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Mousa v. Mount Carmel Health System, Inc.

Court of Appeals of Ohio, Tenth District

June 25, 2013

Marium Mousa, Administratrix of the Estate of Jeremiah Mousa, Deceased et al., Plaintiffs-Appellants,
v.
Mount Carmel Health System, Inc. et al. Defendants-Appellees.

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 09CVA-11-16351)

Plevin & Gallucci, Frank Gallucci, III, and Michael D. Shroge; Paul W. Flowers Co., L.PA., and Paul W. Flowers, for appellants.

Arnold Todaro & Welch Co., L.PA., Gregory B. Foliano, and Karen L. Clouse, for appellees.

DECISION

SADLER, J.

{¶ 1} Plaintiffs-appellants, Marium Mousa, individually and as the Administratrix of the Estate of Jeremiah Mousa, Deceased, and Alex Mousa, individually, appeal from the judgment of the Franklin County Court of Common Pleas granting a motion for reconsideration and entering judgment on the pleadings in favor of defendants-appellees, Dr. Nicholas John Behrendt, Mount Carmel Heath System, Inc., and Mount Carmel St. Ann's Hospital. For the following reasons, we reverse the judgment of the trial court.

I. BACKGROUND

{¶ 2} This medical malpractice action arises from the birth of Jeremiah Mousa on November 2, 2008, at a facility owned and operated by Mount Carmel Health System, Inc., and Mount Carmel St. Ann's Hospital. Jeremiah Mousa sustained brain damage from the delivery, which was performed by Dr. Behrendt, and Jeremiah died on December 6, 2008. He was survived by his parents, Marium and Alex Mousa.

{¶ 3} On November 2, 2009, appellants filed a complaint raising claims of wrongful death (Count I), survivorship (Count II), and loss of consortium (Count III). The complaint indicated that the suit was brought by Marium and Alex Mousa in their individual capacities and the Estate of Jeremiah Mousa, Deceased, with Marium Mousa as the administratrix. Appellants noted in the complaint that Marium Mousa was "seeking to be the representative of the Estate of Jeremiah Mousa, Deceased and will ratify this Complaint once authorized to do so." (Complaint, ¶ 1.) Appellants also brought suit against Dr. Michael Sprague, Northeast Obstetricians and Gynecologists, Inc., Dr. Richard Marger, Dr. Andrew Bokor, Abramovitz & Bokor, M.D., Inc., and John Does Number 1-10.

{¶ 4} Dr. Marger, Dr. Bokor, and Abramovitz & Bokor, M.D., Inc., were dismissed from the proceedings on April 26, 2010. On February 25, 2011, Marium Mousa was appointed as administratrix of the decedent's estate, and she ratified the complaint in her capacity as administratrix.

{¶ 5} Pursuant to Civ.R. 12(C), Mount Carmel Health System, Inc., Mount Carmel St. Ann's Hospital, Dr. Behrendt, Dr. Sprague, and Northeast Obstetricians and Gynecologists, Inc., filed motions for judgment on the pleadings. They maintained that the lawsuit was a nullity because Marium Mousa had not yet been appointed as administratrix of the decedent's estate when the complaint was filed. In their memorandum in opposition, appellants contended that the Civ.R. 12(C) motion challenged Marium Mousa's capacity to sue as administratrix of the decedent's estate, and they argued that the issue was waived because it was not asserted in their opponents' answers as an affirmative defense.

{¶ 6} The trial court denied the motion, and appellants voluntarily dismissed, without prejudice, claims against Dr. Sprague and Northeast Obstetricians and Gynecologists. Appellees filed a motion for reconsideration contending that appellants should not be able to pursue their wrongful death claim because, not only was the decedent's estate not open when the claim was filed, an administrator for the estate was not appointed until after the statute of limitations expired. Appellees also argued that appellants cannot prevail on their survivorship claim because an administrator of the decedent's estate was not appointed within the statute of limitations for that claim and contended that appellants cannot prevail on their loss of consortium claim because it is derivative to the invalid wrongful death and survivorship claims.

{¶ 7} The trial court concluded that appellees raised a standing defense and noted that standing cannot be waived. The trial court determined that appellant lacked standing and dismissed the wrongful death claim because Marium Mousa had not been appointed administratrix within the applicable two-year statute of limitations. The trial court dismissed all remaining claims on grounds that they are "a corollary" of the "wrongful death issue." (Aug. 28, 2012 Decision, 1, fn. 1.)

II. ASSIGNMENT OF ERROR

{¶ 8} Appellants filed a timely notice of appeal and assign the ...


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