[Cite as Napier v. TriHealth, Inc., 2022-Ohio-3311.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
PATRICIA NAPIER, as the Executor of : APPEAL NO. C-220009 the Estate of Michael Napier and as the TRIAL NO. A-2102427 Personal Representative of Michael : Napier, deceased, O P I N I O N. Plaintiff-Appellant, :
vs. :
TRIHEALTH, INC., :
and :
BETHESDA HOSPITAL, INC., :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 21, 2022
Thomas Law Offices, PLLC, and Louis C. Schneider, for Plaintiff-Appellant,
Rendigs, Fry, Kiely & Dennis LLP and Brian Goldwasser, for Defendants-Appellees. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Plaintiff-appellant Patricia Napier, as the executor of the estate of
Michael Napier and as the personal representative of Michael Napier, deceased,
(“Napier”) brings this appeal to challenge the trial court’s dismissal of her complaint
against defendants-appellees TriHealth, Inc., and Bethesda Hospital, Inc.,
(“defendants”). For the following reasons, we reverse the judgment of the trial court
and remand the cause for further proceedings consistent with this opinion and the law.
I. Factual and Procedural History
{¶2} On July 14, 2021, Napier filed a complaint against defendants, asserting
claims for negligence, wrongful death, and punitive damages. The complaint alleged
that Michael Napier underwent heart surgery at Bethesda North Hospital in
November 2016, and was exposed to bacteria during the surgery from a heater-cooler
unit within the surgical suite. As a result of the exposure, Michael developed an
infection in his body which ostensibly caused his death. Napier asserted that the
defendants knew of the exposure and knew of the severe risk that resulted from the
exposure but failed to inform Michael that he had been exposed.
{¶3} On July 28, 2021, defendants filed a Civ.R. 12(B)(6) motion to dismiss
Napier’s complaint, asserting that Napier’s claims were medical claims and therefore
barred by the medical-claim statute of limitations and statute of repose. Additionally,
defendants asserted that the complaint should be dismissed for failure to file an
affidavit of merit under Civ.R. 10(D)(2). After responsive briefing, the trial court
granted defendants’ motion to dismiss on December 7, 2021. The trial court found
that Napier’s complaint contained medical claims and was therefore time barred by
R.C. 2305.113(C), the medical-claim statute of repose. The trial court additionally
found that Napier’s complaint should be dismissed because Napier failed to file an
2 OHIO FIRST DISTRICT COURT OF APPEALS
affidavit of merit with her complaint as required for medical claims by Civ.R. 10(D)(2).
Napier timely appealed and now raises a sole assignment of error that the trial court
erred in granting the defendants’ motion to dismiss.
II. Law and Analysis
A. Standard of Review
{¶4} “ ‘A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon
which relief can be granted tests the sufficiency of the complaint.’ ” Janson v. Christ
Hosp. Inc., 1st Dist. Hamilton Nos. C-200047, C-200048, C-200050, C-200052, C-
200053, C-200054, C-200055 and C-200056, 2021-Ohio-1467, ¶ 13, quoting
Makrauer v. Hal Holmes, Inc., 1st Dist. Hamilton No. C-190256, 2020-Ohio-945, ¶ 6.
When ruling on a Civ.R. 12(B)(6) motion to dismiss, the trial court must accept all
factual allegations as true—looking only to the allegations in the complaint—and draw
all reasonable inferences in favor of the nonmoving party. Id. To properly grant the
motion, it must appear beyond doubt from the complaint that the plaintiff can prove
no set of facts which would entitle him or her to recovery. Id. This court reviews the
trial court’s dismissal of a complaint under Civ.R. 12(B)(6) de novo. Id. “ ‘[L]ike the
trial court, we are constrained to take all of the allegations in the complaint as true,
drawing all reasonable inferences in the plaintiff’s favor.’ ” Id., quoting Battersby v.
Avatar, Inc., 157 Ohio App.3d 648, 2004-Ohio-3324, 813 N.E.2d 46, ¶ 5 (1st Dist.).
B. Medical Claims
{¶5} In relevant part, a medical claim is defined as “any claim that is asserted
in any civil action against a * * * hospital * * * that arises out of the medical diagnosis,
care, or treatment of any person.” R.C. 2305.113(E)(3). R.C. 2305.113(A) provides a
one-year statute of limitation for medical claims and R.C. 2305.113(C) provides a four-
year statute of repose for medical claims.
3 OHIO FIRST DISTRICT COURT OF APPEALS
C. Test for Use of Medical Equipment as “Care”
{¶6} In Conkin v. CHS-Ohio Valley, Inc., 1st Dist. Hamilton No. C-110660,
2012-Ohio-2816, ¶ 9, this court set forth the test for determining whether the use of
medical equipment constituted “care” under R.C. 2305.113(E)(3). First, we must
determine “if the equipment was used for ‘the prevention or alleviation of a physical
or mental defect or illness.’ ” Id., quoting Browning v. Burt, 66 Ohio St.3d 544, 557,
613 N.E.2d 993 (1993). “Central to this analysis is whether the equipment was ‘an
inherently necessary part of a medical procedure’ or if the use of the equipment ‘arose
out of a physician ordered treatment.’ ” Id., quoting Rome v. Flower Mem. Hosp., 70
Ohio St.3d 14, 16-17, 635 N.E.2d 1239 (1994). Second, “we must determine if the use
of the equipment required a ‘certain amount’ of professional expertise or professional
skill.” Id., quoting Rome.
