Flynn v. Cleveland Clinic Health Sys.-E.

2018 Ohio 585

• Court: Ohio Court of Appeals
• Decided: February 15, 2018
• Docket: 105720
• Status: Published

Opinion

[Cite as Flynn v. Cleveland Clinic Health Sys.-E., 2018-Ohio-585.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105720

BONNIE R. FLYNN PLAINTIFF-APPELLANT

vs.

CLEVELAND CLINIC HEALTH SYSTEM-EAST, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-872982

BEFORE: Stewart, J., E.A. Gallagher, A.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: February 15, 2018 ATTORNEY FOR APPELLANT

Jennifer L. Lawther Nager, Romaine & Schneiberg Co., L.P.A. 27730 Euclid Avenue Cleveland, OH 44132

ATTORNEYS FOR APPELLEES

Thomas B. Kilbane Martin T. Galvin Reminger Co., L.P.A. 1400 Midland Building 101 Prospect Avenue, West Cleveland, OH 44115

George S. Coakley Richard T. Lobas Coakley Lammert Co., L.P.A. 1100 Superior Avenue, East, Suite 1314 Cleveland, OH 44114 MELODY J. STEWART, J.:

{¶1} Appellant Bonnie Flynn, the administrator of the estate of Glenna Lankford,

requested that this appeal be placed on our accelerated calendar under App.R. 11.1 and

Loc.App.R. 11.1. By doing so, she has agreed that we may render a decision in “brief

and conclusionary form” on her contention that the court erred by dismissing her medical

malpractice complaint against defendant-appellee Cleveland Clinic Health System-East

Region (and other named defendants) for failure to attach an affidavit of merit. See

App.R. 11.1(E).

{¶2} Flynn did not attach an affidavit of merit to her complaint, but sought an

extension of time to submit one under Civ.R. 10(D)(2)(b). The court granted an

extension of over 60 days and informed Flynn that her failure to produce an affidavit of

merit would result in a dismissal for failure to prosecute. Before the expiration of the

deadline, Flynn filed a motion seeking an additional 90-day extension on grounds that she

needed “additional medical records and imaging before the case can be properly reviewed

by a medical expert.” The court denied the second motion for an extension of time to file

an affidavit of merit, but nonetheless set a new deadline for filing the affidavit of merit

some 34 days beyond the original date. It then dismissed the complaint when the new

deadline lapsed. {¶3} The court did not abuse its discretion by refusing to grant a second extension

of time in which to file an affidavit of merit. In the motion for additional time to

produce an affidavit of merit attached to her complaint, Flynn stated that “she still needs

additional medical records and imaging before the case can be properly reviewed by a

medical expert.” Her second motion for an extension of time to produce an affidavit of

merit was identical to the first motion, including the statement that she “still needs

additional medical records and imaging before the case can be properly reviewed by a

medical expert.” Neither motion gave any indication of what discovery, if any, had been

attempted. Nor did the motion identify the specific medical records Flynn requested and

why she was having difficulty obtaining them. See Civ.R. 10(D)(2)(c). {¶4} Flynn also argues that the court erred by finding that all of the causes of

action stated in the complaint were subject to the Civ.R. 10(D)(2) requirement of an

affidavit of merit. Although claims filed against medical providers that do not implicate

malpractice are not subject to the affidavit of merit requirement set forth in Civ.R.

10(D)(2), Metro v. Diplomat Healthcare, 8th Dist. Cuyahoga No. 100799,

2014-Ohio-3146, ¶ 3, none of Flynn’s causes of action fell outside the affidavit of merit

requirement. Count 1 stated a claim of “medical negligence”; Counts 2 and 4 stated a

derivative claims for loss of consortium and “survivorship” based on the alleged medical

malpractice. See R.C. 2305.113(E)(7); Singh v. Cleveland Clinic Found., 8th Dist.

Cuyahoga No. 99066, 2013-Ohio-2465, ¶ 9. Count 3 stated a claim for wrongful death

based on Lankford being “improperly evaluated, diagnosed and/or treated” and had to be

supported by an affidavit of merit. See Hubbard v. Laurelwood Hosp., 85 Ohio App.3d

607, 620 N.E.2d 895 (11th Dist.1993).

{¶5} Judgment affirmed.

It is ordered that appellees recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. ______________________________________________ MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, A.J., and ANITA LASTER MAYS, J., CONCUR