[Cite as Indep. Phlebotomy & Health Servs., L.L.C. v. Croston, 2024-Ohio-2349.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

INDEPENDENT PHLEBOTOMY : JUDGES:

& HEALTH SERVICES, LLC, : Hon. Patricia A. Delaney, P.J.

: Hon. Craig R. Baldwin, J.

: Hon. Andrew J. King, J.

 Plaintiff - Appellant :

:

-vs- :

:

STEVEN CROSTON, et al., : Case No. 2023CA00122

:

 Defendants - Appellees : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal 

Court, Case No. 2023-CVF-00477

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 18, 2024

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

KEVIN J. BREEN JOEL BLUE

Kevin J. Breen Co., LLC 6820 Mapleridge Circle., NW

3500 West Market Street, Suite 4 Canton, Ohio 44718

Fairlawn, Ohio 44333
Stark County, Case No. 2023CA00122 2

Baldwin, J.

{¶1} The appellant appeals the trial court’s decision granting the appellees’ 

motion for summary judgment based upon its finding that the parties entered into an 

employment contract which should be rescinded. 

STATEMENT OF THE FACTS AND THE CASE

{¶2} The appellant is a limited liability company that conducts “consultative 

examinations” of disability claimants for submission to the Opportunities For Ohioans With 

Disabilities Division of Disability Determination (herein, “the OOD DDD”). The OOD DDD 

processes applications made to the Social Security Administration (SSA) for Disability 

Insurance (SSDI) and Supplemental Security Income (SSI). The OOD DDD may require 

consultative examinations of claimants for continued payment of disability benefits and, 

when required, consultative examinations must be conducted by a medical professional. 

The appellant hires physicians and other medical professionals to conduct the 

consultative examinations in the usual course of its business operations.

{¶3} Appellee Steven Croston is a licensed Physician’s Assistant, and his wife 

Heidi Croston is a licensed Certified Nurse Practitioner. Appellee Steven Croston

responded to the appellant’s job posting on Indeed.com. The posting stated that the 

primary duty of the position would be performing consultative examinations. Appellee 

Steven Croston interviewed for the job, and suggested at the conclusion of his interview 

that his wife, appellee Heidi Croston, may also be a good fit for the position. Both 

appellees executed a document with the appellant entitled Professional Services 

Agreement (hereinafter “Agreement.”) The appellees entered into the Agreement with 

the appellant on October 17, 2022, to provide disability examinations for the appellant’s 
Stark County, Case No. 2023CA00122 3

clients pursuant to its contract with the OOD DDD. The Agreement was to commence on 

November 1, 2022. The Agreement stated that the appellees agreed to schedule, at a 

minimum, four weekday exams per month within a 12-month period. In addition, the 

Agreement specified at Exhibit A that “a minimum of 4 weekdays per month are required 

to be compliant with this contracted agreement.” The appellant agreed to pay the 

appellees $100.00 per completed exam. The appellees were scheduled to begin working 

on December 6, 2022. 

{¶4} The appellant scheduled appointments for the appellees with claimants 

seeking an examination to determine their eligibility for social security benefits, and 

scheduled twenty individuals for appellee Steven Croston to examine on December 6, 

2022. He arrived at the appellant’s office early and began the first exam. There is nothing 

in the record establishing that the appellees were provided with any supervision from a 

licensed physician in the exercise of their consultative examination duties, only that the 

appellant had arranged for the appellees to shadow its resident physician. See, Robinette 

affidavit, attached to appellant’s motion for summary judgment, at paragraph 12.

{¶5} Appellee Steven Croston became concerned during the first exam about

issues regarding his ability to perform the examinations within the time-frame scheduled 

by the appellant, and about licensing and supervision requirements. He met with the 

appellant in her office after the first exam to express these concerns, and when it was 

clear that the conditions would remain the same he quit, performing no further work for 

the appellant. Appellee Heidi Croston learned of the issues her husband had experienced 

on December 6, 2022, and resigned before attending her first day of work. She performed 

no examinations on the behalf of the appellant, and performed no other work for the 
Stark County, Case No. 2023CA00122 4

appellant. Neither appellee received any consideration or payment from the appellant in 

connection with the Agreement. 

