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  • TINA WRIGHT Vs LEGAL DEPARTMENT OHIO HEALTH VS.LEGAL DEPARTMENT OHIO HEALTH ET ALOTHER CIVIL document preview
  • TINA WRIGHT Vs LEGAL DEPARTMENT OHIO HEALTH VS.LEGAL DEPARTMENT OHIO HEALTH ET ALOTHER CIVIL document preview
  • TINA WRIGHT Vs LEGAL DEPARTMENT OHIO HEALTH VS.LEGAL DEPARTMENT OHIO HEALTH ET ALOTHER CIVIL document preview
  • TINA WRIGHT Vs LEGAL DEPARTMENT OHIO HEALTH VS.LEGAL DEPARTMENT OHIO HEALTH ET ALOTHER CIVIL document preview
  • TINA WRIGHT Vs LEGAL DEPARTMENT OHIO HEALTH VS.LEGAL DEPARTMENT OHIO HEALTH ET ALOTHER CIVIL document preview
  • TINA WRIGHT Vs LEGAL DEPARTMENT OHIO HEALTH VS.LEGAL DEPARTMENT OHIO HEALTH ET ALOTHER CIVIL document preview
  • TINA WRIGHT Vs LEGAL DEPARTMENT OHIO HEALTH VS.LEGAL DEPARTMENT OHIO HEALTH ET ALOTHER CIVIL document preview
  • TINA WRIGHT Vs LEGAL DEPARTMENT OHIO HEALTH VS.LEGAL DEPARTMENT OHIO HEALTH ET ALOTHER CIVIL document preview
						
                                

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Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C8 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO TINA G. WRIGHT, Plaintiff, Case No. 24CV00989 VS. JUDGE C. AVENI STEVE MARKOVICH, et al., Defendants. DECISION AND ENTRY GRANTING DEFENDANTS’ MOTION TO DISMISS FILED FEBRUARY 22, 2024 AND DECISION AND ENTRY GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS FILED FEBRUARY 28, 2024 I Introduction This matter is before the Court on Defendants’ Steve Markovich and OhioHealth’s Motion to Dismiss filed February 22, 2024 and Defendants’ Motion for Judgment on the Pleadings filed February 28, 2024. On March 4, 2024, Plaintiff filed a Memorandum in Opposition to Defendant’s Motions. On March 6, 2024, Defendants filed a Consolidated Reply in Support of their Motions. Defendants’ Motions are ripe for decision. As an initial matter, the Court recognizes Plaintiff's status as a pro se litigant. To that end, however, "[i]t is well established that pro se litigants are presumed to have knowledge of the law and legal procedures and that they are held to the same standard as litigants who are represented by counsel." Arega v. Coleman, 10th Dist. Franklin No. 15AP-629, 2015-Ohio-5242, { 12, quoting Sabouri v. Ohio Dept. of Job & Family Servs., 145 Ohio App. 3d 651, 654, 763 N.E.2d 1238 (10th Dist.2001) Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9 IL. Statement of the Case On February 5, 2024, Plaintiff Tina G. Wright filed a Complaint initiating this action. (See Compl.). The Complaint, in its entirety, states Steve Markovich was made aware of a hanis crime involveing medical malpractice of one of his staff members Dr. Robert Earll Bartley and two of his resideing nurses A complaint was filed within his disaplinary office and facts were found to be true 1) Medical malpractice/hanis 2) Failure to diagnoice and treat thereafter 3) Cover up the crime 4) Civil rights violations 5) Faluseification of medical records Plaintiff has been made to suffer by any and all means possible and all platforns closed to the truth and any type of treatment to rectify the dammages the will altimedly lead to Wrights death before any responsibility will be accounted for this type of hanis crime in which his staff after the facts has been un apologetic and took no accountability for the hanis crime that took place behind Grant medical doors a dog would be gotten more attention [Spelling as it appears in the original.] (/d.) The core allegations in her Complaint are that Dr. Bartley, alongside two unnamed and unidentified nurses, allegedly failed in their duty of care to the Plaintiff, resulting in unspecified harm that could potentially lead to her future demise. (/d.) Importantly, the Court notes that Plaintiff's Complaint was filed without any accompanying Affidavit of Merit or Motion for Extension for purposes of submitting an Affidavit of Merit. In addition, the Court notes that Plaintiffs Complaint fails to directly allege a date of when the alleged conduct of Defendants occurred. However, Plaintiff attaches what appears to be medical records to her Complaint, which contains an Operative Report dated March 19, 2013 Defendants assert that Plaintiff's Complaint’s Complaint is subject to dismissal on two grounds: (1) that Plaintiff failed to submit an Affidavit of Merit or move for an extension of time 2 Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9 to file an Affidavit of Merit in contravention of