[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 

Personal Representative of Michael 

Napier, deceased, 

 Plaintiff-Appellant,

 vs.

TRIHEALTH, INC.,

 and

BETHESDA HOSPITAL, INC.,

 Defendants-Appellees.

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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 Appealed 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 Defendants-Appellees.
OHIO FIRST DISTRICT COURT OF APPEALS

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ZAYAS, Judge.

{¶1} Plaintiff-appellant Patricia Napier, as the executor of the estate of 

Michael Napier and as the personal representative of Michael Napier, deceased, 

(“Napier”) brings this appeal to challenge the trial court’s dismissal of her complaint

against 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 opinion 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 alleged

that Michael Napier underwent heart surgery at Bethesda North Hospital in 

November 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 death. Napier asserted that the 

defendants 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 

Napier’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 

affidavit of merit under Civ.R. 10(D)(2). After responsive briefing, the trial court 

granted defendants’ motion to dismiss on December 7, 2021. The trial court found 

that Napier’s complaint contained medical claims and was therefore time barred by 

R.C. 2305.113(C), the medical-claim statute of repose. The trial court additionally

found that Napier’s complaint should be dismissed because Napier failed to file an 
OHIO FIRST DISTRICT COURT OF APPEALS

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affidavit of merit with her complaint as required for medical claims by Civ.R. 10(D)(2). 

Napier timely appealed and now raises a sole assignment of error that the trial court 

erred in granting the defendants’ motion to dismiss. 

II. 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 sufficiency of the complaint.’ ” Janson v. Christ 

Hosp. Inc., 1st Dist. Hamilton Nos. C-200047, C-200048, C-200050, C-200052, C200053, 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, the trial court must accept all 

factual allegations 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-3324, 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 person.” R.C. 2305.113(E)(3). R.C. 2305.113(A) provides a 

one-year statute of limitation for medical claims and R.C. 2305.113(C) provides a fouryear statute of repose for medical claims.
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C. Test for Use of Medical Equipment as “Care”

{¶6} In Conkin v. CHS-Ohio Valley, Inc., 1st Dist. Hamilton No. C-110660, 

2012-Ohio-2816, ¶ 9, this 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 ‘the prevention or alleviation of a physical 

or mental defect or illness.’ ” Id., quoting 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 procedure’ 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 amount’ 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 heatercooler 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 (July 2, 1991). In 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 surgery that day–suffered extensive infections in the incisional 
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areas. Id. at *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 the “negligence of the hospital, if any, would have occurred as a result of 

a failure to provide a suitable operative suite for appellant’s surgical 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 there are no facts in the 

complaint which establish 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 physicianordered treatment. See Lerner v. Broadview NH, LLC, 2017-Ohio-8001, 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). 

Therefore, we hold that 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 judgment of 

the trial court and remand the cause for further proceedings consistent with this 

opinion and the law. 

Judgment reversed and cause remanded.

MYERS, P.J., and WINKLER, J., concur.

Please note: 

The court has recorded its own entry this date.