{¶6} The appellant filed a pro se complaint against the appellees for breach of 

contract,

1 averring that the appellees were in breach of the Agreement and that it had 

suffered damages in the amount of $9,690.00 as a result. The appellant thereafter 

claimed damages in the amount of $10,000.00, and $14,999.00. The appellant’s basis for 

calculating its alleged damages varied as the case proceeded. 

{¶7} The appellees filed their answer pro se, and argued that the Agreement was 

in violation of Ohio law because it required them to perform the consultative examinations 

without the direct supervision of a physician. They later obtained counsel, and argued 

that, while the Agreement referred to them as independent contractors, they were in fact 

employees who were free to terminate their employment with the appellant. 

{¶8} The appellant filed a motion for summary judgment arguing that the 

appellees were in breach of contract, and that it had suffered damages as a result, 

attaching the affidavit of Brenda Robinette purporting to support its arguments. The 

Robinette affidavit reiterated the allegations contained in the complaint and referenced 

several unauthenticated documents that were attached to the affidavit as exhibits. 

{¶9} The appellees filed a brief in opposition to the appellant’s motion for 

summary judgment, as well as their own motion for summary judgment, arguing that the 

contract was not in compliance with Ohio law since it required them to work without the 

direct supervision of a physician; and, that they were employees who could terminate 

1 Brenda Robinette, who filed the complaint pro se on behalf of her business Independent Phlebotomy & 

Health Services, LLC, was advised by the trial court that representing her business constituted unauthorized 

practice of law. Attorney Edward Gilbert thereafter entered an appearance on the appellant’s behalf. 
Stark County, Case No. 2023CA00122 5

their employment with the appellant at will. The appellees’ brief in opposition/motion for 

summary judgment relied upon the pleadings as the Civ.R. 56(C) evidentiary quality 

materials that supported of their arguments. The Robinette affidavit stated only that she 

had arranged for the appellees to shadow a physician; it contained no reference to a 

supervision agreement with the physician. 

{¶10} The trial court issued a Judgment Entry on August 21, 2023, in which it 

found that the Agreement was an executory contract in which no party had performed,

the appropriate remedy for which was rescission. The trial court denied the appellant’s 

motion for summary judgment and granted the appellees’ motion for summary judgment. 

{¶11} The appellant filed a timely appeal in which she sets forth the following three 

assignments of error:

{¶12} “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION 

FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY 

JUDGMENT.”

{¶13} “II. THE TRIAL COURT ERRED IN FAILING TO DETERMINE THAT 

APPELLEES WERE INDEPENDENT CONTRACTORS RATHER THAN EMPLOYEES 

AND IN DETERMINING THAT THE QUESTION OF WHICH STATUS APPLIES IS 

IRRELEVANT TO THE DETERMINATION OF THE CASE.”

{¶14} “III. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT THE 

PROFESSIONAL SERVICES AGREEMENT BETWEEN APPELLANT AND 

APPELLEES IS AN EXECUTORY CONTRACT SUCH THAT THE APPROPRIATE 

REMEDY IS RESCISSION WHEN NEITHER PARTY PLEAD, ARGUED OR SOUGHT 

RESCISSION AS A REMEDY.”
Stark County, Case No. 2023CA00122 6

STANDARD OF REVIEW

{¶15} Summary judgment proceedings present the appellate court with the unique 

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. Accordingly, this 

Court reviews a trial court’s award of summary judgment de novo. Grafton v. Ohio Edison 

Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. 

{¶16} Civ. R. 56(C) states in pertinent part: “Summary Judgment shall be 

rendered forthwith if the pleadings, depositions, answers to interrogatories, written 

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, 

timely filed in the action, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of law ... A summary judgment 

shall not be rendered unless it appears from such evidence or stipulation, and only from

the evidence or stipulation, that reasonable minds can come to but one conclusion and 

that conclusion is adverse to the party against whom the motion for summary judgment 

is made, that party being entitled to have the evidence or stipulation construed most 

strongly in the party's favor." Thus, summary judgment may be granted only after the trial 

court determines that: 1) no genuine issues as to any material fact remain to be litigated; 

2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the 

evidence that reasonable minds can come to but one conclusion and viewing such 

evidence most strongly in favor of the party against whom the motion for summary 

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc., 

50 Ohio St.2d 317, 364 N.E.2d 267 (1977).
Stark County, Case No. 2023CA00122 7

{¶17} As this Court recently observed in Infield v. Westfield Ins. Co., 5th Dist. 

