Beair v. Mgt. & Training Corp. , 2021 Ohio 4110 ( 2021 )

[Cite as Beair v. Mgt. & Training Corp., 2021-Ohio-4110.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
SCOTT D. BEAIR,
CASE NO. 9-21-07
PLAINTIFF-APPELLANT,
v.
MANAGEMENT & TRAINING CORP., OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Trial Court No. 2019 CV 628
Judgment Reversed and Cause Remanded
Date of Decision: November 22, 2021
APPEARANCES:
Adam Houser for Appellant
Kenneth E. Smith for Appellee
Case No. 9-21-07
WILLAMOWSKI, P.J.
{¶1} Plaintiff-appellant Scott D. Beair (“Beair”) appeals the judgment of the
Marion County Court of Common Pleas, alleging that the trial court erred in
granting the Defendant-Appellee Management & Training Corporation’s (“MTC”)
motion for summary judgment. For the reasons set forth below, the judgment of the
trial court is reversed.
Facts and Procedural History
{¶2} In December 2011, Beair had surgery on his back to “address bulging
and/or herniated cervical discs * * *.” Doc. 1. In January of 2012, Beair was
incarcerated in the North Central Correctional Center (“NCCC”). Doc. 1, 19. At
this time, MTC had a contract with Ohio Department of Rehabilitation and
Correction (“ODRC”) to operate NCCC. Doc. 1, 19. In December of 2013, Beair
had another surgical procedure performed on his back. Doc. 1, 19. Beair alleges
that his back issues required ongoing care during the term of his incarceration. Doc.
1, 23. On December 18, 2014, Beair was released from NCCC. Doc. 1, 19.
{¶3} On December 30, 2014, Beair filed a complaint (“December 30, 2014
Complaint”) with the Marion County Court of Common Pleas (“trial court”) that
named MTC; the ODRC; the Warden at NCCC; and five John Does as defendants.
Doc. 31; 20, Ex. 1-A. Beair alleged that the defendants failed to ensure that he
received proper medical care during his term of incarceration in NCCC. Doc. 20,
Ex. 1-A. He raised a negligence claim; a negligence in hiring, training, and
-2-
Case No. 9-21-07
supervising claim; a gross negligence claim; an Eighth Amendment claim; and a
punitive damages claim.1 Doc. 20, Ex. 1-A.
{¶4} On June 22, 2015, this case was removed to the United States District
Court for the Northern District of Ohio (“Federal District Court”). Doc. 31; 20, Ex.
1-B. On July 5, 2015, Beair filed an amended complaint with the Federal District
Court (“July 5, 2015 Amended Complaint”) that named MTC; Management &
Training Corporation Medical, LLC (“MTC Medical”); and five John Does as
defendants. Doc. 20, Ex. 1-B. MTC Medical was “a subsidiary corporation of
defendant MTC, and operate[d] the medical facility located at NCCC.” Doc. 20,
Ex. 1-B. The five “John Does * * * [were] employees, staff, agents and/or medical
personnel hired and/or employed by defendants MTC and [MTC] Medical * * *.”
Doc. 20, Ex. 1-B.
{¶5} In the July 5, 2015 Amended Complaint, Beair raised an Eighth
Amendment claim; a Fourteenth Amendment claim; a negligence claim; and a claim
for punitive damages. Doc. 20, Ex. 1-B. As part of his negligence claim, Beair
alleged that “MTC, [MTC] Medical and [the John] Does fail[ed] to provide * * *
timely, adequate medical care, treatment and services * * *.” Doc. 20, Ex. 1-B. In
response, MTC filed a motion to dismiss. Doc. 20, Ex. 1-C.
1
There was one additional claim in this initial complaint. Doc. 20, Ex. 1-A. However, the tenth page of the
complaint is missing in the filing made with MTC’s motion for summary judgment. Doc. 20, Ex. 1-A. Thus,
we cannot determine the exact claim that was raised on this page.
-3-
Case No. 9-21-07
{¶6} On January 19, 2016, the Federal District Court issued an order
(“January 19, 2016 Order”) deciding MTC’s motion to dismiss. Doc. 20, Ex. 1-C.
The Federal District Court addressed two main arguments that MTC had asserted
against Beair’s negligence claims. Doc. 20, Ex. 1-C. MTC argued (1) that Beair
had, in fact, raised a medical claim in this action but had failed to file an affidavit
of merit as required by Ohio Civ.R. 10(D)(2); and (2) that Beair’s allegations of
negligence were conclusory. Doc. 20, Ex. 1-C.
