United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura Magistrate Judge
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE.
matter is before the Court on a Motion for Summary Judgment
filed by Defendant Ambulatory Care Solutions of Ohio,
(ECF No. 31.) Plaintiff filed a Memorandum in Opposition to
the Motion (ECF No. 33), and Defendant filed a Reply (ECF No.
41). The matter is now ripe for decision.
STATEMENT OF THE FACTS
Raymond Price, a veteran, is a patient of the Department of
Veterans Affairs (“VA”) Medical Center in Belmont
County, Ohio (the “VA-Belmont”). (Amended Compl.
¶ 35, ECF No. 25.) The VA-Belmont is a part of the
VA-Pittsburgh Health System (“VAPHS”).
(Id. ¶¶ 2-3.) In March 2015, the VA
entered into a contract with Ambulatory Care Solutions, LLC,
(“ACS”) to provide primary care services at the
VA-Belmont (the “Contract”). (U.S. Mot. Dismiss
Ex. A, ECF No. 27-1, at 1, 9-10.) At some point, ACS formed
Defendant Ambulatory Care Solutions of Ohio, LLC, (“ACS
of Ohio”) to fulfill these contractual obligations and
to operate the VA-Belmont. (ECF No. 51, ¶ 2.) During the
relevant time period, until at least November 2016, the
providers at the VA-Belmont were employed by ACS of Ohio.
(Christina Hood Aff. ¶ 4, ECF No. 31-1.)
to this Contract, ACS was responsible for “comply[ing]
with all relevant VA policies and procedures, including those
related to quality, patient safety and performance . . .
.” (ECF No. 27-1, at 7.) These policies and procedures
included VHA Directive 2009-019 and VHA Directive 1088
(collectively, the “Directives”), which govern
the transmission of results for diagnostic tests at VA
clinics. (Amended Compl. Exs. 2, 4, ECF Nos. 25-2, 25-4.)
Price has been a patient of the VA-Belmont for several years.
(Pl. Opp. to Def. Mot. for Summ. J. Ex. 8, ECF No. 33-9.) He
has gone to the VA-Belmont for his routine annual lab work,
and he plans to continue to do so. (Id.) As a part
of his annual lab work, the VA-Belmont tests Mr. Price's
Prostate-Specific Antigen (“PSA”) levels because
of his family history of cancer. (ECF No. 25 ¶¶
36-37.) PSA is a protein produced by the prostate, and
elevated levels of PSA (above four ng/ml) indicate a risk of
prostate cancer. (Id. ¶¶ 37-38.)
October 2, 2015, Mr. Price had blood drawn at the VA-Belmont,
and a nurse practitioner sent his blood to the VAPHS
laboratory for testing, including a PSA test. (Id.
¶¶ 40, 43, 44.) Mr. Price left the VA-Belmont
without receiving the results of his PSA test. (Id.
¶¶ 41- 42.) VAPHS completed the PSA test later that
same day and, at some point, notated in Mr. Price's
medical record that he had an elevated PSA level of 61.98
ng/ml. (Id. ¶¶ 42, 44.)
October 9, 2015, VAPHS sent Mr. Price's October 2, 2015,
blood test results to his regular primary care provider, who
works outside of the VA system. (Id. ¶ 48;
Amended Compl. Ex. 5, ECF No. 25-5.) This transmission did
not include the results of the PSA test. (ECF No. 25 ¶
one year later, on October 28, 2016, Mr. Price returned to
the VA-Belmont for another PSA test. (Id. ¶
54.) This test showed that Mr. Price's PSA level had
further increased to 145.36 ng/ml. (Id.) On November
16, 2016, Mr. Price visited the VA-Belmont where he learned
for the first time that his PSA levels were elevated.
(Id. ¶¶ 55, 58.)
after Mr. Price learned this information, he sought treatment
from an oncologist, Dr. Gregory Merrick, at Wheeling
Hospital. (Id. ¶ 60.) On December 13, 2016, Dr.
Merrick diagnosed Mr. Price with advanced prostate cancer.
(Id. ¶¶ 60, 63) According to Dr. Russell
Pachynski, another oncologist, Mr. Price's prostate
cancer “progress[ed] and spread to a substantial and
significant degree” between the time of the October 2,
2015, PSA test and the October 28, 2016, test. (Amended
Compl. Ex. 7, ECF No. 25-7 ¶ 6.)
November 15, 2017, Mr. Price submitted an administrative
claim of medical malpractice to the VA. (ECF No. 25 ¶
66.) On June 13, 2018, the VA denied Mr. Price's claim on
the grounds that the relevant VA-Belmont employees were
contract employees, precluding liability for the United
States. (U.S. Mot. Dismiss Ex. B, ECF No. 27-2.) Mr. Price
contends that he did not, and could not have known with the
exercise of reasonable diligence, that the providers at the
VA-Belmont were employed by ACS. (ECF No. 25 ¶ 76.) He
contends that the VA-Belmont providers never told him that
they were employed by ACS, that he always believed he was
receiving care from the VA, and that he never knew about the
existence of ACS until receiving the VA's June 13 letter.
(Raymond Price Aff. ¶¶ 3-6, ECF No. 25-6.)
