[Cite as McDill v. Sunbridge Care Ents., Inc. , 2013-Ohio-1618.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

ROSE E. MCDILL, et al., : Plaintiff-Appellant, : Case No. 12CA8

vs. :

SUNBRIDGE CARE ENTERPRISES INC., et al., : DECISION AND JUDGMENT ENTRY

Defendants-Appellees. :

_________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANT: Robert H. Huffer, Huffer & Huffer Co., L.P.A., 130 West Franklin Street, P.O. Box 464, Circleville, Ohio 43113, and James L. Mann, Mann & Preston LLP, 18 East Second Street, Chillicothe, Ohio 45601 COUNSEL FOR APPELLEES: Marvin T. Galvin, Thomas A. Prislipsky and Brian D. Sullivan, Reminger Co., L.P.A., 101 West Prospect Ave., Suite 1400, Cleveland, Ohio 44115

CIVIL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED: 4-11-13 ABELE, J. {¶ 1} This is an appeal from a Pickaway C ounty Common Pleas Court judgment that dismissed the complaint that Rose McDill, plaintiff below and appellant herein, filed against Sunbridge Care Enterprises, Inc., Sunbridge Circleville H ealth Care Corp., and Circleville Care and Rehabilitation Center, defendants below and appellees herein, for injuries she suffered while a patient at appellees’ facility.PICKAWAY, 12CA8 2

{¶ 2} Appellant assigns the following error for review:

“THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT.” {¶ 3} Appellant’s November 10, 2011 co mplaint asserted that as a patient at appellees’ facility on November 13, 2009, she received rehabilitative care following her surgery for the installation of a pacemaker. Appe llant was instructed not to leav e her bed without assistance. Around 2:00 a.m., on November 13, 2009, appellant requested assistance so that she could use the

bathroom. Two aides assisted. When appellant, with her walk er, began to wash her hands, appellant alleged that the two aides “inattentively and negligently allowed [appellant] to fall backwards, landing on her buttocks.” {¶ 4} Appellees subsequently filed a Civ.R. 12( B)(6) motion to dismiss the complaint. 1 They asserted that the one-year statute of limitations applicable to medical claims barred appellant’s complaint. {¶ 5} Appellant opposed appellees’ mo tion and asserted that her complaint did not assert a medical claim. Appellant argued that her injury did not result from a medical diagnosis, treatment, or care, but, instead, from the negligence of the two aides who assi sted her with walking to the sink after using the bathr oom. Appellant alleged that her in jury occurred after the two aides “assisted her to the bathroom but then stood by talking while she stood at the sink and washed her

1 Appellees initially filed a motion for judgment on the pleadi ngs, but, requested the court to permit them to withdraw the motion for judgment on the pleadings and to accept their Ci v.R. 12(B)(6) motion instanter. Although the trial court did no t explicitly rule on the request, it considered th e Civ.R. 12(B)(6) motion and rendered a decision.PICKAWAY, 12CA8 3

hands.” 2 {¶ 6} On March 6, 2012, the trial court grante d appellees’ motion to dismiss the complaint. The court determined that appellant’s complaint alleged a “medical claim” subject to the one-year statute of limitations. This appeal followed. {¶ 7} In her sole assignment of e rror, appellant asserts that the trial court erred by granting appellees’ motion to dismiss the complaint. In particular, she claims that the trial court improperly construed her complaint to assert a “medical cl aim” subject to the R.C. 2305.113(A) one-year statute of limitations. {¶ 8} Appellees argue that appellant’s cla im arises out of “the failure of employees/medical staff at the sk illed nursing facility to follow me dical instructions,” and, thus, constitutes a claim that “arise[s] out of the medical diagnosis, care or treatment of the patient.” Appellees contend that because appellant’s injury ar ose out of the medical staff’s failure to follow instructions, her injuries arose out of medical care or treatment.

A

STANDARD OF REVIEW {¶ 9} When considering a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, a c ourt must presume that all fact ual allegations contained in a complaint are true and must cons true all reasonable inferences in favor of the nonmoving party. E.g. , State ex rel. Talwar v. State Med. Bd. of Ohio , 104 Ohio St.3d 290, 819 N.E.2d 654,

2 Appellant did not include these same facts in her complaint.PICKAWAY, 12CA8 4 2004-Ohio-6410, at ¶5; Perez v. Cleveland , 66 Ohio St.3d 397, 399, 613 N.E.2d 199 (1993). Dismissal is proper only if it app ears beyond doubt that a plaintiff can prove no set of facts that would entitle him to relief. E.g. , Maitland v. Ford Motor Co. , 103 Ohio St.3d 463, 816 N.E.2d 1061, 2004-Ohio-5717, ¶11; York v. Ohio State Highway Patrol , 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991). When a trial court consider s a Civ.R. 12(B)(6) motion to dismiss, it may only consider the allegations of the pleadings, not extraneous evidence. State ex rel. Fuqua v.

