk of
court’s alleged failure to comply with Civ.R. 4.1(A)(2). Third, Ackman argues that
Ahmad had reasonable notice of the lawsuit through his employer, Hospitalist. Fourth,
Ackman asserts that the trial court erred when it dismissed defendant Hospitalist.
{¶6} We review the trial court’s grant of summary judgment de novo. Wright
v. Mirza, 2017-Ohio-7183, 95 N.E.3d 1108, ¶ 5 (1st Dist.), citing Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C),
“[s]ummary judgment is appropriate when (1) there is no genuine issue of material
fact, (2) the moving party is entitled to judgment as a matter of law, and (3) the
evidence, when viewed in favor of the nonmoving party, permits only one reasonable
conclusion and that conclusion is adverse to the nonmoving party.” Id.Ahmad Did Not Waive Service-Related Defenses
{¶7} Under Civ.R. 3(A), service of a complaint upon a named defendant
commences a civil action. Civ.R. 12(H)(1) governs the waiver of affirmative defenses
relevant to this case—insufficient process or insufficient service of process. Under that
rule, service-based affirmative defenses are waived “if a motion is made raising other
Civ.R. 12(B) defenses and [they are] not included in that motion or, if there is no such
motion, if [they are] not raised by separate motion or included in the responsive
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pleading.” Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-
Ohio-3762, 870 N.E.2d 714, ¶ 9.
{¶8} In Gliozzo, the Ohio Supreme Court held that “when the affirmative
defense of insufficiency of service of process is properly raised and properly preserved,
a party’s active participation in litigation of a case does not constitute waiver of that
defense.” Id. at ¶ 11. And we are, of course, compelled to apply binding precedent from
the Ohio Supreme Court. See State v. Hernandez, 2020-Ohio-5496, 163 N.E.3d 1175,
¶ 13 (1st Dist.).
{¶9} Although a party may waive insufficiency of process, “[t]he only way in
which a party can voluntarily submit to a court’s jurisdiction, however, is by failing to
raise the defense of insufficiency of service of process in a responsive pleading or by
filing certain motions before any pleading.” Gliozzo at ¶ 13; see Pioneer Automotive v.
Village Gate, 1st Dist. Hamilton No. C-210205, 2022-Ohio-1247, ¶ 10. In Gliozzo, the
defendants “properly raised the affirmative defense of insufficiency of service of
process by including it in their answer” and were therefore “free to seek dismissal of
the case for insufficiency of service, even though they had also mounted a vigorous
defense upon the merits.” Gliozzo at ¶ 12.
{¶10} The parties agree that Ahmad was never served. And the record makes
clear that Ahmad and Hospitalist answered Ackman’s complaint, raising both
insufficient process and insufficient service of process under Civ.R. 12(B)(4) and (5).
Yet, Ackman contends that Ahmad’s involvement in the case waived his insufficient-
process and insufficient-service-of-process defenses. Ackman points to Ahmad’s
participation in case-scheduling orders in May 2020 and a joint motion to amend the
scheduling order filed in February 2021 to assert that Ahmad voluntarily submitted to
the jurisdiction of the court.
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{¶11} But these arguments run counter to Gliozzo. And the facts in Gliozzo are
nearly identical to the facts in this case. Ahmad raised his insufficient-service and
insufficient-service-of-process defenses in his answer, participated in the litigation,
and moved for summary judgment based on those defenses. We cannot distinguish
the facts of this case from Gliozzo, which is binding precedent and dispositive of
Ackman’s arguments.
An Attorney Carries The Ultimate Duty Of Verifying Service
{¶12} Next, Ackman argues that the Hamilton County Clerk of Courts failed
to notify her counsel that service to Ahmad at the Kipling Avenue address failed. Civ.R.
4.1(A)(2) instructs the clerk of courts to “notify the attorney of record” when service
fails, in addition to entering that fact and the method of notification on the docket. On
April 13, 2020, the clerk of courts recorded on the docket that the service failed and
was returned because the property was vacant. It appears the notice of that failed
delivery never found its way to Ackman’s attorney.
{¶13} But the civil rules “place[] responsibility on attorneys for verifying
service.” Brookville Ents. v. Clarence J. Kessler Estate HCF Mgt., 2d Dist.
Montgomery No. 29314, 2022-Ohio-1420, ¶ 30. Under Civ.R. 4.6(E), “the attorney of
record or the serving party shall be responsible for determining if service has been
made and shall timely file written instructions with the clerk regarding completion of
service notwithstanding the provisions in Civ.R. 4.1 through 4.6 which instruct a clerk
to notify the attorney of record or the serving party of failure of service of process.” In
the end, Ackman’s attorney failed to determine if service had been completed.