{¶7} The Federal District Court determined that Beair’s allegations did, in
fact, include a medical claim. Doc. 20, Ex. 1-C. However, the Federal District
Court found that Beair was not required to file an affidavit of merit pursuant to Ohio
Civ.R. 10(D)(2) in federal court. Doc. 20, Ex. 1-C. The Federal District Court then
found that MTC’s “argument that Beair’s negligence claim is conclusory lacks
merit.” Doc. 20, Ex. 1-C. The Federal District Court dismissed the Eighth
Amendment claim, the Fourteenth Amendment claim, and the punitive damages
claim.2 Doc. 31; 20, Ex. 1-C. However, the trial court denied MTC’s motion to
dismiss as to the negligence claim. Doc. 20, Ex. 1-C.
{¶8} On October 2, 2018, Beair voluntarily dismissed the remaining claims
pursuant to Fed.R.Civ.P. 41(A)(1)(a). Doc. 20, 31. On October 1, 2019, Beair filed
a complaint (“October 1, 2019 Complaint”) against MTC with the Marion County
2
The Eighth Amendment claim and the punitive damages claim were dismissed without prejudice. Doc. 20,
Ex. 1-C. The Fourteenth Amendment claim was dismissed with prejudice. Doc. 20, Ex. 1-C.
-4-
Case No. 9-21-07
Court of Common Pleas. Doc. 1. Beair raised claims of negligence; gross
negligence; and negligence in hiring, training, and supervising. Doc. 1. On
November 20, 2019, MTC filed a Civ.R. 12(B)(6) motion to dismiss. Doc. 4. On
February 14, 2020, the trial court granted MTC’s motion to dismiss. Doc. 12.
{¶9} Beair appealed the trial court’s decision to grant MTC’s motion to
dismiss. Doc. 14. On July 27, 2020, this Court, in an accelerated opinion, reversed
the trial court’s decision to grant MTC’s motion to dismiss. Doc. 16. We concluded
that, “at this stage of the proceedings it is too early to state, merely based on the face
of the complaint, that there is no set of facts under which Beair could recover.”
(Emphasis sic.) Doc. 16. We then remanded this case to the trial court. Doc. 16.
{¶10} On November 4, 2020, MTC filed a motion for summary judgment.
Doc. 20. MTC argued that the negligence claims in Beair’s October 1, 2019
Complaint were, in fact, medical claims. Doc. 20. MTC argued these medical
claims should be dismissed because Beair failed to file an affidavit of merit with
these medical claims in compliance with Ohio Civ.R. 10(D)(2). Doc. 20.
{¶11} Further, MTC pointed to the fact that the Federal District Court had
determined, in its January 19, 2016 Order, that Beair had raised a medical claim in
his July 5, 2015 Amended Complaint. Doc. 20. On this basis, MTC then argued
that the issue of whether Beair was raising negligence claims or medical claims had
been previously litigated and that Beair was, therefore, precluded from “argu[ing]
that his negligence claims are not true medical claims * * *.” Doc. 20.
-5-
Case No. 9-21-07
{¶12} On February 3, 2021, the trial court issued its judgment entry. Doc.
31. The trial court found that the issue of whether Beair’s negligence claim was, in
fact, a medical claim had been litigated by the Federal District Court and that the
doctrine of res judicata was, therefore, applicable. Doc. 31. The trial court then
determined that, notwithstanding the applicability of res judicata in this case, Beair’s
negligence claim “would still fit the definition of a medical claim on the facts.”
Doc. 31.
{¶13} On the basis of these conclusions, the trial court determined that Beair
(1) had failed to file an affidavit of merit as required by Ohio Civ.R. 10(D)(2); and
(2) that “all claims” raised by Beair in his October 1, 2019 Complaint were barred
by the statute of repose for medical claims. Doc. 31. The trial court granted MTC’s
motion for summary judgment and dismissed all of Beair’s claims. Doc. 31.
{¶14} Beair filed his notice of appeal on March 3, 2021. On appeal, he raises
the following four assignments of error:
First Assignment of Error
The trial court decision violated appellant’s due process rights
when it misinterpreted the federal court order regarding res
judicata.
Second Assignment of Error
The trial court decision was against the manifest weight of the
evidence when it misconstrued appellant’s negligence claim as a
medical malpractice claim instead of a non-medical negligence
claim.
