Scott v. McCluskey

[Cite as Scott v. McCluskey, 2012-Ohio-2484.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

JACQUELYN L. SCOTT, Executrix of the C.A. No. 25838
Estate of Roger W. Scott, deceased, et al.

Appellant
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
DENNIS C. MCCLUSKEY, M.E. & COUNTY OF SUMMIT, OHIO
ASSOCIATES, INC., et al. CASE No. CV 2009 07 4941

Appellees

DECISION AND JOURNAL ENTRY

Dated: June 6, 2012

DICKINSON, Judge.

INTRODUCTION

{¶1} When Roger Scott sought help for chest pain and swelling in his extremities, a

nurse practitioner working for Dennis C. McCluskey M.D. & Associates Inc. examined him and

sent him home, where he died two days later of a heart attack. During discovery, the estate

learned that a doctor had signed off on the nurse practitioner’s plan to refer Mr. Scott to a

cardiologist. In this refiled lawsuit, Mr. Scott’s wife, Jacquelyn Scott, individually and as the

administratrix of his estate, sued the medical practice and Dr. Brenda Spinks Hensley for medical

malpractice and wrongful death. The trial court granted summary judgment to Dr. Hensley on

both claims based on the statutes of limitations, but denied the medical practice’s motion for

summary judgment. It later decided that the estate would not be permitted to pursue a theory of

vicarious liability against the practice based on the conduct of Dr. Hensley. Following a jury
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verdict for the practice, the estate appealed. Because there is no evidence that the clerk of courts

ever served the judgment entry granting summary judgment to Dr. Hensley, the practice’s

motion for partial dismissal of the appeal is denied. The judgment is affirmed in part because the

trial court did not abuse its discretion under Rule 6(B)(2) of the Ohio Rules of Civil Procedure

by extending the defendants’ time to answer the complaint and denying the estate’s motion for

default judgment. The judgment is reversed in part because the estate timely filed its wrongful

death claim against Dr. Hensley, the trial court incorrectly prevented the estate from pursuing a

theory of vicarious liability against the medical practice for wrongful death allegedly caused by

the medical negligence of its physician employee, and that error was not harmless.

BACKGROUND

{¶2} There is no dispute that in the original complaint the estate sued Dennis C.

McCluskey M.D. & Associates Inc., asserting vicarious liability claims for the negligence of its

employees and/or agents, including nurses and John/Jane Doe doctors. On the two-year

anniversary of Mr. Scott’s death, the estate moved for leave to amend the complaint instanter and

attached an amended complaint naming Dr. Hensley as Jane Doe #4, asserting medical

malpractice and wrongful death claims against her. The trial court ruled that the amended

complaint was not timely filed and granted summary judgment to Dr. Hensley on both claims.

After that, the estate voluntarily dismissed its claims.

{¶3} When it refiled this action under the savings clause, the estate named as

defendants the McCluskey practice and Dr. Hensley. It asserted wrongful death and medical

malpractice claims against both defendants, alleging that “[s]aid [d]efendants, including their

employees and/or agents, were negligent in providing medical care and treatment to decedent,

Roger Scott[.]” When neither defendant timely answered the complaint, the estate moved for
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default judgment. Both defendants opposed the motion and moved for leave to file an answer

instanter. The trial court denied the plaintiff’s motion for default judgment and granted the

defendants’ motion for leave to file the answer.

{¶4} Both defendants moved for summary judgment on both claims. On August 13,

2010, the trial court granted summary judgment to Dr. Hensley on both claims because it

determined that the estate had failed to commence its action against her within either the one-

year medical malpractice statute of limitations or the two-year wrongful death statute of

limitations. The estate did not immediately appeal that judgment. In the August 13 entry, the

trial court also denied the McCluskey practice’s motion for summary judgment based on the

Supreme Court’s decision in National Union Fire Insurance Company of Pittsburgh, PA v.

Wuerth, 122 Ohio St. 3d 594, 2009-Ohio-3601.

