[Cite as Conkin v. CHS-Ohio Valley, Inc., 2012-Ohio-2816.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
ELIZABETH CONKIN, as guardian for : APPEAL NO. C-110660 ZELMA ANDERSON, TRIAL NO. A-1104723 : Plaintiff-Appellant, : O P I N I O N. vs. : CHS-OHIO VALLEY, INC., d.b.a. GLENCARE CENTER :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 22, 2012
Ulmer & Berne, LLP, Frederic X. Shadley and Jason P. Conte for Plaintiff- Appellant,
Reminger Attorneys at Law, Danny Merril Newman, Jr., and Michael M. Mahon for Defendant-Appellee.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
HENDON, Judge.
{¶1} The issue presented for our review is whether the trial court erred in
dismissing the complaint of Elizabeth Conkin, guardian for Zelma Anderson, as
time-barred by the one-year statute of limitations set forth in R.C. 2305.113(A) for
“medical claims.”
FACTS
{¶1} Seventy-year old Zelma Anderson was a resident at defendant-appellee
CHS-Ohio Valley, Inc., d.b.a. Glencare Center nursing home. Conkin claims that
Anderson, who was confined to a wheelchair, required the assistance of at least two
people when being transferred from her wheelchair into a device called a “Hoyer lift.”
Conkin asserts that a Glencare employee, identified as “Jane Doe,” acted alone when
transferring Anderson into the Hoyer lift so that Anderson could shower. As a result,
Conkin alleges that Anderson either fell or was dropped, and was seriously injured.
Conkin also alleges that Doe failed to report Anderson’s fall and that Anderson
therefore did not receive immediate treatment for her injuries.
{¶2} Eighteen months after this incident, Conkin, as guardian for Anderson,
sued Glencare and Doe alleging negligence, negligent training, violation of resident’s
rights under R.C. 3721.13, respondeat superior, and breach of contract. She also
requested punitive damages. Glencare and Doe moved the trial court to dismiss
Conkin’s complaint under Civ.R. 12(B)(6), arguing that all of Conkin’s claims were
“medical claims” as defined in R.C. 2305.113 and therefore were subject to a one-year
statute of limitations. The trial court granted Glencare’s motion. In one assignment
of error, Conkin now claims that the trial court erred in dismissing her claims.
2 OHIO FIRST DISTRICT COURT OF APPEALS
STANDARD OF REVIEW
{¶3} Appellate review of the trial court's decision is de novo. Perrysburg
Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. We must
accept all factual allegations in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio
St.3d 190, 192, 532 N.E.2d 753 (1988). A complaint may be dismissed under Civ.R.
12(B)(6) only when it appears beyond doubt that the plaintiff can prove no set of
facts that would entitle it to relief. O'Brien v. Univ. Community Tenants Union, Inc.,
42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.
“MEDICAL CLAIM”
{¶4} In pertinent part, R.C. 2305.113(E)(3) and (E)(3)(b) provide that a
“medical claim” is a claim against a home or against any employee of a home, “that
arises out of the medical diagnosis, care, or treatment of any person.” Further, the
claim must result (1) “from acts or omissions in providing medical care” or (2) “from
the hiring, training, supervision, retention, or termination of caregivers providing
medical diagnosis, care, or treatment.” R.C. 2305.113(E)(3)(b)(i) and (ii). Claims
that are brought under R.C. 3721.17, as in this case, and “that arise out of the medical
diagnosis, care, or treatment of any person” are also “medical claims.” R.C.
2305.113(E)(3)(c).
{¶5} It is not disputed that Glencare qualifies as a “home” under R.C.
2305.113. It is also not disputed that the issue here is whether Glencare and Doe
were providing “medical care” to Anderson (versus “diagnosis” or “treatment”) when
transferring Anderson into the Hoyer lift.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Browning and Rome
{¶6} There are two leading cases that address this issue─Browning v. Burt,
66 Ohio St.3d 544, 613 N.E.2d 993 (1993) and Rome v. Flower Mem. Hosp., 70 Ohio
St.3d 14, 635 N.E.2d 1239 (1994). In Browning, the Ohio Supreme Court held that
“care” as used in a prior but analogous version of R.C. 2305.113(E)(3) refers to “the
prevention or alleviation of a physical or mental defect or illness.” Browning at 557.
The Browning court also held that the term “care,” should not be broadly
interpreted. Id.
{¶7} In Rome, the Ohio Supreme Court addressed the circumstances under
which the allegedly negligent use of medical equipment is considered a “medical
claim.” Rome involved two consolidated cases. In the first, plaintiff Rome, who was
scheduled for x-rays at the defendant hospital, was injured when she was incorrectly
strapped onto an x-ray table by a hospital intern. In the second case, plaintiff Eager,
a hospital patient, was injured when the wheelchair he was riding in collapsed while
he was being taken to physician-ordered physical therapy. The court held that both
cases involved “medical claims.” In Rome’s case, the court determined that the act of
securing Rome on a table for an x-ray constituted “medical diagnosis, care, or
treatment” because it was “ancillary to and an inherently necessary part of the
administration of the x-ray procedure which was ordered to identify and alleviate her
medical complaints.” Rome at 16. As to Eager, the court held that because the
wheelchair “transport arose out of Eager’s physical therapy treatment,” Eager’s
injury was a result of his “care or treatment.” Id. at 17. In both cases, the court noted
4 OHIO FIRST DISTRICT COURT OF APPEALS
that use of the medical equipment involved a “certain amount” of “professional
expertise” or “professional skill.” Id. at 16-17.
