Grayson v. Cleveland Clinic Found.

2022 Ohio 1668

• Court: Ohio Court of Appeals
• Decided: May 19, 2022
• Docket: 110684
• Status: Published

Opinion

[Cite as Grayson v. Cleveland Clinic Found., 2022-Ohio-1668.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

ELIZABETH GRAYSON, ET AL., :

Plaintiffs-Appellants, : No. 110684 v. :

CLEVELAND CLINIC FOUNDATION, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 19, 2022

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-21-943139

Appearances:

Bashein & Bashein Co., L.P.A., and William Craig Bashein; Paul W. Flowers Co., Paul W. Flowers and Louis E. Grube, for appellants.

Reminger Co., L.P.A., Erin Siebenhar Hess, Brian D. Sullivan, and Jessica O. Hamad, for appellees. SEAN C. GALLAGHER, A.J.:

Elizabeth (“Grayson”) and Shaun Grayson (collectively “Graysons”)

appeal the dismissal of their action against Cleveland Clinic Foundation, Cleveland

Clinic, Cleveland Clinic Akron General, Esther Rehmus, M.D., John Pedersen, M.D.,

and Mary Murray, M.D. (collectively “Cleveland Clinic”), as being time-barred under

the four-year statute of repose enacted under R.C. 2305.113(C). For the following

reasons, we affirm.

The allegations in this case are sparse, with the complaint containing

no allegations of operative facts beyond identification of the parties and two

pertinent dates. In July 2014, Grayson underwent medical treatment furnished by

Cleveland Clinic, but she did not discover a potential negligence claim until five

years later. The Graysons alleged that the discovery was hindered by Cleveland

Clinic’s “negligent” or “intentional” failure to advise of the negligence in Grayson’s

care and treatment. No one has elaborated on those allegations that mostly consist

of legal conclusions. Maternal Grandmother, ADMR v. Hamilton Cty. Dept. of Job

& Family Servs., Slip Opinion No. 2021-Ohio-4096, ¶ 29 (in considering a

complaint under Civ.R. 12, “unsupported legal conclusions are not entitled to any

presumption of truth” and “speculation, unsupported by operative facts, is not

enough to state a claim”).1 Cleveland Clinic was allegedly served with a 180-day

1 Cleveland Clinic has not preserved this issue for our current review, although the failure-to-state-a-claim defense was asserted in the answer. We note this issue only because without the allegations of operative fact, our review of this case and our ability to provide a recitation of the underlying allegations of fact are limited. notice under R.C. 2305.113(B)(1) preceding the January 2021 filing of the complaint.

Concurrent with the filing of the complaint, the Graysons also filed a motion for a

90-day extension of time to file the affidavit of merit as required under Civ.R.

10(D)(2)(b). No affidavit of merit was filed in the underlying action.

In response to the complaint, Cleveland Clinic filed (1) a motion to

stay discovery pending the production of the affidavit of merit that is required to

support a well-pleaded complaint under Fletcher v. Univ. Hosps. of Cleveland, 120

Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 10, and Erwin v. Bryan, 125

Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 19; (2) an answer generally

denying the allegations of the complaint and advancing affirmative defenses

including the statute of repose set forth in R.C. 2305.113; and (3) a motion for

judgment on the pleadings under Civ.R. 12(C) claiming that action was time-barred.

The trial court dismissed the action based on the four-year statute of repose,

expressly citing the time period as alleged in the complaint. Implicitly, the trial court

rejected the Graysons’ claims that the statute of repose for medical malpractice

actions was unconstitutional as applied to the particular facts of the case.

In this appeal, the Graysons advance two assignments of error: (1)

that the trial court erred by granting the judgment on the pleadings in Cleveland

Clinic’s favor; and (2) that the trial court erred by ruling on the motion before

permitting the Graysons the opportunity to conduct discovery to develop the factual

record upon which their constitutional claims rest. Both assigned errors are related. Appellate review of a judgment on the pleadings is de novo. New

Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc.,

157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 8. Under Civ.R. 12(C), after

construing all material allegations and all reasonable inferences drawn therefrom, if

it appears beyond doubt that the nonmoving party can prove no set of facts that

would entitle him or her to relief, dismissal is the appropriate remedy. State ex rel.

Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).

Under Civ.R. 12(H)(2), a motion to dismiss for failure to state a claim upon which

relief can be granted may be advanced in a motion for judgment on the pleadings.

It is for this reason that a motion filed under Civ.R. 12(C) has been characterized as

a “belated Civ.R. 12(B)(6)” motion. State ex rel. Pirman v. Money, 69 Ohio St.3d

591, 592, 635 N.E.2d 26 (1994).

Under Ohio law, the statute of limitations is an affirmative defense.

Civ.R. 8(C). The statute of repose, similar to the statute of limitations, “presents a

mixed question of law and fact; when a cause of action accrues is a question of fact,

but in the absence of a factual issue, application of the limitations period is a

question of law.” Schmitz v. NCAA, 155 Ohio St.3d 389, 2018-Ohio-4391, 122

N.E.3d 80, ¶ 11, citing Wells v. C.J. Mahan Constr. Co., 10th Dist. Franklin Nos.

05AP-180 and 05AP-183, 2006-Ohio-1831, ¶ 25, citing Cyrus v. Henes, 89 Ohio

App.3d 172, 175, 623 N.E.2d 1256 (9th Dist.1993), rev’d on other grounds, 70 Ohio

St.3d 640, 640 N.E.2d 810 (1994). “[T]he difficulty of successfully asserting an affirmative defense in a Civ.R. 12(B)(6) motion to dismiss” had been “long

recognized[.]” Schmitz at ¶ 41 (Kennedy, J., concurring in part).

Affirmative defenses generally rely on consideration of evidence

outside the complaint, and as a result, those defenses typically cannot be

successfully raised in a Civ.R. 12(B)(6) motion. Schmitz at ¶ 41-42 (Kennedy, J.,

concurring in part), quoting Main v. Lima, 3d Dist. Allen No. 1-14-42, 2015-Ohio-

2572, ¶ 14, and Savoy v. Univ. of Akron, 10th Dist. Franklin No. 11AP-183, 2012-

Ohio-1962, ¶ 6-7 (noting that “the better procedure is to address affirmative

defenses by way of a motion for summary judgment that will allow introduction of

additional facts beyond the complaint”). “A motion to dismiss based upon a statute

of limitations[, however] may be granted when the complaint shows conclusively

on its face that the action is time-barred.” (Emphasis added.) Doe v. Archdiocese

of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing

Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 433 N.E.2d 147

(1982), paragraph three of the syllabus; see also Maitland v. Ford Motor Co., 103

Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, ¶ 11. That same concept applies

equally to cases implicating the statute of repose. It has been recognized, however,

that a plaintiff is not required to plead with specificity to avoid application of the

statute of limitations. Warren v. Estate of Durham, 9th Dist. Summit No. 25624,

2011-Ohio-6416, ¶ 6, citing Irvin v. Am. Gen. Fin., Inc., 5th Dist. Muskingum No.

CT2004-0046, 2005-Ohio-3523, ¶ 29, fn. 11. In this case, there is no dispute that the Graysons filed the complaint

six and one-half years after the conduct giving rise to the allegations of medical

malpractice. Under R.C. 2305.113(C), “[n]o action upon a medical, dental,

optometric, or chiropractic claim shall be commenced more than four years after the

occurrence of the act or omission constituting the alleged basis of the medical,

dental, optometric, or chiropractic claim” unless the person is within the age of

minority or is of unsound mind. The action is time-barred unless (1) the person

could not have discovered the occurrence of the act or omission within three years,

but in the exercise of reasonable care and diligence or occurrence discovers the act

or omission before the expiration of the four-year period; or (2) the claim involves a

foreign object left in the person’s body. R.C. 2305.113(D)(1)-(2). If the person

commencing the action can demonstrate the later of either exception by clear and

convincing evidence, the person has an additional year to file their claim from the

date of discovery. Id.