-6-
Case No. 9-21-07
Third Assignment of Error
The trial court decision misconstrued the inferences of appellant’s
complaint and the federal court decision and is against the
manifest weight of the evidence in violation of Ohio Civil Rule 56.
Fourth Assignment of Error
The trial court decision relying on the statute of limitations
misinterpreted Ohio law and violated appellant’s due process
rights when it applied the statu[t]e of limitations to a timely refiled
complaint.
Since Beair’s four assignments of error ultimately challenge the trial court’s
decision to grant summary judgment to MTC, we will begin by setting forth the
general legal standard for summary judgment.
Legal Standard for Summary Judgment
{¶15} “Appellate courts consider a summary judgment order under a de novo
standard of review.” Schmidt Machine Company v. Swetland, 3d Dist. Wyandot
No. 16-20-07, 2021-Ohio-1236, ¶ 23, citing James B. Nutter & Co. v. Estate of
Neifer, 3d Dist. Hancock No. 5-16-20, 2016-Ohio-7641, ¶ 5. According to the Ohio
Rules of Civil Procedure,
[s]ummary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact,
if any, timely filed in the action, show that there is no genuine issue
of material fact and that the moving party is entitled to judgment
as a matter of law * * *. A summary judgment shall not be
rendered unless it appears from the evidence or stipulation, and
only from the evidence or stipulation, that reasonable minds can
come to but one conclusion and that conclusion is adverse to the
party against whom the motion for summary judgment is made,
-7-
Case No. 9-21-07
that party being entitled to have the evidence or stipulation
construed most strongly in the party’s favor.
Civ.R. 56(C). Thus, summary judgment is to be granted
only when it is clear ‘(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 but
one conclusion, and that conclusion is adverse to the party against
whom the motion for summary judgment is made, who is entitled
to have the evidence construed most strongly in his favor.’
State ex rel. Whittaker v. Lucas County Prosecutor’s Office, 164 Ohio St.3d 151,
2021-Ohio-1241, 172 N.E.3d 143, ¶ 8, quoting Harless v. Willis Day Warehousing
Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46, 47 (1978).
{¶16} Initially, “[t]he party moving for summary judgment bears the burden
of showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law.” Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d
367, 370, 1998-Ohio-389, 696 N.E.2d 201, 204 (1998). “In doing so, the moving
party is not required to produce any affirmative evidence, but must identify those
portions of the record which affirmatively support his argument.” Neal v. Treglia,
2019-Ohio-3609, 144 N.E.3d 1045, ¶ 12 (3d Dist.), quoting Carnes v. Siferd, 3d
Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13. “Where * * * the moving party
does not satisfy its initial burden under Civ.R. 56, the motion for summary judgment
must be denied.” Dresher v. Burt, 75 Ohio St.3d 280, 296, 1996-Ohio-107, 662
N.E.2d 264, 276 (1996).
-8-
Case No. 9-21-07
{¶17} If the moving party carries this initial burden, “[t]he burden then shifts
to the party opposing the summary judgment.” Bates Recycling, Inc. v. Conaway,
2018-Ohio-5056, 126 N.E.3d 341, ¶ 11 (3d Dist.), quoting Middleton v. Holbrook,
3d Dist. Marion No. 9-15-47, 2016-Ohio-3387, ¶ 8. “In order to defeat summary
judgment, the nonmoving party may not rely on mere denials but ‘must set forth
specific facts showing that there is a genuine issue for trial.’” Byrd v. Smith, 110
Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R. 56(E).
{¶18} “[B]ecause summary judgment is a procedural device to terminate
litigation, it must be awarded with caution.” Williams v. ALPLA, Inc., 2017-Ohio-
4217, 92 N.E.3d 256 (3d Dist.), quoting Murphy v. Reynoldsburg, 65 Ohio St.3d
356, 358-359, 1992-Ohio-95, 604 N.E.2d 138, 140 (1992). “The court must thus
construe all evidence and resolve all doubts in favor of the non-moving party * *
*.” Webster v. Shaw, 2016-Ohio-1484, 63 N.E.3d 677, ¶ 8 (3d Dist.). Thus, on
“appeal from summary judgment, the reviewing court should look at the record in
the light most favorable to the party opposing the motion.” Hamilton v. Hector, 117
Ohio App.3d 816, 820, 691 N.E.2d 745, 747 (3d Dist. 1997), quoting Campbell v.