D. Napier’s Complaint
{¶7} The pertinent section of Napier’s complaint asserts, “During his
surgery, Michael Napier was exposed to bacteria from equipment in the surgical suite.
Specifically, Michael Napier was exposed to mycobacterium chimaera from a heater-
cooler unit used in the surgical suite.” While these allegations make it clear that the
equipment in question was in use in the surgical suite at the time of the surgery, the
allegations do not make it clear what the equipment was being used for.
{¶8} In determining that Napier’s complaint contained medical claims, the
trial court relied on Fazzone v. W. Res. Care Sys., 7th Dist. Mahoning No. 90 C.A. 72,
1991 Ohio App. LEXIS 3246 (July 2, 1991). In Fazzone, the plaintiff’s complaint
alleged that she underwent surgery at a hospital and that, as a result of the hospital
negligently failing to monitor and control its operating room, she–as well as several
others who underwent surgery that day–suffered extensive infections in the incisional
4 OHIO FIRST DISTRICT COURT OF APPEALS
areas. Id. at *1. The court said that the complaint, in essence, charged the hospital
with “failing to provide a proper and sterile operating room for surgeons on its staff,”
and said that the “negligence of the hospital, if any, would have occurred as a result of
a failure to provide a suitable operative suite for appellant’s surgical procedure.” Id.
at *2, 4. Thus, the court concluded that the surgical suite, and the equipment provided
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[Cite as Napier v. TriHealth, Inc., 2022-Ohio-3311.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
PATRICIA NAPIER, as the Executor of : APPEAL NO. C-220009 the Estate of Michael Napier and as the TRIAL NO. A-2102427 Personal Representative of Michael : Napier, deceased, O P I N I O N. Plaintiff-Appellant, :
vs. :
TRIHEALTH, INC., :
and :
BETHESDA HOSPITAL, INC., :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 21, 2022
Thomas Law Offices, PLLC, and Louis C. Schneider, for Plaintiff-Appellant,
Rendigs, Fry, Kiely & Dennis LLP and Brian Goldwasser, for Defendants-Appellees. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Plaintiff-appellant Patricia Napier, as the executor of the estate of
Michael Napier and as the personal representative of Michael Napier, deceased,
(“Napier”) brings this appeal to challenge the trial court’s dismissal of her complaint
against defendants-appellees TriHealth, Inc., and Bethesda Hospital, Inc.,
(“defendants”). For the following reasons, we reverse the judgment of the trial court
and remand the cause for further proceedings consistent with this opinion and the law.
I. Factual and Procedural History
{¶2} On July 14, 2021, Napier filed a complaint against defendants, asserting
claims for negligence, wrongful death, and punitive damages. The complaint alleged
that Michael Napier underwent heart surgery at Bethesda North Hospital in
November 2016, and was exposed to bacteria during the surgery from a heater-cooler
unit within the surgical suite. As a result of the exposure, Michael developed an
infection in his body which ostensibly caused his death. Napier asserted that the
defendants knew of the exposure and knew of the severe risk that resulted from the
exposure but failed to inform Michael that he had been exposed.
{¶3} On July 28, 2021, defendants filed a Civ.R. 12(B)(6) motion to dismiss
Napier’s complaint, asserting that Napier’s claims were medical claims and therefore
barred by the medical-claim statute of limitations and statute of repose. Additionally,
defendants asserted that the complaint should be dismissed for failure to file an
affidavit of merit under Civ.R. 10(D)(2). After responsive briefing, the trial court
granted defendants’ motion to dismiss on December 7, 2021. The trial court found
that Napier’s complaint contained medical claims and was therefore time barred by
R.C. 2305.113(C), the medical-claim statute of repose. The trial court additionally
found that Napier’s complaint should be dismissed because Napier failed to file an
2 OHIO FIRST DISTRICT COURT OF APPEALS
affidavit of merit with her complaint as required for medical claims by Civ.R. 10(D)(2).
Napier timely appealed and now raises a sole assignment of error that the trial court
erred in granting the defendants’ motion to dismiss.
II. Law and Analysis
A. Standard of Review
{¶4} “ ‘A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon
which relief can be granted tests the sufficiency of the complaint.’ ” Janson v. Christ
Hosp. Inc., 1st Dist. Hamilton Nos. C-200047, C-200048, C-200050, C-200052, C-
200053, C-200054, C-200055 and C-200056, 2021-Ohio-1467, ¶ 13, quoting
Makrauer v. Hal Holmes, Inc., 1st Dist. Hamilton No. C-190256, 2020-Ohio-945, ¶ 6.
