[Cite as Francis v. Cleveland Clinic Found., 2026-Ohio-829.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
ANTOINE FRANCIS, INDIVIDUALLY : AND AS ADMINISTRATOR OF THE ESTATE OF MICHAEL E. FRANCIS, :
Plaintiff-Appellant, : No. 115062 v. :
CLEVELAND CLINIC FOUNDATION, : ET AL.,
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 12, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-24-993096
Appearances:
D.W. Smith Legal Services and Derek W. Smith, for appellant.
Roetzel & Andress, LPA and Emily K. Anglewicz, for appellee Cleveland Clinic Foundation.
LISA B. FORBES, P.J.:
Antoine Francis, individually (“Antoine”) and as administrator of
Michael Francis’s Estate (“the Estate”) (collectively, “Appellant”), appeals the trial court’s orders granting Cleveland Clinic Foundation’s (“CCF”) motion for partial
summary judgment and motion in limine. After a thorough review of the facts and
the law, we affirm.
I. Facts and Procedural History
The parties do not dispute the following facts. On December 3, 2020,
Michael E. Francis (“Michael”) underwent hip surgery in a CCF hospital. Before
surgery, Michael presented with several conditions that elevated the risk of adverse
surgical outcomes, including that he was receiving hemodialysis for kidney disease.
On December 4, 2020, after his hip surgery, while in recovery in the hospital,
Michael went into cardiac arrest and died. For a period before Michael’s death, heart
monitors that Michael’s physician had ordered for him were not properly connected.
On April 22, 2022, Appellant sued CCF in the Cuyahoga County
Common Pleas Court, before later voluntarily dismissing his complaint. He refiled
his complaint on February 20, 2024, raising the following claims: Count 1, “Medical
Negligence, Professional Torts and/or General Negligence/Survivorship” and Count
2, “Wrongful Death.” Appellant also requested compensatory and punitive
damages. He alleged that, because CCF’s monitors had not been properly
connected, medical personnel had failed to respond timely to Michael’s cardiac
arrest.
On December 2, 2024, CCF filed a motion for partial summary
judgment, arguing that Appellant commenced the medical-negligence survivorship
claim in this case outside the one-year limitations period that R.C. 2305.113(A) imposes on medical claims. CCF attached to its motion a copy of an email from
Appellant’s counsel to CCF, dated March 27, 2021, in which Appellant’s counsel
represented that he was investigating potential medical claims arising from
Michael’s death. The parties do not dispute that this email was the first attempt that
counsel made to inform CCF that he was investigating these potential claims. The
parties also do not dispute that the one-year limitations period in R.C. 2305.113(A)
applies to the medical-negligence survivorship claim pled in Count One.
Appellant opposed CCF’s motion, arguing that counsel’s email and a
CCF email in response were sufficient to extend the limitations period by an
additional 180 days under R.C. 2305.113(B), within which time Appellant had filed
his initial complaint. Appellant attached to his summary-judgment briefing a copy
of an email, dated March 28, 2021, that CCF sent to Appellant’s counsel. In this
email, CCF confirmed that it had received counsel’s correspondence regarding his
investigation into potential claims.
On March 19, 2025, the court granted CCF’s motion for partial
summary judgment. Consequently, the Estate’s medical-negligence survivorship
claim was dismissed.1 The case proceeded on Antoine’s wrongful-death claim.
Before trial, Antoine proposed jury instructions, including one
regarding a loss-of-chance theory. That is, the proposed jury instruction addressed
1 The related request for punitive damages was also dismissed. See Rubeck v. Huffman, 54 Ohio St.2d 20, 22 (1978) (Punitive damages are not available in a wrongful- death action.). whether CCF’s failure to maintain working monitors deprived Michael of a less-
than-even chance to recover from his cardiac arrest.
On March 24, 2025, CCF filed a “motion in limine to preclude plaintiff
from pursuing a loss-of-chance theory at trial,” arguing that Antoine’s medical
expert Dr. David Grundy (“Dr. Grundy”) had offered no opinion in his expert report
or deposition regarding loss of chance. Following in-court arguments by counsel for
each party, the court granted CCF’s motion in limine. On the record, the court
instructed the parties to limit the testimony of experts “to the opinions that are
contained within their expert reports.” The court found that “the loss of less than
even chance of recovery claim . . . [was] not cited to explicitly in the expert witness
report” of Dr. Grundy.