August 23, 2018, Mr. Price filed a Complaint against the
United States and against ACS. (Compl., ECF No. 1.) On March
7, 2019, Mr. Price filed an Amended Complaint. (ECF No. 25.)
The Amended Complaint pleads allegations of negligence
against ACS (Count One) and the United States (Counts Two and
Three). (Id. at 21-28.) The parties have since
agreed to substitute ACS of Ohio for ACS as the appropriate
defendant. (ECF No. 51.)
STANDARD OF REVIEW
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
movant has the burden of establishing there are no genuine
issues of material fact, which may be achieved by
demonstrating the nonmoving party lacks evidence to support
an essential element of its claim. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v.
Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382,
1388-89 (6th Cir.1993). The burden then shifts to the
nonmoving party to “‘set forth specific facts
showing that there is a genuine issue for trial.'”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986) (quoting Fed.R.Civ.P. 56). When evaluating a motion
for summary judgment, the evidence must be viewed in the
light most favorable to the non-moving party. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
genuine issue exists if the nonmoving party can present
“significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the
material facts.” Moore v. Philip Morris Cos.,
8 F.3d 335, 339-40 (6th Cir. 1993). In other words,
“summary judgment will not lie . . . if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248;
accord Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (concluding that summary
judgment is appropriate when the evidence could not lead the
trier of fact to find for the non-moving party).
Price alleges in Count One that ACS of Ohio, “by and
through its employees and agents, ” acted negligently
by failing to: follow VA policies and directives, inform Mr.
Price of his elevated PSA levels in a timely manner, develop
and implement appropriate policies and procedures to ensure
timely communication of lab results, and train and supervise
its employees regarding the communication of lab results.
(ECF No. 24 ¶ 87.) In other words, Mr. Price alleges
that ACS of Ohio is vicariously liable for the alleged
medical negligence of its employees. At its core, ACS of Ohio
argues in its Motion for Summary Judgment that Mr.
Price's claim is barred by Ohio's one-year statute of
limitations on medical negligence claims. (Def. Mot. Summ.
J., at 7-9, ECF No. 31.) However, ACS of Ohio is only correct if
Mr. Price's claims are “medical claims” under
Whether Count One is a “Medical Claim” under Ohio
to § 2305.113 of the Ohio Revised Code, a “medical
. . . claim” must be brought “within one year
after the cause of action accrued.” Ohio Rev. Code Ann.
§ 2305.113(A) (West 2019). A “medical claim”
is “any claim that is asserted in any civil action
against a . . . hospital”or any employee or agent of a
“hospital . . . that arises out of the medical
diagnosis, care, or treatment of any person.”
Id. § 2305.113(E)(3). In turn,
“hospital” is defined as “any person,
corporation, association, board, or authority that is
responsible for the operation of any hospital” or
“clinic that employs a full-time staff of physicians
practicing in more than one recognized medical specialty and
rendering advice, diagnosis, care, and treatment to
individuals” while excluding “any hospital
operated by the government of the United States or any of its
branches.” Id. § 2305.113(E)(1).
are three words or phrases in this statutory scheme that are
relevant to ACS of Ohio's Motion for Summary
Judgment-“hospital, ” “medical claim,
” and “within one year after the cause of action
accrued.” The Court addresses the first two here and in
the next section analyzes the third.
first issue is whether ACS of Ohio is a
“hospital” as defined in § 2305.113(E)(1).
Mr. Price argues that he has filed a claim against a
“healthcare clinic” rather than a hospital. (ECF
No. 33, at 14.) This argument is unavailing.
“Hospital” is specifically defined as any
authority that is responsible for operating a
“clinic” that employs full-time physicians,
practices in multiple medical specialties, and renders
advice, diagnosis, care, and treatment. All available
evidence shows that ACS of Ohio fits this definition.
Price next argues that ACS of Ohio is not a
“hospital” because of § 2305.113(E)(1)'s
exclusion of any facilities “operated by the government
of the United States . . . .” The Court has already
concluded that the United States did not
“control” (and thus did not
“operate”) the VA-Belmont. (See ECF
No. 42, at 6-7.) Because ACS of Ohio was responsible for
operating a healthcare clinic that met the requirements of
the statute, ACS of Ohio is a “hospital” under
that ACS of Ohio is a hospital, the next question is whether
Count One is a “medical claim” under Ohio law. At
the core of Count One-and, indeed, the Amended Complaint-is
the alleged failure by the VA-Belmont to provide Mr. Price
timely notice of his 2015 PSA test results. As a result,
whether this constitutes a “medical claim”
depends on whether this allegation “arises out
of” Mr. Price's “medical diagnosis, care, or
treatment.” The Court finds that it does.
“arise” means “[t]o originate[, ] to stem
(from)[, ]” or “[t]o result (from).”
Arise, Black's Law Dictionary (10th ed. 2014).
The terms “diagnosis” and “treatment”
relate “to the identification and alleviation of a
physical or mental illness, disease, or defect.”
Browning v. Burt, 613 N.E.2d 993, 1003 (Ohio 1993).
And “care, ” in this context, “means the
prevention or alleviation of a physical or mental defect or
illness.” Id. Accordingly, Mr. Price's
claim regarding the VA-Belmont's failure to notify him of
his 2015 PSA test results is ...