[Cite as Sullivan v. Mercy Health, 2025-Ohio-137.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
MICHELLE SULLIVAN, et al., :
Appellants, : CASE NO. CA2024-03-041
: OPINION - vs - 1/21/2025 :
MERCY HEALTH, et al., :
Appellees. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV 2018 03 0493
Marlene Penny Manes, for appellants.
Rendigs, Fry, Kiely & Dennis, LLP, and C. Jessica Pratt, for appellees, Mercy Health and Mercy Health-Fairfield Hospital, LLC.
HENDRICKSON, J.
{¶ 1} Appellants, Michelle Sullivan and her husband, Christopher Sullivan, appeal
the trial court's decision to deny their motions to compel and for Civ.R. 56(F) discovery
as well as the trial court's decision to grant summary judgment to Mercy Health and Mercy
Health-Fairfield Hospital, LLC (collectively, "Mercy"). Butler CA2024-03-041
I. Factual and Procedural Background
{¶ 2} On March 2, 2014, Michelle, accompanied by Christopher, went to Mercy's
emergency room complaining of abdominal pain. While in the emergency room, Michelle
was evaluated by Jamilyn Bryant, a physician's assistant, who was supervised by Dr.
Kenneth Koster. Bryant ordered Zofran to be administered for Michelle's nausea and
Dilaudid to be administered for pain. Pursuant to that order, these medications were
subsequently administered by a Mercy nurse named Bryan Dye.
{¶ 3} The Sullivans alleged that they informed the emergency room staff involved
in Michelle's care that she was allergic to Zofran and that it should not be administered to
her. However, Bryant (via courtroom testimony) and Dye (via affidavit) stated the
Sullivans did not inform them of any alleged allergy to Zofran or tell them not to administer
it. The Sullivans further claimed that they advised Mercy personnel that Michelle's allergy
to Zofran was documented in Mercy's computer system after Michelle had an allergic
reaction during a visit two years earlier. However, a scanning of Sullivan's "hospital
bracelet" by Dye did not produce any warning or alert stating that Zofran should not be
administered to Michelle. According to Bryant, Michelle's Mercy profile indicated at the
time that while Zofran gave Michelle hives, it did not state Zofran resulted in anaphylaxis
or other severe allergic reactions.
{¶ 4} After receiving Zofran, Michelle was admitted to Mercy for further evaluation
of her abdominal pain. While admitted, Michelle began to suffer from additional
symptoms, including anaphylaxis, that may have been causally related to an allergic
reaction to Zofran.1 Michelle received continuing treatment at Mercy for her ailments until
1. Mercy disputes that any of Michelle's symptoms during her March 2014 visit were caused by an allergic reaction to Zofran, and the Sullivans argue that issue has already been determined. Ultimately, whether Zofran was causally related to Michelle's symptoms or not, our conclusions here remain unchanged.
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being discharged on March 6, 2014.
{¶ 5} After initially filing suit in 2015 but dismissing that lawsuit in 2017, the
Sullivans refiled their complaint in 2018 and asserted "negligence/malpractice" against
Mercy, Dr. Koster, Bryant, their professional corporations, and others, including John and
Jane Does. The complaint described Dr. Koster and Bryant as Mercy's "principal, and/or
agent, and/or servant, and/or employee . . . and/or independent contractor." The
complaint cited to each named defendant's professional licensures and alleged that they
did not have consent to administer Zofran to Michelle and that the administration of
Zofran, despite verbal and electronic warnings, constituted a deviation from the standard
of care. As a result of that breach, according to the Sullivans, Michelle required life-
sustaining, critical care and suffered physical, emotional, and financial damages.
{¶ 6} The Sullivans' complaint included four other claims: (1) trespass of person
"by administering medication to her for which they had no consent"; (2) assault and
battery stemming from the first two claims; (3) lack of consent "by administering
medication to Michelle . . . without her consent and in violation of the patient bill of rights
and/or the policies of [Mercy]"; and (4) a loss of consortium claim on behalf of Christopher.