Hosp. Motor Inns, Inc., 24 Ohio St.3d 54, 58, 493 N.E.2d 239, 242 (1986).
First Assignment of Error
{¶19} Beair argues that the trial court incorrectly relied on the Federal
District Court’s January 19, 2016 Order to conclude that he could not assert
negligence claims in his October 1, 2019 Complaint.
-9-
Case No. 9-21-07
Legal Analysis
{¶20} In its motion for summary judgment, MTC asserted that the negligence
claims in Beair’s complaint were, in fact, medical claims. Doc. 20. MTC pointed
to the fact that the Federal District Court, in its January 19, 2016 Order, had
concluded that the allegations in Beair’s July 5, 2015 Amended Complaint included
a medical claim. Doc. 20, Ex. 1-C. MTC argued that the issue of whether Beair
was raising a negligence claim or a medical claim had been previously litigated and
that res judicata, therefore, precluded Beair from arguing that he had raised
negligence claims, not medical claims, in his October 1, 2019 Complaint.
{¶21} MTC then argued that Beair had failed to file an affidavit of merit with
the medical claims in his October 1, 2019 Complaint as required by Ohio Civ.R.
10(D)(2). Doc. 20. See Jackson v. Northeast Pre-Release Ctr., 10th Dist. Franklin
No. 09AP-457, 2010-Ohio-1022, ¶ 13 (“Ohio Civ.R. 10(D)(2) requires that every
complaint which contains a medical claim, as defined in R.C. 2305.113, must be
accompanied by an affidavit of merit.”). On this basis, MTC argued that the trial
court should dismiss Beair’s complaint. Doc. 20.
{¶22} Further, medical claims are also subject to a four-year statute of
repose. R.C. 2305.113(C). Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-
6827, 173 N.E.3d 448, ¶ 9, quoting Black’s Law Dictionary 1707 (11th Ed.2019)
(“A statute of repose * * * bars ‘any suit that is brought after a specified time since
-10-
Case No. 9-21-07
the defendant acted * * * even if this period ends before the plaintiff has suffered a
resulting injury.’”).
{¶23} In its judgment entry, the trial court determined that the issue of
whether Beair had raised negligence claims or medical claims had been “litigated
and [that] res judicata applie[d].” Doc. 31. The trial court then concluded that Beair
had failed to file an affidavit of merit in compliance with Ohio Civ.R. 10(D)(2) and
that “all claims” raised by Beair in his October 1, 2019 Complaint were barred by
the statute of repose for medical claims.3 Doc. 31. On these bases, the trial court
granted MTC’s motion for summary judgment. Doc. 31.
{¶24} On appeal, Beair argues that, “for the doctrine of res judicata to apply,
the Federal Court Order must be a final order where the issue or claim was decided
on the merits.” Appellant’s Brief, 12.
The doctrine of res judicata involves both claim preclusion
(historically called estoppel by judgment in Ohio) and issue
preclusion (traditionally known as collateral estoppel). See
Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d
435, 254 N.E.2d 10 [(overruled in part by Grava v. Parkman Twp.,
73 Ohio St.3d 379, 382, 1995-Ohio-331, 653 N.E.2d 226, 229
(1995)]; Krahn v. Kinney (1989), 43 Ohio St.3d 103, 107, 538
N.E.2d 1058, 1062; 46 American Jurisprudence 2d (1994) 780,
Judgments, Section 516.
3
Beair was released from NCCC on December 18, 2014 and filed his initial complaint on December 30,
2014. Doc. 1. He voluntarily dismissed his remaining claims from the Federal District Court on October 2,
2018. Doc. 31. He refiled his complaint on October 1, 2019 within the one-year period permitted under the
saving statute but almost five years after his release from NCCC. Doc. 1. The trial court noted that the Ohio
Supreme Court, in Wilson v. Durrani, supra, held that “[e]xpiration of the statute of repose precludes the
commencement, pursuant to the saving statute, of a claim that has previously failed otherwise than on the
merits in a prior action.” Durrani, supra, at ¶ 38. Doc. 31. For this reason, the trial court concluded that the
statute of repose barred Beair from raising any medical claims that arose during his term of incarceration in
NCCC that ended on December 18, 2014. Doc. 31.