The case proceeded to a jury trial on March 24, 2025. The court did
not issue the proposed jury instruction regarding loss of chance. CCF stipulated that
it had failed to satisfy a duty to Michael to maintain cardiac monitoring but disputed
that doing so had proximately caused his death. The jury returned a verdict in favor
of CCF, finding that Antoine had not proven to a reasonable degree of medical
probability that CCF’s negligence had directly and proximately caused Michael’s
death.
Appellant appealed, raising the following assignments of error:
1. The trial court erred in granting partial summary judgment against the survivorship claim by holding that Appellant’s timely written notice, actually received and acknowledged by Appellee’s law department, was ineffective because it was not transmitted by USPS certified mail. 2. The trial court abused its discretion and erred as a matter of law in granting Appellee’s motion in limine to categorically preclude any loss-of-chance claim, despite Roberts-compliant testimony.
II. Law and Analysis
A. Assignment of Error No. 1 — the Statute of Limitations Regarding Antoine’s Medical-Negligence Survivorship Claim
Appellant asserts that the trial court erred by granting CCF’s motion
for partial summary judgment and dismissing the medical-negligence survivorship
claim pled in Count 1 of the complaint. According to Appellant, Antoine’s counsel’s
email representation to CCF that he was considering bringing medical claims related
to Michael’s death and CCF’s email acknowledging receipt thereof were sufficient to
extend the one-year limitations period for such claims by an additional 180 days
under R.C. 2305.113(B).2 We disagree.
“Under Civ.R. 56, summary judgment is appropriate when no
genuine issue exists as to any material fact and, viewing the evidence most strongly
in favor of the nonmoving party, reasonable minds can reach only one conclusion
that is adverse to the nonmoving party, entitling the moving party to judgment as a
matter of law.” Madaras v. Applebee’s Neighborhood Grill & Bar, 2025-Ohio-169,
¶ 12 (8th Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
“‘We review an appeal from summary judgment de novo.’” Anderson
v. Mitchell, 2014-Ohio-1058, ¶ 4 (8th Dist.), quoting Grafton at 105. “‘De novo
2 Appellant argues that Antoine commenced his medical-negligence survivorship
claim within the applicable limitations period by suing CCF on April 22, 2022, less than one year and 180 days after Michael’s death on December 4, 2020. review encompasses an independent examination of the record and law without
deference to the underlying decision.’” Torres v. Concrete Designs, Inc., 2019-Ohio-
1342, ¶ 48 (8th Dist.), quoting Gateway Consultants Group, Inc. v. Premier
Physicians Ctrs., Inc., 2017-Ohio-1443, ¶ 22 (8th Dist.).
R.C. 2305.113(A) establishes the limitations period for medical
actions, stating that “an action upon a medical, dental, optometric, or chiropractic
claim shall be commenced within one year after the cause of action accrued.” The
parties do not dispute that the dismissed claim related to the care that Michael
received while recovering from his hip surgery in CCF’s hospital and is a medical
claim under this provision.
R.C. 2305.113(B)(1) allows for the one-year limitations period for
medical claims to be extended by 180 days if, prior to the expiration of the one-year
period, a claimant “gives to the person who is the subject of [the] claim written
notice that the claimant is considering bringing an action upon that claim.”
R.C. 2305.113(B)(2) establishes additional requirements for such notice, stating that
“a claimant shall give [the written notice described in division (B)(1)] by sending it
by certified mail, return receipt requested,” addressed to any of several listed
recipients.
Regarding the requirement in R.C. 2305.113(B)(2) that a claimant
“shall give” notice by certified mail, this court has “acknowledged the principle that
‘shall means shall’ and shall is a ‘word of command.’” State v. Walker, 2021-Ohio-
580, ¶ 36 (8th Dist.), quoting State v. Brooks, 2020-Ohio-3826, ¶ 7 (8th Dist.). The dictionary defines “shall,” in part, as a word “used in laws, regulations, or directives
to express what is mandatory.” Merriam-Webster Online, https://www.merriam-
webster.com/dictionary/shall (accessed February 18, 2026).