Test for Use of Medical Equipment as “Care”
{¶8} Thus, to determine whether the use of medical equipment constitutes
“care” under R.C. 2305.113(E)(3), we must first determine if the equipment was used
for “the prevention or alleviation of a physical or mental defect or illness.” Browning
at 557. Central to this analysis is whether the equipment was “an inherently
necessary part of a medical procedure” or if use of the equipment “arose out of” a
physician ordered treatment. Rome at 16-17. Second, we must determine if the use
of the equipment required a “certain amount” of professional expertise or
professional skill. Id.
Anderson’s Case
{¶9} In this case, the complaint alleges that Anderson sustained serious
injury when she was improperly transferred from her wheelchair into a Hoyer lift.
We note that the complaint failed to state why Anderson was being transferred. But
Conkin and Glencare have both acknowledged in their appellate briefs and at oral
argument that Anderson asserts that she was being moved so that she could shower.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Conkin v. CHS-Ohio Valley, Inc., 2012-Ohio-2816.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
ELIZABETH CONKIN, as guardian for : APPEAL NO. C-110660 ZELMA ANDERSON, TRIAL NO. A-1104723 : Plaintiff-Appellant, : O P I N I O N. vs. : CHS-OHIO VALLEY, INC., d.b.a. GLENCARE CENTER :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 22, 2012
Ulmer & Berne, LLP, Frederic X. Shadley and Jason P. Conte for Plaintiff- Appellant,
Reminger Attorneys at Law, Danny Merril Newman, Jr., and Michael M. Mahon for Defendant-Appellee.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
HENDON, Judge.
{¶1} The issue presented for our review is whether the trial court erred in
dismissing the complaint of Elizabeth Conkin, guardian for Zelma Anderson, as
time-barred by the one-year statute of limitations set forth in R.C. 2305.113(A) for
“medical claims.”
FACTS
{¶1} Seventy-year old Zelma Anderson was a resident at defendant-appellee
CHS-Ohio Valley, Inc., d.b.a. Glencare Center nursing home. Conkin claims that
Anderson, who was confined to a wheelchair, required the assistance of at least two
people when being transferred from her wheelchair into a device called a “Hoyer lift.”
Conkin asserts that a Glencare employee, identified as “Jane Doe,” acted alone when
transferring Anderson into the Hoyer lift so that Anderson could shower. As a result,
Conkin alleges that Anderson either fell or was dropped, and was seriously injured.
Conkin also alleges that Doe failed to report Anderson’s fall and that Anderson
therefore did not receive immediate treatment for her injuries.
{¶2} Eighteen months after this incident, Conkin, as guardian for Anderson,
sued Glencare and Doe alleging negligence, negligent training, violation of resident’s
rights under R.C. 3721.13, respondeat superior, and breach of contract. She also
requested punitive damages. Glencare and Doe moved the trial court to dismiss
Conkin’s complaint under Civ.R. 12(B)(6), arguing that all of Conkin’s claims were
“medical claims” as defined in R.C. 2305.113 and therefore were subject to a one-year
statute of limitations. The trial court granted Glencare’s motion. In one assignment
of error, Conkin now claims that the trial court erred in dismissing her claims.
2 OHIO FIRST DISTRICT COURT OF APPEALS
STANDARD OF REVIEW
{¶3} Appellate review of the trial court's decision is de novo. Perrysburg
Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. We must
accept all factual allegations in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio
St.3d 190, 192, 532 N.E.2d 753 (1988). A complaint may be dismissed under Civ.R.
12(B)(6) only when it appears beyond doubt that the plaintiff can prove no set of
facts that would entitle it to relief. O'Brien v. Univ. Community Tenants Union, Inc.,
42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.
“MEDICAL CLAIM”
{¶4} In pertinent part, R.C. 2305.113(E)(3) and (E)(3)(b) provide that a
“medical claim” is a claim against a home or against any employee of a home, “that
arises out of the medical diagnosis, care, or treatment of any person.” Further, the
claim must result (1) “from acts or omissions in providing medical care” or (2) “from
the hiring, training, supervision, retention, or termination of caregivers providing
medical diagnosis, care, or treatment.” R.C. 2305.113(E)(3)(b)(i) and (ii). Claims
that are brought under R.C. 3721.17, as in this case, and “that arise out of the medical
diagnosis, care, or treatment of any person” are also “medical claims.” R.C.
2305.113(E)(3)(c).
{¶5} It is not disputed that Glencare qualifies as a “home” under R.C.