-11-
Case No. 9-21-07
Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226,
228 (1995). Generally, “claim preclusion precludes relitigation of the same cause
of action * * *.” State ex rel. Davis v. Pub. Emps. Retirement Bd., 174 Ohio App.3d
135, 2007-Ohio-6594, 881 N.E.32d 294, ¶ 17 (10th Dist.).
The doctrine of * * * issue preclusion[] precludes further action
on an identical issue that has been actually litigated and
determined by a valid and final judgment as part of a prior action
among the same parties or those in privity with those parties.
Hicks v. De La Cruz (1977), 52 Ohio St.2d 71, 74, 6 O.O.3d 274,
276, 369 N.E.2d 776, 777; Goodson v. McDonough Power Equip.,
Inc. (1983), 2 Ohio St.3d 193, 2 OBR 732, 443 N.E.2d 978,
paragraph one of the syllabus.
(Emphasis added.) State v. Williams, 76 Ohio St.3d 290, 294, 1996-Ohio-408, 667
N.E.2d 932, 935 (1996).
{¶25} In its January 19, 2016 Order, the Federal District Court denied MTC’s
motion to dismiss as to Beair’s negligence claims. Doc. 20, Ex. 1-C. Subsequently,
Beair voluntarily dismissed his remaining claims without prejudice on October 2,
2018. Doc. 20, Ex. 1-C; 31.
It is axiomatic that a dismissal without prejudice is not an
adjudication on the merits and therefore not a final appealable
order. Lovins v. Kroger Co., 150 Ohio App.3d 656, 782 N.E.2d
1171 (2d Dist. 2002). “Because res judicata only applies to ‘valid,
final judgments,’ an order must be final and appealable to
preclude further litigation of the issue.” Fifth Third Mtge. Co. v.
Goodman Realty Corp., 3d Dist. Hancock No. 5-08-30, 2009-Ohio-
81, 2009 WL 57577, ¶ 20. “‘A dismissal without prejudice leaves
the parties as if no action had been brought at all.’” Denham v.
New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999),
-12-
Case No. 9-21-07
quoting De Ville Photography, Inc. v. Bowers, 169 Ohio St. 267,
272, 159 N.E.2d 443 (1959).
Deutsche Bank National Trust Company v. Baxter, 2017-Ohio-1364, 89 N.E.3d 91,
¶ 22 (8th Dist.). See also 50 Corpus Juris Secundum, Judgment, Section 798, at
362-363 (1997) (“A judgment dismissing an action ‘without prejudice’ is not
conclusive as to any issues joined, and does not constitute either res judicata or
collateral estoppel.”). In the absence of “a valid and final judgment,” issue
preclusion does not operate to prevent Beair from pleading non-medical negligence
claims in his October 1, 2019 Complaint. Williams at 294.
{¶26} However, even if the doctrine of issue preclusion were applicable in
this situation, the Federal District Court’s January 19, 2016 Order would still not
prevent Beair from pleading non-medical negligence claims in his October 1, 2019
Complaint. To rule on MTC’s motion to dismiss, the Federal District Court had to
determine whether Beair was required to file an affidavit of merit pursuant to Ohio
Civ.R. 10(D)(2). Doc. 20, Ex. 1-C. The Federal District Court concluded that
Beair’s complaint included a medical claim but then determined that Beair was not
required to follow Ohio Civ.R. 10(D)(2) in federal court. Doc. 20, Ex. 1-C.
{¶27} But immediately after this Ohio Civ.R. 10(D)(1) analysis, the Federal
District Court considered whether Beair’s “negligence claim [was] * * * conclusory
and lack[ed] merit” as MTC had argued in its motion to dismiss. Doc. 20, Ex. 1-C.
(Emphasis added.) The January 19, 2016 Order states that
-13-
Case No. 9-21-07
Beair has adequately alleged the Doe defendants breached their
duty of care by delaying necessary follow-up care and ignoring
doctors’ order re. Beair’s access to medications and physical
therapy. The complaint also alleges in plausible, non-conclusory
terms, these breaches caused Beair physical and emotional harm.
Doc. 20, Ex. 1-C. Thus, the Federal District Court concluded that Beair had
“adequately alleged” his negligence claims. Doc. 20, Ex. 1-C. The Federal District
Court then stated that MTC could “be vicariously liable for the negligence of the
Doe defendants” and denied MTC’s motion to dismiss “as to the negligence claim
* * *.” (Emphasis added.) Doc. 20, Ex. 1-C. Thus, the Federal District Court did
not proceed as though Beair had only raised medical claims.
