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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
ANSWER OF...
June 7,2023 07:59
By: BRET C. PERRY 0073488
Confirmation Nbr. 2876702
ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038
HARBAUGH
vs.
Judge: SHIRLEY STRICKLAND SAFFOLD
SOUTHWEST GENERAL, ET AL.
Pages Filed: 6
Electronically Filed 06/07/2023 07:59 / ANSWERS / CV 23 975038 / Confirmation Nbr. 2876702 / BATCH
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANDREW HARBAUGH, Individually ) Case No. CV 23 975038
and as Administrator of the Estate of John )
Harbaugh, )) Judge Shirley Strickland Saffold
)
Plaintiff, ) ANSWER TO THE FIRST AMENDED
) COMPLAINT OF PLAINTIFF ON
vs. ) BEHALF OF DEFENDANTS,
) SOUTHWEST GENERAL,
SOUTHWEST GENERAL, et al. ) SOUTHWEST GENERAL HEALTH
) CENTER, SOUTHWEST GENERAL
Defendants. ) MEDICAL GROUP, INC., UNIVERSITY
) HOSPITALS HEALTH SYSTEM, INC.,
) UNIVERSITY HOSPITALS MEDICAL
) GROUP, INC., AND JULIE ALJABI
)
) (JURY DEMAND ENDORSED
) HEREON)
Defendants, Southwest General, Southwest General Health Center, Southwest General
Medical Group, Inc., University Hospitals Health System, Inc. University Hospitals Medical
Group, Inc. and Julie Aljabi, state for their Answer to the First Amended Complaint of Plaintiff as
follows:
1. Defendants deny the allegations for want of knowledge contained in paragraph 1 of
Plaintiff's First Amended Complaint.
2. Defendants deny the allegations as worded in paragraph 2 of Plaintiffs First
Amended Complaint.
3. Defendants deny the allegations for want of knowledge in paragraphs 3 and 4 of
Plaintiffs First Amended Complaint.
4. Defendants deny the allegations contained in paragraph 5 of Plaintiffs First
Amended Complaint.
Electronically Filed 06/07/2023 07:59 / ANSWERS / CV 23 975038 / Confirmation Nbr. 2876702 / BATCH
5. Defendants deny the allegations as worded in paragraph 6 of Plaintiff's First
Amended Complaint.
6. Defendants deny the allegations contained in paragraph 7 of Plaintiffs First
Amended Complaint.
7. Defendants deny the allegations for want of knowledge in paragraphs 8, 9 and 10
of Plaintiffs First Amended Complaint.
8. Defendant admits that Julie Aljabi at all times herein, is, and was, a registered nurse
licensed to practice medicine in the State of Ohio, and holds herself out to the general public as
being competent. These Answering Defendants further state that they are without sufficient
knowledge and information to form a belief as to the truth of the remaining allegations in paragraph
11 of Plaintiff's First Amended Complaint.
9. Defendants deny the allegations as worded in paragraph 12 of Plaintiff's First
Amended Complaint.
10. Defendants deny the allegations for want of knowledge in paragraph 13 of
Plaintiff's First Amended Complaint.
11. Defendants deny the allegations contained in paragraph 14 of Plaintiff's First
Amended Complaint.
12. Defendants incorporate by reference each and every admission and denial set forth
in paragraphs 1 through 11 above as though fully rewritten herein, and further deny the remaining
allegations contained in paragraph 15 of Plaintiff's First Amended Complaint.
13. Defendants deny the allegations contained in paragraph 16 of Plaintiff's First
Amended Complaint.
Electronically Filed 06/07/2023 07:59 / ANSWERS / CV 23 975038 / Confirmation Nbr. 2876702 / BATCH
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14. Defendants deny the allegations as worded, and for want of knowledge, contained
in paragraph 17 of Plaintiff's First Amended Complaint.
15. Defendants deny the allegations contained in paragraph 18 of Plaintiffs First
Amended Complaint.
16. Defendants deny the allegations as worded, and for want of knowledge, contained
in paragraph 19 of Plaintiffs First Amended Complaint.