{¶5} The practice later moved for reconsideration of the trial court’s decision to deny it

summary judgment. The trial court denied the motion to reconsider, writing that it would not

“eviscerate in one stroke the concept of vicarious liability that has been [in] existence for

hundreds of years.” The trial court also wrote, however, that the estate was permitted to proceed

against the practice based only on the conduct of the nurse, rather than that of the doctor.

Following trial on that limited basis, the jury rendered a verdict for the practice, and the estate

appealed. On appeal, the estate has abandoned its arguments in regard to the medical

malpractice claims against Dr. Hensley and the practice, focusing its arguments on the wrongful

death claims against both defendants. The estate has argued that the trial court incorrectly (1)

denied its motion for default judgment, (2) determined that the wrongful death statute of

limitations against Dr. Hensley had expired before the estate sued her, (3) determined that the

wrongful death respondeat superior claim against the practice for Dr. Hensley’s conduct was
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barred by the statute of limitations, and (4) determined that the practice could not be held

vicariously liable for wrongful death proximately caused by Dr. Hensley’s negligence without

Dr. Hensley being timely named as a party defendant.

DEFAULT JUDGMENT

{¶6} The estate’s fourth assignment of error is that the trial court incorrectly denied its

motion for default judgment. After the estate refiled its complaint, the clerk of courts served

both defendants via certified mail in mid-July 2009. On September 3, the estate moved for

default judgment against both defendants on the issue of liability and requested a damages

hearing. It served the motion on both defendants, neither of whom had appeared in the matter.

On September 21, 2009, the defendants jointly opposed the motion for default judgment and

moved for leave to file an answer instanter. They attached to their motion a joint answer to the

complaint and the affidavit of Sherri Campailla. The defendants argued that their failure to

timely answer the complaint was excusable neglect because their office manager followed their

procedure, but faxed the complaint to the wrong insurance company. By affidavit, the office

manager, Ms. Campailla, testified that she faxed the refiled complaint to the insurance carrier for

Dr. McCluskey rather than to the carrier that insures Dr. Hensley and the medical practice. The

trial court granted the motion and deemed the answer timely filed.

{¶7} Under Rule 6(B) of the Ohio Rules of Civil Procedure, a trial court has discretion

“for cause shown” to extend the period of time within which an act must or may be completed.

If the time period permitted by the Civil Rules has expired, “upon motion made,” the trial court

“may at any time in its discretion” “permit the act to be done where the failure to act was the

result of excusable neglect.” Civ. R. 6(B)(2). Although there are exceptions to this rule, none

are applicable in this case.
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{¶8} “Neglect under [Civil Rule] 6(B)(2) has been described as conduct that falls

substantially below what is reasonable under the circumstances.” Ihenacho v. Ohio Inst. of

Photography & Technology, 2d Dist. No. 24191, 2011-Ohio-3730, ¶ 19 (quoting Davis v.

Immediate Med. Servs. Inc., 80 Ohio St. 3d 10, 14 (1997)). “The determination of whether

neglect is excusable or inexcusable must take into consideration all the surrounding facts and

circumstances, and courts must be mindful of the admonition that cases should be decided on

their merits, where possible, rather than procedural grounds.” Id. (quoting State ex rel.

Lindenschmidt v. Butler County Bd. of Comm’rs, 72 Ohio St. 3d 464, 466 (1995)). “Although

excusable neglect cannot be defined in the abstract, the test for excusable neglect under [Civil

Rule] 6(B)(2) is less stringent than that applied under [Civil Rule] 60(B).” Id. (quoting

Lindenschmidt, 72 Ohio St. 3d at 466).

{¶9} In this case, the defendants supported their opposition to the motion for default

judgment with an affidavit attesting to the truth of their argument that their failure to respond

was due to an honest mistake by an employee trying to follow the established office policy for

dealing with complaints. The office manager explained in her affidavit that she made the

mistake because it was a refiled complaint that did not include Dr. McCluskey as a defendant,

although the estate had named him as a defendant in the original complaint. The trial court

exercised proper discretion under Civil Rule 6(B)(2) by extending the defendants’ time to answer

the complaint and denying the estate’s motion for default judgment. The estate’s fourth

assignment of error is overruled.

