[Cite as Burge v. Bethesda Hosp., Inc., 2025-Ohio-4827.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
MATTHEW BURGE, Administrator of : APPEAL NO. C-250023 the Estate of Curtis J. Burge and TRIAL NO. A-2403982 Executor of the Estate of Linda R. Burge, :
Plaintiff-Appellant, :
vs. : JUDGMENT ENTRY
BETHESDA HOSPITAL, INC., :
JARRAD N. LIFSHITZ, M.D., :
QUALIFIED EMERGENCY : SPECIALISTS, INC.,
and :
KRISTINE N. KLAUSING, R.N., :
Defendants-Appellees. :
This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 10/22/2025 per order of the court.
By:_______________________ Administrative Judge [Cite as Burge v. Bethesda Hosp., Inc., 2025-Ohio-4827.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
MATTHEW BURGE, Administrator of : APPEAL NO. C-250023 the Estate of Curtis J. Burge and TRIAL NO. A-2403982 Executor of the Estate of Linda R. Burge, :
Plaintiff-Appellant, : OPINION vs. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 22, 2025
Mark A. Humbert, for Plaintiff-Appellant,
Rendigs, Fry, Kiely & Dennis, L.L.P., Gunner K. Walker and Brian D. Goldwasser, for Defendants-Appellees Bethesda Hospital, Inc., and Kristine N. Klausing, R.N.
Lindhorst & Dreidame Co., L.P.A., Michael F. Lyon and Jessie E. Greive, for Defendants-Appellees Qualified Emergency Specialists, Inc., and Jarrad N. Lifshitz, M.D. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} In this case, plaintiff-appellant Matthew Burge, Administrator of the
Estate of Curtis J. Burge and Executor of the Estate of Linda R. Burge (“Matthew”),
appeals from the judgment of the trial court dismissing his medical-malpractice
complaint against defendants-appellees Bethesda Hospital, Inc., Jarrad N. Lifshitz,
M.D., Qualified Emergency Specialists, Inc. (“QESI”), and Kristine N. Klausing, R.N.
(collectively, “defendants”) for being filed outside the statute of repose in R.C.
2305.113(C).
{¶2} In a single assignment of error, Matthew argues that the trial court erred
in dismissing his complaint as “it cannot be determined from the face of the pleadings
alone that there is no scenario in which the applicable time limits could have been
tolled.” For the reasons that follow, we overrule the assignment of error and affirm
the judgment of the trial court.
I. Factual and Procedural History
{¶3} On September 5, 2024, Matthew filed a medical-malpractice complaint
against defendants. According to the complaint, Curtis Burge (“Burge”) presented by
ambulance to the emergency room at Bethesda North Hospital on November 9, 2017,
and came under the care of Dr. Lifshitz, who “negligently and carelessly rendered care”
to Burge, and Burge “died shortly after leaving the hospital due to cardiac
dysrhythmia.”
{¶4} Defendants respectively moved to dismiss Matthew’s complaint as
time-barred by the statute of repose in R.C. 2305.113(C).
{¶5} Matthew opposed dismissal, making two primary arguments. First, he
argued that the action brought in his capacity as the administrator of Burge’s estate
was tolled under R.C. 2305.16 during the period between Burge’s death and his
3 OHIO FIRST DISTRICT COURT OF APPEALS
appointment as the administrator of Burge’s estate as Burge was “incapacitated”
during this period. Second, he argued that the actions are not time-barred under R.C.
2305.15 because the individual defendants—Dr. Lifshitz and Klausing—“might” have
left the state at some point, meaning that it “cannot be said at this point that there is
no set of facts in this case under which Plaintiffs might be entitled to recovery.”
{¶6} Ultimately, after further briefing and a hearing, the trial court entered
an order granting the defendants’ respective motions to dismiss. The trial court found
the complaint was time-barred under R.C. 2305.113(C) where it was undisputed that
the act or omission that formed the basis of the claims occurred on November 9, 2017,
and the complaint was not filed until nearly seven years later on September 5, 2024.
{¶7} Regarding tolling under R.C. 2305.16, the trial court rejected this
argument after finding that, even accepting the date that Burge’s estate was created as
the starting point of the statute of repose, the claim was still time-barred as the estate
was created on October 29, 2018, and the complaint was not filed until roughly six
years later.
{¶8} Regarding tolling under R.C. 2305.15, the trial court rejected this
argument after finding that the chance that the individual defendants left the state at
some point is “purely speculative” and not based on the pleadings.
