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Birkmeier v. St. Rita's Medical Center

Court of Appeals of Ohio, Third District, Allen

June 18, 2018

JOHN D. BIRKMEIER, ET AL., PLAINTIFFS-APPELLANTS,
v.
ST. RITA'S MEDICAL CENTER, ET AL., DEFENDANTS-APPELLEES.

          Appeal from Allen County Common Pleas Court Trial Court No. CV 2015 0703

          Chad M. Tuschman and Peter O. DeClark for Appellants

          Chad M. Thompson and Julia S. Wiley for Appellees

          OPINION

          ZIMMERMAN, J.

         {¶1} Plaintiffs-Appellants, John D. Birkmeier and Charlotte E. Birkmeier (collectively referred to as "Appellants"), appeal the judgment of the Allen County Common Pleas Court granting summary judgment to Defendants-Appellees, St. Rita's Medical Center, et al. On appeal, Appellants assert that the trial court: 1) erred in granting Defendants' motion for reconsideration; and 2) erred when it granted summary judgment to Appellees. For the reasons that follow, we affirm the ruling of the trial court.

         Factual Background

         {¶2} Appellant John D. Birkmeier ("John") was diagnosed with prostate cancer on November 5, 2013. (11/10/2016 Tr., John D. Birkmeier Dep. at 54). As a result, John underwent a prostatectomy on December 13, 2013. (Id. at 60). A Foley catheter ("catheter") was placed into John's penis as a result of his prostatectomy. (Id. at 59; 68).

         {¶3} On December 19, 2013, John had a follow-up visit with his urologist, Dr. Craig Nicholson ("Dr. Nicholson")[1]. John reported to Dr. Nicholson that following surgery he had an increase in pain and swelling in his genital area. (Id. at 71-72). Dr. Nicholson did not inspect the area, but informed John that "one of the girls [would] be in to remove [his] staples and [the] catheter." (Id. at 72). Appellee Heather N. Cramer ("Cramer"), a Certified Medical Assistant ("CMA") employed in Dr. Nicholson's office, removed John's staples without complication. (Id. at 74). Cramer then proceeded to deflate the balloon on the catheter, and attempted to remove the catheter. (Id. at 75). While reports differ on the amount of force used and duration of Cramer's pulling of John's catheter, it is undisputed that Cramer left John's room to consult with Dr. Nicholson on the catheter removal process. (Id.). Upon returning to John's room, Cramer advised John and his wife, Charlotte E. Birkmeier ("Charlotte") that Dr. Nicholson informed (her) that John's swelling was expected. (Id. at 76). Cramer then again attempted to remove the catheter, and ultimately used "moderate force" to pull the catheter out. (Id; 11/10/2016 Tr., Heather Cramer Dep. at 18). John testified that the removal process felt "like [his] penis was pulled inside out." (Id. at 85).

         {¶4} After the catheter was removed, John continued to experience pain and swelling, and returned to Dr. Taylor, another urologist in Dr. Nicholson's office, on December 26, 2013. (Id. at 86). During his appointment with Dr. Taylor, John was advised that his penis was showing signs of internal scarring. (Id. at 92). At a scheduled appointment on January 2, 2014, Dr. Nicholson removed the stents in John's penis, however, the process was complicated by the formation of strictures. (Id. at 95). On January 11, 2014, John went to St. Rita's Emergency Room for urinary retention. (Id. at 100).

         {¶5} As a result of the strictures in John's penis, John suffered complications which resulted in multiple surgeries, medical treatments, and specialist appointments. (Doc. No. 1). According to John, three separate urologists agreed (with John and Charlotte) that Cramer's removal of John's catheter was the cause of John's injuries. (11/10/2016 Tr., John D. Birkmeier Dep. at 128).

         Procedural Background

         {¶6} On November 30, 2015, Appellants filed a complaint for money damages against Defendants, St. Rita's Medical Center, Heather N. Cramer, Lima Urology, and St. Rita's Professional Services, LLC. (Doc. No. 1). In the first count of their complaint, Appellants alleged that Cramer was "negligent and departed from the accepted standards of medical care in traumatically and negligently removing a Foley catheter from John D. Birkmeier." (Id.). Further, Appellants alleged that Cramer, at all times pertinent to the complaint, was an employee of Defendants, St. Rita's Medical Center, Lima Urology, and St. Rita's Professional Services, LLC. (Id.). As a result of Cramer's removal of the Foley catheter, John D. Birkmeier alleged that he developed numerous and continuing complications, which led to permanent and partially disabling injuries. (Id.). In the second count of their complaint, Charlotte alleged that she had suffered a loss of consortium with John due to Cramer's negligent actions in removing John's catheter. (Id.).

         {¶7} On December 24, 2015, Appellees filed their answer in the trial court. (Doc. No. 6).

         {¶8} Thereafter, on January 4, 2017, Appellees filed a motion for summary judgment with exhibits in support. (Doc. Nos. 19, 20). Appellants filed a brief in opposition to Appellees' motion for summary judgment on February 15, 2017. (Doc. No. 26).

         {¶9} Pursuant to Civ. R. 56, the trial court issued its ruling on summary judgment on February 17, 2017. (Doc. No. 31). Specifically, the trial court found that the Ohio Supreme Court case of Frysinger v. Leech applied in this instance with regards to the termination of the physician-patient relationship, and further found that the point in time in which a physician-patient relationship terminates and the statute of limitations commences depends upon the conduct of the parties, which is a question of fact. (Id. at 4). However, the trial court further ruled that there was no evidence of a physician-patient relationship between St. Rita's Medical Center and Appellants. (Id. at 5). Thus, the trial court denied Appellees' motion for summary judgment as to Cramer, Lima Urology, and St. Rita's Professional Services, but granted Appellees' motion for summary judgment with respect to St. Rita's Medical Center, dismissing it as a party in this litigation. (Id.).

         {¶10} On October 25, 2017, the remaining Appellees filed a motion for reconsideration of their motion for summary judgment, which Appellants opposed. (Doc. Nos. 43, 46). On November 7, 2017, the trial court issued its ruling on the motion for reconsideration, pursuant to Civ. R. 56. (Doc. No. 62). In its decision, the trial court found that reconsideration was permissible, and ruled that Appellants' claim was a medical claim, not a medical malpractice claim. (Id. at 3; 7). Additionally, the trial court ruled that since Cramer was a Certified Medical Assistant ("CMA"), the "termination rule" set forth in the Frysinger decision did not apply. (Id. at 9). Lastly, the trial court ruled that even if the termination rule in Frysinger did apply, Appellants' were still beyond the statute of limitations for the filing of their complaint. (Id. at 10). As a result, the trial court granted Appellees' motion for summary judgment in its entirety, and dismissed Appellants' complaint. (Id.).

         {¶11} From this judgment Appellants appeal, and present the following assignments of error for our review:

ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR RECONSIDERATION WHEN IT RULED THAT THE TERMINATION RULE SET FORTH IN FRYSINGER V. LEECH (1987), 32 OHIO ST.3d 38, ONLY APPLIES TO PHYSICANS [SIC] AND NOT TO OTHER MEDICAL CARE PROVIDERS AS SET FORTH IN O.R.C. 2305.113(3).
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT DETERMINED A QUESTION OF FACT - THAT BEING, WHEN THE MEDICAL PROVIDER-PATIENT RELATIONSHIP TERMINATED ...

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