The sole question advanced in this case is whether on the face of a

complaint that conclusively demonstrates that the action is time-barred under R.C.

2305.113(C), the legislative omission of a fraud exception renders the medical

malpractice statute of repose unconstitutional as applied, or whether that plaintiff

is entitled to discovery to produce evidence demonstrating the fraud before the trial

court renders a decision on the constitutional question. We need not address

whether discovery is necessary. In light of the allegations in the complaint, we must

accept as true the allegation that a fraud in the omission was committed, irrespective of the lack of the particular factual allegations supporting that legal conclusion.

Obtaining evidence demonstrating the fraud would only prove what must be

assumed in light of the procedural posture of this case. As a result, our review in

this case is limited to determining whether the plaintiff’s action is time-barred based

on R.C. 2305.113(C) or whether that provision is unconstitutional as applied to the

Graysons. The answer to that legal question is one that we review de novo.

A statute may be challenged as being facially unconstitutional, or

unconstitutional as applied to the particular party. Simpkins v. Grace Brethren

Church of Delaware, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 21,

citing Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880

N.E.2d 420, ¶ 26. If there is no conceivable set of circumstances in which the statute

would be valid, the statutory provision is facially unconstitutional. Id. “An as-

applied challenge, on the other hand, alleges that application of the statute in a

particular factual context is unconstitutional.” Id., citing Yajnik v. Akron Dept. of

Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 14, and

Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633,

121 L.Ed.2d 564 (1992) (Scalia, J., dissenting). Concluding that a statutory provision

“is unconstitutional as applied prevents future application of the statute in a similar

context, but it does not render the statute wholly inoperative.” Id., citing Yajnik at

¶ 14 and Ada (Scalia, J., dissenting). “A party raising an as-applied constitutional

challenge must prove by clear and convincing evidence that the statute is unconstitutional when applied to an existing set of facts.” Id. at ¶ 22, citing Groch

v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 181.

When addressing constitutional challenges, courts must remain

mindful that all statutes have a strong presumption of constitutionality. Arbino at

¶ 25; Sorrell v. Thevenir, 69 Ohio St.3d 415, 419, 633 N.E.2d 504 (1994), citing State

ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph

one of the syllabus; Jones v. MetroHealth Med. Ctr., 2017-Ohio-7329, 89 N.E.3d

633, ¶ 63 (8th Dist.). Whether advanced as a facial or an as-applied challenge to the

constitutional validity of a statute, conclusory statements in and of themselves do

not “‘rebut the presumed constitutionality of the statute.’” Rogers v. Eppinger, 154

Ohio St.3d 189, 2018-Ohio-4058, 112 N.E.3d 902, ¶ 10, citing State ex rel. Evans v.

McGrath, 151 Ohio St.3d 345, 2017-Ohio-8290, 88 N.E.3d 957, ¶ 6.

R.C. 2305.113 does not include a fraud exception to the discovery of

the potential medical malpractice claim. The legislature has enacted some form of

a fraud exception to other statutes of repose throughout the Revised Code. See, e.g.,

R.C. 2125.02(D)(2)(b) (wrongful death statute of repose); R.C. 2305.10(C)(2)

(product liability statute of repose); R.C. 2305.131(C) (improvements to real

property). “The Ohio Supreme Court has repeatedly emphasized that the statute of

repose should be interpreted according to its text, because the ‘plain language of the

statute is clear, unambiguous, and means what it says.’” Levandofsky v. Abubakar

Atiq Durrani, 6th Cir. No. 20-4104, 2021 U.S. App. LEXIS 32232, at 11 (Oct. 27,

2021), citing Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio- 7432, 71 N.E.3d 974. Thus, R.C. 2305.113(C) “is constitutional both when it

extinguishes a vested and a nonvested cause of action.” Antoon at ¶ 29. A medical-

malpractice claim vests upon the earlier of the discovery of the resulting injury, or

when the injury should have been discovered through reasonable diligence, so in

this case, the Graysons had a nonvested cause of action for medical malpractice

upon the expiration of the statute of repose. Id. at ¶ 28.