Muskingum No. CT2022-0055, 2023-Ohio-1199: “It is well established that the party 

seeking summary judgment bears the burden of demonstrating no issues of material fact 

exist for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 

(1986). The standard for granting summary judgment is delineated in Dresher v. Burt, 75 

Ohio St.3d 280 at 293, 662 N.E.2d 264 (1996): “* * * a party seeking summary judgment, 

on the ground that the nonmoving party cannot prove its case, bears the initial burden of 

informing the trial court of the basis for the motion, and identifying those portions of the 

record that demonstrate the absence of a genuine issue of material fact on the essential 

element(s) of the nonmoving party's claims. The moving party cannot discharge its initial 

burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party 

has no evidence to prove its case. Rather, the moving party must be able to specifically 

point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates 

the nonmoving party has no evidence to support the nonmoving party's claims. If the 

moving party fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the nonmoving party 

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing 

there is a genuine issue for trial and, if the nonmovant does not so respond, summary 

judgment, if appropriate, shall be entered against the nonmoving party.” The record on 

summary judgment must be viewed in the light most favorable to the opposing party. 

Williams v. First United Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).” Id.

at ¶ 21.
Stark County, Case No. 2023CA00122 8

ANALYSIS

{¶18} We consider the appellant’s assignments of error out of order, addressing 

first its third assignment of error regarding the trial court’s finding that the Agreement was 

executory in nature and therefore subject to rescission. 

{¶19} Executory contracts were discussed by the Ohio Supreme Court in the 

seminal case of Cassella v. Tiberio, 150 Ohio St. 27 (1948), and were defined as follows:

‘An executory contract is one in which a party binds himself to do, or 

not to do, a particular thing, whereas an executed contract is one in which 

the object of the agreement is performed and everything that was to be done 

is done. * * * Another distinction between an executory and an executed 

contract is that the former requires affirmative action for its establishment, 

but the latter remains in force until disaffirmed.’

Id. at 30. 

{¶20} In this case, the appellees entered into an agreement with the appellant 

which became effective on November 1, 2022, and in which they agreed to schedule, at 

a minimum, four weekday exams per month over the course of a 12-month period. As 

consideration, the appellant agreed to pay the appellants $100.00 for each completed 

exam. The clear terms of the Agreement are conditional upon future acts of the parties –

that is, the appellees were required to schedule four exams per month over the course of 

a twelve month period, and the appellant was required to pay them $100.00 per exam. 

Appellee Steven Croston started but did not finish one exam, and was not compensated 

by the appellant. Appellee Heidi Croston did not perform any exams, nor did she receive 

any compensation from the appellant. 
Stark County, Case No. 2023CA00122 9

{¶21} The District Court for the Northern District of Ohio discussed executory 

contracts in the case of In re Bell & Beckwith, 66 B.R. 703 (N.D. Ohio 1986) as follows: 

An executory contract is an agreement under which the obligations 

of both parties are so far unperformed that the failure of either party to 

complete performance would constitute a material breach of the contract. 

2522 South Reynolds Corp. v. Russell (In re 2252 South Reynolds Corp.),

33 B.R. 616 (Bankr.N.D.Ohio 1983). Although the SIPA does not specifically 

define the term “executory contract,” generally, as long as any material part 

of a contract remains unperformed, such contract is executory. See, e.g., 

Jenson v. Continental Financial Corp., 591 F.2d 477, 481 (8th Cir.1979). An 

executory contract has also been defined as a contract “where some future 

act is to be done”, as contrasted with an executed contract “where nothing 

remains to be done by either party.” BLACK'S LAW DICTIONARY 292 (rev.

5th ed. 1979). See also Solomon v. Pacific Telephone and Telegraph Co. 

(In re U.S. Financial, Inc.), 594 F.2d 1275, 1280 (9th Cir.1979) (executory 

contract contemplates rendition of future performance).

Id. at 705–706. In this case, all material parts of the Agreement remained unperformed.