When ruling on a Civ.R. 12(B)(6) motion to dismiss, the trial court must accept all
factual allegations as true—looking only to the allegations in the complaint—and draw
all reasonable inferences in favor of the nonmoving party. Id. To properly grant the
motion, it must appear beyond doubt from the complaint that the plaintiff can prove
no set of facts which would entitle him or her to recovery. Id. This court reviews the
trial court’s dismissal of a complaint under Civ.R. 12(B)(6) de novo. Id. “ ‘[L]ike the
trial court, we are constrained to take all of the allegations in the complaint as true,
drawing all reasonable inferences in the plaintiff’s favor.’ ” Id., quoting Battersby v.
Avatar, Inc., 157 Ohio App.3d 648, 2004-Ohio-3324, 813 N.E.2d 46, ¶ 5 (1st Dist.).
B. Medical Claims
{¶5} In relevant part, a medical claim is defined as “any claim that is asserted
in any civil action against a * * * hospital * * * that arises out of the medical diagnosis,
care, or treatment of any person.” R.C. 2305.113(E)(3). R.C. 2305.113(A) provides a
one-year statute of limitation for medical claims and R.C. 2305.113(C) provides a four-
year statute of repose for medical claims.
3 OHIO FIRST DISTRICT COURT OF APPEALS
C. Test for Use of Medical Equipment as “Care”
{¶6} In Conkin v. CHS-Ohio Valley, Inc., 1st Dist. Hamilton No. C-110660,
2012-Ohio-2816, ¶ 9, this court set forth the test for determining whether the use of
medical equipment constituted “care” under R.C. 2305.113(E)(3). First, we must
determine “if the equipment was used for ‘the prevention or alleviation of a physical
or mental defect or illness.’ ” Id., quoting Browning v. Burt, 66 Ohio St.3d 544, 557,
613 N.E.2d 993 (1993). “Central to this analysis is whether the equipment was ‘an
inherently necessary part of a medical procedure’ or if the use of the equipment ‘arose
out of a physician ordered treatment.’ ” Id., quoting Rome v. Flower Mem. Hosp., 70
Ohio St.3d 14, 16-17, 635 N.E.2d 1239 (1994). Second, “we must determine if the use
of the equipment required a ‘certain amount’ of professional expertise or professional
skill.” Id., quoting Rome.
D. Napier’s Complaint
{¶7} The pertinent section of Napier’s complaint asserts, “During his
surgery, Michael Napier was exposed to bacteria from equipment in the surgical suite.
Specifically, Michael Napier was exposed to mycobacterium chimaera from a heater-
cooler unit used in the surgical suite.” While these allegations make it clear that the
equipment in question was in use in the surgical suite at the time of the surgery, the
allegations do not make it clear what the equipment was being used for.
{¶8} In determining that Napier’s complaint contained medical claims, the
trial court relied on Fazzone v. W. Res. Care Sys., 7th Dist. Mahoning No. 90 C.A. 72,
1991 Ohio App. LEXIS 3246 (July 2, 1991). In Fazzone, the plaintiff’s complaint
alleged that she underwent surgery at a hospital and that, as a result of the hospital
negligently failing to monitor and control its operating room, she–as well as several
others who underwent surgery that day–suffered extensive infections in the incisional
4 OHIO FIRST DISTRICT COURT OF APPEALS
areas. Id. at *1. The court said that the complaint, in essence, charged the hospital
with “failing to provide a proper and sterile operating room for surgeons on its staff,”
and said that the “negligence of the hospital, if any, would have occurred as a result of
a failure to provide a suitable operative suite for appellant’s surgical procedure.” Id.
at *2, 4. Thus, the court concluded that the surgical suite, and the equipment provided
by the hospital, were all “incidental to the medical care and treatment rendered to
appellant.” Id. at *4.
{¶9} Here, the claims are specific to one piece of equipment within the
surgical suite, rather than the entire surgical suite, and there are no facts in the
complaint which establish at this point in the case that the equipment was inherently
necessary to the surgery or that the use of the equipment arose from the physician-
ordered treatment. See Lerner v. Broadview NH, LLC, 2017-Ohio-8001, 98 N.E.3d
1014, ¶ 17-18 (10th Dist.) (holding that, although the evidence may ultimately prove
the trial court’s presumption correct, the complaint did not contain sufficient factual
detail to characterize certain claims as medical claims at the pleading stage).
Therefore, we hold that the trial court erred in finding that it was clear on the face of
the complaint that Napier’s claims were medical claims. Accordingly, we sustain the
assignment of error.
III. Conclusion
{¶10} Having sustained the assignment of error, we reverse the judgment of
the trial court and remand the cause for further proceedings consistent with this
opinion and the law.
Judgment reversed and cause remanded. MYERS, P.J., and WINKLER, J., concur.
Please note: The court has recorded its own entry this date.