17. Defendants deny the allegations for want of knowledge in paragraph 20 of
Plaintiffs First Amended Complaint.
18. Defendants deny the allegations contained in paragraphs 21, 22, 23, 24, 25 and 26
of Plaintiffs First Amended Complaint.
19. Defendants incorporate by reference each and every admission and denial set forth
in paragraphs 1 through 18 above as though fully rewritten herein, and further deny the remaining
allegations contained in paragraph 27 of Plaintiffs First Amended Complaint.
20. Defendants deny the allegations contained in paragraphs 28, 29 and 30 of Plaintiffs
First Amended Complaint.
21. Defendants deny the cause, nature and extent of injuries and damages alleged in
Plaintiffs First Amended Complaint and deny each and every allegation not herein expressly
admitted to be true.
AFFIRMATIVE DEFENSES
22. Plaintiffs First Amended Complaint fails to state a claim against these Defendants
upon which relief can be granted.
23. This Court lacks jurisdiction of the within action by virtue of the Plaintiffs failure
to comply with the pleading requirements as required by the Ohio Rules of Civil Procedure.
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24. Plaintiff's First Amended Complaint does not comply with O.R.C. 2307.42 in that
the Plaintiff has failed to list the collateral benefits received, if any, as required by that subsection.
25. Plaintiffs damages, if any, were caused or contributed to by Plaintiffs own
negligence.
26. Plaintiff has failed to join necessary and/or indispensable parties to this lawsuit.
27. Plaintiffs damages, if any, are the result of events or circumstances, intervening or
otherwise, beyond the control of these Defendants.
28. Plaintiffs damages, if any, were proximately caused by the intervening and/or
superseding misconduct of parties not under the control of these Defendants.
29. One or more of Plaintiffs claims are barred by the applicable statute of limitations
set forth in O.R.C. §2305.113, and/or the doctrine of waiver, estoppel or laches.
30. One or more of Plaintiffs claims are barred by the applicable statute of repose set
forth in O.R.C. §2305.113.
31. Plaintiff lacks a reasonable good faith basis to bring this medical claim, thereby
entitling these Defendants to an award of attorney’s fees and costs against Plaintiff as provided by
O.R.C. §2323.42.
32. If Plaintiff sustained any of the injuries or damages alleged in his First Amended
Complaint, such injuries and damages were caused, or were contributed to, by Plaintiff’s own
comparative negligence, intentional acts, culpable conduct, and express or implied assumption of
the risk. Such conduct serves as a bar to one or more of Plaintiff’s claims, or entitles these
Defendants to a reduction in damages. (O.R.C. §2307.22, O.R.C. §2315.32 et seq.)
33. The injuries or damages of which Plaintiff complains are attributable to one or more
persons from whom the Plaintiff did not seek recovery in this action. (O.R.C. §2307.23(C).)
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34. All or part of the injuries or damages alleged in Plaintiff's First Amended
Complaint were caused by the acts and omissions of another or others, whose conduct these
Defendants had no reason to anticipate and for whose conduct these Defendants are and were not
responsible. (O.R.C. §2307.22 et seq.)
34. One or more of Plaintiffs claims for damages are subject to the limits on certain
types of damages, and this Court is without jurisdiction to enter judgment for Plaintiff beyond the
limitations set forth in O.R.C. §2323.43.
36. Am. Sub S.B. 281 and/or Am. Sub S.B. 120, and/or S.B. 179, now codified in
various sections throughout the Ohio Revised Code, bar or limit one or more of the Plaintiffs
claims.
37. Plaintiffs claims are procedurally deficient pursuant to Civil Rule 10.
38. Plaintiff has failed to mitigate damages.
39. Plaintiff lacks standing and/or capacity to commence this action.
40. Defendants are entitled to a set off.
41. Plaintiff lacks standing to prosecute the claims asserted herein.
42. Lack of service of process, lack of personal jurisdiction and lack of subject matter
jurisdiction with regard to Plaintiffs First Amended Complaint.
43. The damages claimed by Plaintiff are subject to reduction pursuant to the
Affordable Care Act, Medicare, and Medicaid.