2305.113. It is also not disputed that the issue here is whether Glencare and Doe
were providing “medical care” to Anderson (versus “diagnosis” or “treatment”) when
transferring Anderson into the Hoyer lift.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Browning and Rome
{¶6} There are two leading cases that address this issue─Browning v. Burt,
66 Ohio St.3d 544, 613 N.E.2d 993 (1993) and Rome v. Flower Mem. Hosp., 70 Ohio
St.3d 14, 635 N.E.2d 1239 (1994). In Browning, the Ohio Supreme Court held that
“care” as used in a prior but analogous version of R.C. 2305.113(E)(3) refers to “the
prevention or alleviation of a physical or mental defect or illness.” Browning at 557.
The Browning court also held that the term “care,” should not be broadly
interpreted. Id.
{¶7} In Rome, the Ohio Supreme Court addressed the circumstances under
which the allegedly negligent use of medical equipment is considered a “medical
claim.” Rome involved two consolidated cases. In the first, plaintiff Rome, who was
scheduled for x-rays at the defendant hospital, was injured when she was incorrectly
strapped onto an x-ray table by a hospital intern. In the second case, plaintiff Eager,
a hospital patient, was injured when the wheelchair he was riding in collapsed while
he was being taken to physician-ordered physical therapy. The court held that both
cases involved “medical claims.” In Rome’s case, the court determined that the act of
securing Rome on a table for an x-ray constituted “medical diagnosis, care, or
treatment” because it was “ancillary to and an inherently necessary part of the
administration of the x-ray procedure which was ordered to identify and alleviate her
medical complaints.” Rome at 16. As to Eager, the court held that because the
wheelchair “transport arose out of Eager’s physical therapy treatment,” Eager’s
injury was a result of his “care or treatment.” Id. at 17. In both cases, the court noted
4 OHIO FIRST DISTRICT COURT OF APPEALS
that use of the medical equipment involved a “certain amount” of “professional
expertise” or “professional skill.” Id. at 16-17.
Test for Use of Medical Equipment as “Care”
{¶8} Thus, to determine whether the use of medical equipment constitutes
“care” under R.C. 2305.113(E)(3), we must first determine if the equipment was used
for “the prevention or alleviation of a physical or mental defect or illness.” Browning
at 557. Central to this analysis is whether the equipment was “an inherently
necessary part of a medical procedure” or if use of the equipment “arose out of” a
physician ordered treatment. Rome at 16-17. Second, we must determine if the use
of the equipment required a “certain amount” of professional expertise or
professional skill. Id.
Anderson’s Case
{¶9} In this case, the complaint alleges that Anderson sustained serious
injury when she was improperly transferred from her wheelchair into a Hoyer lift.
We note that the complaint failed to state why Anderson was being transferred. But
Conkin and Glencare have both acknowledged in their appellate briefs and at oral
argument that Anderson asserts that she was being moved so that she could shower.
We therefore consider this fact in our analysis. See Haney v. Law, 1st Dist. No. C-
070313, 2008-Ohio-1843.
{¶10} Accepting these facts as true and drawing all reasonable inferences in
favor of Conkin, we hold that Conkin’s claims, as pled, are not “medical claims.”
Even if the Hoyer lift was used for the alleviation of problems associated with
Anderson’s range of motion, there is no indication at this point in the proceedings
that the use of the Hoyer lift was an inherent part of a medical procedure or that it
5 OHIO FIRST DISTRICT COURT OF APPEALS
arose out of physician ordered treatment. And it is also unclear whether a “certain
amount” of professional expertise or professional skill may have been required to
transfer Anderson into the lift. The claims are therefore not barred by the one-year
statute of limitations set forth in R.C. 2305.113(A).
{¶11} Our holding is consistent with cases from other appellate districts.
See Hill v. Wadsworth-Rittman Area Hosp., 185 Ohio App.3d 788, 2009-Ohio-5421,
925 N.E.2d 1012 (9th Dist.) (no medical claim where plaintiff was injured while
getting out of a wheelchair while being discharged from defendant hospital because
she was not injured in the course of a test or treatment, nor was the wheelchair
escort ancillary to or an inherently necessary part of any test or treatment.); Balascoe
v. St. Elizabeth Hosp. Med. Ctr., 110 Ohio App.3d 83, 673 N.E.2d 651 (7th Dist.1996)
(no medical claim where emergency room patient left bed on her own accord to use
the restroom and slipped and fell on a piece of plastic because the injury did not arise
from her medical care or treatment.); see, also, Summers v. Midwest Allergy
Associates, 10th Dist. No. 02AP-280, 2002-Ohio-7357; Tayerle v. Hergenroeder,
11th Dist. No. 98-G-2195, 1999 Ohio App. LEXIS 5931 (Dec. 10, 1999).
CONCLUSION
{¶12} We sustain Conkin’s sole assignment of error and hold that the
claims, as pled, do not constitute “medical claims” as defined in R.C. 3721.113. The
judgment of the trial court is reversed and this cause is remanded for further
proceedings consistent with law and this opinion.
Judgment reversed and cause remanded.
SUNDERMANN, P.J., and FISCHER, J., concur.
Please note:
6 OHIO FIRST DISTRICT COURT OF APPEALS
The court has recorded its own entry on the date of the release of this opinion.