Alexander , 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997); State ex rel. The V. Cos. v. Marshall , 81 Ohio St.3d 467, 470, 692 N.E.2d 198 (1998). {¶ 10} Appellate courts review di smissals for failure to state a claim de novo. E.g. , Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶5. In other words, appellate courts afford no deference whatsoever to a tria l court decision a nd independently review the complaint to determine if the Civ.R. 12(B)(6) requirements have been satisfied. {¶ 11} “A complaint may be dis missed under Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations when the comp laint on its face conclusively indicates that the action is time-barred.” Ohio Bur. of Workers’ Comp. v. McKinley , 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶13, citing Do e v. Archdiocese of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶11. {¶ 12} In the case sub judice, appellees claim that appellant’s complaint, on its face, conclusively demonstrates that her claim is time-barred. They argue that the complaint plainly shows that her claim constitutes a “medical claim” subject to the one-year statute of limitations and that appellant did not f ile her complaint within that one year period. {¶ 13} Appellant does not dispute that she did not f ile her complaint within one year of thePICKAWAY, 12CA8 5 date of her injury. Rather, she disputes appellees’ assertion that her complaint alleges a “medical claim.” Thus, to determine whether the trial court properly dismissed appellant’s complaint, we must examine whether appellant’s complaint plainly indicates that her claim constitutes a “medical

claim.”

B

MEDICAL CLAIM {¶ 14} R.C. 2305.113(E)(3) defines “medical claim” as follows: “Medical claim” means any 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 nur se, advanced practice nurse, physical therapist, 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 claim” includes the following: (a) Derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person; (b) Claims that arise out of the medical diagnosis, care, or treatment of any person and to which either of the following applies: (I) The claim results from acts or o missions in providing medical care. (ii) The claim results from the hiring , training, supervision, retention, or termination of caregivers providing me dical diagnosis, care, or treatment.

(Emphasis added). {¶ 15} In the case at bar, neither pa rty disputes whethe r appellees meet the definition of the providers to which the statute app lies. Rather, the parties contest whether appellant’s claim arose out of her medical diagnos is, care, or treatment. {¶ 16} The term “‘care’ * * * should not be br oadly interpreted.” Browning v. Burt , 66PICKAWAY, 12CA8 6 Ohio St.3d 544, 557, 613 N.E.2d 993 (1993). Rather, it must be considered in its particular context to determine its specific legal meaning. Id. As used in R.C. 2305.113(E)(3), the term “care” means “the prevention or alleviation of a physical or mental defect or illness.” Id. , paragraph one of the syllabus. The terms “‘medical diagnosis’ a nd ‘treatment’ are terms of art having a specific and particular meaning relating to the identification and alleviation of a physical or mental illness, disease, or defect.” Id. at 557. {¶ 17} In Browning , for example, the court determined that a negligent credentialing claim does not arise out of medical diag nosis, care, or treatment. Id. The court held that a negligent credentialing claim arises “out of the hospital’s failure to satisfy its independent duty to grant and continue staff privileges only to competent physicians.” Id. The court concluded that the hospital’s “independent dut y does not directly involve diagnosis or the medical care and treatment of a patient.” Id. The court further explained that alt hough a hospital’s failure to satisfy its independent duty “may ultimately lead to an act of medical malpractice by the incompetent physician, the physician’s ultimate act of medical malpractice is factually and legally severable and distinct from the hospital’s acts or omissions in negligently credentialing him or her with staff membership or professi onal privileges.” Id. {¶ 18} In Rome v. Flower Mem. Hosp. , 70 Ohio St.3d 14, 635 N.E.2d 1239 (1994), the court held that the term “medical claim” includes a claim for an injury suffered as a result of a hospital employee’s negligent use of hospital equipment. Id. at syllabus. Rome involved two separate actions that th e court consolidated on appeal. In th e first case, the patient suffered an injury when a hospital intern failed to properly secu re the patient to a radi ology table. The court concluded that the patient’s claim that the hospital intern negligently secured her to the radiologyPICKAWAY, 12CA8 7