MOTION FOR PARTIAL DISMISSAL OF APPEAL

{¶10} Before briefing began in this matter, the defendants moved this Court to partially

dismiss the appeal as untimely. They argued that any assignments of error related to the trial
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court’s August 13, 2010, summary judgment entry must be dismissed from the appeal because

that order was final and appealable when entered, and the estate improperly waited until after

trial to appeal it.

{¶11} Section 3(B)(2) of Article IV of the Ohio Constitution provides that courts of

appeals “shall have such jurisdiction as may be provided by law to review . . . judgments or final

orders . . . .” The General Assembly has determined that appellate courts “shall have jurisdiction

. . . to review, affirm, modify, set aside, or reverse judgments or final orders of courts of record

inferior to the court of appeals within the district . . . .” R.C. 2501.02; see also R.C. 2505.03(A)

(providing that “[e]very final order, judgment, or decree of a [lower] court . . . may be reviewed

on appeal”); Humphrys v. Putnam, 172 Ohio St. 456, 457 (1961).

{¶12} “Even if a trial court’s journal entry is a judgment or final order, it is not

appealable if it does not comply with the rules prescribed by the Ohio Supreme Court regarding

the timing of appeals.” Zaffer v. Zaffer, 9th Dist. No. 10CA009884, 2011-Ohio-3625, ¶ 3.

Under Civil Rule 54(B), “[if] more than one claim for relief is presented in an action . . . or when

multiple parties are involved, the court may enter final judgment as to one or more but fewer

than all of the claims or parties only upon an express determination that there is no just reason

for delay.” “In the absence of a determination that there is no just reason for delay, any order or

other form of decision, however designated, which adjudicates fewer than all the claims or the

rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the

claims or parties . . . .” Id. The word “judgment,” as used in Civil Rule 54(B), includes final

orders as defined by Section 2505.02(B) of the Ohio Revised Code. Civ. R. 54(A).

{¶13} “Acknowledging the dual requirements of finality and appealability, the Ohio

Supreme Court has explained that ‘[a]n order which adjudicates one or more but fewer than all
 7

the claims or the rights and liabilities of fewer than all the parties must meet the requirements of

R.C. 2505.02 and Civ.R. 54(B) in order to be final and appealable.’” Zaffer v. Zaffer, 9th Dist.

No. 10CA009884, 2011-Ohio-3625, ¶ 4 (quoting Noble v. Colwell, 44 Ohio St. 3d 92, syllabus

(1989)); see also Sullivan v. Anderson Twp., 122 Ohio St. 3d 83, 2009–Ohio–1971, ¶ 10 (“The

general rules regarding final appealable orders in multiparty and/or multiclaim cases involve the

tandem of R.C. 2505.02(B) for substance and Civ.R. 54(B) for procedure.”). Civil Rule 54(B)

does not become relevant unless the order appealed has first satisfied the requirements of Section

2505.02. Gen. Acc. Ins. Co. v. Ins. Co. of North Am., 44 Ohio St. 3d 17, 21 (1989) (explaining

that only “[i]f the court finds that the order complies with R.C. 2505.02” must the court “take a

second step to decide if Civ.R. 54(B) language is required”).

{¶14} “An order that affects a substantial right in an action that in effect determines the

action and prevents a judgment” is a “final order” for purposes of appeal. R.C. 2505.02(B)(1).

A “substantial right” is one that “the United States Constitution, the Ohio Constitution, a statute,

the common law, or a rule of procedure entitles a person to enforce or protect.” R.C.

2505.02(A)(1).

{¶15} Via the August 13, 2010, entry, the trial court granted summary judgment to Dr.

Hensley on each of the estate’s claims against her and denied summary judgment to the medical

practice. The August 13 order disposed of the estate’s claims against Dr. Hensley, so it affected

a substantial right and prevented the estate from obtaining a judgment against Dr. Hensley.

Therefore, it met the definition of a “final order” under Section 2505.02(B)(1) of the Ohio

Revised Code.

