[Cite as Ackman v. Mercy Health West Hosp., L.L.C., 2023-Ohio-2075.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

JENNIFER ACKMAN, Personal

Representative and

Administrator of the Estate

of Janet M. Sollmann, 

deceased,

 

Plaintiff-Appellant,

vs.

MERCY HEALTH WEST HOSPITAL, 

LLC, et al.,

 Defendants,

 

 and

MUHAMMAD RIAZ AHMAD, M.D.,

 and

HOSPITALIST MEDICINE PHYSICIANS 

OF OHIO P.C.,

 Defendants-Appellees.

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APPEAL NO. C-220507

TRIAL NO. A-2000845

 

O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: June 23, 2023

Colleen M. Hegge, F. Joseph Shiavone Co., LPA, and Frank Schiavone III, for 

Plaintiff-Appellant, 

Calderhead, Lockemeyer & Peschke Law Office, and Joshua F. DeBra, for 

Defendants-Appellees Muhammad Riaz Ahmad, M.D., and Hospitalist Medicine 

Physicians of Ohio, P.C., 
OHIO FIRST DISTRICT COURT OF APPEALS

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BOCK, Judge.

{¶1} Plaintiff-appellant Jennifer Ackman, the personal representative and 

administrator of the estate of Janet M. Sollmann, appeals the trial court’s entry of 

summary judgment dismissing defendants-appellees Muhammad Riaz Ahmad, M.D.,

(“Ahmad”) and Hospitalist Medicine Physicians of Ohio, P.C., (“Hospitalist”) for lack 

of proper service. For the following reasons, we affirm the trial court’s judgment.

I. Facts and Procedure

{¶2} In February 2020, Ackman filed medical-malpractice and wrongfuldeath claims against several defendants, including Ahmad and Hospitalist. According 

to the complaint, Ahmad is an employee of Hospitalist and provided care for Janet 

Sollmann in April 2019 at Mercy Health West Hospital. Ackman tried to serve Ahmad 

through certified mail at a business address for Mercy Hospital on Kipling Avenue in 

Cincinnati, Ohio. But service failed because that hospital was demolished in 2015. 

{¶3} In March 2020, Ahmad and Hospitalist answered Ackman’s complaint, 

raising several defenses, including insufficient process and insufficient service of 

process under Civ.R. 12(B)(4) and (5). Weeks later, the certified mail envelope 

addressed to Ahmad was returned to the Hamilton County Clerk’s office marked 

“RETURN TO SENDER, VACANT, UNABLE TO FORWARD, RETURN TO SENDER.”

{¶4} After some participation in the case, Ahmad and Hospitalist moved for 

summary judgment in June 2022, requesting that the court dismiss Ahmad and 

Hospitalist based on Ackman’s failed service. The trial court granted summary 

judgment to Ahmad, finding no genuine issue of material fact. Specifically, the trial 

court ruled that Ahmad properly preserved his insufficient-process and insufficientservice-of-process defenses despite his active participation in the case. Because the 

case was never commenced against Ahmad within the statute of limitations and the 
OHIO FIRST DISTRICT COURT OF APPEALS

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claims against defendant Hospitalist were premised on vicarious liability, the trial 

court dismissed defendants Ahmad and Hospitalist from the case.

II. Law and Analysis

{¶5} Ackman challenges the trial court’s grant of summary judgment in a 

single assignment of error. First, Ackman maintains that Ahmad’s active participation 

in the case waived his service-based affirmative defenses. Second, Ackman contends

that summary judgment is improper when an issue of fact exists involving the clerk of 

court’s alleged failure to comply with Civ.R. 4.1(A)(2). Third, Ackman argues that 

Ahmad had reasonable notice of the lawsuit through his employer, Hospitalist. Fourth,

Ackman asserts that the trial court erred when it dismissed defendant Hospitalist.

{¶6} We review the trial court’s grant of summary judgment de novo. Wright 

v. Mirza, 2017-Ohio-7183, 95 N.E.3d 1108, ¶ 5 (1st Dist.), citing Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), 

“[s]ummary judgment is appropriate when (1) there is no genuine issue of material 

fact, (2) the moving party is entitled to judgment as a matter of law, and (3) the 

evidence, when viewed in favor of the nonmoving party, permits only one reasonable 

conclusion and that conclusion is adverse to the nonmoving party.” Id.