table arose out of the “‘medical diagnosis, care, or treatment,’ relating to the identification and alleviation of a physical or mental illness, disease, or defect.” Id. at 16. The court determined that “the process of securing [a patient] to a radiology table is ancillary to and an inherently necessary part of the administration of the X -ray procedure which was ordered to identify and alleviate her medical complaints.” Id. The court further observed that at the time of the patient’s injury, the employee who assisted the patient “w as required to exercise a certain amount of professional expertise in preparin g the patient for X-ray.” Id. {¶ 19} In the second case, the patient suffered an injury after his wheelchair collapsed. At the time of his injury, the patient was being transported to his physician-ordered physical therapy.

The Rome court concluded that the patient’s transport from physical therapy “was ancillary to and an inherently necessary part of hi s physical therapy treatment.” Id. The court additionally recognized that the employee who assisted the pa tient “was required to use a certain amount of professional skill in transporting the patient in the wheelchair.” Id. at 16-17. {¶ 20} The First District Court of Appeals recently considered a case that involves facts

somewhat similar to those in the case at bar. Conkin v. CHS-Ohio Valley, Inc. , 1 st Dist. No. C-110660, 2012-Ohio-2816, appeal not allo wed, 133 Ohio St.3d 1465, 2012-Ohio-2816, 977

N.E.2d 693. In Conkin , the patient suffered an injury when a hospital employee failed to properly transfer the patient to a “Hoyer lift” so that th e patient could shower. The patient subsequently filed a negligence complaint against the facility and the employee. The defendants filed a Civ.R. 12(B)(6) motion that requested the court to dis miss the patient’s complaint. The defendants asserted that the patient failed to file her complaint within the one-year statute applicable to “medical claims.” The trial court granted the defendants’ motion to dismiss the complaint, andPICKAWAY, 12CA8 8 the patient appealed. {¶ 21} The appellate court re versed. The court determined that the patient’s claims did

not constitute “medical claims.” Id. at ¶11. In reaching its decision, the court examined four factors: (1) whether the equipment “was used for ‘the prevention or allevi ation of a physical or mental defect or illness;’” (2) “whether the equipment was ‘an i nherently necessary part of a medical procedure;’” (3) whethe r “use of the equipment ‘arose out of’ a physician ordered treatment;” and (4) whether “use of the equipment required a ‘ certain amount’ of professional expertise or professional skill.” Id. at ¶9, quoting Browning , 66 Ohio St.3d at 557, and Rome , 70

Ohio St.3d at 16-17. {¶ 22} After considering the above factors, the c ourt determined that the patient’s claims

did not constitute “medical claims.” Id. at ¶11. The court explained: “Even if the Hoyer lift was used for th e alleviation of problems associated with [the patient]’s range of motion, ther e is no indication at this point in the proceedings that the use of the Hoyer lift was an inherent part of a medical procedure or that it arose out of physician ordered treatment. A nd it is also unclear whether a ‘certain amount’ of professional expertise or profe ssional skill may have been required to transfer [the patient] into the lift.”

Id. {¶ 23} In the case sub judice, we agree with appella nt that her injury did not arise out of medical diagnosis, care, or treatment. Unlike Burt and Rome , appellant’s injury did not occur at a time when she was being transported to or from a medical procedure. It also did not occur due to an employee’s alleged negligent use of hospital equipment. Instead, according to the complaint, appellant’s injury occurred as she washed her hands after a bathroom visit. Escorting appellant

from the bathroom to the sink to wash her hands di d not involve “the preven tion or alleviation of aPICKAWAY, 12CA8 9 physical or mental defect or illness.” Browning , paragraph one of the syllabus. It also did not relate to the “identification and alleviation of a physical or mental illness, disease, or defect.” Id.

