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Wagers v. Kettering Affiliated Health Services

Court of Appeals of Ohio, Second District, Montgomery

January 3, 2020

CARL WAGERS, ADMINISTRATOR OF THE ESTATE OF MARJORIE A. SLUSHER Plaintiff-Appellant
v.
KETTERING AFFILIATED HEALTH SERVICES DBA SYCAMORE GLEN HEALTH CENTER Defendant-Appellee

          Trial Court Case No. 2018-CV-2782 (Civil Appeal from Common Pleas Court)

          MARK S. O'HARA, Atty. Attorney for Plaintiff-Appellant

          CHARLES F. SHANE, Atty. HOWARD P. KRISHER, Atty. and JUSTINE Z. LARSEN, Atty. Attorney for Defendant-Appellee

          OPINION

          HALL, J.

         {¶ 1} Carl Wagers, the administrator of the estate of Marjorie A. Slusher, appeals the trial court's dismissal of his complaint against Kettering Affiliate Health Services d/b/a Sycamore Glen Health Center ("Sycamore Glen"). The trial court dismissed the complaint without prejudice after it concluded that the complaint contained a medical claim, as defined in R.C. 2305.113, and that Wagers had failed to satisfy Civ.R. 10(D)(2), governing the pleading of such claims.

         {¶ 2} We agree that the complaint contained a "medical claim." But because Wagers has failed to show that the complaint cannot be refiled, the trial court's dismissal order was not final and appealable, and we dismiss this appeal for lack of jurisdiction.

         I. Facts and Procedural History

         {¶ 3} On June 19, 2018, Wagers filed an action for negligence against Sycamore Glen, a long-term health care facility, or nursing home, alleging that its failure to properly care for Slusher led to her untimely death. Slusher became a resident in 2012 and died four years later in July 2016 at the age of 78. Specifically, the complaint pertinently alleged that:

5. Marjorie Slusher was transported from Defendant's facility to the hospital on July 7, 2016, due to severe stage 3 and 4 pressure ulcers which had also resulted in
6. Marjorie Slusher having suffered a stroke.
7. Marjorie Slusher was discharged from the hospital on July 15, 2016, to a different long-term care facility but she succumbed to the pressure ulcers and their impact on her health and she died on July 23, 2016.
8. The result of Defendant's lack of contracted care, either deliberate or negligent was the direct and proximate cause of the pressure ulcers on Marjorie Slusher.
9. As a result of Defendant's actions, or lack of care, Marjorie Slusher sustained catastrophic bodily injury, endured extreme pain, mental and physical anguish, and a deterioration in her physical health that resulted in her untimely death.

         {¶ 4} After filing its answer, Sycamore Glen moved to dismiss the complaint under Civ.R. 12(B)(6) on the ground that Wagers failed to comply with Civ.R. 10(D)(2), which requires that a complaint that contains a medical claim, as defined in R.C. 2305.113, be accompanied by an affidavit of merit or by a request for an extension of time to file an affidavit of merit. Opposing dismissal, Wagers argued that the complaint did not assert a medical claim, so he was not required to comply with Civ.R. 10(D)(2). The trial court agreed with Sycamore Glen and dismissed Wagers's complaint without prejudice in an order entered on October 3, 2018.

         {¶ 5} Wagers appeals.

         II. Analysis

         {¶ 6} Wagers's sole assignment of error alleges:

The Court errored [sic] in determining that the Appellant's claims could only be classified as medical claims [under] R.C 2305.113(E)(3) ...

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