{¶ 7} The defendants filed motions for summary judgment and argued that the
Sullivans' suit was untimely and barred by the statute of limitations. Summary judgment
was eventually granted to Mercy but not to Dr. Koster and Bryant. Mercy subsequently
filed motions in limine to prohibit the Sullivans from asserting or arguing direct or
independent negligence by Mercy. The motion was granted, and at trial, the jury was
specifically instructed that it would not make any findings regarding Mercy.
{¶ 8} At trial, the jury was asked whether Dr. Koster and Bryant were "negligent
in the care and treatment of Michelle Sullivan" and whether they "failed to inform Michelle
Sullivan about the material risks in the administration of Zofran?" The jury answered each
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question "no" and returned verdicts in favor of Dr. Koster and Bryant on the Sullivans'
malpractice and lack of informed consent claims. The trial court subsequently entered a
final judgment consistent with the verdict.
{¶ 9} On appeal, we reversed the trial court's award of summary judgment to
Mercy. Sullivan v. Mercy Health, 2022-Ohio-4445, ¶ 38 (12th Dist.) ("Sullivan I"). In
Sullivan I, we concluded the trial court misapplied precedent in Asai v. Obstetrics &
Gynecology Assocs., 2020-Ohio-4350 (12th Dist.), in granting Mercy summary judgment.
Id. at ¶39. In addition, despite the fact the jury found in favor of Dr. Koster and Bryant,
we stated, "the Sullivans have raised additional claims against other parties. Considering
the record, we find it would be inappropriate to terminate these proceedings at this time,
as any further findings are better addressed on remand." Id.
{¶ 10} On remand, the Sullivans filed a motion to amend their complaint. The
proposed amended complaint, like their initial complaint, contained five counts. However,
unlike the initial complaint, none of these counts specified the theory of liability in their
titles. Count I alleged the defendants "violated [the Sullivans'] rights to obtain informed
consent" and violated the standard of care by failing to inquire about or properly assess
Michelle's allergy history. Count II alleged the defendant's actions "led to a trespass upon
the person of Michelle Sullivan when the unconsented to medication [Zofran] was
administered to her." Count III alleged the defendants' actions "led to a harmful assault
and/or battery upon Michelle Sullivan, as an unconsented touching and invasion of her
body occurred." Count V again asserted derivative claims on behalf of Christopher.
{¶ 11} Count IV, however, stated that "if the computer system and/or bracelet
scanning system did not serve to notify/alert the users of the possibility of an allergic
reaction, [Mercy] failed in its responsibility to have a working system and deviated from
its obligations to maintain said system." The Sullivans went on to further allege that
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because there was no allergy alert when a nurse scanned her bracelet, "the failure of the
defendants to maintain a working computer and bracelet scanning system" caused
Michelle's damages.
{¶ 12} The trial court denied the Sullivans' motion to amend their complaint, finding
undue delay on the Sullivans' part. The trial court's decision focused on the Sullivans'
proposed Count IV and found that despite being aware of Mercy's computer system since
July 2016, the Sullivans offered no explanation as to why they waited until March of 2023
to assert negligence regarding it. After denial of the Sullivans' motion to amend, Mercy
filed a motion for summary judgment, arguing the Sullivans' claims against Mercy were
barred by the doctrine of res judicata.
{¶ 13} Meanwhile, the Sullivans served Mercy with discovery requests regarding
how Mercy evaluated and documented a patient's allergy history, how such information
could be reviewed by staff, various Mercy policies and procedures, and information
regarding Michelle possessed by Mercy, including her medical information and
communications regarding her visits. After initially filing a motion to compel for not
receiving responses on time, the Sullivans argued that the responses they eventually
received from Mercy were evasive, non-responsive, and included unjustified claims of
privilege. This prompted the Sullivans to file a Civ.R. 56(F) motion for an extension of
time to complete discovery and respond to Mercy's motion for summary judgment.