{¶16} Because the order adjudicated Dr. Hensley’s liability without adjudicating the

liability of her co-defendant, the next question is whether the order met the requirements of Civil
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Rule 54(B). The trial court divided the August 13 order into three parts, separately addressing

the medical malpractice claim against Dr. Hensley, the wrongful death claim against her, and the

claims against the medical practice. At the end of each section addressing the claims against Dr.

Hensley, after granting summary judgment to the doctor, the trial court wrote, “[t]his is a final

and appealable order. There is no just cause for delay.” Thus, the August 13 entry, as it related

to Dr. Hensley, also met the requirements of Civil Rule 54(B), making it appealable when

entered.

{¶17} The estate has argued that the August 13 order was not appealable because the

claims against Dr. Hensley were inextricably intertwined with the claims against the medical

practice. In this case, Ms. Scott, individually and as executrix of the estate of her husband, sued

two parties. The trial court granted summary judgment on all claims against one party, and the

case proceeded to trial against the other. As this is a multiple parties case, the “inextricably

intertwined” claims analysis does not apply. Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.

3d 86, 90 n.5 (1989) (explaining that the “inextricably intertwined” claims analysis to determine

whether Rule 54(B) must be followed, only applies “in a case [that] does not involve multiple

parties but which does involve a number of claims or counts pled by the parties . . . .”). Because

the August 13, 2010, trial court entry, as it relates to Dr. Hensley, satisfies the requirements of

Section 2505.02 and Civil Rule 54(B), it was a final, appealable order when it was entered.

{¶18} Ordinarily, if a judgment disposes of all claims against one of several defendants,

and the entry includes a Civil Rule 54(B) certification, a notice of appeal must be filed within 30

days. See App. R. 4(A); Davenport v. Big Brothers & Big Sisters of Greater Miami Valley Inc.,

2d Dist. No. 23659, 2010-Ohio-2503, ¶ 7 n.1. Dr. Hensley has argued that, because the estate

did not appeal until many months later, the part of the appeal addressing the August 13 entry
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must be dismissed as untimely. We note a defect on the face of the record that prevents this from

being an untimely appeal.

{¶19} Under Rule 4(A) of the Ohio Rules of Appellate Procedure, “[a] party shall file

the notice of appeal required by [Appellate Rule] 3 within thirty days of the later of entry of the

judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if

service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of

Civil Procedure.” “[Appellate Rule] 4(A) thus contains a tolling provision that applies in civil

matters when a judgment has not been properly served on a party according to [Civil Rule]

58(B).” In re Anderson, 92 Ohio St. 3d 63, 67 (2001). “[Civil Rule] 58(B) requires the court to

endorse on its judgment ‘a direction to the clerk to serve upon all parties . . . notice of the

judgment and its date of entry upon the journal.’” Id. (quoting Civ. R. 58(B)). “The clerk must

then serve the parties within three days of entering judgment upon the journal.” Id. “The thirty-

day time limit for filing the notice of appeal does not begin to run until the later of (1) entry of

the judgment or order appealed if the notice mandated by Civ.R. 58(B) is served within three

days of the entry of the judgment; or (2) service of the notice of judgment and its date of entry if

service is not made on the party within the three-day period in Civ.R. 58(B).” Id. (quoting

Whitehall ex rel. Fennessy v. Bambi Motel Inc., 131 Ohio App. 3d 734, 741 (10th Dist. 1998)).

{¶20} In this case, the trial court seems to have attempted to direct the clerk of courts to

serve the judgment on all parties by writing “cc: Jack Morrison/Vicki DeSantis, Christopher

Humphrey” below the signature line on the last page. See In re Anderson, 92 Ohio St. 3d 63, 67

(2001). The clerk of courts, however, did not make any notation on the docket regarding service

of the judgment on any party. In the absence of a notation in the docket, service is not complete.

Davenport v. Big Brothers & Big Sisters of Greater Miami Valley Inc., 2d Dist. No. 23659,
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2010-Ohio-2503, ¶ 7 n.1 (citing Civ. R. 58(B)). “Under such circumstances, the time for filing

an appeal is tolled. This is true even when a party has actual notice of the judgment at issue.”

