JOHN D. BIRKMEIER, ET AL., PLAINTIFFS-APPELLANTS,
ST. RITA'S MEDICAL CENTER, ET AL., DEFENDANTS-APPELLEES.
from Allen County Common Pleas Court Trial Court No. CV 2015
M. Tuschman and Peter O. DeClark for Appellants
M. Thompson and Julia S. Wiley for Appellees
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
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).
On December 19, 2013, John had a follow-up visit with his
urologist, Dr. Craig Nicholson ("Dr.
Nicholson"). 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).
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).
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).
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.).
On December 24, 2015, Appellees filed their answer in the
trial court. (Doc. No. 6).
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.
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.).
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.).
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.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT DETERMINED A QUESTION
OF FACT - THAT BEING, WHEN THE MEDICAL