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Jett v. Interim Healthcare

December 5, 2008

BARBARA JETT, ET AL. PLAINTIFFS-APPELLANTS
v.
INTERIM HEALTHCARE, ET AL. DEFENDANTS-APPELLEES



(Civil Appeal From Common Pleas Court), T.C. CASE No. 06-CV-0269.

The opinion of the court was delivered by: Grady, J.

OPINION

{¶1} This is an appeal from a summary judgment for the defendants on their statute of limitations defense.

{¶2} In 2001 Plaintiff, Barbara Jett, was employed by Delphi Chassis ("Delphi") at its factory in Dayton.

Defendant, Interim Healthcare of Dayton, Inc. ("Interim Healthcare"), is an independent contractor that by agreement with Delphi provided medical services to Delphi's employees at the factory. Defendant, Cheryl A. Fleck, is a registered nurse employed by Interim Healthcare who was assigned to work in the medical department at Delphi's factory.

{¶3} On June 4, 2001, Plaintiff Jett, who was working the second shift at Delphi's factory, presented at the medical department to obtain custom-fitted earplugs. Such plugs are formed by inserting a clay-like substance into the user's ear canal. Before insertion, several drops of a liquid hardening agent must be added to the substance.

{¶4} Nurse Fleck prepared the clay-like substance, kneading it with her hands, and inserted it into Jett's ear canal. However, Nurse Fleck failed to add the hardening agent. In a complaint in the action she subsequently filed against Delphi, Interim Healthcare, and Nurse Fleck, Jett alleged that as a result of Nurse Fleck's negligent act or omission the substance partially liquified after insertion in her ear canal, proximately causing injuries to her ears, hearing, and balance. Jett's spouse, James Jett, alleged a loss of consortium arising from those injuries.

{¶5} Jett filed her complaint on June 4, 2003. The action was voluntarily dismissed and was refiled on January 13, 2006. Defendants Interim Healthcare and Jett filed an answer that pleaded the affirmative defense of statute of limitations.

{¶6} Interim Healthcare and Nurse Fleck moved for summary judgment on their statute of limitations defense. They argued that the claim for relief in the action Jett filed is a "medical claim" governed by the one-year statute of limitations, and that the action Jett first commenced in 2003 is barred because the cause on which the claim for relief was brought had accrued in 2001, more than one year before. Jett argued that her claim is instead a claim for personal injuries governed by the two-year statute of limitations, under which the action was timely filed.

{¶7} After thoroughly analyzing the contentions of the parties and the record before it, the trial court found that Jett's action was brought on a medical claim and granted the motion for summary judgment the Defendants filed. Jett filed a timely notice of appeal.

ASSIGNMENT OF ERROR

{¶8} "THE TRIAL COURT ERRED IN APPLYING THE ONE-YEAR MEDICAL CLAIM STATUTE OF LIMITATIONS OF FORMER R.C. _ 2305.11 INSTEAD OF THE TWO-YEAR NEGLIGENCE STATUTE OF LIMITATIONS OF R.C. _ 2305.10, AND THUS ERRED IN GRANTING SUMMARY JUDGMENT IN APPELLEES' FAVOR."

{¶9} Summary judgment may not be granted unless the entire record demonstrates that there is no genuine issue of material fact and that the moving party is, on that record, entitled to judgment as a matter of law. Civ.R. 56. The burden of showing that no genuine issue of material fact exists is on the moving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. All evidence submitted in connection with a motion for summary judgment must be construed most strongly in favor of the party against whom the motion is made. Morris v. First National Bank & Trust Co. (1970), 21 Ohio St.2d 25. In reviewing a trial court's grant of summary judgment, an appellate court must view the facts in a light most favorable to the party who opposed the motion. Osborne v. Lyles (1992), 63 Ohio St.3d 326. Further, the issues of law involved are reviewed de novo. Nilavar v. Osborn (1998), 127 Ohio App.3d 1.

{¶10} Jett has moved to strike a copy of her deposition that Fleck attached to her brief on appeal, because the deposition was not filed in the trial court's proceedings. We may not add or rely on evidentiary materials that were not before the trial court. State v. Ishmail (1978), 54 Ohio St.2d 402. Jett's motion is granted.

{¶11} The statute of limitations governing medical claims that was in effect in 2001 when the allegedly negligent acts or omissions of Nurse Fleck occurred, R.C. 2305.11(B), provided that an action on a medical claim must be commenced within one year after the cause of action accrued. R.C. 2305.11(D)(3), also in effect at that time, defined a "medical claim" as:

{ΒΆ12} "[A]ny claim that is asserted in any civil action against a physician, podiatrist, or hospital, against any employee or agent of a physician, podiatrist, or hospital, or against a registered nurse or physical therapist, and that arises out of the medical diagnosis, care, or treatment of any person.'Medical claim' includes derivative ...


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