The appellees had not scheduled four exams within one month, let alone performed them; 

in fact, appellee Steven Croston had only undertaken one exam, for which it does not 

appear the paper work was completed, and appellee Heidi Croston had neither scheduled 

nor performed any exams. Further, the appellant had not paid any compensation to the 

appellees. As such, the Agreement was an executory contract.
Stark County, Case No. 2023CA00122 10

{¶22} Rescission is one remedy available in executory contract cases. The 

remedy of rescission was discussed by the court in Garofoli v. Whiskey Island Partners, 

Ltd., 2014-Ohio-5433, (8th Dist.):

“For a court to find grounds to order the equitable remedy of 

rescission, it must determine the existence of a breach so substantial and 

fundamental as to go to the root of the contract.” Admiral Holdings, LLC v. 

Adamany, 8th Dist. Cuyahoga No. 87870, 2006-Ohio-6945, 2006 WL 

3804512, ¶ 6, citing Schneble v. U.S., 614 F.Supp. 78, 83 (S.D.Ohio 1985). 

In other words, the breach must be material. See Westlake v. VWS, Inc.,

8th Dist. Cuyahoga No. 100180, 2014-Ohio-1833, 2014 WL 1775899, ¶ 29, 

quoting Marion Family YMCA v. Hensel, 178 Ohio App.3d 140, 2008-Ohio4413, 897 N.E.2d 184, ¶ 7 (3d Dist.). (“A ‘material breach of contract’ is a 

failure to do something that is so fundamental to a contract that the failure 

to perform defeats the essential purpose of the contract or makes it 

impossible for the other party to perform.”)

Id. at ¶ 43. The consultative exams which were to be performed by the appellees, and the 

payment for the same, were so fundamental to the Agreement that not performing them 

defeats the essential purpose of the Agreement. The exams where so substantial as to 

go the root of the Agreement. Because the foundational component of the Agreement 

was not performed, it was executory in nature and rescission was an appropriate remedy. 

Indeed, the appellees’ decision to no longer work with the appellant after appellee Steven 

Croston’s experience on December 6, 2022, is indicative of their desire to rescind the 

Agreement. 
Stark County, Case No. 2023CA00122 11

{¶23} Furthermore, the Agreement failed to address the issue of physician 

supervision of the appellees during their consultative examination work for the appellant.

There is no evidence contained in the record that a supervision agreement was in place 

as required by Ohio law, either for appellee Steven Croston, a physician’s assistant, or 

appellee Heidi Croston, a certified nurse practitioner. In fact, the Robinette affidavit states 

only that the appellees were provided with the opportunity to shadow a physician in 

preparation for their work for the appellant. 

{¶24} R.C. 4730.08 discusses a physician assistant’s right to practice, and states 

in pertinent part:

(A) A license to practice as a physician assistant issued under this 

chapter authorizes the holder to practice as a physician assistant as follows:

(1) The physician assistant shall practice only under the supervision, 

control, and direction of a physician with whom the physician assistant has 

entered into a supervision agreement under section 4730.19 of the Revised 

Code.

(2) The physician assistant shall practice in accordance with the 

supervision agreement entered into with the physician who is responsible 

for supervising the physician assistant, including, if applicable, the policies 

of the health care facility in which the physician assistant is practicing.

{¶25} R.C. 4730.19 addresses physician assistant supervision agreements, and 

states:

(A) Before initiating supervision of one or more physician assistants 

licensed under this chapter, a physician shall enter into a supervision 
Stark County, Case No. 2023CA00122 12

agreement with each physician assistant who will be supervised. A 

supervision agreement may apply to one or more physician assistants, but, 

except as provided in division (B)(2)(e) of this section, may apply to not 

more than one physician. The supervision agreement shall specify that the 

physician agrees to supervise the physician assistant and the physician 

assistant agrees to practice under that physician's supervision.

The agreement shall clearly state that the supervising physician is 

legally responsible and assumes legal liability for the services provided by 

the physician assistant. The agreement shall be signed by the physician 

and the physician assistant.

(B) A supervision agreement shall include either or both of the 

following:

(1) If a physician assistant will practice within a health care facility, 

the agreement shall include terms that require the physician assistant to 

practice in accordance with the policies of the health care facility.

* * *

(C) A supervision agreement may be amended to modify the 

responsibilities of one or more physician assistants or to include one or 

more additional physician assistants.