{¶ 14} At a hearing on Mercy's motion for summary judgment, the trial court
repeatedly raised two Supreme Court of Ohio cases it thought were applicable to
disposition of the motion: Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio
St.3d 594 (2009), and Clawson v. Heights Chiropractic Physicians, LLC, 170 Ohio St.3d
451 (2022). Neither party cited to these cases in their memoranda, and the Sullivans did
not request to submit further briefing on the cases or otherwise object to the trial court's
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consideration of them.
{¶ 15} Ultimately, the trial court denied the Civ.R. 56(F) motion for lack of good
cause and denied the motion to compel after finding merely that Mercy's "discovery
responses were complete and non-evasive." In addition, the trial court rendered summary
judgment in favor of Mercy, finding it could not be directly responsible for medical
malpractice and could not be vicariously liable for malpractice after Dr. Koster and Bryant,
the only remaining named defendants that were agents of Mercy, were not found liable.
The trial court relied on Wuerth and Clawson to come to this conclusion. Finally, the trial
court ruled the Sullivans' claims against Mercy were barred by res judicata.
{¶ 16} The Sullivans raise four assignments of error on appeal.
II. Analysis
{¶ 17} FIRST ASSIGNMENT OF ERROR: . . . THE TRIAL COURT COMMITTED REVERSIBLE ERROR WARRANTING ANOTHER REVERSAL AND REMAND WHEN IT DENIED PLAINTIFFS-APPELLANTS' POST REMAND MOTIONS AND IN FAILING TO FOLLOW THE DIRECTION/INTENT OF THIS APPELLATE COURT'S REMAND.
{¶ 18} First, the Sullivans argue that the trial court erred in denying their motions
to amend their complaint, to compel discovery, and for a Civ.R. 56(F) extension of time
to complete discovery and respond to Mercy's motion for summary judgment. The
Sullivans also contend the trial court's orders were contrary to this court's orders in
Sullivan I, but we will address this argument further below when discussing the Sullivans'
remaining three assignments of error.
A. Motion to Amend
{¶ 19} The trial court's decision to grant or deny a motion to amend a complaint is
reviewed for an abuse of discretion on appeal. Scovanner v. Ohio Valley Voices, 2012-
Ohio-3629, ¶ 28 (12th Dist.). An abuse of discretion occurs when the decision of the trial
court was arbitrary, unreasonable, or unconscionable. Id. at ¶ 29. A party may amend
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their complaint as a matter of course within 28 days after serving it. Civ.R. 15(A).
Thereafter, the amendment of a pleading requires leave of court, but "[t]he court shall
freely give leave when justice so requires." Id.
{¶ 20} However, "'[w]hile Civ.R. 15(A) allows for liberal amendment, the trial court
does not abuse its discretion if it denies a motion to amend pleadings if there is a showing
of bad faith, undue delay, or undue prejudice to the opposing party.'" Scovanner at ¶ 28,
quoting Wagoner v. Obert, 2008-Ohio-7041, ¶ 111 (5th Dist.). "'Where a plaintiff fails to
make a prima facie showing of support for new matters sought to be pleaded, a trial court
acts within its discretion to deny a motion to amend the pleading.'" Id., quoting Wilmington
Steel Products, Inc. v. Cleveland Electric Illuminating Co., 60 Ohio St.3d 120, (1991),
syllabus.
{¶ 21} The fact Mercy's bracelet scanning system did not provide an allergy alert
for Zofran has been known to the parties since 2016. No one contests this. However,
the Sullivans never attempted to assert that this was the result of Mercy or its agents'
negligence in maintaining its computer systems until filing the motion to amend the
complaint in 2023. The Sullivans' 2018 complaint was couched in the allegation that the
administration of Zofran by hospital staff was done without consent and constituted a
deviation from the standard of care. All stated causes of action stemmed from this
contention. We therefore agree with the trial court that the Sullivans' attempt to amend
their complaint sought to add an additional theory of liability (simple negligence) and
comes far too late in these proceedings.
{¶ 22} In addition, introducing a new claim like this would significantly alter and
expand the scope of the case and require each party to engage additional experts and
conduct discovery on this issue (which the Sullivans seemingly first sought to do only
upon remand after our decision in Sullivan I). Such a drastic amendment would cause
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undue prejudice to Mercy. Moreover, all of this assumes the information sought from
March 2014 still even exists or can be recreated. Mercy's systems have undoubtedly
undergone changes and updates during the nine years since the Sullivans originally filed
suit in 2015. The trial court did not abuse its discretion in denying the motion to amend.