Id. (citing JP Morgan Chase Bank N.A. v. Brown, 2d Dist. Nos. 21853, 22359, 2008-Ohio-200, ¶

84) (“It is the service of notice, and adequate proof thereof, and not actual notice that is required

by Civ.R. 58(B).”). As in Anderson, the time for the estate to file a notice of appeal in regard to

the claims against Dr. Hensley never began to run because the requirements of Civil Rule 58(B)

were not satisfied. See In re Anderson, 92 Ohio St. 3d at 67. Because the appeal was timely

filed under Rule 4(A) of the Ohio Rules of Appellate Procedure, the defendants’ motion for

partial dismissal of the appeal is denied.

WRONGFUL DEATH STATUTE OF LIMITATIONS

{¶21} The estate’s first assignment of error is that the trial court incorrectly granted

summary judgment to Dr. Hensley on the wrongful death claim based on the statute of

limitations. This assignment of error presents a purely legal question. There is no dispute

regarding any of the facts necessary to the resolution of this assignment of error. The statute of

limitations for wrongful death is two years. R.C. 2125.02(D)(1). Mr. Scott died on January 30,

2004. Therefore, the statute of limitations for wrongful death extended through January 30,

2006. The estate originally sued the McCluskey practice on July 18, 2005. Although it

commenced a wrongful death claim against the practice within the two-year window, it did not

name Dr. Hensley in the original complaint. It did name a Jane Doe doctor in its July 2005

complaint, which it later attempted to rename as Dr. Hensley.

{¶22} On January 30, 2006, the two-year anniversary of Mr. Scott’s death, the estate

moved for leave to amend its complaint and attached to the motion an amended complaint

naming Dr. Hensely as a party defendant in place of Jane Doe #4. The trial court granted leave
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to amend the complaint on February 9, 2006. According to the docket, the clerk of courts later

issued a summons and copy of the amended complaint to Dr. Hensley, and she was personally

served in March 2006. The timeliness of the wrongful death claim against Dr. Hensley depends

on when the amended complaint was deemed filed.

{¶23} Based on decisions of the Sixth and Eighth District Courts of Appeals, the estate

has argued that the amended complaint naming Dr. Hensley should have been deemed filed as of

the date it moved for leave to amend. The estate has cited an Eighth District case for the

proposition that “an amended complaint attached to a motion for leave to amend the complaint is

filed on the date the motion for leave is filed.” Guerrero v. C.H.P. Inc., 8th Dist. No. 78484,

2001 WL 931640, *3 (Aug. 16, 2001) (citing Mayes v. AT & T Info. Sys., 867 F.2d 1172 (8th Cir.

1989); Chaddock v. Johns-Manville Sales Corp., 577 F. Supp. 937 (S.D. Ohio 1984); Cannon v.

Metcalf, 458 F. Supp. 843 (E.D. Tenn. 1977); Trosin v. Int’l Harvester Co., 6th Dist. No. WD-

86-37, 1986 WL 11945 (Oct. 24, 1986)). In Guerrero, the trial court granted the plaintiff leave

to amend the complaint to add parties before the statute of limitations expired, but the plaintiff

did not separately file the amended complaint until after the deadline. Guerrero, 2001 WL

931640 at *2. The Eighth District analyzed precedent and concluded that “[f]ederal courts have

held that a motion for leave to file an amended complaint, with an attached amended complaint,

constitutes filing the amended complaint.” Id. (citing Mayes, 867 F.2d 1172); Chaddock, 577 F.

Supp. 937; Cannon, 458 F. Supp. 843). “The rationale is that the plaintiff has no control over

when the court might decide the motion for leave.” Id. The Court in Guerrero did not rely on

the fact that the trial court had granted leave to amend before the expiration of the statute of

limitations.
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{¶24} The estate has also cited a Sixth District Court of Appeals decision in support of

its position. In that case, the Sixth District held that an amended complaint adding new parties

relates back to the date the plaintiff moved for leave to amend the complaint, provided the

amended complaint was attached to the motion for leave. Trosin v. Int’l Harvester Co., 6th Dist.