(D) The supervising physician who entered into a supervision 

agreement shall retain a copy of the agreement in the records maintained 

by the supervising physician. Each physician assistant who entered into the 
Stark County, Case No. 2023CA00122 13

supervision agreement shall retain a copy of the agreement in the records 

maintained by the physician assistant.

(E)(1) If the board finds, through a review conducted under this 

section or through any other means, any of the following, the board may 

take disciplinary action against the individual under section 4730.25 or 

4731.22 of the Revised Code, impose a civil penalty, or both:

(a) That a physician assistant has practiced in a manner that departs 

from, or fails to conform to, the terms of a supervision agreement entered 

into under this section;

(b) That a physician has supervised a physician assistant in a 

manner that departs from, or fails to conform to, the terms of a supervision 

agreement entered into under this section;

(c) That a physician or physician assistant failed to comply with 

division (A) or (B) of this section.

(2) If the board finds, through a review conducted under this section 

or through any other means, that a physician or physician assistant failed 

to comply with division (D) of this section, the board may do either of the 

following:

(a) Take disciplinary action against the individual under section 

4730.25 or 4731.22 of the Revised Code, impose a civil penalty, or both;

(b) Permit the individual to agree in writing to update the records to 

comply with division (D) of this section and pay a civil penalty.
Stark County, Case No. 2023CA00122 14

(3) The board's finding in any disciplinary action taken under division 

(E) of this section shall be made pursuant to an adjudication conducted 

under Chapter 119. of the Revised Code. 

(4) A civil penalty imposed under division (E)(1) or (2)(a) of this 

section or paid under division (E)(2)(b) of this section shall be in an amount 

specified by the board of not more than five thousand dollars and shall be 

deposited in accordance with section 4731.24 of the Revised Code.

{¶26} Similar requirements are in place for certified nurse practitioners, and can 

be found in the Ohio Administrative Code at section 4723-8-04, which provides in 

pertinent part:

(A) Prior to engaging in practice, a standard care arrangement shall 

be entered into with each physician or podiatrist with whom the certified 

nurse-midwife, certified nurse practitioner, or clinical nurse specialist 

collaborates.

(1) The standard care arrangement shall be revised to reflect the 

addition or deletion of a physician or podiatrist with whom the nurse 

collaborates within that employment setting. Under these circumstances, a 

new standard care arrangement is not necessary.

(2) A new standard care arrangement shall be executed when the 

nurse is:

(a) Employed at a different or additional organization or practice; and

(b) Engages in practice with a collaborating physician or podiatrist 

outside of the primary employing organization.
Stark County, Case No. 2023CA00122 15

(B) Except as provided in paragraph (C) of this rule [regarding 

psychiatric-mental health certified nurse specialists], a certified nursemidwife, certified nurse practitioner, or clinical nurse specialist engaged in 

the practice of the nurse's specialty, shall enter into a written standard care 

arrangement with one or more collaborating physicians or podiatrists whose 

practice is the same or similar to the nurse's practice.

* * *

(D) The standard care arrangement shall include at least:

(1) The signatures of each nurse, and each collaborating physician, 

or the physician's designated representative, or each podiatrist with whom 

the certified nurse-midwife, certified nurse practitioner, or clinical nurse 

specialist primarily collaborates indicating review of and agreement to abide 

by the terms of the standard care arrangement. For purposes of this rule, a 

physician's designated representative means a physician who serves as the 

department or unit director or chair, within the same institution, organization 

or facility department or unit, and within the same practice specialty, that 

the nurse practices, and with respect to whom the physician has executed 

a legal authorization to enter collaborating agreements on the physician's 

behalf;

(2) The date when the arrangement is initially executed;

(3) The date of the most recent review of the arrangement;
Stark County, Case No. 2023CA00122 16

(4) The complete name, specialty and practice area, business 

address, and business phone number or number at which the individual can 

be reached at any time for:

(a) Each collaborating physician or podiatrist with whom the certified 

nurse-midwife, certified nurse practitioner, or clinical nurse specialist 

primarily collaborates and who is a party to the standard care arrangement, 

unless a physician's designated representative has entered the standard 

care arrangement on the physician's behalf; and

(b) Each certified nurse-midwife, certified nurse practitioner, or 

clinical nurse specialist who is a party to the standard care arrangement;