B. Motion to Compel and Civ.R. 56(F) Motion
{¶ 23} An abuse of discretion standard also applies to review of the trial court's
denial of the Sullivans' motion to compel discovery. Total Quality Logistics, LLC v. BBI
Logistics LLC, 2022-Ohio-1440, ¶ 18 (12th Dist.). However, even in the event an abuse
of discretion occurs, such an error may be deemed harmless if it "'pose[s] no danger of
prejudice to the opposing party or to the court's essential functions.'" State ex rel. Lapp
Roofing & Sheet Metal Co. v. Indus. Comm., 2008-Ohio-850, ¶ 12, quoting Natl. Mut. Ins.
Co. v. Papenhagen, 30 Ohio St.3d 14, 16 (1987); See also Ohio Civ. R. 61.
{¶ 24} Upon review, we note the Sullivans' motion to compel was originally filed
because Mercy's responses were tardy (a fact Mercy admits). However, the Sullivans
then proceeded to broadly claim that Mercy's responses were insufficient and contained
unjustified claims of privilege. We also note that the Sullivans have never pointed to, at
the trial level or on appeal, any specific objection to any particular response by Mercy. In
addition, we see no indication in the record that, consistent with the mandate of Civ.R.
37(A), counsel for the Sullivans attempted to resolve disputes with opposing counsel
regarding the content of the responses before asking the trial court to intervene.
{¶ 25} However, even assuming for the sake of argument that the trial court
abused its discretion or otherwise erred in concluding Mercy's answers were legally
sufficient, any such error would be harmless. In its summary judgment order, the trial
court found that Mercy could not, as a matter of law (1) be found directly liable for medical
malpractice under Ohio law; (2) be found vicariously liable for medical malpractice
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because Dr. Koster and Bryant, the only named Mercy agents, were found not liable; and
(3) be found liable for malpractice because the issue of whether malpractice stemming
from a lack of informed consent had occurred was resolved when the jury returned
verdicts in favor of Dr. Koster and Bryant (applying res judicata).
{¶ 26} The Sullivans offer no argument as to why their requested discovery, which
related to Mercy's maintenance of its computer system and various policies and
procedures, would have altered the trial court's summary judgment decision. Those
issues were effectively foreclosed by denial of the Sullivans' motion to amend their
complaint or would not have altered the trial court's conclusion that Mercy could not be
found directly or vicariously liable after the jury's verdict. We therefore find no reason to
reverse the trial court's decisions.
{¶ 27} This assignment of error is overruled.
{¶ 28} SECOND ASSIGNMENT OF ERROR: IN LIGHT OF THIS COURT OF APPEALS' REVERSAL AND REMAND IN SULLIVAN I, 2022-OHIO-4445, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY SUA SPONTE INVOKING THE CASES OF NATL. UNION FIRE INS. CO. OF PITTSBURGH, PA v. WUERTH, 122 OHIO ST.3D 594, 2009-OHIO-3601, 913 N.E.2D 939, AND CLAWSON v. HEIGHTS CHIROPRACTIC PHYSICIANS, LLC, 2022-OHIO-4154, TO THE HOSPITAL'S RES JUDICATA ARGUMENT IN GRANTING THE HOSPITAL SUMMARY JUDGMENT.
{¶ 29} THIRD ASSIGNMENT OF ERROR: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE HOSPITAL'S MOTION FOR SUMMARY JUDGMENT WHEN IT SUA SPONTE APPLIED NATL. UNION FIRE INS. CO. OF PITTSBURGH, PA v. WUERTH, 122 OHIO ST.3D 594, 2009-OHIO-3601, 913 N.E.2D 939, AND CLAWSON v. HEIGHTS CHIROPRACTIC PHYSICIANS, LLC, 2022-OHIO- 4154.