Civ.R. 10(D); and (2) that the Plaintiff's claims are barred by the statute of repose set forth in R.C. 2305.113(C)(1). For the reasons that follow, the Court finds that Defendants’ Motions well taken. Til. Discussion A. Plaintiff's Complaint is Subject to Dismissal for Failure to Attach an Affidavit of Merit. A motion to dismiss under Civ. R. 12(B)(6) for failure to state a claim is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. Of Commrs., 65 Ohio St.3d 545, 605 N.E.2d 378 (1992); Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 532 N.E.2d 753 (1988), Ohio Civ. R. 10(D)(2), which requires a Complaint alleging a "medical claim" to be accompanied by the filing of an Affidavit of Merit, creates a heightened burden of pleading. The Supreme Court of Ohio has held that the proper response to a plaintiffs failure comply with Civ.R. 10(D)(2) is a motion to dismiss for failure to state a claim, pursuant to Civ.R. 12(B)(6). Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147 Notably, Civ.R. 10(D)(2)(b) provides Plaintiff the opportunity to "extend the period of time to file an affidavit of merit" by allowing her to file a motion to extend the period of time. This Motion must be filed with the Complaint and will only be granted for "good cause shown." Civ.R. 10(D)(2)(b). Here, Plaintiff's Complaint clearly asserts medical claims. A medical claim is defined by R.C, 2305.113 as [A]ny claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice registered nurse, physical therapist, 3 Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9 physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person. Medical claims also include derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person. See R.C. 2305.113(E)(3)(a). Plaintiff's Complaint consists of medical claims because it alleges medical malpractice by Dr. Robert Earll Bartley and two nurses. As such, Plaintiff was required to submit an affidavit of merit with her Complaint, or request an extension of time to file an affidavit of merit at the time she filed her Complaint. Here, Plaintiff neither filed an Affidavit of Merit nor filed a Motion seeking additional time in which to obtain an Affidavit of Merit with her Complaint. Accordingly, her Complaint is inadequate and therefore subject to dismissal B. Plaintiffs Complaint Is Subject to Dismissal With Prejudice Due to the Expiration of the Statute of Repose. “A dismissal of a complaint for failure to attach the affidavit of merit required by Civ.R. 10(D)(2) is an adjudication otherwise than on the merits and is a dismissal without prejudice by operation of law.” Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, at syllabus. However, in this case, the Court finds that because of the expiration of the statute of repose, Plaintiffs Complaint is subject to dismissal with prejudice. Defendants move for judgment on the pleadings pursuant to Civ.R. 12(C)!. Defendants assert that Plaintiff's Complaint is barred by Ohio’s medical malpractice statute of repose set forth in R.C. 2305.113(C)(1). The medical malpractice statute of repose places an absolute bar of four 1 Judgment on the pleadings under Civ.R. 12(C) operates like Civ.R. 12(B)(6) to dismiss a complaint, but is applicable after the pleadings are closed and permits consideration of the Answer. See, State ex rel. Midwest Pride IV, Inc., v. Pontius, 75 Ohio St.3d. 565, 1996-Ohio-459 (1996). Like Civ.R. 12(B)(6), Civ.R. 12(C) is used specifically to resolve questions of law based upon pleadings. Jd., citing, Peterson v. Teodosio, 34 Ohio St.2d 161, 297 N.E.2d 113 (1973). 4 Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9 years to file "medical claims" and that four years runs from the date of the alleged act of negligence. R.C. 2305.113(C)(1) states: “No action upon a medical claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical., claim.” The statute of repose: 1) is unaffected by whether or when the plaintiff suffers or discovers a harm; 2) does not toll during litigation but continues to run from the alleged negligent act; 3) is unaffected by Ohio's savings statute. See, Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio- 6827, 173 N.E.3d 448, {| 8-10, citing CZS Corp. v. Waldburger, 573 U.S. 1, at 9, 134 S.Ct. 2175 (2014); see also, Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E3d 974 Here, Plaintiff's Complaint fails to state any facts to support her one paragraph of conclusions that she suffered medical malpractice. However, attached to her