{¶9} Matthew now appeals, asserting in a single assignment of error that the
trial court “erred by dismissing the claims against defendants-appellees under Civ.R.
12(B)(6).”
II. Law and Analysis
A. Standard of Review
{¶10} This court reviews the dismissal of a complaint for failure to state a
claim de novo. Green v. Peters, 2024-Ohio-6040, ¶ 6 (1st Dist.), citing Zalvin v. Ayers,
4 OHIO FIRST DISTRICT COURT OF APPEALS
2020-Ohio-4021, ¶ 13 (1st Dist.). “‘When considering a Civ.R. 12(B)(6) dismissal, the
court must presume that all factual allegations in the complaint are true, and it must
make all reasonable inferences in favor of the nonmoving party.’” Id., citing Zalvin at
¶ 13. “‘It must then appear beyond doubt that the nonmoving party can prove no set
of facts entitling it to the relief requested in the complaint.’” Id., citing Zalvin at ¶ 13.
B. The Trial Court Correctly Dismissed the Complaint
{¶11} R.C. 2305.113(C), the statute of repose for medical claims, provides that
an action upon a medical claim is time-barred if it is not “commenced within four years
after the occurrence of the act or omission constituting the alleged basis of the medical
. . . claim.” In other words, R.C. 2305.113(C) “starts the statute of repose running on
the date the alleged malpractice was committed.” Elliot v. Durrani, 2022-Ohio-4190,
¶ 10.
{¶12} However, R.C. 2305.15, the tolling statute, as it existed at the time that
the complaint was filed in this case, explicitly provided an exception to the statute of
repose. See id. at ¶ 18. In other words, “[t]he legislature made clear in R.C. 2305.15
that an absconding defendant is not entitled to a four-year repose that is not tolled.”
Id. at ¶ 25.1
{¶13} Former R.C. 2305.15(A) stated,
When a cause of action accrues against a person, if the person is
out of state, has absconded, or conceals self, the period of limitation for
1 We note that R.C. 2305.15 was amended, effective October 24, 2024, for the express purpose of
overruling the Ohio Supreme Court’s decision in Elliot.
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[Cite as Burge v. Bethesda Hosp., Inc., 2025-Ohio-4827.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
MATTHEW BURGE, Administrator of : APPEAL NO. C-250023 the Estate of Curtis J. Burge and TRIAL NO. A-2403982 Executor of the Estate of Linda R. Burge, :
Plaintiff-Appellant, :
vs. : JUDGMENT ENTRY
BETHESDA HOSPITAL, INC., :
JARRAD N. LIFSHITZ, M.D., :
QUALIFIED EMERGENCY : SPECIALISTS, INC.,
and :
KRISTINE N. KLAUSING, R.N., :
Defendants-Appellees. :
This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 10/22/2025 per order of the court.
By:_______________________ Administrative Judge [Cite as Burge v. Bethesda Hosp., Inc., 2025-Ohio-4827.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
MATTHEW BURGE, Administrator of : APPEAL NO. C-250023 the Estate of Curtis J. Burge and TRIAL NO. A-2403982 Executor of the Estate of Linda R. Burge, :
Plaintiff-Appellant, : OPINION vs. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 22, 2025
Mark A. Humbert, for Plaintiff-Appellant,
Rendigs, Fry, Kiely & Dennis, L.L.P., Gunner K. Walker and Brian D. Goldwasser, for Defendants-Appellees Bethesda Hospital, Inc., and Kristine N. Klausing, R.N.
Lindhorst & Dreidame Co., L.P.A., Michael F. Lyon and Jessie E. Greive, for Defendants-Appellees Qualified Emergency Specialists, Inc., and Jarrad N. Lifshitz, M.D. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} In this case, plaintiff-appellant Matthew Burge, Administrator of the
Estate of Curtis J. Burge and Executor of the Estate of Linda R. Burge (“Matthew”),
appeals from the judgment of the trial court dismissing his medical-malpractice
complaint against defendants-appellees Bethesda Hospital, Inc., Jarrad N. Lifshitz,
M.D., Qualified Emergency Specialists, Inc. (“QESI”), and Kristine N. Klausing, R.N.
(collectively, “defendants”) for being filed outside the statute of repose in R.C.
2305.113(C).
{¶2} In a single assignment of error, Matthew argues that the trial court erred
in dismissing his complaint as “it cannot be determined from the face of the pleadings
alone that there is no scenario in which the applicable time limits could have been
tolled.” For the reasons that follow, we overrule the assignment of error and affirm
the judgment of the trial court.