Ahmad Did Not Waive Service-Related Defenses 

{¶7} Under Civ.R. 3(A), service of a complaint upon a named defendant 

commences a civil action. Civ.R. 12(H)(1) governs the waiver of affirmative defenses 

relevant to this case—insufficient process or insufficient service of process. Under that 

rule, service-based affirmative defenses are waived “if a motion is made raising other 

Civ.R. 12(B) defenses and [they are] not included in that motion or, if there is no such 

motion, if [they are] not raised by separate motion or included in the responsive 
OHIO FIRST DISTRICT COURT OF APPEALS

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pleading.” Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-

Ohio-3762, 870 N.E.2d 714, ¶ 9.

{¶8} In Gliozzo, the Ohio Supreme Court held that “when the affirmative 

defense of insufficiency of service of process is properly raised and properly preserved, 

a party’s active participation in litigation of a case does not constitute waiver of that 

defense.” Id. at ¶ 11. And we are, of course, compelled to apply binding precedent from 

the Ohio Supreme Court. See State v. Hernandez, 2020-Ohio-5496, 163 N.E.3d 1175,

¶ 13 (1st Dist.).

{¶9} Although a party may waive insufficiency of process, “[t]he only way in 

which a party can voluntarily submit to a court’s jurisdiction, however, is by failing to 

raise the defense of insufficiency of service of process in a responsive pleading or by 

filing certain motions before any pleading.” Gliozzo at ¶ 13; see Pioneer Automotive v. 

Village Gate, 1st Dist. Hamilton No. C-210205, 2022-Ohio-1247, ¶ 10. In Gliozzo, the 

defendants “properly raised the affirmative defense of insufficiency of service of 

process by including it in their answer” and were therefore “free to seek dismissal of 

the case for insufficiency of service, even though they had also mounted a vigorous 

defense upon the merits.” Gliozzo at ¶ 12. 

{¶10} The parties agree that Ahmad was never served. And the record makes 

clear that Ahmad and Hospitalist answered Ackman’s complaint, raising both 

insufficient process and insufficient service of process under Civ.R. 12(B)(4) and (5). 

Yet, Ackman contends that Ahmad’s involvement in the case waived his insufficientprocess and insufficient-service-of-process defenses. Ackman points to Ahmad’s 

participation in case-scheduling orders in May 2020 and a joint motion to amend the 

scheduling order filed in February 2021 to assert that Ahmad voluntarily submitted to 

the jurisdiction of the court. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶11} But these arguments run counter to Gliozzo. And the facts in Gliozzo are 

nearly identical to the facts in this case. Ahmad raised his insufficient-service and 

insufficient-service-of-process defenses in his answer, participated in the litigation, 

and moved for summary judgment based on those defenses. We cannot distinguish 

the facts of this case from Gliozzo, which is binding precedent and dispositive of 

Ackman’s arguments.

An Attorney Carries The Ultimate Duty Of Verifying Service

{¶12} Next, Ackman argues that the Hamilton County Clerk of Courts failed 

to notify her counsel that service to Ahmad at the Kipling Avenue address failed. Civ.R. 

4.1(A)(2) instructs the clerk of courts to “notify the attorney of record” when service 

fails, in addition to entering that fact and the method of notification on the docket. On 

April 13, 2020, the clerk of courts recorded on the docket that the service failed and

was returned because the property was vacant. It appears the notice of that failed 

delivery never found its way to Ackman’s attorney.

{¶13} But the civil rules “place[] responsibility on attorneys for verifying 

service.” Brookville Ents. v. Clarence J. Kessler Estate HCF Mgt., 2d Dist. 

Montgomery No. 29314, 2022-Ohio-1420, ¶ 30. Under Civ.R. 4.6(E), “the attorney of 

record or the serving party shall be responsible for determining if service has been 

made and shall timely file written instructions with the clerk regarding completion of 

service notwithstanding the provisions in Civ.R. 4.1 through 4.6 which instruct a clerk 

to notify the attorney of record or the serving party of failure of service of process.” In 

the end, Ackman’s attorney failed to determine if service had been completed.

Service Was Not Reasonably Calculated To Provide Ahmad Notice Of The Claims

{¶14} Ackman emphasizes the fact that she successfully served Hospitalist, 

through an agent, to argue that Ahmad had reasonable notice of the claims.
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶15} We recognize that the civil rules and due process do not “ ‘require actual 

service upon the party receiving notice.’ ” Akron-Canton Regional Airport Auth. v. 

Swinehart, 62 Ohio St.2d 403, 405, 406 N.E.2d 811 (1980), quoting Castellano v. 

Kosydar, 42 Ohio St.2d 107, 111, 326 N.E.2d 686 (1975). Indeed, the Ohio Supreme 

Court has held that “service is effective when the notice is delivered and properly 

receipted for by an appropriate person.” Castellano at 111. And the court has held that 

service “to a business address can comport with due process if the circumstances are 

such that successful notification could be reasonably anticipated.” Swinehart at 406.