No. WD-86-37, 1986 WL 11945, *2 (Oct. 24, 1986). The Court in Trosin adopted the reasoning

of the United States District Court for the Southern District of Ohio in Chaddock v. Johns-

Manville Sales Corporation, 577 F. Supp. 937 (S.D. Ohio 1984). In both Trosin and Chaddock,

the plaintiff timely moved for leave to amend the complaint to add a party and attached the

amended complaint to the motion, but the trial court did not grant leave to amend until after the

expiration of the statute of limitations. The federal district court held the amended complaint

was timely filed because “[t]o dismiss a claim under [such] circumstances would not be in the

interest of justice.” Chaddock v. Johns-Manville Sales Corp., 577 F. Supp. 937, 939 (S.D. Ohio

1984). The Court in Chaddock reasoned that “[the plaintiff] was required to seek leave of Court

to file the amended complaint[,] . . . [yet] [she] had no control over when the Court might decide

her motion.” Id. The Court in Chaddock noted the importance of two facts: (1) the plaintiff had

moved for leave to amend before the expiration of the statute of limitations, and (2) had attached

the amended complaint to the motion. Id. The federal court held that, under those

circumstances, “an amended complaint adding new parties defendant relates back to the date on

which the motion for leave to file the amended complaint was filed.” Id.

{¶25} Dr. Hensley has argued that the cases cited by the estate conflict with the plain

language of Section 2125.02 of the Ohio Revised Code, Rule 3(A) of the Ohio Rules of Civil

Procedure, and prior decisions of this Court. Under Section 2125.02(D)(1) of the Ohio Revised

Code, “[a] civil action for wrongful death shall be commenced within two years after the
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decedent’s death.” Rule 3(A) of the Ohio Rules of Civil Procedure provides that “[a] civil action

is commenced by filing a complaint with the court” and obtaining service within one year. Dr.

Hensley has argued that, because neither of these provisions mentions moving for leave to

amend a complaint, the date of such a motion cannot be “the operative date” for determining

whether an action has been commenced within the statute of limitations.

{¶26} In the cases cited by the estate, federal and state courts have based their reasoning

in part on the same filing requirements mentioned by Dr. Hensley. Under both the Federal and

Ohio Rules of Civil Procedure, “a civil action is commenced by filing a complaint with the

court[,]” although the Ohio Rule also requires obtaining service within one year. Fed. R. Civ. P.

3, Ohio Civ. R. 3(A). Under Rule 5(d)(2) of the Federal Rules of Civil Procedure, “[a] paper is

filed by delivering it . . to the clerk; or . . . to a judge who agrees to accept it for filing[.]” Under

Ohio’s rule, “[t]he filing of documents with the court, as required by these rules, shall be made

by filing them with the clerk of court, except that a judge may permit the documents to be filed

with the judge[.]” Ohio Civ. R. 5(E). “Filing a complaint requires nothing more than delivery

to a court officer authorized to receive it. . . . Papers and pleadings . . . are considered filed when

they are placed in the possession of the clerk of court.” Guerrero v. C.H.P. Inc., 8th Dist. No.

78484, 2001 WL 931640, *2 (Aug. 16, 2001) (quoting Cannon v. Metcalf, 458 F. Supp. 843, 847

(E.D. Tenn. 1977)). In this case, the estate first placed the amended complaint into the

possession of the clerk of courts when it filed its motion for leave to amend with the amended

complaint attached.