[https://perma.cc/RUP3-QHYR]. See Finger v. Liberty Mut. Personal Ins. Co.,
2023-Ohio-2308, ¶ 33 (8th Dist.), quoting Commercial Intertech Corp. v. Guyan
Internatl. Inc., 2001 Ohio App. LEXIS 1556, *5 (11th Dist. Mar. 30, 2001) (“A
dictionary definition ‘is a reliable source for finding the plain and ordinary meaning
of a word.’”). Appellant has proffered no interpretation of R.C. 2305.113(B)(2)
suggesting that the certified-mail requirement is permissive, arguing instead that
the defense waived this requirement by participating in this litigation. Appellant
also argues that CCF received actual notice regarding counsel’s investigation of
claims, demonstrated by CCF’s reply email.
We are not persuaded by Appellant’s argument that the medical-
negligence survivorship claim was commenced within the applicable limitations
period. In a recent case, the Ohio Supreme Court considered a similar issue and
affirmed dismissal of medical claims that it found a plaintiff had commenced after
the one-year limitations period in R.C. 2305.113(A) had passed. See Ackman v.
Mercy Health W. Hosp., L.L.C, 2024-Ohio-3159. In Ackman, the Court addressed
whether a party waives defenses related to insufficient service through participation
in litigation, answering in the negative. Id. at ¶ 7. The plaintiff in Ackman failed to
perfect service of his complaint on a doctor; nonetheless, the doctor, after filing an
answer that included affirmative defenses related to insufficiency of process, participated in the subsequent litigation. Id. at ¶ 4-5. After the applicable
limitations periods had passed, the doctor successfully moved for summary
judgment based on insufficient service of process. Id. at ¶ 6. The Court rejected
plaintiff-appellant’s arguments that he commenced suit within the applicable
limitations period where “the purpose of service — notice — was achieved.” Id. at
¶ 18. The Court reasoned that, “if notice was the only reason for service, our rule
allowing the defense of insufficiency of service of process to be asserted in an answer
would be illogical because the assertion of that defense would be proof that the
defendant had notice and the defense would necessarily fail.” Id. The Court’s ruling
in Ackman indicates that a defendant’s having actual notice of medical claims does
not protect a plaintiff from dismissal of those claims where plaintiff has not strictly
complied with service rules before the limitations period expires.
In light of the foregoing, we find that the court did not err by granting
CCF partial summary judgment on the basis that the medical-negligence
survivorship claim was commenced more than one year after Michael’s death. We
acknowledge that the undisputed evidence indicates that, less than a year after
Michael died, Appellant’s counsel informed CCF that he was considering bringing
medical claims related to Michael’s death. We also acknowledge that an agent of
CCF sent Appellant’s counsel a reply email that confirmed receipt of this
information. However, we find that the email notice of potential claims was not
sufficient under R.C. 2305.113(B)(1) to extend the limitations period. The statute
prescribes strict requirements on how notice must be made to extend the limitations period, which Appellant failed to follow. As a result, the one-year limitations period,
which began to run on December 4, 2020, the date of Michael’s death, expired
before Appellant commenced the medical-negligence survivorship claim. Further,
CCF preserved its statute-of-limitations affirmative defense by asserting it in its
answer.
Lastly, we find this case to be distinct from Wiltz v. Cleveland Clinic,
2021-Ohio-62 (8th Dist.), which Appellant cites for the proposition that a
defendant’s actual receipt of notice is sufficient to extend the limitations period
under R.C. 2305.113(B). The facts of Wiltz occurred before the Ohio General
Assembly amended R.C. 2305.113(B) to require that notice of a potential medical
claim be sent by certified mail. See R.C. 2305.113(B) (effective Jan. 21, 2018)
(providing that “written notice” is sufficient to extend the limitations period for
medical claims by 180 days). Further, Wiltz does not identify the method of service
that the plaintiffs in that case used to provide notice that they were investigating
potential claims.