Antoon involved constitutional challenges implicating the right-to-

remedy clause of the Ohio Constitution. Although the argument was limited to

challenging the validity of the statute, the Ohio Supreme Court’s conclusion is broad

— R.C. 2305.113(C) is constitutional as applied to a nonvested cause of action. This

has led some courts to conclude that the legislative omission of a fraud exception

under R.C. 2305.113(C) does not render the statute unconstitutional. Levandofsky

at 11 (collecting cases); Freeman v. Durrani, 2019-Ohio-3643, 144 N.E.3d 1067, ¶ 9

(1st Dist.), citing Crissinger v. Christ Hosp., 2017-Ohio-9256, 106 N.E.3d 798 (1st

Dist.). Underlying that rationale is the well-settled notion that an appellate court’s

duty is “‘to apply the statute as the General Assembly has drafted it; it is not our duty

to rewrite it,’ even to cure a perceived omission.” Crissinger at ¶ 23, quoting Doe v.

Marlington Local School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907

N.E.2d 706, ¶ 29, and Schlueter v. Cleveland Bd. of Edn., 12 Ohio Misc. 186, 199,

230 N.E.2d 364 (C.P.1960) (“‘[A statute’s] undesirable consequences do not justify

a departure from the terms of the act as written, and the courts may not supply a

casus omissus however desirable it may be to supply the omitted provision.’”). The Graysons claim that the omission of a fraud exception to R.C.

2305.113(C) denies them of their due process rights guaranteed under Article I,

Section 16 of the Ohio Constitution, their right to equal protection under Section 1

of the Fourteenth Amendment of the federal Constitution, or their right to a trial by

jury under Article 1, Section 5 of the Ohio Constitution. Each claim will be addressed

in turn.

The Graysons’ first argument claims that “Article I, Section 16 of the

Ohio Constitution guarantees due process of law and requires all legislation to have

‘a real and substantial relation to the public health, safety, morals or general welfare’

and ‘not be unreasonable or arbitrary.’” Appellants’ brief, p.8, quoting Benjamin v.

Columbus, 167 Ohio St. 103, 110, 146 N.E.2d 854 (1957) (defining the scope of the

police powers under Article XVIII, Section 3 of the Ohio Constitution).2 In this

argument, the Graysons are interposing a challenge against the state’s police powers

into the due process rights established under Article I, Section 16. We need not

consider any argument pertaining to Article XVIII, Section 3 of the Ohio

Constitution. The Graysons have not demonstrated that R.C. 2305.113 implicates

the exercise of police powers under Article XVIII, Section 3 of the Ohio Constitution.

App.R. 16(A)(7).

2 Although the Ohio Supreme Court cited Benjamin for the origins of the due process claims advanced Mominee v. Scherbarth, 28 Ohio St.3d 270, 274, 503 N.E.2d 717 (1986), in which an earlier version of the medical malpractice statute of repose was declared to be unconstitutional pursuant to Article I, Section 16 , no other court has relied on the police powers clause of the Ohio Constitution to form the basis of the due process arguments raised against subsequent versions of this medical malpractice statute of repose. See, e.g., Antoon, 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 20. Article I, Section 16 of the Ohio Constitution, as generally relied upon

by the Graysons, provides: “All courts shall be open, and every person, for an injury

done him in his land, goods, person, or reputation, shall have remedy by due course

of law, and shall have justice administered without denial or delay.” Id. This one

provision contains three important constitutional principles — “open courts,” “right

to remedy,” and “due course of law.” Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-

Ohio-5686, 983 N.E.2d 291, ¶ 10 (overruling Hardy v. Vermeulen, 32 Ohio St.3d

45, 47, 512 N.E.2d 626 (1987), and declaring that the legislative extinguishment of a

nonvested right does not violate the right-to-remedy clause); see also Antoon, 148

Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, at ¶ 26 (declaring that the

extinguishment of a vested claim for medical malpractice under R.C. 2305.113(C)

does not violate the right-to-remedy clause of the Ohio Constitution).