{¶28} In its January 19, 2016 Order, the Federal District Court’s analysis
addressed some of the “breaches” of care alleged by Beair as medical claims while
addressing others as negligence claims. Doc. 20, Ex. 1-C. This is evident in the
way that the Federal District Court determined that Beair’s negligence claims were
not conclusory; stated that MTC could be vicariously liable for negligence; and
denied the motion to dismiss as to his negligence claim. Doc. 20, 1-C. In sum, a
Federal District Court order that concluded Beair raised medical claims and
“adequately alleged” negligence claims in his July 5, 2015 Amended Complaint
would not preclude Beair from pleading non-medical negligence claims in his
October 1, 2019 Complaint.
{¶29} Having reviewed the record in a light most favorable to Beair, we
conclude that MTC did not, as to its arguments based on issue preclusion, carry the
-14-
Case No. 9-21-07
burden of establishing that it was entitled to judgment as a matter of law. Since the
January 19, 2016 Order was not a “valid and final judgment,” the trial court erred
in determining that issue preclusion prevented Beair from pleading non-medical
negligence claims in his October 1, 2019 Complaint. Williams, supra, at 294.
Further, even if issue preclusion were applicable herein, the January 19, 2016 Order
would still not prevent Beair from pleading non-medical negligence claims in this
action. Thus, Beair’s first assignment of error is sustained.
Second Assignment of Error
{¶30} Beair argues that the trial court erred in independently determining
that he did not raise negligence claims in his October 1, 2019 Complaint.
Legal Analysis
{¶31} Under the first assignment of error, we determined that the Federal
District Court’s January 19, 2016 Order does not preclude Beair from arguing that
he raised a negligence claim in his October 1, 2019 Complaint. However, in its
judgment entry, the trial court also determined that Beair’s “claims are medical
claims on the merits * * *.” Doc. 31. Since the trial court dismissed “all [of Beair’s]
claims under the four-year statute of repose” for medical claims, we turn to
examining whether the trial court was correct in concluding that all of Beair’s
negligence claims were, in fact, medical claims. Doc. 31.
{¶32} The Ohio Revised Code defines a “medical claim” in R.C.
2305.113(E), which reads, in its relevant part, as follows:
-15-
Case No. 9-21-07
‘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. * * *
R.C. 2305.113(E)(3). Based on the “plain and unambiguous” wording of this
statute, the Supreme Court of Ohio held that
a medical claim under R.C. 2305.113(E)(3) is a claim that both (1)
arises out of the medical diagnosis, care, or treatment of any
person and (2) is asserted against one or more of the statutorily
enumerated medical providers.
Estate of Stevic v. Bio-Med. Application of Ohio, Inc., 121 Ohio St.3d 488, 2009-
Ohio-1525, 905 N.E.2d 635, ¶ 16, 19. “If either requirement is not met, no medical
claim exists.” Notario v. American National Red Cross, S.D. Ohio No. 2:20-CV-
6034, 2021 WL 3738895, *2 (Aug. 24, 2021).
{¶33} In his December 30, 2014 Complaint and his July 5, 2015 Amended
Complaint, Beair alleged that various employees of MTC had committed breaches
of their duties of care. Doc. 20, Ex. 1-A, 1-B. These listed employees included, but
were not limited to, “medical personnel.” Doc. 20, Ex. 1-A, 1-B. Beair also named
MTC Medical as a defendant in his July 5, 2015 Amended Complaint. Doc. 20, Ex.
1-B.
-16-
Case No. 9-21-07
{¶34} In his October 1, 2019 Complaint, Beair alleges a number of the same
breaches of duty that he did in his December 30, 2014 Complaint and his July 5,
2015 Complaint. Doc. 1; 20, Ex. 1-A, 1-B. He averred that “staff, employees,
and/or agents” of MTC breached their duties of care in each of his three complaints.
Doc. 1; 20, Ex. 1-A, 1-B. However, he does not mention “medical personnel” in
his October 1, 2019 Complaint. Doc. 1. Beair also did not assert any claims against
an “enumerated medical provider[] * * *” in the text of his October 1, 2019
Complaint. Estate of Stevic, supra, at ¶ 18. Further, MTC Medical is not named as
a defendant. Doc. 1.