44. Defendants reserve the right to assert any additional defenses which discovery in
this matter reveals are applicable.
WHEREFORE, Defendants, Southwest General, Southwest General Health Center,
Southwest General Medical Group, Inc., University Hospitals Health System, Inc. University
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Hospitals Medical Group, Inc. and Julie Aljabi, having fully answered Plaintiff's First Amended
Complaint, hereby prays that said First Amended Complaint be dismissed and that they be
permitted to go hence without further cost and delay.
JURY DEMAND
Defendants hereby demand a trial by jury suc table issues in this matter.
Bret C. Perry, Es 3488)
Elena M. Gutbro sq. (0102480)
Bonezzi Switzer Polito & Hupp Co. L.P.A.
1300 East 9th Street, Suite 1950
Cleveland, Ohio 44114-1501
Office: (216) 875-2767
(216) 875-1570
Facsimile:
E-mail: bperry@bsphlaw.com
egutbrod@bsphlaw. com
Attorneys for Defendants, Southwest General,
Southwest General Health Center, Southwest
General Medical Group, Inc., University Hospitals
Health System, Inc. University Hospitals Medical
Group, Inc. and Julie Aljabi
CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of June, 2023, a copy of the foregoing document was
filed electronically pursuant to Civ. R. 5(B)(2)(f). Notice of this filing will be sent via operation
of the Court’s electronic filing system to all parties indicated on the electronic filing receipt.
Bret C. Perry, Esq. 73488)
Elena M. Gutbrod, q. (0102480)
Attorneys for Defendants, Southwest General,
Southwest General Health Center, Southwest
General Medical Group, Inc., University Hospitals
Health System, Inc. University Hospitals Medical
Group, Inc. and Julie Aljabi
Electronically Filed 06/07/2023 07:59 I ANSWERS I CV 23 975038 I Confirmation Nbr. 2876702 I BATCH
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NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas ANSWER OF... June 7,2023 07:59 By: BRET C. PERRY 0073488 Confirmation Nbr. 2876702 ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038 HARBAUGH vs. Judge: SHIRLEY STRICKLAND SAFFOLD SOUTHWEST GENERAL, ET AL. Pages Filed: 6 Electronically Filed 06/07/2023 07:59 / ANSWERS / CV 23 975038 / Confirmation Nbr. 2876702 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ANDREW HARBAUGH, Individually ) Case No. CV 23 975038 and as Administrator of the Estate of John ) Harbaugh, )) Judge Shirley Strickland Saffold ) Plaintiff, ) ANSWER TO THE FIRST AMENDED ) COMPLAINT OF PLAINTIFF ON vs. ) BEHALF OF DEFENDANTS, ) SOUTHWEST GENERAL, SOUTHWEST GENERAL, et al. ) SOUTHWEST GENERAL HEALTH ) CENTER, SOUTHWEST GENERAL Defendants. ) MEDICAL GROUP, INC., UNIVERSITY ) HOSPITALS HEALTH SYSTEM, INC., ) UNIVERSITY HOSPITALS MEDICAL ) GROUP, INC., AND JULIE ALJABI ) ) (JURY DEMAND ENDORSED ) HEREON) Defendants, Southwest General, Southwest General Health Center, Southwest General Medical Group, Inc., University Hospitals Health System, Inc. University Hospitals Medical Group, Inc. and Julie Aljabi, state for their Answer to the First Amended Complaint of Plaintiff as follows: 1. Defendants deny the allegations for want of knowledge contained in paragraph 1 of Plaintiff's First Amended Complaint. 2. Defendants deny the allegations as worded in paragraph 2 of Plaintiffs First Amended Complaint. 3. Defendants deny the allegations for want of knowledge in paragraphs 3 and 4 of Plaintiffs First Amended Complaint. 4. Defendants deny the allegations contained in paragraph 5 of Plaintiffs First Amended Complaint. Electronically Filed 06/07/2023 07:59 / ANSWERS / CV 23 975038 / Confirmation Nbr. 2876702 / BATCH 5. Defendants deny the allegations as worded in paragraph 6 of Plaintiff's First Amended Complaint. 6. Defendants deny the allegations contained in paragraph 7 of Plaintiffs First Amended Complaint. 7. Defendants deny the allegations for want of knowledge in paragraphs 8, 9 and 10 of Plaintiffs First Amended Complaint. 