(5) A statement of services offered by the certified nurse-midwife, 

certified nurse practitioner, or clinical nurse specialist consistent with 

section 4723.43 of the Revised Code and this chapter, including a 

description of the scope of prescriptive practice and authorization to enter 

consult agreements for patients, if applicable;

(6) A plan for incorporation of new technology or procedures 

consistent with the applicable scope of practice as set forth in section 

4723.43 of the Revised Code and this chapter;

(7) Quality assurance provisions, including at least:

(a) When modification is made to the body of the standard care 

arrangement, reapproval of the standard care arrangement is required;

(b) Criteria for referral of a patient by the certified nurse-midwife, 

certified nurse practitioner, or clinical nurse specialist to a collaborating 
Stark County, Case No. 2023CA00122 17

physician or podiatrist, including, for the certified nurse-midwife, a plan for 

referral of breech or face presentation or any other abnormal condition 

identified as such in the standard care arrangement;

(c) A process for the certified nurse-midwife, certified nurse 

practitioner, or clinical nurse specialist to obtain consultation from a 

physician or podiatrist; and

(d) A process for chart review in accordance with rule 4723-8-05 of 

the Administrative Code if the nurse's practice includes any direct patient 

care;

(8) A plan for coverage of patients in instances of emergency or 

planned absences of either the certified nurse-midwife, certified nurse 

practitioner, or clinical nurse specialist, or the collaborating physician or 

podiatrist;

(9) A process for resolution of disagreements regarding matters of 

patient management; and

(10) Regarding the prescribing component of the clinical nurse 

specialist, certified nurse-midwife, or certified nurse practitioner's practice, 

the following quality assurance provisions shall include at least:

(a) Provisions to ensure timely direct, personal evaluation of the 

patient with a collaborating physician or the physician's designee when 

indicated;

(b) Prescribing parameters for drugs or therapeutic devices when 

indicated;
Stark County, Case No. 2023CA00122 18

(c) Provisions for the use of schedule II controlled substances;

(d) If the nurse is prescribing to minors, as defined in division (A) of 

section 3719.061 of the Revised Code, provisions for complying with 

section 3719.061 of the Revised Code when prescribing an opioid analgesic 

to a minor; and

(e) Provisions for obtaining and reviewing OARRS reports, and 

engaging in physician consultation and patient care consistent with section 

4723.487 of the Revised Code and rule 4723-9-12 of the Administrative 

Code.

(11) Quality assurance standards consistent with rule 4723-8-05 of 

the Administrative Code.

(E) The most current copy of the standard care arrangement, and 

any legal authorization signed by a physician according to paragraph (D)(1) 

of this rule, shall be retained on file by the nurse's employer. Upon request 

of the board, the certified nurse-midwife, certified nurse practitioner, or 

clinical nurse specialist shall immediately provide a copy of the standard 

care arrangement to the board.

{¶27} Thus, requiring the appellees to engage in health care work for the appellant 

without supervision agreements in place with a physician violates Ohio law. Further, such 

a requirement potentially exposes appellee Steven Croston to disciplinary action and civil 

penalties. The Agreement failed to provide, and the appellant failed to otherwise ensure, 

that the appellees would be under the direct supervision of a physician and a supervision 

agreement would be in place as required by Ohio law. 
Stark County, Case No. 2023CA00122 19

{¶28} Rescission of the Agreement was an appropriate remedy in the case sub 

judice. The Agreement was executory in nature, as none of the fundamental requirements 

had yet occurred - the appellees had neither scheduled nor conducted four consultative 

exams within a one month period, nor had the appellant paid any compensation to the 

appellees. Further, to enforce the Agreement would require the appellees to conduct the 

exams without having physician supervision agreements in place as required by Ohio 

law. Accordingly, summary judgment was properly granted to the appellees, and the 

appellant’s third assignment of error is without merit and is therefore overruled. 

{¶29} Our determination regarding assignment of error number three renders the 

appellant’s assignments of error numbers one and two moot.
Stark County, Case No. 2023CA00122 20

CONCLUSION

{¶30} Based upon the foregoing, the appellant’s assignments of error numbers 

one, two and three are overruled, and the decision of the Canton Municipal Court is 

hereby affirmed. 

By: Baldwin, J.

Delaney, P.J. and

King, J. concur.