The Graysons present no arguments attempting to distinguish

Antoon and Ruther, both of which concluded that R.C. 2305.113(C) does not violate

the “right to remedy” provision, other than to disclaim any constitutional challenge

under the guarantee of open courts under Article 1, Section 16 of the Ohio

Constitution. App.R. 16(A)(7). Although Ruther tangentially addressed the open

courts provision, the court only discussed the right-to-remedy provision of Article I,

Section 16 of the Ohio Constitution. The Graysons’ attempt to distinguish those

cases is, therefore, of no avail.

And, inasmuch as the Graysons have attempted to raise the “due

course of law” provision of Article I, Section 16, which is considered under the general due process provisions of the federal Constitution, we note that no

arguments have been presented in support of substantive due process rights or

fundamental fairness, other than short conclusory statements. See, e.g., State v.

Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 15-22 (discussing the

specific due process analysis related to Article I, Section 16 of the Ohio Constitution).

The Graysons’ arguments on this point are limited to their conclusion that because

other statutes include a fraud exception within other statutes of repose, R.C.

2305.113(C) must also include the same and to declare otherwise creates a class of

plaintiffs that cannot avail themselves of the right to pursue a medical negligence

claim. The legislature’s decision to exclude the fraud exception from R.C.

2305.113(C) despite its inclusion in other sections is within the legislative purview.

“Had the General Assembly intended the saving statute to provide an extension of

the medical statute of repose, it would have expressly said so in R.C. 2305.113(C), as

it did in” other statutory sections. Wilson v. Durrani, 164 Ohio St.3d 419, 2020-

Ohio-6827, 173 N.E.3d 448, ¶ 38. And the exclusion of a class of persons not able to

avail themselves of a medical malpractice cause of action implicates the Equal

Protection Clause, which will be addressed in further detail.

As a result with respect to Article I, Section 16 of the Ohio

Constitution, conclusory statements, such as a general invocation of one’s due

process rights as advanced by the Graysons, are insufficient to overcome the

presumption that a statute is constitutional. Rogers, 154 Ohio St.3d 189, 2018-

Ohio-4058, 112 N.E.3d 902, at ¶ 10, citing McGrath, 151 Ohio St.3d 345, 2017-Ohio- 8290, 88 N.E.3d 957, ¶ 6. The Graysons have not demonstrated any reasons to stray

from the Ohio Supreme Court’s conclusion that R.C. 2305.113(C) does not violate

Article 1, Section 16 of the Ohio Constitution. Antoon at ¶ 29; Ruther at ¶ 35. We

overrule the Graysons’ arguments grounded from Article I, Section 16 of the Ohio

Constitution.

With respect to the equal protection discussion, the Graysons’ claims

that R.C. 2305.113(C) as applied to them violates the Fourteenth Amendment to the

federal Constitution, providing that no state shall “deny to any person within its

jurisdiction the equal protection of the laws” and Article I, Section 2 of the Ohio

Constitution. According to the Graysons, R.C. 2305.113(C) lacks any rational basis

supporting the legislative enactment because it deprives a class of plaintiffs the

opportunity to pursue a medical-negligence claim. The Ohio Supreme Court has

concluded otherwise. Ruther, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d

291, ¶ 19-21 (concluding that the General Assembly had a rational basis to enact its

policy decision limiting the time within which a medical malpractice action can be

pursued); see also Morris v. Savoy, 61 Ohio St.3d 684, 689, 576 N.E.2d 765 (1991)

(medical malpractice claims do not involve a fundamental right or suspect class so

that any equal protection analysis is limited to the rational-basis test).

In support of their equal protection claims, the Graysons exclusively

rely on Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55, 514 N.E.2d 709

(1987), in which the Ohio Supreme Court concluded that a knowing

misrepresentation of material fact concerning a patient’s condition constituted a fraud independent from a medical malpractice claim and the version of R.C.