I. Factual and Procedural History
{¶3} On September 5, 2024, Matthew filed a medical-malpractice complaint
against defendants. According to the complaint, Curtis Burge (“Burge”) presented by
ambulance to the emergency room at Bethesda North Hospital on November 9, 2017,
and came under the care of Dr. Lifshitz, who “negligently and carelessly rendered care”
to Burge, and Burge “died shortly after leaving the hospital due to cardiac
dysrhythmia.”
{¶4} Defendants respectively moved to dismiss Matthew’s complaint as
time-barred by the statute of repose in R.C. 2305.113(C).
{¶5} Matthew opposed dismissal, making two primary arguments. First, he
argued that the action brought in his capacity as the administrator of Burge’s estate
was tolled under R.C. 2305.16 during the period between Burge’s death and his
3 OHIO FIRST DISTRICT COURT OF APPEALS
appointment as the administrator of Burge’s estate as Burge was “incapacitated”
during this period. Second, he argued that the actions are not time-barred under R.C.
2305.15 because the individual defendants—Dr. Lifshitz and Klausing—“might” have
left the state at some point, meaning that it “cannot be said at this point that there is
no set of facts in this case under which Plaintiffs might be entitled to recovery.”
{¶6} Ultimately, after further briefing and a hearing, the trial court entered
an order granting the defendants’ respective motions to dismiss. The trial court found
the complaint was time-barred under R.C. 2305.113(C) where it was undisputed that
the act or omission that formed the basis of the claims occurred on November 9, 2017,
and the complaint was not filed until nearly seven years later on September 5, 2024.
{¶7} Regarding tolling under R.C. 2305.16, the trial court rejected this
argument after finding that, even accepting the date that Burge’s estate was created as
the starting point of the statute of repose, the claim was still time-barred as the estate
was created on October 29, 2018, and the complaint was not filed until roughly six
years later.
{¶8} Regarding tolling under R.C. 2305.15, the trial court rejected this
argument after finding that the chance that the individual defendants left the state at
some point is “purely speculative” and not based on the pleadings.
{¶9} Matthew now appeals, asserting in a single assignment of error that the
trial court “erred by dismissing the claims against defendants-appellees under Civ.R.
12(B)(6).”
II. Law and Analysis
A. Standard of Review
{¶10} This court reviews the dismissal of a complaint for failure to state a
claim de novo. Green v. Peters, 2024-Ohio-6040, ¶ 6 (1st Dist.), citing Zalvin v. Ayers,
4 OHIO FIRST DISTRICT COURT OF APPEALS
2020-Ohio-4021, ¶ 13 (1st Dist.). “‘When considering a Civ.R. 12(B)(6) dismissal, the
court must presume that all factual allegations in the complaint are true, and it must
make all reasonable inferences in favor of the nonmoving party.’” Id., citing Zalvin at
¶ 13. “‘It must then appear beyond doubt that the nonmoving party can prove no set
of facts entitling it to the relief requested in the complaint.’” Id., citing Zalvin at ¶ 13.
B. The Trial Court Correctly Dismissed the Complaint
{¶11} R.C. 2305.113(C), the statute of repose for medical claims, provides that
an action upon a medical claim is time-barred if it is not “commenced within four years
after the occurrence of the act or omission constituting the alleged basis of the medical
. . . claim.” In other words, R.C. 2305.113(C) “starts the statute of repose running on
the date the alleged malpractice was committed.” Elliot v. Durrani, 2022-Ohio-4190,
¶ 10.
{¶12} However, R.C. 2305.15, the tolling statute, as it existed at the time that
the complaint was filed in this case, explicitly provided an exception to the statute of
repose. See id. at ¶ 18. In other words, “[t]he legislature made clear in R.C. 2305.15
that an absconding defendant is not entitled to a four-year repose that is not tolled.”
Id. at ¶ 25.1
{¶13} Former R.C. 2305.15(A) stated,
When a cause of action accrues against a person, if the person is
out of state, has absconded, or conceals self, the period of limitation for
1 We note that R.C. 2305.15 was amended, effective October 24, 2024, for the express purpose of
overruling the Ohio Supreme Court’s decision in Elliot. See Editor’s Notes to R.C. 2305.15. However, the legislature did not indicate that the amended statute applies retrospectively, so the amended statute only has prospective application. See Pulley v. Voytko, 2025-Ohio-1587, ¶ 18 (5th Dist.); see also Tarahfields, LLC v. Wilson, 2025-Ohio-1337, ¶ 64, fn. 6 (10th Dist.); Gamble v. Valley Oaks Care Ctr., 2025 Ohio LEXIS 551, fn. 5 (7th Dist. Feb. 20, 2025). Here, the complaint was filed in September 2024, just prior to the amended statute going into effect. Therefore, Elliot is still applicable here.