{¶35} However, in his response to MTC’s 12(B)(6) motion to dismiss, Beair
did state that that “[t]he staff at MTC of concern are nurses, schedulers, supervisors,
and the like.” Doc. 9. The alleged breaches of duty committed by the nurses could
qualify as medical claims if any of the implicated nurses qualify as a “licensed
practical nurse, registered nurse, [or] advanced practice registered nurse” and the
alleged breaches arose from Beair’s “medical diagnosis, care, or treatment * * *.”
R.C. 2305.113(E)(3).4 If these the alleged breaches do qualify as medical claims
4
The record, in this regard, is meager. In its motion for summary judgment, MTC relied almost entirely on
the Federal District Court’s January 19, 2016 Order to argue that issue preclusion prevented Beair’s from
arguing he raised negligence claims, not medical claims. Doc. 20. MTC did not attempt to establish that
Beair’s negligence claims were, in fact, medical claims by arguing or establishing that the alleged breaches
of duty were committed by enumerated medical providers in the course of Beair’s medical diagnosis, care,
or treatment. Estate of Stevic, supra, at ¶ 19. For this reason, there is very little evidence in the record as to
who committed the alleged breaches and which of these alleged breaches were committed in the course of
medical diagnosis, care, or treatment. See Lerner v. Braodview NH, LLC, 2017-Ohio-8001, 98 N.E.3d 1014(10th Dist.) (distinguishing between medical care and general care).
-17-
Case No. 9-21-07
under R.C. 2305.113(E)(3), the statute of repose in R.C. 2305.113(C) would bar
them. Durrani, supra, at ¶ 38.
{¶36} However, in this motion, Beair also pointed to alleged breaches of duty
that were committed by “schedulers, supervisors, and the like.” Doc. 9. While he
admitted the possibility that some of his allegations “could be construed as medical”
claims, he identified allegations that raised common law negligence claims. Doc.
9. He stated the following:
Defendant fail[ed] in its duty to make medical appointments for
plaintiff resulted in Mr. Beair: 1) not having access to the
necessary neurosurgeon at UTMC [the University of Toledo
Medical Center]; 2) not having access to necessary physical
therapy; 3) and, Beair, several times, being transported to UTMC
for scheduled appointments with his neurosurgeon but due to
defendant’s staff failing to ensure Beair’s prison medical records
accompanied him to appointments, the neurosurgeon would not
meet with him.
Doc. 9. Beair also pointed to the fact that he had alleged that
the policies and procedures promulgated and implanted [sic] [by
MTC] failed to ensure Plaintiff received timely and adequate
medical care and treatment for serious medical needs. This is
evidenced by Plaintiff having to repeatedly file grievances and
appeals in order to secure necessary medical care.
Doc. 9, citing Doc. 1. Subsequently, Beair identified the following negligence
claims in its arguments to the trial court:
[MTC’s] employees conduct and/or failure to comply with basic
ODRC policies, procedures, and/or protocol caused plaintiff * * *
harm: i) by not allowing appellant access to needed physical
therapy; ii) by transporting appellant to his neurosurgeon
appointments in Toledo but appellant missed the appointment
-18-
Case No. 9-21-07
because appellee’s employees failed to bring with them
appellant’s necessary prison medical records; iii) by failing to
schedule needed follow-up appointments at UTMC for both,
missed appointments and requested ones by the neurosurgeon; iv)
by ignoring and/or not responding to Plaintiff’s repeated requests
for said care and treatment and his complaints * * *.
Doc. 29. These filings and allegations indicate that Beair has asserted claims against
MTC employees, such as “schedulers [and] supervisors” who do not appear to be
medical providers that are enumerated in R.C. 2305.113(E). Doc. 9. For this reason,
it is not evident from the record before us that Beair raised medical claims, not
negligence claims, in alleging that these MTC employees breached their duties of
care.
{¶37} In its judgment entry, the trial court concluded that “all claims” raised
by Beair were barred by the statute of repose for medical claims. (Emphasis added.)
Doc. 31. As we have previously noted, the alleged breaches of duty committed by
the nurses employed by MTC may qualify as medical claims to which the statute of
repose in R.C. 2305.113(C) is applicable. However, the record before us does not
establish that Beair did not raise any negligence claims and that all of his claims are,
therefore, subject to the statute of repose for medical claims.