2305.11(B) then in effect was unconstitutional with respect to claims that vest within

the statute of repose, but with less than a year to perfect the action. Id. at paragraphs

one and two of the syllabus. According to the Graysons, the Gaines Court’s

conclusion that “no reasonable grounds can be conceived which would justify

denying a full year for filing a claim to a single class of litigants based solely on when

they were able to discover the existence of the claim” should be applied in their case.

Gaines is no longer controlling authority for two reasons.

First and foremost, the Gaines court’s conclusion has been overruled

in Antoon and Ruther. The combined reading of those later cases stands for the

well-settled conclusion that the legislature is permitted to enact a statute of repose

that extinguishes both a vested and a nonvested claim for medical malpractice,

which invariably denies a class of litigants a full year to file their claim upon

discovery. Ruther at ¶ 35; Antoon, 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d

974, at ¶ 35. In other words, what once was deemed “inconceivable” has now

become legal dogma. Second, Gaines primarily drew from Hardy, 32 Ohio St.3d 45,

512 N.E.2d 626, for its analysis, which was expressly overruled in Ruther. In short,

we cannot sustain the Graysons’ argument — doing so would put this court in

conflict with binding precedent.

And finally, the Graysons claim that applying R.C. 2305.113(C) in

their situation would deny their right to a trial by jury under Article 1, Section 5 of

the Ohio Constitution because the statute of repose is similar to the right-to-jury arguments presented with respect to cases dealing with the satisfaction of a

judgment (Galayda v. Lake Hosp. Sys., 71 Ohio St.3d 421, 644 N.E.2d 298 (1994))

and damage caps (Lindenberg v. Jackson Natl. Life Ins. Co., 912 F.3d 348, 363-370

(6th Cir.2o18)). No analysis has been provided explaining the connection between

a statute of repose and cases involving the award of damages. App.R. 16(A)(7). We

decline to provide any such analysis of our own accord. State v. Quarterman, 140

Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19. But regardless, the right to a

jury trial under the Ohio Constitution is limited to the right to “demand that the

issues of fact therein be tried by a jury.” Arbino, 116 Ohio St.3d 468, 2007-Ohio-

6948, 880 N.E.2d 420, at ¶ 34, quoting Dunn v. Kanmacher, 26 Ohio St. 497, 502-

503 (1875). Applying a statute of repose as a matter of law does not infringe on the

Graysons’ right to have a jury resolve the factual dispute should their claims proceed

to trial. Under that broad of a claim as advanced by the Graysons, no court could

constitutionally dispose of a case before trial without interfering with a plaintiff’s

right to a jury.

Having overruled the arguments presented for our review, we cannot

conclude that the Graysons have rebutted the constitutional validity of the statute of

repose under R.C. 2305.113(C) for the purpose of refuting Cleveland Clinic’s claim

that R.C. 2305.113(C) conclusively applied based on the allegations contained within

the four corners of the complaint. In light of that, and from the face of the complaint,

the Graysons filed their action six and one-half years after the date of the alleged medical malpractice; their claims are time-barred under an unambiguous reading

of R.C. 2305.113(C). We affirm.

It is ordered that appellees recover from appellants 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.

____________________________________ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION; JAMES A. BROGAN, J.,* DISSENTS WITH SEPARATE OPINION

*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court of Appeals.)

LISA B. FORBES, J., CONCURRING IN JUDGMENT ONLY WITH SEPARATE OPINION:

While I agree with the lead opinion that the trial court correctly

granted the Cleveland Clinic’s motion for judgment on the pleadings, I write

separately because I would apply a different analysis to arrive at that conclusion.

The Graysons’ complaint, which was filed on January 20, 2021,

includes precious few assertions of fact. After identifying the parties, the Graysons

allege that “In July of 2019, Plaintiffs discovered for the first time, that [the Cleveland Clinic was] negligent in [its] care and treatment of Plaintiff Elizabeth

Grayson in July of 2014 and had negligently and/or intentionally failed to advise her

of their negligence in her care and treatment.” Based on these allegations, the

Graysons brought a three-count complaint for medical malpractice, loss of

consortium, and punitive damages.