5 OHIO FIRST DISTRICT COURT OF APPEALS
the commencement of the action as provided in sections 2305.04 to
2305.14 . . . does not begin to run until the person comes into the state
or while the person is so absconded or concealed. After the cause of
action accrues if the person departs from the state, absconds, or
conceals self, the time of the person’s absence or concealment shall not
be computed as any part of a period within which the action must be
brought.
{¶14} Matthew argues that the trial court erred in dismissing his complaint as
“it cannot be determined from the face of the pleadings alone that there is no scenario
in which the applicable time limits could have been tolled.” This argument is based
on the assertion that “neither the trial court nor this court has any way of knowing
whether either of the [individual defendants] might have [left the state], much less for
how long or when, and such facts simply cannot be known without” discovery. In other
words, Matthew argues that “it simply cannot be determined beyond doubt from the
face of the pleadings in this case that there is no set of facts under which Mr. Burge
could be entitled to relief.”
{¶15} In support of this assertion, he points to Harris v. Vision Energy, LLC,
2024-Ohio-2878, ¶ 27 (1st Dist.), and Taylor-Winfield Corp. v. Huntington Bank,
2021-Ohio-3480 (11th Dist.).
{¶16} In Harris, this court determined that the claim at issue made it past the
pleading stage only because the viability of the claim could not be determined from
the face of the pleadings. See Harris at ¶ 17. In other words, the facts set forth in the
complaint were not conclusive as to the viability of the claim.
{¶17} In Taylor-Winfield, the court first said, “‘In order to conclusively
demonstrate that the action is time-barred, the allegations in the complaint must
6 OHIO FIRST DISTRICT COURT OF APPEALS
demonstrate both (1) the applicable statute of limitations, and (2) the absence of
factors which would toll the pertinent statute, or make it inapplicable.’” Id. at ¶ 7,
quoting Ricketts v. Everflow E., Inc., 2016-Ohio-4807, ¶ 12 (7th Dist.). The court then
held that the complaint at issue did not conclusively demonstrate the absence of
factors which would toll the applicable statute of limitations—regarding the claims
subject to the discovery rule—where the complaint alleged that the plaintiff did not
become aware of the alleged wrongdoing until 2018. Id. at ¶ 20. In other words, the
complaint contained allegations indicating that tolling may be applicable to those
claims.
{¶18} Here, the facts pled in the complaint conclusively show that the claims
are barred by the statute of repose as the complaint was filed well beyond four years
after the day that Burge received the medical care at issue and there are no allegations
in the complaint that any individual defendant left the state at any point.
{¶19} Any suggestion that an individual defendant may have left the state is
based on mere speculation and “even Ohio’s notice-pleading standard does not permit
mere speculation.” Lombardo v. Best W. Hotels & Resorts, 2023-Ohio-2300, ¶ 17 (8th
Dist.), citing Maternal Grandmother, Admr. v. Hamilton Cty. Dept. of Job & Family
Servs., 2021-Ohio-4096, ¶ 20 (Dewine, J., concurring in judgment only), citing
Sacksteder v. Senney, 2012-Ohio-4452, ¶ 45 (2d Dist.); accord Konkel v. Ohio Parole
Bd., 2025-Ohio-1071, ¶ 24 (10th Dist.), citing Maternal Grandmother at ¶ 29 (Dewine,
J., concurring in judgment only).
{¶20} Beyond that, Matthew has not pointed to any authority to indicate that
a medical claim may nevertheless proceed past the pleading stage, despite the claim
appearing as time-barred on the face of the complaint, in order to allow discovery as
to whether any individual defendant ever left the state, tolling the statute of repose.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Matthew further argues that “all time was tolled” under R.C. 2305.16
until October 29, 2018, when he was appointed the administrator of Burge’s estate.
However, even assuming this argument is correct, the current complaint would
nevertheless be time-barred, as the statute of repose ran in October 2022, and the
complaint was not filed until September 2024.
III. Conclusion
{¶22} For all the foregoing reasons, we hold that the complaint was time-
barred by the statute of repose in R.C. 2305.113(C). Accordingly, we overrule the
assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
NESTOR and MOORE, JJ., concur.