Service Was Not Reasonably Calculated To Provide Ahmad Notice Of The Claims
{¶14} Ackman emphasizes the fact that she successfully served Hospitalist,
through an agent, to argue that Ahmad had reasonable notice of the claims.
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{¶15} We recognize that the civil rules and due process do not “ ‘require actual
service upon the party receiving notice.’ ” Akron-Canton Regional Airport Auth. v.
Swinehart, 62 Ohio St.2d 403, 405, 406 N.E.2d 811 (1980), quoting Castellano v.
Kosydar, 42 Ohio St.2d 107, 111, 326 N.E.2d 686 (1975). Indeed, the Ohio Supreme
Court has held that “service is effective when the notice is delivered and properly
receipted for by an appropriate person.” Castellano at 111. And the court has held that
service “to a business address can comport with due process if the circumstances are
such that successful notification could be reasonably anticipated.” Swinehart at 406.
In other words, due process requires, at a minimum, that parties must be served in a
manner reasonably calculated to “ ‘apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.’ ” Id., quoting
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94
L.Ed. 865 (1950). In Swinehart, service was not reasonably calculated to apprise the
defendant who “did not maintain an office on the premises of the business” where
service was attempted, “[h]is principal place of business was in fact in another city,”
and he “only sporadically visited the business where service was attempted[] usually
two or three times per month.” Id. at 406-407.
{¶16} So too here. Ahmad acknowledged in his pleading and affidavit that
Hospitalist is his employer. But like the defendant in Swinehart, Ahmad does not
maintain an office at Hospitalist’s business address. Instead, he works at “multiple
Mercy facilities” in the Cincinnati area. Further, Hospitalist was served in Columbus,
Ohio. And significantly, Ahmad was not identified on the certified mail envelope
delivered to Hospitalist. Therefore, we conclude that serving Hospitalist was not done
in a manner reasonably calculated to provide Ahmad notice of the claims.
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Hospitalist’s Liability Was Premised On Ahmad’s Liability
{¶17} The final issue raised by Ackman concerns the trial court’s dismissal of
Hospitalist. After the trial court granted summary judgment to Ahmad because the
suit against him had never commenced, the trial court granted summary judgment for
Hospitalist because the claims against Hospitalist “sound only in vicarious liability.”
The court dismissed Ahmad and Hospitalist from the case. Ackman takes issue with
the court’s dismissal of Hospitalist, advancing two arguments.
{¶18} First, Ackman argues that Hospitalist failed to substantively present a
vicarious-liability argument in its summary-judgment motion. We disagree. “ ‘It is
reversible error to award summary judgment on grounds not specified in the motion
for summary judgment.’ ” State ex rel. Sawicki v. Court of Common Pleas, 121 Ohio
St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 27, quoting Patterson v. Ahmed, 176
Ohio App.3d 596, 2008-Ohio-362, 893 N.E.2d 198, ¶ 14 (6th Dist.). But Hospitalist
maintained in its summary-judgment motion that all claims against it were premised
vicariously on the liability of Ahmad. Hospitalist sufficiently raised the issue and
Ahmad’s affidavit supported its argument. See Civ.R. 56(B).
{¶19} Second, Ackman contends that her negligence claims were not premised
on vicarious liability. Rather, she emphasizes her alleged negligence claim against
Hospitalist individually. In response, Hospitalist argues that it cannot be held liable
without a suit against one of its agents.
{¶20} But Ackman’s claim was a medical claim. Ackman titled her first claim
“NEGLIGENCE” and maintained that Hospitalist failed to “exercise reasonable care
and skill” when assessing, diagnosing, and treating Sollmann. While Ackman argues
that she is raising ordinary negligence claims, “ ‘[m]alpractice by any other name still
constitutes malpractice.’ ” Amadasu v. O’Neal, 176 Ohio App.3d 217, 2008-Ohio-1730,
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891 N.E.2d 802, ¶ 9 (1st Dist.), quoting Steinmetz v. Francis J. Lowry, D.D.S. & Assoc.,
17 Ohio App.3d 116, 118, 477 N.E.2d 671 (1st Dist.1984), quoting Muir v. Hadler Real
Estate Mgt. Co., 4 Ohio App.3d 89, 90, 446 N.E.2d 820 (10th Dist.1982). Indeed, “[i]t
makes no difference whether the professional misconduct is founded in tort or
contract, it still constitutes malpractice.” Steinmetz at 118, quoting Muir at 90, quoting
Richardson v. Doe, 176 Ohio St. 370, 372, 199 N.E.2d 878 (1964).