Ohio’s statute of repose, R.C. 2305.113(C), sets an outside time limit

for when a medical malpractice claim must be filed — no later than four years after

the treatment giving rise to the claim. The Cleveland Clinic filed a motion for

judgment on the pleadings pursuant to Civ.R. 12(C), arguing that, based on the

allegations in the complaint, the Graysons’ medical malpractice claim was barred by

the statute of repose. The trial court agreed.

The Ohio Supreme Court has held that a “motion to dismiss based

upon a statute of limitations may be granted when the complaint shows conclusively

on its face that the action is time-barred.” Doe v. Archdiocese of Cincinnati, 109

Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11. I would apply this reasoning

to a motion for judgment on the pleadings based on a statute of repose.

Here, the Graysons averred that in July 2014, the Cleveland Clinic

was negligent in its care and treatment of Grayson; in July 2019, they discovered the

Cleveland Clinic’s negligence; and the Cleveland Clinic failed to advise Grayson of

its negligence. The Graysons filed their complaint in January 2021, six years and

four months after the alleged treatment and over two years after the statute of repose

ran. The Graysons did not dispute that the plain language of the statute of

repose barred their claim. Instead, in opposition to the Cleveland Clinic’s

Civ.R. 12(C) motion, the Graysons asserted that after discovery, they “intend to

argue that the Medical Malpractice Statute of Repose, R.C. 2305.113(C), violates the

Ohio Constitution in several significant respects as applied to this particular case.”

The Graysons also asserted that Grayson’s allegedly negligent treatment was

“covered-up” and that they “expect to establish once discovery has been completed

that one or more of the Defendants intentionally misled them into believing that

nothing was amiss and they had no reason to be concerned with the competency of

the care that had been provided.”

Likewise, in their appeal, the Graysons argue that “where the

healthcare providers deliberately misled their patients and concealed the mistakes

they know were committed, the four-year statute of repose cannot be enforced.”

Notably, the assertions of a “cover-up” and intentional misleading

appear nowhere in the complaint. Instead, the complaint simply claims that the

Cleveland Clinic “negligently and/or intentionally failed to advise [Grayson] of [its]

negligence.” The complaint does not assert that the “failure to advise” interfered

with Grayson’s ability to discover, through the exercise of reasonable diligence, that

the Cleveland Clinic had been negligent in its care or treatment of her. The

complaint does not allege that the Cleveland Clinic covered anything up or that it

asserted anything that misled the Graysons. Under the facts alleged in this case, I would not reach the merits of

the Graysons’ purported as-applied challenge to the constitutionality of the statute

of repose. The Graysons did not plead facts in the complaint that call into question

the constitutionality of the statute of repose.

JAMES A. BROGAN, J., DISSENTING:

I must respectfully dissent. None of the Supreme Court cases cited in

the lead opinion stand for the proposition that the Ohio Supreme Court would not

recognize a fraud exception to the four-year time limit in the statute of repose.

In Ruther, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, the

Ohio Supreme Court held that “the medical-malpractice statute of repose found in

R.C. 2305.113(C) does not extinguish a vested right and thus does not violate the

Ohio Constitution, Article I, Section 16. Hardy v. VerMeulen, 32 Ohio St.3d 45, 512

N.E.2d 626, is overruled.”

In Antoon, 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, the

Court did not address a fraud exception but held that the plaintiff’s complaint was

not protected by R.C. 2305.19 — Ohio’s savings statute — from the filing date

requirement of the statute of repose.

In Wilson, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, the

Supreme Court held that the savings statute did not extend the medical statute of

repose because it was not expressly provided for in the statute. Again, the court

made no mention of whether fraud by the defendant could extend the statute. Legislative inaction is seldom a good indication of legislative intent.

In Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971), the Ohio Supreme Court

was asked to define when a cause of action for malpractice accrued. The Court

expressed its preference for the discovery rule “but hesitated to adopt it judicially

because the legislature had failed to adopt amendments which would have extended

the statute of limitation. Since the effect of the discovery rule can be a tolling of the

statute of limitations well beyond the termination of the doctor-patient relationship,

the Wyler court felt constrained by a legislative policy to maintain the status quo

and reaffirmed the termination rule against its own better judgment. Not long after

Wyler, however, the court seized an opportunity to carve out an exception to the

general rule. In Melnyk v. Cleveland Clinic, [32 Ohio St.2d 198, 290 N.E.2d 916

(1972)] the plaintiff claimed that a surgeon left a metallic forceps and a

nonabsorbent sponge in plaintiff’s abdomen. These items were removed more than

ten years later. The patient filed suit within one year of his ‘discovery’ of the items

but more than ten years following termination of the surgeon-patient relationship.

The Ohio Supreme Court unanimously held that justice required adoption of the

discovery rule for cases where foreign objects were left inside patients. The court

noted that proof of a foreign item left behind in surgery was fairly indefensible, with

none of the usual problems attendant to stale claims. Hence, we base our reasoning

not only upon an absence of the vexatious inequities usually associated with the

entertaining of ‘stale’ medical claims, but also upon matters of sound public policy,

springing from the absolute and irrevocable dependence of patient upon surgeon during surgery and from the huge increase in societal or public medicine with its

lamentable but concomitant lessening of the fiercely private surgeon-patient

relationship of years past.” (Citations omitted.) Linda C. Ashar, Statute of

Limitations: Discovery Rule for Malpractice, 17 Akron L. Rev. 654, 656-657 (1984).

Equity follows the law when the controlling law is clear. It is not clear

in this case.

Equitable estoppel “prevents relief when one party induces another to believe certain facts exist and the other party changes his position in reasonable reliance on those facts to his detriment.” Chavis v. Sycamore Cty. School Dist. Bd. of Ed., 71 Ohio St.3d 26, 34, 641 N.E.2d 188 (1994). To establish a prima facie case of equitable estoppel, a plaintiff must prove the following elements: “(1) that the defendant made a factual misrepresentation; (2) that it is misleading; (3) [that it induced] actual reliance which is reasonable and in good faith; and (4) [which causes] detriment to the relying party.” Hutchinson v. Wenzke, 131 Ohio App.3d 613, 616, 723 N.E.2d 176 (2d Dist. 1999), citing Doe v. Blue Cross/Blue Shield of Ohio, 79 Ohio App.3d 369, 379, 607 N.E.2d 492 (10th Dist.1992).

Perkins v. Falke & Dunphy, LLC, 2d Dist. Montgomery No. 25162, 2012-Ohio-5799,

¶ 10.

The purpose of equitable estoppel is to prevent actual or constructive

fraud and to promote the ends of justice. Ohio State Bd. of Pharmacy v. Frantz, 51

Ohio St.3d 143, 145, 555 N.E.2d 630 (1990).

The Second District has held that to invoke equitable tolling of the

statute of limitations for fraudulent concealment, a plaintiff must show that the

defendant engaged in a course of conduct to conceal evidence of the defendant’s

wrongdoing, and the plaintiff despite the exercise of due diligence failed to discover the facts supporting the claim. Frees v. ITT Technical School, 2d Dist. Montgomery

No. 23777, 2010-Ohio-5281, ¶ 34.

The North Carolina Court of Appeals has held that a property owner

may still find relief from the statute of repose in the related common law doctrine of

equitable estoppel, which operates to toll or suspend the running of the statute. See

White v. Consol. Planning, Inc., 166 N.C.App. 283, 305, 603 S.E.2d 147 (2004),

discretionary review denied, White v. Consol. Planning, Inc., 359 N.C. 286, 610

S.E.2d 717 (2005).

The trial court erred in granting the appellees’ motion for a judgment

on the pleadings. If the appellants can establish that the appellees deliberately

misled the Graysons long enough to take advantage of the statute of repose, the

appellees should be equitably estopped from claiming its protection. I would reverse

the trial court’s decision and remand for further proceedings.