{¶ 30} FOURTH ASSIGNMENT OF ERROR: THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO RECOGNIZE THAT A HOSPITAL, WHICH WAS THE SPECIFIC PROVIDER OF A PATIENT'S HEALTH CARE, AND IN A HOSPITAL-PATIENT RELATIONSHIP, WAS DIRECTLY AND/OR VICARIOUSLY LIABLE FOR INJURIES TO A PATIENT FOR WHOM IT HAD DIRECT AND PRIMARY RESPONSIBILITY.
{¶ 31} We will address the Sullivans' last three assignments of error together. The
Sullivans argue that summary judgment against them was in error for multiple reasons.
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First, they contend the trial court's conclusion that res judicata barred their claims against
Mercy goes against our statement in Sullivan I that "any further findings [as to Mercy] are
better addressed on remand." The Sullivans argue this statement necessarily implied the
existence of other valid, pending claims that cannot be barred by res judicata. Second,
the Sullivans argue the trial court's invocation of Natl. Union Fire Ins. Co. of Pittsburgh,
PA v. Wuerth, 2009-Ohio-3601, and Clawson v. Hts. Chiropractic Physicians, L.L.C.,
2022-Ohio-4154, was improper because "neither Wuerth or Clawson are relevant" to
claims of direct negligence by Mercy and its non-physician staff and because neither party
cited to these cases as applicable authority.
C. Res Judicata
{¶ 32} "'Application of the doctrine of res judicata/collateral estoppel to a particular
issue is a question of law'" that we review de novo. Lycan v. Cleveland, 171 Ohio St.3d
550, 2022-Ohio-4676, ¶ 21, quoting State ex rel. Davis v. Pub. Emps. Retirement Bd.,
174 Ohio App.3d 135, 2007-Ohio-6594, ¶ 41 (10th Dist.). "The doctrine of res judicata
involves both claim preclusion (historically called estoppel by judgment in Ohio) and issue
preclusion (traditionally known as collateral estoppel)." Id. at ¶ 22, quoting Grava v.
Parkman Twp., 73 Ohio St.3d 379, 381 (1995).
{¶ 33} Collateral estoppel is the relevant legal doctrine in this appeal, and it
"prevents parties or their privies from relitigating facts and issues in a subsequent suit
that were fully litigated in a prior suit." Thompson v. Wing, 70 Ohio St.3d 176, 183 (1994).
The doctrine "applies when the fact or issue (1) was actually and directly litigated in the
prior action, (2) was passed upon and determined by a court of competent jurisdiction,
and (3) when the party against whom collateral estoppel is asserted was a party in privity
with a party to the prior action." Id., citing Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108
(1969), paragraph two of the syllabus.
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{¶ 34} We agree with the trial court that res judicata bars the Sullivans' medical
malpractice claim against Mercy. As previously stated, the Sullivans' 2018 complaint was
centered on the allegation that the administration of Zofran by hospital staff was done
without consent and constituted a deviation from the standard of care. The complaint did
not differentiate this claim as to any defendant, be they an organization, individual
physician, or other healthcare staff such as nurse Dye (who has never been a named
defendant). At trial, the jury found Dr. Koster and Bryant did not commit malpractice
because there was informed consent to administer Zofran. Therefore, because Dr. Koster
and Bryant were in privity with Mercy, the Sullivans must be precluded from re-litigating
the issue of whether they consented to the administration of Zofran in March of 2014 while
at Mercy. The trial court properly granted summary judgment to Mercy on the basis of
res judicata.
{¶ 35} We also disagree with the Sullivans that Sullivan I impliedly determined that
remaining claims in this case were valid and could not be barred by application of res
judicata. Sullivan I concerned only whether the trial court had properly relied upon our
opinion in Asai v. Obstetrics & Gynecology Assocs., 2020-Ohio-4350 (12th Dist.), in
granting summary judgment to Mercy on statute of limitation grounds. We reversed the
trial court's judgment and stated it was appropriate for the trial court to consider the import
of the verdict in favor of Dr. Koster and Bryant as to Mercy upon remand. Our decision
made no determination as to the factual or legal merits of the Sullivans' claims against
Mercy and certainly did not approve any attempt to amend said claims or add additional
theories of recovery.
