[Cite as Estate of Reardon v. OhioHealth Corp., 2024-Ohio-48.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

The Estate of Emily Reardon, :

Through its Administrator

James P. Reardon, : No. 23AP-148

 &

Plaintiff-Appellee, : No. 23AP-154

(C.P.C. No. 20CV-4043)

v. :

 (ACCELERATED CALENDAR)

OhioHealth Corporation, d.b.a :

Riverside Methodist Hospital et al.,

:

Defendants-Appellants.

 :

D E C I S I O N

Rendered on January 9, 2024

On brief: Arnold Todaro Welch & Foliano, Co., L.P.A., 

Gerald J. Todaro, and Gregory B. Foliano for appellants 

Carlynn Fulp, M.D., David Willman, CNP, and Mid-Ohio 

Emergency Services, L.L.C.

On brief: Bricker Graydon, LLP, Bobbie S. Sprader, and 

Karen L. Clouse, for appellants OhioHealth Corporation

d.b.a. Riverside Methodist Hospital, and Jacquelyn Murrer, 

PA-C. Argued: Karin Long.

On brief: Cooper & Elliot, LLC, Rex H. Elliot, Charles H. 

Cooper, Jr., and Sean R. Alto, for appellee The Estate of Emily 

Reardon, James P. Reardon, Administrator. Argued: Kaela 

King.

APPEALS from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} These are interlocutory appeals in a medical malpractice/wrongful death 

action, arising from the denial of the defendants-appellants’ motions for summary 

judgment based on immunity. The appellants’ motions argued that they were immune 
Nos. 23AP-148 & 23AP-154 2

from suit as a result of the enactment of 2019 Ohio H.B. 606 Section 1(B)(1). That statute 

was enacted on September 14, 2020, and expanded the qualified statutory immunity from 

lawsuits previously set forth in R.C. 2305.2311 during the period of the COVID-19 health 

emergency.

{¶ 2} On May 25, 2020, appellee’s decedent Emily Reardon—a 19-year-old healthy, 

athletic, college student with no underlying medical conditions—reported to Riverside 

Hospital Emergency Room (“Riverside ER”), complaining of fever, cough, and chest 

discomfort. She had a telemedicine visit with her family care provider the day before but

was feeling progressively worse. At the time she reported to the Riverside ER, Emily had 

an elevated heart rate but did not have a fever. She was treated at the Riverside ER by Dr. 

Fulp and CNP Willman, tested negative for COVID-19, and was thereafter diagnosed with 

enlarged thyroid, infectious pneumonia, and rapid heartbeat, and sent home with 

prescriptions for antibiotics and acetaminophen.

{¶ 3} But Emily’s condition further deteriorated, and her parents took her to an 

urgent care facility on May 27. The physician on duty at the urgent care examined Emily 

and the imaging tests previously taken by Riverside, and immediately thereafter ordered 

her sent back by ambulance to Riverside ER, telling her parents “she should never have 

been discharged from Riverside on May 25th.” (June 22, 2020 Compl. at 18.)

{¶ 4} Emily arrived at Riverside ER at around 9 p.m. on May 27, with a primary 

complaint of shortness of breath. She had, however, developed fluid in her lungs and an 

infection; her heart rate was at 122, and her pulse oximetry reading was at 70—dangerously 

low. She was placed on an oxygen mask and was again tested for COVID-19, but twice 

tested negative. Emily was not immediately placed on a ventilator; Riverside ER instead 

conducted additional diagnostic testing. She was ultimately intubated shortly before 

midnight, but her condition did not stabilize, and she died at 4:23 a.m. on May 28, 2020.

{¶ 5} Plaintiff-appellee, James Reardon, the Administrator, filed a complaint for 

medical negligence as to all defendants and respondeat superior as to OhioHealth 

Corporation d.b.a. Riverside Methodist Hospital on June 22, 2020, arguing that the

defendants had failed to properly diagnose and treat Emily’s impending respiratory failure 

and infection. On February 9, 2021, defendants Fulp, Willman, and Mid-Ohio Emergency 

Services L.L.C. (“Mid-Ohio Emergency appellants”), filed a motion for summary judgment 
Nos. 23AP-148 & 23AP-154 3

as to the medical negligence claim, and on February 22, 2021, defendant OhioHealth 

Corporation d.b.a. Riverside Methodist Hospital and Jacquelyn Murrer, PA-C

(“OhioHealth appellants”) filed a similar motion arguing it was entitled to judgment on 

both claims. Both motions argued that the defendants were immune from suit as a result of 

2019 Ohio H.B. 606. The trial court denied both motions based on its conclusion that there 

was a dispute of fact whether immunity applied to the defendants, and these appeals 

directly followed.

{¶ 6} Mid-Ohio Emergency appellants assert two assignments of error with the 

trial court’s judgment:

[I.] The trial court erred in holding that immunity is a question 

of fact. 

