Walling v. Brenya

2021 Ohio 29

• Court: Ohio Court of Appeals
• Decided: January 8, 2021
• Docket: L-19-1264
• Status: Published

Opinion

[Cite as Walling v. Brenya, 2021-Ohio-29.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Michael Walling, Administrator of the Court of Appeals No. L-19-1264 Estate of Raeann Walling, Deceased Trial Court No. CI0201502139 Appellant

v.

Ransford S. Brenya, M.D., et al. DECISION AND JUDGMENT

Appellee Decided: January 8, 2021

*****

Jeffrey T. Stewart and Robert M. Scott, for appellant.

James E. Brazeau and Kayla L. Henderson, for appellee.

PIETRYKOWSKI, J.

{¶ 1} Appellant, Michael Walling as Administrator for the Estate of Raeann

Walling, Deceased, appeals the judgment of the Lucas County Court of Common Pleas,

granting summary judgment in favor of appellee, The Toledo Hospital, on appellant’s

claim for negligent credentialing. For the reasons that follow, we affirm. I. Facts and Procedural Background

{¶ 2} This matter arises from a medical malpractice claim brought by appellant

against Dr. Ransford Brenya, Dr. Osama Al-Bawab, and The Toledo Clinic, Inc.

Appellant alleged that Raeann Walling suffered a fatal pulmonary vein stenosis on

April 26, 2014, as a consequence of Brenya’s repeated and incompetent catheter ablation

procedures in treating her catecholaminergic polymorphic ventricular tachycardia

(CPVT)—a genetic condition characterized by a particular kind of atrial arrhythmia—and

his negligent failure to recognize and address the stenosis.

{¶ 3} Based on information learned during discovery, appellant amended the

complaint to include a negligent credentialing claim against appellee as an additional

defendant. Upon the motion of appellee, the trial court bifurcated the negligent

credentialing claim and stayed discovery pending the outcome of the underlying medical

malpractice claim.

{¶ 4} The underlying claim proceeded to a multi-day jury trial commencing on

January 28, 2019. During the trial, Brenya testified on cross-examination that he does

not remember reviewing an x-ray taken of Raeann that showed a potential pulmonary

venous obstruction. He agreed that not reviewing the records sent to him about a patient

fell below the standard of care. Brenya further testified that had he seen the records, the

reasonable standard of care would have been to order a CT scan, which he did not do.

Moreover, because he did not order the CT scan, he did not discover the pulmonary vein

stenosis, and consequently did not treat the pulmonary vein stenosis. Finally, Brenya

2. testified that the moment he discovered the pulmonary vein stenosis, he referred Raeann

right away to the University of Michigan. It was not long after the referral that Raeann

showed signs of pulmonary hypertension and had an enlarged heart on the right side.

Brenya agreed that those symptoms were what he would have tried to avoid with prompt

treatment.

{¶ 5} Before the trial concluded, appellant entered into a settlement agreement

with Brenya, Al-Bawab, and the Toledo Clinic.1 In the signed release, appellant

acknowledged that the released parties “have denied, and continue to deny, any

wrongdoing or liability,” but the released parties reciprocally acknowledged that

appellant did not admit that the released parties were without fault. Furthermore, the

release stated that nothing in it “shall be deemed to release or impair in any way the

pending claims * * * against [appellee],” and that “This settlement and release is made in

good faith specifically pursuant to ORC 2307.28, incorporating its provisions that this

settlement does not discharge any other tortfeasor.”

{¶ 6} Following the dismissal of the medical malpractice claims against Brenya,

Al-Bawab, and the Toledo Clinic, appellee moved for summary judgment on appellant’s

claim of negligent credentialing. Appellee argued that to bring a negligent credentialing

1 The settlement agreement is subject to a confidentiality provision, and for that reason, motions and filings in the record that refer to the settlement agreement have been filed under seal. To protect the confidentiality of the agreement, this court will refer to the agreement in a limited fashion, and only to the extent necessary to resolve the issues on appeal.

3. claim, there must be a prior determination that the provider committed medical

malpractice. Because such a determination was not made by the jury or stipulated to in

the settlement agreement, appellee argued that appellant’s claim must fail. Appellant

responded that Brenya’s testimony on cross-examination constituted a concession that he

was negligent, and therefore appellant should be able to pursue the negligent

credentialing claim against appellee.

{¶ 7} On October 9, 2019, the trial court entered its judgment finding that

Brenya’s “concession” on cross-examination did not constitute an adjudicated

determination or stipulation that appellant’s injuries were proximately caused by the

doctor’s negligence. Thus, the court granted summary judgment in favor of appellee, and

dismissed appellant’s claim with prejudice.