{¶21} The nature of Ackman’s claim is significant because this court and
others have held that “only individuals can be held directly liable for medical
malpractice.” Henry v. Mandell-Brown, 1st Dist. Hamilton No. C-090752, 2010-Ohio-
3832, ¶ 13. And “ ‘a hospital does not practice medicine and is incapable of committing
malpractice.’ ” Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-
3601, 913 N.E.2d 939, ¶ 14, quoting Browning v. Burt, 66 Ohio St.3d 544, 556, 613
N.E.2d 993 (1993). Ackman alleged in her complaint that Hospitalist, along with
Ahmad, failed to administer appropriate treatment and failed to conduct necessary
scans of Sollmann. And Ackman identified Hospitalist as “a Professional Corporation
* * * doing business in Hamilton County providing medical services.” But Hospitalist
cannot be held directly liable to Ackman and she must proceed under a theory of
vicarious liability.
{¶22} But, as the trial court concluded, Ackman cannot prevail against
Hospitalist under a theory of vicarious liability. When a medical claim premises the
liability of an employer “solely on vicarious liability, the imputed liability hinges on
the tortfeasor’s relationship to the entity.” McQuade v. Mayfield Clinic, Inc., 2022-
Ohio-785, 186 N.E.3d 278, ¶ 9 (1st Dist.), citing Dinges v. St. Luke’s Hosp., 2012-Ohio-
2422, 971 N.E.2d 1045, ¶ 45 (6th Dist.) (Yarbrough, J., concurring). Further “ ‘an
entity may be vicariously liable for malpractice only when one or more of its principals
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or associates are liable’ ” for malpractice. Id. at ¶ 11, quoting Wuerth at ¶ 26. In other
words, vicarious-liability claims against a physician’s employer are precluded when
direct-liability claims against the physician are barred. Clawson v. Hts. Chiropractic
Physicians, L.L.C., Slip Opinion No. 2022-Ohio-4154, ¶ 29.
{¶23} Consider Mandell-Brown, a medical-malpractice case where the
patient’s claims against the surgeon were dismissed as untimely under the statute of
limitations. Mandell-Brown at ¶ 1. This court affirmed the trial court’s dismissal of the
surgery center as a defendant because “only individuals can be held directly liable for
medical malpractice” and therefore “the respondeat superior claim against the surgery
center could not survive the dismissal of the claims against Mandell-Brown.” Id. at ¶
13-14. And following Mandell-Brown, we explained that there is “no room for
vicarious liability for medical malpractice where a doctor cannot be found to be liable
for malpractice.” Rush v. Univ. of Cincinnati Physicians, Inc., 2016-Ohio-947, 62
N.E.3d 583, ¶ 25 (1st Dist.).
{¶24} In the end, Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d
141, 2007-Ohio-3762, 870 N.E.2d 714 (2007) requires us to hold that Ahmad’s active
participation in this case did not waive any service-based defenses. And Ackman’s
vicarious-liability claims against Hospitalist could not survive the dismissal of Ahmad.
We overrule her assignment of error.
III. Conclusion
{¶25} We overrule Ackman’s single assignment of error and affirm the trial
court’s judgment.
Judgment affirmed.
WINKLER, J., concurs.
BERGERON, P.J., concurs separately.
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BERGERON, P.J., concurring separately.
{¶26} For those who would complain about our civil justice system as being
too slow, too expensive, and too reliant on technicalities, this case is Exhibit A. While
I agree with the majority’s conclusion as correct under Gliozzo v. Univ. Urologists of
Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, I write
separately to urge the Supreme Court of Ohio to revisit its holding in Gliozzo, or failing
that, I would encourage the Rules Committee to remedy the matter. We should not
allow rule interpretations such as that espoused by Gliozzo to turn Civ.R. 1’s mandate
that the Civil Rules must be interpreted “to effect just results by eliminating delay,
unnecessary expense and all other impediments to the expeditious administration of
justice” on its head. Civ.R. 1(B). As I see it, the Gliozzo rule accomplishes the hat trick
of exactly what Civ.R. 1 sought to avoid.
{¶27} In 2007, the Ohio Supreme Court in Gliozzo held, “When the affirmative
defense of insufficiency of process is properly raised and properly preserved [by
including it in their answer, pursuant to Civ.R. 12], a party’s active participation in
litigation of a case does not constitute waiver of that defense.” Gliozzo at ¶ 11. In other
words, a party can sit back and wait for the clock to run out, all the while engaging in
active litigation.