at 557. {¶ 24} We believe that the instant case is similar to Conkin and prior cases in which a patient suffered an injury due to a force separa te from the patient’s medical care, diagnosis, or treatment. The transportation of both appellant and the Conkin patient to the bathroom was not an inherent part of a medical pro cedure, and it did not arise from a physician-ordered treatment. Neither appellant’s nor the Conkin patient’s injury occurred during the course of receiving medical diagnosis, care, or treatment. Instead, appellant, like the Conkin patient, was in the process of being transported to the bathroom to engage in an everyday, routine function (showering, using the bathroom) when the injury occurred. Accord Hill v. Wadsworth–Rittman Area Hosp. , 185 Ohio App.3d 788, 2009–Ohio–5421, 925 N.E.2d 1012 (9 th Dist.) (holding that patient’s injury suffered when exiting wheelchair during hospital discharge did not result from medical diagnosis, care, or treatment); Balasc oe v. St. Elizabeth Hosp. Med. Ctr. , 110 Ohio App.3d 83, 673 N.E.2d 651 (7 th Dist. 1996) (determining that patient’s injury suffered when she slipped and fell on a piece of plastic while using the bathroom did not arise out of medical diagnosis , care, or treatment); Summers v. Midwest Allergy Associates , 10 th Dist. No. 02AP–280, 2002–Ohio–7357 (concluding that patient’s injury suffered when cabinet fell on her head did not arise out of medical diagnosis, care, or treatment). 3

3 It may strike some as incongruous that a patient wh o suffers an injury from the Hoyer lift, as the Conkin patient did, but suffers the injury while being transported to a medical proc edure cannot recover, but the pa tient can recover if the transp ort is to the bathroom. Following the Rome logic, courts have allowed recovery for a hospital employee’s negligent use of hospital equipment if the equipm ent was not being used to trans port the patient to a medical proc edure, but it may not be hadPICKAWAY, 12CA8 10 {¶ 25} Moreover, the process of help ing appellant to the bathroom and to the sink to wash her hands was not “ancillary to and an inherently necessary part of ” the alleviation of her physical condition. Appellant’s injury arose because she ha d to use the bathroom, not because she was in the process of receiving medical diagnosis, care, or treatment. At the time of appellant’s injury, she was not undergoing a treatment or procedure to alleviate he r physical condition. Her injury did not arise because the aides failed to follow the physician’s orders that appellant not leave her bed without assistance. She already had left he r bed and had used the ba throom by the time her injury occurred. The complaint alleges that her injury occurred around the time that she was washing her hands at the sink. Hand washing is a wholly separate pr ocess from any medical diagnosis, care, or treatment that she had receive d at the facility. Appella nt was not washing her hands in preparation for medical diagnosis, care, or treatment. Thus, we cannot state that appellant's bathroom use and hand washing was an an cillary and inherently necessary part of her rehabilitative care. Rather, using the bathroom and washing hands was tangential, at best, to her

rehabilitative care. {¶ 26} Moreover, even if the physician’s order th at appellant not leave her bed unassisted was arguably an “ancillary and inherently nece ssary part” of the rehabilitative care that she received, appellant’s injury did not occur as a resu lt of leaving her bed unassisted or with negligent

if that same equipment, in the same manner, is being used to transport the patient to a medical procedure. Compare Hill v. Wadsworth , supra , with Grubb v. Columbus Community Hosp. , 117 Ohio App.3d 670, 674, 691 N.E.2d 333 (holding that patient who suffered injury after hospital employee requested th e he get off a gurney and walk down stairs could not recover because he was being transported to a me dical procedure). Certainly, a line exis ts between a medical claim and a general negligence claim that happens to occur at a medical facility. The line as presently drawn, however, does not appear entirely logical. Why is it reasonable to deny recovery to the patient who suffers a wheelchair injury due to employee negligence while being transported to a medical procedur e or treatment, but the same patient may recover if the injury occurs while being discharged or transported to the bathroom? Perhaps the Ohio Supreme Court will clarify the seeming incongruity.PICKAWAY, 12CA8 11 assistance. Instead, according to the complaint, her injury occurred after she had left her bed with

assistance and after she had successf ully navigated, with assistance, to the bathroom and to the

sink. {¶ 27} Thus, we reject appellees’ ar gument that appellant’s inju ry arose out of the aides’ failure to follow the physician’s order that a ppellant not leave her be d without assistance. Consequently, appellant’s injury did not arise out of medical di agnosis, care, or treatment and appellant’s complaint is not subject to the one-year statute of limitations applicable to “medical

claims.” {¶ 28} Accordingly, based upon the foregoing reasons , we hereby sustai n appellant’s sole assignment of error, reverse the trial court’s judgment, and remand the matter for further proceedings consistent with this opinion.

JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.PICKAWAY, 12CA8 12

JUDGMENT ENTRY It is ordered that the judgment be reversed and remanded for further proceedings consistent with this opinion. Appellant shall recover of appellees the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. McFarland, P.J. & Hoover, J.: C oncur in Judgment & Opinion

For the Court

BY: Peter B. Abele, JudgePICKAWAY, 12CA8 13

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.