II. Assignments of Error

{¶ 8} Appellant has timely appealed the trial court’s October 9, 2019 judgment,

and now asserts one assignment of error for our review:

1. The trial court erred when it granted Defendant-Appellee The

Toledo Hospital’s motion for summary judgment as to Plaintiff-Appellant’s

negligent credentialing claim where the defendant-doctor during trial in the

underlying medical negligence case conceded on the record and under oath

the essential elements of Plaintiff-Appellant’s medical negligence claim

and Plaintiff-Appellant subsequently settled his claim for medical

negligence against the defendant-doctor prior to the jury’s verdict.

4. III. Analysis

{¶ 9} We review the grant or denial of a motion for summary judgment de novo,

applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61

Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is

appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party

is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one

conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that

conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co.,

54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 10} The question presented to us in this appeal is whether appellant can

maintain a negligent credentialing claim against appellee where the defendant-doctor

conceded on the record during the underlying trial the essential elements of a medical

negligence claim,2 but where the plaintiff settled his claim for medical negligence against

the defendant-doctor prior to the jury verdict, and the settlement agreement did not

stipulate that the plaintiff’s injury was caused by the defendant-doctor’s negligence.

{¶ 11} “To prove a negligent-credentialing claim, a plaintiff injured by the

negligence of a staff doctor must show that but for the lack of care in the selection or

retention of the doctor, the doctor would not have been granted staff privileges, and the

2 For purposes of our analysis, we will assume that Brenya’s testimony conceded all the essential elements of a medical negligence claim.

5. plaintiff would not have been injured.” Schelling v. Humphrey, 123 Ohio St.3d 387,

2009-Ohio-4175, 916 N.E.2d 1029, ¶ 18. As part of proving the claim, the plaintiff must

establish the underlying medical malpractice of the doctor. Id. at ¶ 19. “The required

element of the plaintiff’s injury having been caused by the doctor’s malpractice goes to

the question of whether the hospital’s alleged negligent credentialing of the doctor

proximately caused the plaintiff’s injury.” (Emphasis sic.) Id.

{¶ 12} In Schelling, the Ohio Supreme Court was asked to answer “whether a

plaintiff can proceed on a negligent-credentialing claim against a hospital without a prior

finding, either by adjudication or stipulation, that the plaintiff’s injury was caused by the

physician’s malpractice.” In Schelling, as here, the plaintiffs brought a medical

malpractice claim against the defendant-doctor, and a negligent credentialing claim

against the hospital. Id. at ¶ 5-6. Upon the motion of the hospital, the claims were

bifurcated for trial. Id. at ¶ 7. Prior to trial, however, the defendant-doctor filed a

petition for bankruptcy, and the case was stayed. Id. at ¶ 8. Thereafter, the plaintiffs

dismissed the claim against the defendant-doctor without prejudice, acknowledging that a

settlement was reached with the bankruptcy trustee. Id. The defendant-doctor was later

granted a discharge in bankruptcy, thereby precluding any attempt by the plaintiffs to

collect on the medical malpractice claim. Id. Notably, the bankruptcy court did not enter

a finding that the defendant-doctor was negligent in his treatment of the plaintiff, and the

defendant-doctor did not admit negligence. Id. at ¶ 9.

6. {¶ 13} In answering the question presented to it, the Ohio Supreme Court held that

“[I]n the usual case, either a plaintiff must obtain a prior determination that a doctor

committed medical malpractice and that the malpractice proximately caused the

plaintiff’s injury or the doctor will be a party to the case that includes the negligent-

credentialing claim against the hospital.” Id. at ¶ 32. However, the Ohio Supreme Court

recognized the unusual circumstances of the case before it and carved out an exception to

the rule where the doctor “is no longer amenable to suit because of the bankruptcy stay

and discharge, and the plaintiffs, through no fault of their own, cannot maintain their

malpractice claim against him.” Id. It is worth noting that the three justices who

dissented from the majority in Schelling would not have created such an exception, and

would have held that the plaintiffs could not pursue their negligent credentialing claim

against the hospital. Id. at ¶ 36 (Lundberg Stratton, J., dissenting).

{¶ 14} In Boggia v. Wood Cty. Hosp., 6th Dist. Wood No. WD-09-091, 2010-

Ohio-4932, this court had an opportunity to apply Schelling to a case with a fact pattern

similar to the one before us. In Boggia, the plaintiffs filed a medical malpractice claim

against the doctor, and a negligent credentialing claim against the hospital. Id. at ¶ 1.

