[Cite as Napier v. TriHealth, Inc. , 2022
- Ohio
- 3311.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
PATRICIA NAPIER, as the Executor of the Estate of Michael Napier and as the P ersonal R epresentative of Michael Napier, deceased , Plaintiff

- Appell ant ,

vs.
TRIH EALTH, INC. , and
BETHESDA HOSP IT

AL, INC., Defendant s - Appellee s . :

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:

:

:

:

:

: APPEAL NO. C

- 220009 TRIAL NO. A

- 2102427

O P I N I O N

.

Civil Appeal From : Hamilton County Court of Common Pleas Judgment Appeal ed From Is : Reversed and Cause Remanded Date of Judgment Entry on Appeal: September 21, 2022
Thomas Law Offices, PLLC , and Louis C. Schneider , for Plaintiff

- Appellant , Rendigs, Fry, Kiely & Dennis LLP and Brian Goldwasser , for Defendant s - Appellee s .O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 Z AYAS , Judge. 

### {¶1} Plaintiff

- appellant Patricia Napier, as the e xecutor of the e state of Michael Napier and as the personal representative of Michael Napier, deceased, (“Napier”) brings this appeal to challenge the trial court’s dis missal of her complaint again st defendants

- appellees TriHealth, Inc., and Bethesda Hospital, Inc. , (“defendants”). For the following reasons , we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opin ion and the law.
I. Factual and Procedural History 

### {¶2} On July 14, 2021, Napier filed a complaint against defendants , asserting claims for negligence, wrongful death, and punitive damages. The complaint alleg ed that Michael Napier underwent heart surgery at Bethesda North Hospital in
N ovember 2016 , and was exposed to bacteria during the surgery from a heater

- cooler unit within the surgical suite. As a result of the exposure, Michael developed an infection in his body which ostensibly caused his de ath. Napier asserted that the defendan ts knew of the exposure and knew of the severe risk that resulted from the exposure but failed to inform Michael that he had been exposed. 

### {¶3} On July 28, 2021, defendants filed a Civ.R. 12(B)(6) motion to dismiss Napie r’s complaint, asserting that Napier’s claims were medical claims and therefore barred by the medical

- claim statute of limitations and statute of repose

. Additionally, defendants asserted that the complaint should be dismissed for failure to file an affid avit of merit under Civ.R. 10(D)(2). A fter responsive briefing, the trial court granted defendants’ motion to dismiss on December 7, 2021. T he trial court found that Napier’s complaint contained medical claims and was therefore time barred by R.C. 2305.1 13(C), the medical

- claim statute of rep ose. The trial court additionally found that Napier’s complaint should be dismissed because Napier failed to file anO HIO F IRST D ISTRICT C OURT OF A PPEALS

3 affidavit of merit with her complaint as required for medical claims by Civ.R. 10(D)(2). Napier timely appeale d and now raises a sole ass ignment of error that the trial court erred in granting the defendants’ motion to dismiss.
I I

. Law and Analysis
A. Standard of Review 

### {¶4} “ ‘A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests the suffici ency of the complaint.’ ” Janson v. Christ Hosp. Inc. , 1st Dist. Hamilton Nos. C

- 200047, C

- 200048, C

- 200050, C

- 200052 , C

200053, C

- 200054, C

- 200055 and C

- 200056, 2021

- Ohio

- 1467, ¶ 13, quoting Makrauer v. Hal Holmes, Inc. , 1st Dist. Hamilton No. C

- 190256, 2020
- Ohio

- 945, ¶ 6. When ruling on a Civ.R. 12(B)(6) motion to dismiss , t he trial court must accept all factual alleg ations as true

— looking only to the allegations in the complaint

— and draw all reasonable inferences in favor of the nonmoving party. Id

. To properly grant the motion, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts which would entitle him or her to recovery. Id

. This court reviews the trial court’s dismissal of a complaint under Civ.R. 12(B)( 6 ) de novo. Id

. “ ‘ [L] ike the trial court, we are constrained to take all of the allegations in the complaint as true, drawing all reasonable inferences in the plaintiff’s favor.’ ” Id ., quoting Battersby v. Avatar, Inc. , 157 Ohio App.3d 648, 2004