{¶28} The origins of this holding trace back to 1984, when the Ohio Supreme
Court issued its decision in First Bank of Marietta v. Cline, 12 Ohio St.3d 317, 466
N.E.2d 567 (1984). In Cline, defendants properly raised the defense of insufficient
service of process in the first responsive pleading, but the case proceeded to trial. Only
after all the evidence had been presented did the defense move to dismiss for
insufficiency of service of process. The court held that failure to request a pretrial
hearing on the issue did not constitute a waiver of the defense. Id. at 318. In making
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this decision, the court relied on the language of Civ.R. 12(D), ultimately concluding
that “[t]he rule does not require a party to request a preliminary hearing on the
specified motions, nor does it mandate a waiver of such defenses for failure to do so.”
Id.
{¶29} It doesn’t have to be this way. Consider the federal example. Nearly
identical to Ohio’s rule, Fed.R.Civ.P. 12(h) provides: “A party waives any defense listed
in Rule 12(b)(2)-(5) [including insufficient service of process] by: (A) omitting it from
a motion in the circumstances described in Rule 12(g)(2); or (B) failing to either: (i)
make it by motion under this rule; or (ii) include it in a responsive pleading or in an
amendment * * *.” Just like in Ohio, Fed.R.Civ.P. 12(b) obliges a party to raise the
defense of insufficient service of process either by answer or by motion made before
the answer. If a party fails to raise the defense by either of those means, Fed.R.Civ.P.
12(h)(1) provides that it is waived. Unlike in Ohio, however, even if the defense is
preserved in the answer, many federal courts have held the defenses identified in
Fed.R.Civ.P. 12(h)(1) to be waived if the party participates in litigation without actively
pursuing the defenses. This is referred to as “waiver by conduct.” See Boulger v.
Woods, 917 F.3d 471, 477 (6th Cir.2019) (explaining that, even where a defendant
preserves a Fed.R.Civ.P. 12(b) defense in an answer, he may forfeit the right to seek a
ruling on the defense at a later point through his conduct in the litigation); see also
King v. Taylor, 694 F.3d 650, 658 (6th Cir.2012), citing Hamilton v. Atlas Turner,
Inc., 197 F.3d 58, 60 (2d Cir.1999) (“Even where a defendant properly preserves [a
defense of insufficient service of process] by including it in an answer, he may forfeit
the right to seek a ruling on the defense at a later juncture through his conduct during
the litigation.”).
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{¶30} In King, the defendant included an insufficient service defense in his
answer but then remained silent on the issue for nearly a year. King at 660. During
that year, the defendant participated in the litigation in various ways, including
meeting with plaintiffs’ counsel, participating in discovery on the merits, moving to
extend discovery deadlines, and attending a status conference. Id. While the district
court ruled that the defendant had not waived his Fed.R.Civ.P. 12(b)(5) defense, the
Sixth Circuit reversed, holding, “Such voluntary, active, and extensive participation in
the litigation indisputably gave plaintiffs a ‘reasonable expectation that [defendant
would] defend the suit on the merits.’ ” Id., quoting Gerber v. Riordan, 649 F.3d 514,
519 (6th Cir.2011).
{¶31} The court emphasized: “In finding forfeiture here, we do not imply that
a defendant who believes he has been improperly served and insists upon proper
service must raise the issue in a motion at the earliest possible moment upon pain of
forfeiture. * * * [Defendant], however, waited until well after the 120-day period [to
serve a defendant] expired to press his service defense in a motion and, in the
meantime, took substantial steps to defend the case on the merits. Doing so forfeited
his defense.” Id. at 661. Moreover, federal case law explains that “ ‘[d]etermining what
constitutes waiver by conduct is more [an] art than a science * * * and there is no bright
line rule.’ ” Boulger at 477, quoting State Auto Ins. Co. v. Thomas Landscaping &
Constr., Inc., S.D. Ohio No. 2:09-cv-735, 2011 U.S. Dist. LEXIS 88176 (Aug. 9, 2011),
and Pruco Life Ins. Co. v. Wilmington Trust Co., 616 F.Supp.2d 210, 216 (D.R.I.2009).
A court “must consider all of the relevant circumstances in determining whether
waiver by conduct has occurred.” Boulger at 477.
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{¶32} The federal standard strikes me as a sensible way of addressing a party’s
failure to litigate affirmative defenses like insufficiency of service. We should not
encourage litigation charades, with parties lying in wait to run out the clock on statutes
of limitations or repose, all the while pretending to litigate with gusto. That inflicts real
harm on the adverse party and the court system as well. Since the primary purpose of
service is to ensure that the party has notice of the suit, obligating that party to press
an objection to service is not an onerous requirement. For these reasons, I encourage
the Supreme Court to reconsider the Gliozzo rule and adopt the federal waiver by
conduct approach as applied by the Sixth Circuit.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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