8. Defendant admits that Julie Aljabi at all times herein, is, and was, a registered nurse licensed to practice medicine in the State of Ohio, and holds herself out to the general public as being competent. These Answering Defendants further state that they are without sufficient knowledge and information to form a belief as to the truth of the remaining allegations in paragraph 11 of Plaintiff's First Amended Complaint. 9. Defendants deny the allegations as worded in paragraph 12 of Plaintiff's First Amended Complaint. 10. Defendants deny the allegations for want of knowledge in paragraph 13 of Plaintiff's First Amended Complaint. 11. Defendants deny the allegations contained in paragraph 14 of Plaintiff's First Amended Complaint. 12. Defendants incorporate by reference each and every admission and denial set forth in paragraphs 1 through 11 above as though fully rewritten herein, and further deny the remaining allegations contained in paragraph 15 of Plaintiff's First Amended Complaint. 13. Defendants deny the allegations contained in paragraph 16 of Plaintiff's First Amended Complaint. Electronically Filed 06/07/2023 07:59 / ANSWERS / CV 23 975038 / Confirmation Nbr. 2876702 / BATCH 2 14. Defendants deny the allegations as worded, and for want of knowledge, contained in paragraph 17 of Plaintiff's First Amended Complaint. 15. Defendants deny the allegations contained in paragraph 18 of Plaintiffs First Amended Complaint. 16. Defendants deny the allegations as worded, and for want of knowledge, contained in paragraph 19 of Plaintiffs First Amended Complaint. 17. Defendants deny the allegations for want of knowledge in paragraph 20 of Plaintiffs First Amended Complaint. 18. Defendants deny the allegations contained in paragraphs 21, 22, 23, 24, 25 and 26 of Plaintiffs First Amended Complaint. 19. Defendants incorporate by reference each and every admission and denial set forth in paragraphs 1 through 18 above as though fully rewritten herein, and further deny the remaining allegations contained in paragraph 27 of Plaintiffs First Amended Complaint. 20. Defendants deny the allegations contained in paragraphs 28, 29 and 30 of Plaintiffs First Amended Complaint. 21. Defendants deny the cause, nature and extent of injuries and damages alleged in Plaintiffs First Amended Complaint and deny each and every allegation not herein expressly admitted to be true. AFFIRMATIVE DEFENSES 22. Plaintiffs First Amended Complaint fails to state a claim against these Defendants upon which relief can be granted. 23. This Court lacks jurisdiction of the within action by virtue of the Plaintiffs failure to comply with the pleading requirements as required by the Ohio Rules of Civil Procedure. Electronically Filed 06/07/2023 07:59 / ANSWERS / CV 23 975038 / Confirmation Nbr. 2876702 / BATCH 3 24. Plaintiff's First Amended Complaint does not comply with O.R.C. 2307.42 in that the Plaintiff has failed to list the collateral benefits received, if any, as required by that subsection. 25. Plaintiffs damages, if any, were caused or contributed to by Plaintiffs own negligence. 26. Plaintiff has failed to join necessary and/or indispensable parties to this lawsuit. 27. Plaintiffs damages, if any, are the result of events or circumstances, intervening or otherwise, beyond the control of these Defendants. 28. Plaintiffs damages, if any, were proximately caused by the intervening and/or superseding misconduct of parties not under the control of these Defendants. 29. One or more of Plaintiffs claims are barred by the applicable statute of limitations set forth in O.R.C. §2305.113, and/or the doctrine of waiver, estoppel or laches. 30. One or more of Plaintiffs claims are barred by the applicable statute of repose set forth in O.R.C. §2305.113. 31. Plaintiff lacks a reasonable good faith basis to bring this medical claim, thereby entitling these Defendants to an award of attorney’s fees and costs against Plaintiff as provided by O.R.C. §2323.42. 