The court properly granted CCF partial summary judgment,
dismissing the medical-negligence survivorship claim in Count 1. Accordingly,
assignment of error No. 1 is overruled.
B. Assignment of Error No. 2 — Exclusion of Expert Testimony in Support of a Loss-of-Chance Theory
Appellant asserts that the trial court erred by granting CCF’s motion
in limine, precluding testimony that CCF’s failure to maintain working heart
monitors deprived Michael of a less-than-even chance of recovery from his cardiac arrest. Appellant argues that such testimony was within the scope of Dr. Grundy’s
expert report and should have been permitted at trial. We disagree.
We review a trial court’s decisions regarding motions in limine and
the admissibility of expert testimony for abuse of discretion. 180 Degree Solutions
L.L.C. v. Metron Nutraceuticals, L.L.C., 2021-Ohio-2769, ¶ 57 (8th Dist.); accord
Halenar v. Ameritech-Ohio SBC/Ameritech, 2011-Ohio-2030, ¶ 28 (8th Dist.). An
abuse of discretion occurs when a court exercises “its judgment, in an unwarranted
way, in regard to a matter over which it has discretionary authority.” Johnson v.
Abdullah, 2021-Ohio-3304, ¶ 35. An abuse of discretion “‘implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.’” W.A.F.P., Inc. v. Sky Fuel
Inc., 2024-Ohio-3297, ¶ 13 (8th Dist.), quoting Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
Appellant’s complaint is based on the uncontested allegation that
CCF breached the standard of medical care. To raise a medical claim, a plaintiff
usually “must prove causation through medical expert testimony in terms of
probability to establish that the injury was, more likely than not, caused by the
defendant’s negligence.” Roberts v. Ohio Permanente Med. Group, 76 Ohio St.3d
483, 485 (1996), citing Shumaker v. Oliver B. Cannon & Sons, Inc. 28 Ohio St.3d
367 (1986).
By contrast, “the loss of chance theory, which compensates an injured
plaintiff for his or her diminished chance of recovery or survival,” allows a plaintiff
to bring a medical claim “even though the possibility of survival or recovery is less than probable.” Roberts at id. “In order to maintain an action for the loss of a less-
than-even chance of recovery or survival, the plaintiff must present expert medical
testimony showing that the health care provider’s negligent act or omission
increased the risk of harm to the plaintiff.” Id. at 488. A loss-of-chance claim “does
not require specific evidence of the percentage of chance lost in order to establish
proximate cause.” Thomas v. Univ. Hosps. of Cleveland, 2008-Ohio-6471, ¶ 33 (8th
Dist.). However, this court has recognized that the doctrine of loss of chance
“applies only to those patients who had less than even chance of survival . . . .” Liotta
v. Rainey, 2000 Ohio App. LEXIS 5475, *11 (8th Dist. Nov. 22, 2000).
Among the cases cited by Appellant, the following are instructive here
as to whether an expert opinion is sufficient to establish a loss-of-chance claim. In
Geesaman v. St. Rita’s Med. Ctr., 2009-Ohio-3931 (3d Dist.), the court of appeals
found that the trial court erred in failing to instruct the jury on loss of chance where
“plaintiff presented evidence that the decedent would have had a 28[] percent
chance of survival had proper and timely care been rendered but that the
defendants’ negligence decreased that chance of survival to zero.” Id. at ¶ 21.
Compare Liotta at *5 (court did not err in granting directed verdict in favor of
defendant as to loss-of-chance claim where, despite medical expert’s testimony that
defendant’s conduct decreased plaintiff’s likelihood of survival, such likelihood
remained 50-60 percent that is, greater than even.) In Liotta, this court found, “At
no time did [plaintiff’s medical expert witness] testify that [plaintiff] had a less than even chance of recovery. While the chance of recovery did decrease, th[e] decrease
falls within the traditional tort theories of malpractice.” Id. at *12.
The opinions of expert witnesses must be laid out in a report. The
Ohio Rules of Civil Procedure provide that the “reports of expert witnesses expected
to be called by each party shall be exchanged with all other parties.”