In other words, due process requires, at a minimum, that parties must be served in a 

manner reasonably calculated to “ ‘apprise interested parties of the pendency of the 

action and afford them an opportunity to present their objections.’ ” Id., quoting 

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 

L.Ed. 865 (1950). In Swinehart, service was not reasonably calculated to apprise the 

defendant who “did not maintain an office on the premises of the business” where 

service was attempted, “[h]is principal place of business was in fact in another city,” 

and he “only sporadically visited the business where service was attempted[] usually 

two or three times per month.” Id. at 406-407.

{¶16} So too here. Ahmad acknowledged in his pleading and affidavit that 

Hospitalist is his employer. But like the defendant in Swinehart, Ahmad does not 

maintain an office at Hospitalist’s business address. Instead, he works at “multiple 

Mercy facilities” in the Cincinnati area. Further, Hospitalist was served in Columbus, 

Ohio. And significantly, Ahmad was not identified on the certified mail envelope 

delivered to Hospitalist. Therefore, we conclude that serving Hospitalist was not done

in a manner reasonably calculated to provide Ahmad notice of the claims.
OHIO FIRST DISTRICT COURT OF APPEALS

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Hospitalist’s Liability Was Premised On Ahmad’s Liability

{¶17} The final issue raised by Ackman concerns the trial court’s dismissal of 

Hospitalist. After the trial court granted summary judgment to Ahmad because the 

suit against him had never commenced, the trial court granted summary judgment for

Hospitalist because the claims against Hospitalist “sound only in vicarious liability.” 

The court dismissed Ahmad and Hospitalist from the case. Ackman takes issue with 

the court’s dismissal of Hospitalist, advancing two arguments.

{¶18} First, Ackman argues that Hospitalist failed to substantively present a 

vicarious-liability argument in its summary-judgment motion. We disagree. “ ‘It is 

reversible error to award summary judgment on grounds not specified in the motion 

for summary judgment.’ ” State ex rel. Sawicki v. Court of Common Pleas, 121 Ohio 

St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 27, quoting Patterson v. Ahmed, 176 

Ohio App.3d 596, 2008-Ohio-362, 893 N.E.2d 198, ¶ 14 (6th Dist.). But Hospitalist 

maintained in its summary-judgment motion that all claims against it were premised 

vicariously on the liability of Ahmad. Hospitalist sufficiently raised the issue and 

Ahmad’s affidavit supported its argument. See Civ.R. 56(B). 

{¶19} Second, Ackman contends that her negligence claims were not premised 

on vicarious liability. Rather, she emphasizes her alleged negligence claim against 

Hospitalist individually. In response, Hospitalist argues that it cannot be held liable 

without a suit against one of its agents.

{¶20} But Ackman’s claim was a medical claim. Ackman titled her first claim 

“NEGLIGENCE” and maintained that Hospitalist failed to “exercise reasonable care 

and skill” when assessing, diagnosing, and treating Sollmann. While Ackman argues 

that she is raising ordinary negligence claims, “ ‘[m]alpractice by any other name still 

constitutes malpractice.’ ” Amadasu v. O’Neal, 176 Ohio App.3d 217, 2008-Ohio-1730, 
OHIO FIRST DISTRICT COURT OF APPEALS

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891 N.E.2d 802, ¶ 9 (1st Dist.), quoting Steinmetz v. Francis J. Lowry, D.D.S. & Assoc., 

17 Ohio App.3d 116, 118, 477 N.E.2d 671 (1st Dist.1984), quoting Muir v. Hadler Real 

Estate Mgt. Co., 4 Ohio App.3d 89, 90, 446 N.E.2d 820 (10th Dist.1982). Indeed, “[i]t 

makes no difference whether the professional misconduct is founded in tort or 

contract, it still constitutes malpractice.” Steinmetz at 118, quoting Muir at 90, quoting 

Richardson v. Doe, 176 Ohio St. 370, 372, 199 N.E.2d 878 (1964).

{¶21} The nature of Ackman’s claim is significant because this court and 

others have held that “only individuals can be held directly liable for medical 

malpractice.” Henry v. Mandell-Brown, 1st Dist. Hamilton No. C-090752, 2010-Ohio3832, ¶ 13. And “ ‘a hospital does not practice medicine and is incapable of committing 

malpractice.’ ” Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio3601, 913 N.E.2d 939, ¶ 14, quoting Browning v. Burt, 66 Ohio St.3d 544, 556, 613 

N.E.2d 993 (1993). Ackman alleged in her complaint that Hospitalist, along with 

Ahmad, failed to administer appropriate treatment and failed to conduct necessary 

scans of Sollmann. And Ackman identified Hospitalist as “a Professional Corporation 

* * * doing business in Hamilton County providing medical services.” But Hospitalist 

cannot be held directly liable to Ackman and she must proceed under a theory of 

vicarious liability.