[II.] The trial court erred in holding that HB 606 is 

unconstitutionally retroactive. The temporary measures 

provided in HB 606 are intentionally retroactive and 

constitutional.

The OhioHealth appellants assert two similar assignments of error with the trial court’s 

judgment:

[I.] The trial court erred in denying OhioHealth’s motion for 

summary judgment because appellants are entitled to 

immunity as a matter of law and no genuine issue of material 

fact exists.

[II.] The trial court erred in concluding that H.B. 606 

retroactively affected a substantive right.

But since these appeals are interlocutory, arising from the denial of appellants’ motions for 

summary judgment, before we proceed to reach the merits of their arguments, we must 

determine that the order they have challenged is final and appealable. 

{¶ 7} “Section 3(B)(2), Article IV of the Ohio Constitution limits an appellate 

court’s jurisdiction to the review of final orders of lower courts. An appellate court must 

dismiss an appeal taken from an order that is not final and appealable.” Simek v. 

Orthopedic & Neurological Consultants, Inc., 10th Dist. No. 17AP-671, 2019-Ohio-3901, 

¶ 42, citing Farmers Mkt. Drive-In Shopping Ctrs., Inc. v. Magana, 10th Dist. No. 06AP532, 2007-Ohio-2653, ¶ 10. See generally Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-

Ohio-1221, ¶ 13 (“It is well-established that an order must be final before it can be reviewed 
Nos. 23AP-148 & 23AP-154 4

by an appellate court. If an order is not final, then an appellate court has no jurisdiction.”). 

The law generally governing whether a trial court’s order is final is set forth in R.C. 

2505.02(B), which provides:

An order is a final order that may be reviewed, affirmed, 

modified, or reversed, with or without retrial, when it is one of 

the following:

(1) An order that affects a substantial right in an action that in 

effect determines the action and prevents a judgment;

(2) An order that affects a substantial right made in a special 

proceeding or upon a summary application in an action after 

judgment;

(3) An order that vacates or sets aside a judgment or grants a 

new trial;

(4) An order that grants or denies a provisional remedy and to 

which both of the following apply:

(a) The order in effect determines the action with respect to the 

provisional remedy and prevents a judgment in the action in 

favor of the appealing party with respect to the provisional 

remedy.

(b) The appealing party would not be afforded a meaningful or 

effective remedy by an appeal following final judgment as to all 

proceedings, issues, claims, and parties in the action.

(5) An order that determines that an action may or may not be 

maintained as a class action;

(6) An order determining the constitutionality of any changes 

to the Revised Code made by Am. Sub. S.B. 281 of the 124th 

general assembly, including the amendment of sections 

1751.67, 2117.06, 2305.11, 2305.15, 2305.234, 2317.02, 

2317.54, 2323.56, 2711.21, 2711.22, 2711.23, 2711.24, 2743.02, 

2743.43, 2919.16, 3923.63, 3923.64, 4705.15, and 5111.018 

(renumbered as 5164.07 by H.B. 59 of the 130th general 

assembly), and the enactment of sections 2305.113, 2323.41, 

2323.43, and 2323.55 of the Revised Code or any changes made 

by Sub. S.B. 80 of the 125th general assembly, including the 

amendment of sections 2125.02, 2305.10, 2305.131, 2315.18, 

2315.19, and 2315.21 of the Revised Code;
Nos. 23AP-148 & 23AP-154 5

(7) An order in an appropriation proceeding that may be 

appealed pursuant to division (B)(3) of section 163.09 of the 

Revised Code.

Ohio courts have consistently held that the denial of a motion for summary judgment does

not fit within any of these statutory categories and is generally not appealable. See, e.g.,

Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, ¶ 9, citing State ex rel. Overmeyer 

v. Walinski, 8 Ohio St.2d 23, 24 (1966). Compare Royal Paper Stock Co. v. Robinson, 10th 

Dist. No. 12AP-455, 2013-Ohio-1206, ¶ 24 (citing cases and holding that a “denied 

summary judgment motion, even if made in a special proceeding, does not affect a 

substantial right under R.C. 2505.02 because an ‘order,’ within the statutory meaning of 

that word, has not been made, and, instead, the court has retained the case for trial on the 

merits.”). Moreover, where a pure question of law is presented in a denied motion for 

summary judgment and there is a subsequent trial on the merits, courts of appeals will 

address the question in an appeal following the trial judgment rather than via an 

interlocutory appeal. See generally Gilson v. Am. Inst. of Alternative Medicine, 10th Dist. 

No. 15AP-548, 2016-Ohio-1324, ¶ 47 (“an error in the denial of a summary judgment 

motion that presents a purely legal question is not rendered harmless by a subsequent trial 

on the merits.”).

{¶ 8} There are some exceptions—for example, “R.C. 2505.02(B)(7) provides that 

an order in an appropriation proceeding may be appealed under R.C. 163.09(B)(3),” Mill 

Creek Metro. Park Dist. Bd. of Commr. v. Less, __ Ohio St.3d. __, 2023-Ohio-2332, ¶ 11. 