Civ.R. 26(B)(7)(b). “An expert will not be permitted to testify or provide opinions
on matters not disclosed in his or her report.” Civ.R. 26(B)(7)(c). See Holly v.
Greater Cleveland Regional Transit Auth., 2022-Ohio-3236, ¶ 21, 25 (8th Dist.)
(Trial court did not abuse its discretion in granting motion in limine to preclude
plaintiff’s treating physician from testifying, where physicians written evaluations of
plaintiff “did not opine as to causality of appellee’s bilateral carpal tunnel syndrome”
and physician’s supplemental report on that topic was not timely provided to
opposing counsel.). Compare O’Connor v. Cleveland Clinic Found., 2005-Ohio-
2328, ¶ 23 (8th Dist.) (Trial court abused its discretion by allowing doctor “to offer
a new opinion on the possible cause of [a] cautery burn” that had not been disclosed
in an expert report or in supplements to doctor’s deposition or interrogatories.).
We find that the court did not abuse its discretion by granting CCF’s
motion in limine based on its conclusion that Dr. Grundy did not opine, in his expert
report, that CCF’s failure to monitor Michael deprived him of a less-than-even
chance of recovery from his cardiac arrest. Regarding Michael’s recovery from his
hip surgery, the report opines, “Even if we accept 46 months as an upper boundary
for a 50% chance of survival for Mr. Francis, it is still more likely than not that he had a life expectancy of between three and four additional years.” This conclusion
appears to be based on another doctor’s discussion of risk factors that Michael had
exhibited before surgery, including that he was receiving hemodialysis. Neither this
analysis of risk factors that Michael exhibited before surgery nor Dr. Grundy’s
discussion thereof address Michael’s likelihood of surviving cardiac arrest during
recovery.
In his report, Dr. Grundy concluded that “it is more likely than not
that by failing to carry out their own physicians’ monitoring orders, the substandard
care delivered . . . at the Cleveland Clinic took this chance at life from Mr. Francis.”
Dr. Grundy also articulated that “had Cleveland Clinic carried out Mr. Francis’
appropriately ordered cardiac and oxygen monitoring . . . Mr. Francis’ decline and
death could have likely been prevented.” (Emphasis added.) As in Liotta,
Dr. Grundy’s report never offered the opinion that Michael’s chance of survival was
less than 50 percent at the time of CCF’s negligence. Instead, the report presented
Dr. Grundy’s opinion in terms of traditional medical negligence.
Further, though Dr. Grundy’s report discusses a person’s general
declining blood-oxygen saturation levels at different time increments during cardiac
arrest, it does not address whether proper monitoring would have allowed CCF
personnel to respond to Michael’s arrest more quickly or the likelihood that any
subsequent life-saving measures that could have been rendered would have been
successful. As such, we cannot say that the court abused its discretion by concluding that Dr. Grundy did not opine in his report that CCF’s negligent monitoring deprived
Michael of a less-than-even chance of recovery from cardiac arrest.
Lastly, we note that Appellant argues that expert testimony sufficient
to support a medical claim may be introduced through cross-examination.
Appellant directs us to testimony, given by CCF witnesses during cross-examination,
that purportedly addresses whether CCF’s failure to monitor Michael decreased his
likelihood of surviving cardiac arrest. However, such testimony is not pertinent to
Appellant’s assignment of error, which is limited to whether the court erred in
granting CCF’s pretrial motion in limine, precluding the Appellant from introducing
his own expert testimony about loss of chance. See Yagour Group, LLC v. Ciptak,
2024-Ohio-73, ¶ 31 (8th Dist.), quoting Hamid v. Univ. Manors, Ltd., 2021-Ohio-
2115, ¶ 16 (10th Dist.), quoting Huntington Natl. Bank v. Burda, 2009-Ohio-1752,
¶ 21 (10th Dist.) (“Appellate courts rule on assignments of error, ‘“not mere
arguments.”’”).
We do not find that the court abused its discretion by granting CCF’s
motion in limine. Accordingly, assignment of error No. 2 is overruled.
Judgment affirmed.
It is ordered that appellee recover from 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.
______________________________ LISA B. FORBES, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and DEENA R. CALABRESE, J., CONCUR