32. If Plaintiff sustained any of the injuries or damages alleged in his First Amended Complaint, such injuries and damages were caused, or were contributed to, by Plaintiff’s own comparative negligence, intentional acts, culpable conduct, and express or implied assumption of the risk. Such conduct serves as a bar to one or more of Plaintiff’s claims, or entitles these Defendants to a reduction in damages. (O.R.C. §2307.22, O.R.C. §2315.32 et seq.) 33. The injuries or damages of which Plaintiff complains are attributable to one or more persons from whom the Plaintiff did not seek recovery in this action. (O.R.C. §2307.23(C).) Electronically Filed 06/07/2023 07:59 / ANSWERS / CV 23 975038 / Confirmation Nbr. 2876702 / BATCH 4 34. All or part of the injuries or damages alleged in Plaintiff's First Amended Complaint were caused by the acts and omissions of another or others, whose conduct these Defendants had no reason to anticipate and for whose conduct these Defendants are and were not responsible. (O.R.C. §2307.22 et seq.) 34. One or more of Plaintiffs claims for damages are subject to the limits on certain types of damages, and this Court is without jurisdiction to enter judgment for Plaintiff beyond the limitations set forth in O.R.C. §2323.43. 36. Am. Sub S.B. 281 and/or Am. Sub S.B. 120, and/or S.B. 179, now codified in various sections throughout the Ohio Revised Code, bar or limit one or more of the Plaintiffs claims. 37. Plaintiffs claims are procedurally deficient pursuant to Civil Rule 10. 38. Plaintiff has failed to mitigate damages. 39. Plaintiff lacks standing and/or capacity to commence this action. 40. Defendants are entitled to a set off. 41. Plaintiff lacks standing to prosecute the claims asserted herein. 42. Lack of service of process, lack of personal jurisdiction and lack of subject matter jurisdiction with regard to Plaintiffs First Amended Complaint. 43. The damages claimed by Plaintiff are subject to reduction pursuant to the Affordable Care Act, Medicare, and Medicaid. 44. Defendants reserve the right to assert any additional defenses which discovery in this matter reveals are applicable. WHEREFORE, Defendants, Southwest General, Southwest General Health Center, Southwest General Medical Group, Inc., University Hospitals Health System, Inc. University Electronically Filed 06/07/2023 07:59 / ANSWERS / CV 23 975038 / Confirmation Nbr. 2876702 / BATCH 5 Hospitals Medical Group, Inc. and Julie Aljabi, having fully answered Plaintiff's First Amended Complaint, hereby prays that said First Amended Complaint be dismissed and that they be permitted to go hence without further cost and delay. JURY DEMAND Defendants hereby demand a trial by jury suc table issues in this matter. Bret C. Perry, Es 3488) Elena M. Gutbro sq. (0102480) Bonezzi Switzer Polito & Hupp Co. L.P.A. 1300 East 9th Street, Suite 1950 Cleveland, Ohio 44114-1501 Office: (216) 875-2767 (216) 875-1570 Facsimile: E-mail: bperry@bsphlaw.com egutbrod@bsphlaw. com Attorneys for Defendants, Southwest General, Southwest General Health Center, Southwest General Medical Group, Inc., University Hospitals Health System, Inc. University Hospitals Medical Group, Inc. and Julie Aljabi CERTIFICATE OF SERVICE I hereby certify that on this 7th day of June, 2023, a copy of the foregoing document was filed electronically pursuant to Civ. R. 5(B)(2)(f). Notice of this filing will be sent via operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. Bret C. Perry, Esq. 73488) Elena M. Gutbrod, q. (0102480) Attorneys for Defendants, Southwest General, Southwest General Health Center, Southwest General Medical Group, Inc., University Hospitals Health System, Inc. University Hospitals Medical Group, Inc. and Julie Aljabi Electronically Filed 06/07/2023 07:59 I ANSWERS I CV 23 975038 I Confirmation Nbr. 2876702 I BATCH 6