Similarly, an appellate court may review “an [interlocutory] order [that] adjudicates fewer 

than all claims in a case, [and meets] the requirements of both R.C. 2505.02(B) and Civ.R. 

54(B).” Simek, 2019-Ohio-3901, at ¶ 46. And R.C. 2744.02(C) provides that “[a]n order 

that denies a political subdivision or an employee of a political subdivision the benefit of an 

alleged immunity from liability as provided in this chapter or any other provision of the law 

is a final order.” Id. quoted in Hubbell at ¶ 9.

{¶ 9} The briefs of appellants’ cite Hubbell, and Summerville v. Forest Park, 128 

Ohio St.3d 221, 2010-Ohio-6280, and read both cases very broadly to argue that a trial 

court order denying any claimed immunity is final and immediately appealable. See Brief 

of Mid-Ohio Emergency appellants at 13-14 (citing Hubbell and claiming without any other 

support that “[d]enial of immunity affects a substantial right and is a denial of a provisional 
Nos. 23AP-148 & 23AP-154 6

remedy”), and Brief of OhioHealth appellants at 10 (citing Summerville at ¶ 40 and 

claiming that “the Supreme Court of Ohio has made clear that an order denying immunity 

is a final appealable order”).

{¶ 10} But the law goes nowhere near that far. Both Hubbell and Summerville

specifically interpret R.C. 2744.02(C), and their holdings are limited to rulings made 

pursuant to that statute. See Hubbell, syllabus (“[w]hen a trial court denies a motion in 

which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that 

order denies the benefit of an alleged immunity and is therefore a final, appealable order 

pursuant to R.C. 2744.02(C)”), and Summerville, syllabus (“[a]n order denying a motion 

for summary judgment in which an employee of a political subdivision sought immunity 

from claims brought under Section 1983, Title 42 U.S. Code is a final, appealable order 

pursuant to R.C. 2744.02(C)”). (Emphasis added.) In fact, all the cases relied upon by the 

parties that allow an appeal from a denial of summary judgment based on immunity relate 

only to political subdivision immunity under R.C. 2744.02(C). Of course, that is because 

R.C. 2744.02(C) specifically and unequivocally makes those orders final and appealable. 

And as the plaintiff correctly argues, the “conclusion that the Amended Decision is 

therefore a ‘final order,’ and immediately appealable, does not follow, because [defendants]

are not public employees.” (Brief of Appellee The Estate of Emily Reardon at 12.)

{¶ 11} The Mid-Ohio Emergency appellants also reply upon this court’s decision in 

Newton v. Ohio Univ. School of Osteopathic Medicine, 91 Ohio App.3d 703, 707-08 (10th 

Dist.1993) for the proposition that “an immunity determination ‘is a final appealable order 

pursuant to O.R.C. § 2505.02 and Civ.R. 54(B).’ ” (Brief of Mid-Ohio Emergency appellants’

at 14.) But Newton involved the appeal of a grant of immunity, not the denial of one. See 

Newton at 707 (“The Ohio Court of Claims eventually found that Dr. Seifer was immune 

and that no just cause for delay existed. The family [hereinafter “appellants”] have now 

pursued an appeal to this court.”). When a trial court grants a defendant’s motion for 

immunity from suit, the case must end as to that defendant. Accordingly, such an order is 

usually final under R.C. 2505.02(B)(1), because it “affects a substantial right” and “in effect 

determines the action.” Moreover, depending on the type of immunity granted, it may also 

be “made in a special proceeding.” In Newton, we concluded that “a ruling which grants 

immunity pursuant to R.C. 9.86 is an order that affects a substantial right made in a special 
Nos. 23AP-148 & 23AP-154 7

proceeding.” Newton at 708. But those issues are obviously not at present here, where 

immunity was denied rather than granted. Accordingly, the Mid-Ohio Emergency 

appellants’ reliance on Newton is at best unhelpful to their cause.

{¶ 12} The appellants have not identified any statute, rule, or case which would 

allow an immediate appeal of denial of the immunity they claim. And we do not believe 

such a rule exists—rather, we agree with the Fifth District’s statement in Clapper v. Little 

Sandy Creek Ruritan Club, Inc., 5th Dist. No. 2021 CA 00095, 2022-Ohio-1920, that 

“[w]ith the exception of the statutory exception provided in R.C. 2744, Ohio courts do not 

allow for a review of a denial of summary judgment based on immunity.” Id. at ¶ 23 (citing 

comparison cases). 

{¶ 13} We conclude that the trial court’s order denying the appellants’ motions for 

summary judgment based on immunity is not a final order. This court lacks jurisdiction to 

address the merits of this case, see Ohio Constitution, Article IV, Section 3(B)(2) and 

Walburn at ¶ 13, and we accordingly dismiss these appeals.

Appeals dismissed.

JAMISON and BOGGS, JJ., concur.