{¶22} But, as the trial court concluded, Ackman cannot prevail against 

Hospitalist under a theory of vicarious liability. When a medical claim premises the 

liability of an employer “solely on vicarious liability, the imputed liability hinges on 

the tortfeasor’s relationship to the entity.” McQuade v. Mayfield Clinic, Inc., 2022-

Ohio-785, 186 N.E.3d 278, ¶ 9 (1st Dist.), citing Dinges v. St. Luke’s Hosp., 2012-Ohio2422, 971 N.E.2d 1045, ¶ 45 (6th Dist.) (Yarbrough, J., concurring). Further “ ‘an 

entity may be vicariously liable for malpractice only when one or more of its principals 
OHIO FIRST DISTRICT COURT OF APPEALS

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or associates are liable’ ” for malpractice. Id. at ¶ 11, quoting Wuerth at ¶ 26. In other 

words, vicarious-liability claims against a physician’s employer are precluded when 

direct-liability claims against the physician are barred. Clawson v. Hts. Chiropractic 

Physicians, L.L.C., Slip Opinion No. 2022-Ohio-4154, ¶ 29.

{¶23} Consider Mandell-Brown, a medical-malpractice case where the 

patient’s claims against the surgeon were dismissed as untimely under the statute of 

limitations. Mandell-Brown at ¶ 1. This court affirmed the trial court’s dismissal of the 

surgery center as a defendant because “only individuals can be held directly liable for 

medical malpractice” and therefore “the respondeat superior claim against the surgery 

center could not survive the dismissal of the claims against Mandell-Brown.” Id. at ¶ 

13-14. And following Mandell-Brown, we explained that there is “no room for 

vicarious liability for medical malpractice where a doctor cannot be found to be liable 

for malpractice.” Rush v. Univ. of Cincinnati Physicians, Inc., 2016-Ohio-947, 62 

N.E.3d 583, ¶ 25 (1st Dist.).

{¶24} In the end, Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 

141, 2007-Ohio-3762, 870 N.E.2d 714 (2007) requires us to hold that Ahmad’s active 

participation in this case did not waive any service-based defenses. And Ackman’s 

vicarious-liability claims against Hospitalist could not survive the dismissal of Ahmad. 

We overrule her assignment of error.

III. Conclusion

{¶25} We overrule Ackman’s single assignment of error and affirm the trial 

court’s judgment.

Judgment affirmed.

WINKLER, J., concurs.

BERGERON, P.J., concurs separately.
OHIO FIRST DISTRICT COURT OF APPEALS

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BERGERON, P.J., concurring separately. 

{¶26} For those who would complain about our civil justice system as being 

too slow, too expensive, and too reliant on technicalities, this case is Exhibit A. While 

I agree with the majority’s conclusion as correct under Gliozzo v. Univ. Urologists of 

Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, I write 

separately to urge the Supreme Court of Ohio to revisit its holding in Gliozzo, or failing 

that, I would encourage the Rules Committee to remedy the matter. We should not 

allow rule interpretations such as that espoused by Gliozzo to turn Civ.R. 1’s mandate 

that the Civil Rules must be interpreted “to effect just results by eliminating delay, 

unnecessary expense and all other impediments to the expeditious administration of 

justice” on its head. Civ.R. 1(B). As I see it, the Gliozzo rule accomplishes the hat trick 

of exactly what Civ.R. 1 sought to avoid. 

{¶27} In 2007, the Ohio Supreme Court in Gliozzo held, “When the affirmative 

defense of insufficiency of process is properly raised and properly preserved [by 

including it in their answer, pursuant to Civ.R. 12], a party’s active participation in 

litigation of a case does not constitute waiver of that defense.” Gliozzo at ¶ 11. In other 

words, a party can sit back and wait for the clock to run out, all the while engaging in 

active litigation. 

{¶28} The origins of this holding trace back to 1984, when the Ohio Supreme 

Court issued its decision in First Bank of Marietta v. Cline, 12 Ohio St.3d 317, 466 

N.E.2d 567 (1984). In Cline, defendants properly raised the defense of insufficient 

service of process in the first responsive pleading, but the case proceeded to trial. Only 

after all the evidence had been presented did the defense move to dismiss for 

insufficiency of service of process. The court held that failure to request a pretrial 

hearing on the issue did not constitute a waiver of the defense. Id. at 318. In making 
OHIO FIRST DISTRICT COURT OF APPEALS

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this decision, the court relied on the language of Civ.R. 12(D), ultimately concluding 

that “[t]he rule does not require a party to request a preliminary hearing on the 

specified motions, nor does it mandate a waiver of such defenses for failure to do so.” 