{¶38} In conclusion, we do not make any decision regarding the ultimate
merits of Beair’s claims. In this assignment of error, our essential task was to
determine whether the trial court erred in determining that “all” of Beair’s
negligence claims were, in fact, medical claims that were barred by the statute of
-19-
Case No. 9-21-07
repose in R.C. 2305.113(C). Doc. 31. Having reviewed the materials in the record
in a light most favorable to Beair, we cannot conclude from the record before us that
he did not raise any non-medical negligence claims in his October 1, 2019
Complaint.
{¶39} Since the record does not establish that all of Beair’s negligence claims
are, in fact, medical claims, granting summary judgment as to “all claims” on the
basis of the statute of repose in R.C. 2305.113(C) was not appropriate at this stage
of this litigation. Doc. 31. Similarly, the failure to provide an affidavit of merit in
compliance with Ohio Civ.R. 10(D)(2) did not provide the trial court with a basis to
dismiss any of Beair’s non-medical negligence claims at this stage in this litigation.
Since the record does not establish that MTC is entitled to judgment as a matter of
law on these bases, Beair’s second assignment of error is sustained as to any non-
medical negligence claims.
Third Assignment of Error
{¶40} Beair argues that the trial court erred in dismissing his claim against
MTC for negligence in hiring, training, and supervising its employees.
Legal Analysis
{¶41} In this assignment of error, Beair largely reasserts the arguments that
he raised against the trial court’s conclusion that his non-medical negligence claims
were, in fact, medical claims. However, he now uses these arguments primarily to
assert that the trial court erred in dismissing his claim of negligence in hiring,
-20-
Case No. 9-21-07
training, and supervising. In his October 1, 2019 Complaint, Beair alleged that
MTC
was negligent in its training and/or supervising its staff, agents,
and/or employees as the policies, protocol, and/or procedures
relied upon by [MTC’s] * * * employees failed to ensure medical
appointments were timely made; medical records accompanied
Beair to the neurosurgeon’s appointments; medical appointments
were not delayed or missed due to errors by [MTC’s] * * * staff.
Doc. 1. In its judgment entry, the trial court dismissed “all claims” pursuant to “the
four year statute of repose” for medical claims. (Emphasis added.) Doc. 31. Thus,
Beair’s negligence in hiring, training, and supervising claim was dismissed pursuant
to the statute of repose for medical claims.
{¶42} However, we concluded in the first and second assignments of error
that the record does not establish, at this point, that Beair has only raised medical
claims. His negligence in hiring, training, and supervising arise from similar
allegations to those negligence claims examined under the second assignment of
error. Following the reasoning in our analysis of the second assignment of error,
we conclude that the statute of repose for medical claims does not provide an
appropriate basis for dismissing Beair’s claims of negligence in hiring, training, and
supervising in their entirety at this juncture in this litigation.
{¶43} Having reviewed the evidence in the record in a light most favorable
to Beair, we conclude that the trial court erred in determining that Beair’s claim of
negligence in hiring, training, and supervising was barred by the statute of repose
-21-
Case No. 9-21-07
for medical claims and in granting summary judgment to MTC on this basis. Since
the record does not establish that MTC is entitled to judgment as a matter of law on
this claim at this time, Beair’s third assignment of error is sustained.
Fourth Assignment of Error
{¶44} Beair argues that the trial court erred in applying the statute of
limitations for medical claims in this case.
Legal Analysis
{¶45} After concluding that Beair’s negligence claims were, in fact, medical
claims, the trial court, in its judgment entry, applied the one-year statute of
limitations for medical claims to this case. Doc. 31. See R.C. 2305.113(A). Thus,
the trial court stated the following in its judgment entry:
In conclusion, all claims alleged more than one year before
December 30, 2014 are barred by the statute of limitations. Those
claims within one year of December 30, 2014 would survive
summary judgment if they were not independently barred.
Doc. 31. However, under the first and second assignments of error, we determined
that the record does not, at this juncture, establish that Beair has not raised any non-
medical negligence claims. For this reason, the record before us does not support
the application of the statute of limitations for medical claims to “all claims alleged”
by Beair. Doc. 31. Inasmuch as the trial court applied the statute of limitations for
medical claims to claims that are not discernibly medical claims based on the
evidence currently in the record, his fourth assignment of error is sustained.
-22-
Case No. 9-21-07
Conclusion
{¶46} Having found error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Marion County Court of Common Pleas
is reversed. This cause of action is remanded to the trial court for further
proceedings that are consistent with this opinion.
Judgment Reversed
And Cause Remanded
MILLER and SHAW, J.J., concur.
/hls
-23-