D. Wuerth and Clawson
{¶ 36} Finally, the trial court did not err in concluding Wuerth, 2009-Ohio-3601, and
Clawson, 2022-Ohio-4154, stood as an additional basis to grant summary judgment. In
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Wuerth, the Supreme Court of Ohio reiterated its prior holding that "because only
individuals practice medicine, only individuals can commit medical malpractice . . .
[therefore,] '[a] hospital does not practice medicine and is incapable of committing
malpractice.'" Wuerth at ¶ 14, quoting Browning v. Burt, 66 Ohio St.3d 544, 556 (1993).
Stated differently, an organization "cannot directly commit malpractice . . ." Clawson at ¶
23.
{¶ 37} Under Count I of the 2018 complaint, the Sullivans alleged
"negligence/malpractice" against Mercy, Dr. Koster, Bryant and others. Again, the
complaint did not differentiate its claims as to any defendant while also citing to the
professional licensures and medical practices of all named defendants. As a result, the
complaint sounds solely in a malpractice action as opposed to a general negligence
action against various classes of defendants. "When the gist of a complaint sounds in
malpractice, the other duplicative claims . . . are subsumed within the . . . malpractice
claims." Rumley v. Buckingham, Doolittle & Burrough, 129 Ohio App.3d 638, 641 (10th
Dist.1998); see also White v. Ohio Pub. Def., 2019-Ohio-5204, ¶ 11 (10th Dist.).
{¶ 38} The Supreme Court's holdings in Wuerth and Clawson are therefore,
contrary to the assertions of the Sullivans, self-evidently relevant to this case because
Mercy, a hospital, cannot be found directly liable for malpractice. In addition, Mercy
cannot be found vicariously liable for malpractice because the jury rendered a verdict in
favor of Dr. Koster and Bryant, the only remaining, individually named Mercy defendants
in this case. See generally Hildebrandt Family Partnership v. Provident Bank, 2010-Ohio-
2712, ¶ 20 (12th Dist.) (holding a law firm cannot be held vicariously liable for any alleged
malpractice because complaint failed to aver that one or more individuals at the firms
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were liable for legal malpractice).2
{¶ 39} Even though neither side cited to Wuerth and Clawson in their memoranda
regarding summary judgment, the trial court repeatedly raised the cases with counsel
during oral argument on the motion. Despite undoubtedly being aware at that point that
the trial court was considering Wuerth and Clawson, the Sullivans did not seek the
opportunity to submit briefing on the cases and did not otherwise object to the trial court's
{¶ 40} As a result, the Sullivans cannot, for the first time, argue on appeal that the
trial court should not have considered these cases. State v. Salem, 2023-Ohio-2914, ¶
19 (12th Dist.). In addition, we fail to see any merit in the assertion that this court should
not, at all times, consider relevant law. This court is "bound to follow the dictates of
common law as espoused by the Ohio Supreme Court." Hildebrandt at ¶ 21.
{¶ 41} The Sullivans' second, third, and fourth assignments of error are overruled.
{¶ 42} Judgment affirmed.
BYRNE, P.J. and M. POWELL, J., concur.
2. The Sullivans argue that Wuerth and Clawson are not applicable outside of medical malpractice claims and do not bar other "medical claims," including claims against a medical institution for the alleged negligence of its nursing staff as opposed to physicians. The Sullivans also argue that such non-physician employees do not need to be individually named in the complaint. In support of these arguments, the Sullivans point to Orac v. Montefiore Found., 2024-Ohio-4904, ¶ 42 (8th Dist.) (holding "Wuerth and Clawson do not preclude . . . suit against [an organization] for the negligence of its nonphysician employees" who were not named in the complaint). However, we need not consider these additional issues raised by the Sullivans in light of our conclusions that (1) the Sullivans' complaint can only be construed as a malpractice action based on a lack of informed consent and (2) that relitigating the informed consent issue is barred by res judicata.
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