Id.

{¶29} It doesn’t have to be this way. Consider the federal example. Nearly 

identical to Ohio’s rule, Fed.R.Civ.P. 12(h) provides: “A party waives any defense listed 

in Rule 12(b)(2)-(5) [including insufficient service of process] by: (A) omitting it from 

a motion in the circumstances described in Rule 12(g)(2); or (B) failing to either: (i) 

make it by motion under this rule; or (ii) include it in a responsive pleading or in an 

amendment * * *.” Just like in Ohio, Fed.R.Civ.P. 12(b) obliges a party to raise the 

defense of insufficient service of process either by answer or by motion made before 

the answer. If a party fails to raise the defense by either of those means, Fed.R.Civ.P. 

12(h)(1) provides that it is waived. Unlike in Ohio, however, even if the defense is 

preserved in the answer, many federal courts have held the defenses identified in 

Fed.R.Civ.P. 12(h)(1) to be waived if the party participates in litigation without actively 

pursuing the defenses. This is referred to as “waiver by conduct.” See Boulger v. 

Woods, 917 F.3d 471, 477 (6th Cir.2019) (explaining that, even where a defendant 

preserves a Fed.R.Civ.P. 12(b) defense in an answer, he may forfeit the right to seek a 

ruling on the defense at a later point through his conduct in the litigation); see also 

King v. Taylor, 694 F.3d 650, 658 (6th Cir.2012), citing Hamilton v. Atlas Turner, 

Inc., 197 F.3d 58, 60 (2d Cir.1999) (“Even where a defendant properly preserves [a 

defense of insufficient service of process] by including it in an answer, he may forfeit 

the right to seek a ruling on the defense at a later juncture through his conduct during 

the litigation.”). 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶30} In King, the defendant included an insufficient service defense in his 

answer but then remained silent on the issue for nearly a year. King at 660. During 

that year, the defendant participated in the litigation in various ways, including 

meeting with plaintiffs’ counsel, participating in discovery on the merits, moving to 

extend discovery deadlines, and attending a status conference. Id. While the district 

court ruled that the defendant had not waived his Fed.R.Civ.P. 12(b)(5) defense, the 

Sixth Circuit reversed, holding, “Such voluntary, active, and extensive participation in 

the litigation indisputably gave plaintiffs a ‘reasonable expectation that [defendant 

would] defend the suit on the merits.’ ” Id., quoting Gerber v. Riordan, 649 F.3d 514, 

519 (6th Cir.2011). 

{¶31} The court emphasized: “In finding forfeiture here, we do not imply that 

a defendant who believes he has been improperly served and insists upon proper 

service must raise the issue in a motion at the earliest possible moment upon pain of 

forfeiture. * * * [Defendant], however, waited until well after the 120-day period [to 

serve a defendant] expired to press his service defense in a motion and, in the 

meantime, took substantial steps to defend the case on the merits. Doing so forfeited 

his defense.” Id. at 661. Moreover, federal case law explains that “ ‘[d]etermining what 

constitutes waiver by conduct is more [an] art than a science * * * and there is no bright 

line rule.’ ” Boulger at 477, quoting State Auto Ins. Co. v. Thomas Landscaping & 

Constr., Inc., S.D. Ohio No. 2:09-cv-735, 2011 U.S. Dist. LEXIS 88176 (Aug. 9, 2011), 

and Pruco Life Ins. Co. v. Wilmington Trust Co., 616 F.Supp.2d 210, 216 (D.R.I.2009). 

A court “must consider all of the relevant circumstances in determining whether 

waiver by conduct has occurred.” Boulger at 477. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶32} The federal standard strikes me as a sensible way of addressing a party’s 

failure to litigate affirmative defenses like insufficiency of service. We should not 

encourage litigation charades, with parties lying in wait to run out the clock on statutes

of limitations or repose, all the while pretending to litigate with gusto. That inflicts real 

harm on the adverse party and the court system as well. Since the primary purpose of 

service is to ensure that the party has notice of the suit, obligating that party to press 

an objection to service is not an onerous requirement. For these reasons, I encourage 

the Supreme Court to reconsider the Gliozzo rule and adopt the federal waiver by 

conduct approach as applied by the Sixth Circuit. 

Please note:

The court has recorded its entry on the date of the release of this opinion.