The claims were bifurcated. Id. at ¶ 2. The plaintiffs then settled the medical malpractice

claim with the doctor “without obtaining any concession from the doctor as to her alleged

negligence/liability.” Id. at ¶ 10. After the settlement, the hospital moved to dismiss the

negligent credentialing claim. Id. ¶ 4. Applying Schelling, the trial court granted the

hospital’s motion and dismissed the action. On appeal, we affirmed. We reasoned that

7. the exception recognized in Schelling did not apply, and that “while it may seem a harsh

result, it was [plaintiffs] who agreed to enter into the settlement agreement thereby

precluding any opportunity to prove malpractice on the part of [the doctor].” Boggia at

¶ 10.

{¶ 15} In support of his assignment of error, appellant now attempts to distinguish

the present case from the facts in Boggia. In so doing, appellant latches onto our use of

the word “concession,” and argues that here, unlike in Boggia, the defendant-doctor

conceded the essential elements of medical malpractice through his testimony on cross-

examination. While Brenya’s testimony did in fact address all of the elements of medical

malpractice, we do not find that it constituted a “concession” as that term was used in

Boggia.

{¶ 16} In Boggia, we used the word “concession” in the context of the plaintiffs’

settlement of their malpractice claim. We noted that the plaintiffs “settled their

malpractice claim against [the doctor] without obtaining any concession from the doctor

as to her alleged negligence/liability.” Id. at ¶ 10. In the next sentence, we remarked that

“[t]o the contrary, in the release of all claims * * * [the doctor] ‘denies any liability of

any sort.’” Id. Thus, the type of concession being referred to in Boggia was a concession

of liability as part of a settlement agreement, which is entirely consistent with the rule in

Schelling that a plaintiff cannot maintain a negligent credentialing claim without a prior

finding or determination, either by adjudication or stipulation, that the plaintiff’s injury

was proximately caused by the doctor’s malpractice.

8. {¶ 17} Here, we find that Brenya’s testimony on cross-examination did not

constitute a determination or stipulation that appellant’s injury was caused by his

malpractice. Rather than being a determination, Brenya’s testimony was simply evidence

that, but for the settlement, would have been presented to the jury. That evidence would

have been weighed with and against other evidence—potentially including expert

testimony as to causation—and may or may not have resulted in the jury’s determination

that Brenya was medically negligent and that his negligence proximately caused

appellant’s injury. For this reason, Brenya’s testimony was likewise not a stipulation, as

his medical malpractice was the issue that was being submitted to the jury for its

determination. The fact that this case proceeded to trial does not distinguish it from

Boggia because the trial was interrupted by the parties’ settlement and thus never reached

the point where a liability determination was made by the trier of fact. Furthermore, we

find that, as in Boggia, the underlying defendants did not concede liability in the

settlement agreement. Indeed, appellant acknowledged in the settlement agreement that

the underlying defendants “have denied, and continue to deny, any wrongdoing or

liability.” Thus, we hold that Brenya’s testimony on cross-examination does not

distinguish this case from Boggia.

{¶ 18} Alternatively, appellant argues that the present case is distinguishable from

Boggia because, here, the settlement agreement expressly relies on R.C. 2307.28, which

provides that the release “does not discharge any of the other tortfeasors from liability for

the injury, loss, or wrongful death unless its terms otherwise provide.” Appellant

9. concludes that the release does not operate to legally bar his claim against appellee.

However, it is not the release of the underlying defendants that causes appellant’s claim

for negligent credentialing to fail, but rather it is appellant’s inability to obtain a prior

determination that Brenya’s negligence proximately caused appellant’s injuries. Thus,

we find that appellant’s incorporation of R.C. 2307.28 in the settlement agreement does

not distinguish this case from Boggia.

{¶ 19} Finally, appellant argues that the facts and testimony provided in discovery

and at trial present a likelihood of success on the merits. Notwithstanding the purported

strength of appellant’s case that appellee was negligent in providing credentials to

Brenya, the rule set forth in Schelling requires that appellant “obtain a prior determination

that a doctor committed medical malpractice and that the malpractice proximately caused

the plaintiff’s injury.” Schelling, 123 Ohio St.3d 387, 2009-Ohio-4175, 916 N.E.2d

1029, at ¶ 32. Appellant, through his own decision to settle his claims against the

underlying defendants without a stipulation that their medical malpractice caused his

injuries, has failed to obtain such a determination.

{¶ 20} Therefore, we find that this case is analogous to Boggia, and we hold that

the trial court did not err in granting summary judgment to appellee on appellant’s claim

of negligent credentialing where appellant failed to obtain a prior determination, whether

through adjudication or stipulation, that Brenya’s malpractice proximately caused

appellant’s injuries.

{¶ 21} Accordingly, appellant’s assignment of error is not well-taken.

10. IV. Conclusion

{¶ 22} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Lucas County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Gene A. Zmuda, P.J. _______________________________ David A. D’Apolito, J. JUDGE CONCUR. _______________________________ JUDGE

Judge David A. D’Apolito, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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