- Ohio

- 3 324, 813 N.E.2d 46, ¶ 5 (1st Dist.).
B. Medical Claims 

### {¶5} In relevant part, a medical claim is defined as “any claim that is asserted in any civil action against a * * * hospital * * * that arises out of the medical diagnosis, care, or treatment of any pers on.” R.C. 2305.113(E)(3). R.C. 2305.113(A) provides a

one - year statute of limitation for medical claim s and R.C. 2305.113(C) provides a four

year statute of repose for medical claims.O HIO F IRST D ISTRICT C OURT OF A PPEALS

4 C. Test for Use of Medical Equipment as “Care” 

### {¶6} In Conkin v. CHS

- Ohio V alley, Inc. , 1st Dist. Hamilton No. C

- 110660,

2012
- Ohio

- 2816, ¶ 9, t his court set forth the test for determining whether the use of medical equipment constituted “care” under R.C. 2305.113(E)(3) . First, we must determine “if the equipment was used for ‘t he prevention or alleviation of a physical or mental defect or illness.’ ” Id ., quotin g Browning v. Burt , 66 Ohio St.3d 544, 557, 613 N.E.2d 993 (1993) . “Central to this analysis is whether the equipment was ‘an inherently necessary part of a medical pro cedure’ or if the use of the equipment ‘arose out of a physician ordered treatment.’ ” Id ., quoting Rome v. Flower Mem. Hosp. , 70 Ohio St.3d 14, 16

- 17, 635 N.E.2d 1239 (1994). Second , “we must determine if the use of the equipment required a ‘certain amo unt ’ of professional expertise or professional skill.” Id ., quoting Rome

. D. Napier’s Complaint 

### {¶7} The pertinent section of Napier’s complaint asserts, “During his surgery, Michael Napier was exposed to bacteria from equipment in the surgical suite

. Specifically, Michael Napier was exposed to mycobacterium chimaera from a heater

cooler unit used in the surgical suite.” While these allegations make it clear that the equipment in question was in use in the surgical suite at the time of the surgery , the allegations do not make it clear what the equipment was being used for

. 

### {¶8} In determining that Napier’s complaint contained medical claims, the trial court relied on Fazzone v. W

. Res

. Care Sys

. , 7th Dist. Mahoning No. 90 C.A. 72, 1991 Ohio App. LEXIS 3246 (Jul y 2, 1991). I n Fazzone , the plaintiff’s complaint alleged that she underwent surgery at a hospital and that, as a result of the hospital negligently failing to monitor and control its operating room, she

– as well as several others who underwent s urgery that day

– suffered extensive infections in the incisionalO HIO F IRST D ISTRICT C OURT OF A PPEALS

5 areas. Id

. a t *1. The court said that the complaint, in essence, charged the hospital with “ failing to provide a proper and sterile operating room for surgeons on its staff,” and said that t he “ negligence of the hospital, if any, would have occurred as a result of

a failure to provide a suitable operative suite for appellant’s surg ical procedure. ” Id

. at *2 , 4
. Thus, the court concluded that the surgical suite, and the equipment provided by the hospital , were all “ incidental to the medical care and treatment rendered to appellant.” Id

. at *4. 

### {¶9} Here, the claims are specific to one piece of equipment within the surgical suite , rather than the entire surgical suite, and t here are no facts in the complaint which estab lish at this point in the case that the equipment was inherently necessary to the surgery or that the use of the equipment arose from the physician

ordered treatment

. See Lerner v. Broadview NH, LLC , 2017
- Ohio

- 800 1 , 98 N.E.3d
1014 , ¶ 17

- 18 (10th Dist.) (holding that, although the evidence may ultimately prove the trial court’s presumption correct, the complaint did not contain sufficient factual detail to characterize certain claims as medical claims at the pleading stage)

. Theref ore, we hold tha t the trial court erred in finding that it was clear on the face of the complaint that Napier’s claims were medical claims. Accordingly, we sustain the assignment of error.
III. Conclusion 

### {¶10} Having sustained the assignment of error, we reverse the j udgment of the trial court and remand the cause for further proceedings consistent with this opinion and the law

. Judgment reversed and cause remanded

. M YERS , P.J., and W INKLER , J . , concur. Please note: The c ourt has recorded its own ent ry this date.