Complaint, Plaintiff provided the Operative Report indicating that Dr. Bartley performed a hip replacement surgery on Plaintiff on March 19, 2013. The statute of repose, extending four years for claims related to the surgery performed by Dr. Bartley, started on the date of the surgery due to the alleged negligence, which occurred on March 19, 2013. As a result, this statute of repose concluded on March 19, 2017, approximately seven years ago. Consequently, any current attempts by Plaintiff to file claims connected to the medical care provided by Dr. Bartley and the nurses in 2013 are barred by the four-year medical claims statute of repose. Accordingly, Plaintiffs Complaint is hereby DISMISSED WITH PREJDUICE. **THIS IS A FINAL APPEALABLE ORDER.** IT IS SO ORDERED. Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9 Copies to all counsel via electronic filing system. Copy by regular mail to: Tina G. Wright 2205 Atwood Terrace Columbus, Ohio 43211 Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9 Franklin County Court of Common Pleas Date: 03-21-2024 Case Title: TINA WRIGHT -VS- LEGAL DEPARTMENT OHIO HEALTH ET AL Case Number: 24CV000989 Type: ENTRY It Is So Ordered. {9 :{\ ose \ 4 KA “ LAY \. Nae /s/ Judge Carl A. Aveni IT Electronically signed on 2024-Mar-21 page 7 of 7 Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9 Court Disposition Case Number: 24CV000989 Case Style: TINA WRIGHT -VS- LEGAL DEPARTMENT OHIO HEALTH ET AL Case Terminated: 18 - Other Terminations Final Appealable Order: Yes Motion Tie Off Information: 1. Motion CMS Document Id: 24CV0009892024-02-2299910000 Document Title: 02-22-2024-MOTION TO DISMISS - DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH Disposition: MOTION GRANTED 2. Motion CMS Document Id: 24CV0009892024-02-2299900000 Document Title: 02-22-2024-MOTION - DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH - TO RECLASSIFY CASE & AMEND Disposition: MOTION RELEASED TO CLEAR DOCKET 3. Motion CMS Document Id: 24CV0009892024-02-2899980000 Document Title: 02-28-2024-MOTION FOR JUDGMENT ON PLEADINGS - DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH Disposition: MOTION GRANTED 4. Motion CMS Document Id: 24CV0009892024-02-2999970000 Document Title: 02-29-2024-MOTION FOR JUDGMENT ON PLEADINGS - DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH Disposition: MOTION RELEASED TO CLEAR DOCKET 5. Motion CMS Document Id: 24CV0009892024-03- 1999980000 Document Title: 03-19-2024-MOTION - DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH - TO ENFORCE CIV. R.5(B) Disposition: MOTION RELEASED TO CLEAR DOCKET Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9 6. Motion CMS Document Id: 24CV0009892024-03- 1499980000 Document Title: 03-14-2024-MOTION TO STRIKE - DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH Disposition: MOTION RELEASED TO CLEAR DOCKET 7. Motion CMS Document Id: 24CV0009892024-03-0899960000 Document Title: 03-08-2024-MOTION - PLAINTIFF: TINA WRIGHT - MOTION Disposition: MOTION RELEASED TO CLEAR DOCKET 8. Motion CMS Document Id: 24CV0009892024-03-0899980000 Document Title: 03-08-2024-MOTION TO STRIKE - DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH Disposition: MOTION RELEASED TO CLEAR DOCKET 9. Motion CMS Document Id: 24CV0009892024-03-0799970000 Document Title: 03-07-2024-MOTION - PLAINTIFF: TINA WRIGHT - MOTION Disposition: MOTION RELEASED TO CLEAR DOCKET 10. Motion CMS Document Id: 24CV0009892024-03-0699980000 Document Title: 03-06-2024-MOTION - PLAINTIFF: TINA WRIGHT Disposition: MOTION RELEASED TO CLEAR DOCKET Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9 11. Motion CMS Document Id: 24CV0009892024-03-0599960000 Document Title: 03-05-2024-MOTION - PLAINTIFF: TINA WRIGHT - MOTION Disposition: MOTION RELEASED TO CLEAR DOCKET 12. Motion CMS Document Id: 24CV0009892024-03-0599970000 Document Title: 03-05-2024-MOTION - PLAINTIFF: TINA WRIGHT - MOTION Disposition: MOTION RELEASED TO CLEAR DOCKET 13. Motion CMS Document Id: 24CV0009892024-03-0599980000 Document Title: 03-05-2024-MOTION - PLAINTIFF: TINA WRIGHT - MOTION IN RESPONSE OF PLAINTIFF Disposition: MOTION IS MOOT 14. Motion CMS Document Id: 24CV0009892024-03-0499970000 Document Title: 03-04-2024-MOTION - PLAINTIFF: TINA WRIGHT Disposition: MOTION RELEASED TO CLEAR DOCKET 15. Motion CMS Document Id: 24CV0009892024-03-0499980000 Document Title: 03-04-2024-MOTION TO EXTEND TIME - PLAINTIFF: TINA WRIGHT Disposition: MOTION IS MOOT Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989 0G775 - C9