{¶27} Dr. Hensley has also argued that this Court’s precedent directly contradicts the

position of the Eighth and Sixth District Courts of Appeals on this issue. The defendants have

cited Eady v. East Ohio Gas, 9th Dist. No. 19598, 2000 WL 563323 (May 10, 2000), for the
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proposition that the estate’s amended complaint did not become operative as a pleading until

February 9, when the trial court granted leave to amend. In Eady, this Court held that “an

answer attached as an exhibit to a motion for leave to file instanter does not become operative as

a pleading, absent an express statement by the trial court.” Eady, 2000 WL 563323 at *1 (citing

Pollack v. Watts, 5th Dist. No. 97CA0084, 1998 WL 517702 (Aug. 10, 1998)). In that case, the

question was whether the trial court’s grant of default judgment and subsequent vacation of that

judgment operated as an automatic grant of the defendant’s motion for leave to file an answer

after the deadline had passed. Id. Eady is not factually similar to this case. In Eady, this Court

considered under what circumstances a motion could be deemed granted, not under what

circumstances an amended complaint could be deemed filed.

{¶28} The defendants have also cited Meeker v. American Torque Rod of Ohio Inc., 79

Ohio App. 3d 514 (10th Dist. 1992), in support of their position. In that case, a former employee

amended his complaint against his former employers regarding work-related chemical exposure

to add product liability claims against the manufacturers of the chemicals. The court analyzed

the application of the discovery rule for purposes of determining the date the statute of

limitations began to run. Via footnote, the Tenth District mentioned that, although the plaintiff

had “filed his motion for leave to amend on August 4,” he “did not file his amended complaint

until August 8,” that is, the day the trial court granted leave to amend the complaint. Id. at 520

n.2. It is not clear from the court’s decision, however, whether the plaintiff had attached his

amended complaint to his motion for leave, and the court did not analyze the question. Id. at

515-16. Without that information, it is unclear whether the Tenth District disagreed with the

Sixth and Eighth Districts on this issue.
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{¶29} We are persuaded by the authorities holding that, for statute of limitations

purposes, an amended complaint that is filed with the clerk of courts as an attachment to a

motion for leave to amend is deemed filed as of the date the motion was filed, provided the trial

court grants the motion. In this case, the parties agree that, before the expiration of the wrongful

death statute of limitations, the plaintiff filed with the clerk of courts a motion for leave to amend

the complaint and attached the amended complaint to the motion. They also agree that the trial

court granted leave to amend several days after the statute of limitations had expired. Under

these circumstances, the estate’s amended complaint asserting a wrongful death claim against Dr.

Hensley was timely filed. Therefore, the trial court incorrectly granted summary judgment to Dr.

Hensley on the wrongful death claim against her. The estate’s first assignment of error is

sustained.

MEDICAL PRACTICE’S LIABILITY FOR DOCTOR’S CONDUCT

{¶30} The estate’s second and third assignments of error are that, regardless of whether

the wrongful death statute of limitations applicable to Dr. Hensley had expired, the trial court

incorrectly insulated the McCluskey practice at trial from the vicarious liability wrongful death

claim based on the doctor’s conduct. Although the trial court denied the practice’s motion for

summary judgment, it ruled prior to trial that the estate would be precluded from pursuing any

theory of vicarious liability against the practice based on Dr. Hensley’s conduct. Thus, at trial

against the McCluskey practice, the estate’s claims were limited to holding the practice liable for

the conduct of its employee nurse.

{¶31} The second and third assignments of error involve arguments about two issues:

(1) whether the trial court incorrectly refused to allow the estate to pursue vicarious liability

claims against the practice, as an employer, regardless of whether the doctor-employee was
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named as a party defendant before the statute of limitations expired, and (2) whether the court’s

refusal to allow any theory of vicarious liability against the practice based on Dr. Hensley’s

conduct was harmless error. The estate’s arguments in regard to the first issue focus on whether

the trial court correctly applied the legal malpractice holding in National Union Fire Insurance

Company of Pittsburgh, PA v. Wuerth, 122 Ohio St. 3d 594, 2009-Ohio-3601, to medical

malpractice facts. Because we have held that the trial court incorrectly granted Dr. Hensley

summary judgment, we need not now consider whether the Ohio Supreme Court’s decision in

Wuerth should be applied outside of the context of legal malpractice. Regardless of whether the

vicarious liability wrongful death claim was contingent upon a similar claim being timely filed

against Dr. Hensley, the trial court incorrectly limited the estate’s theories of liability against the

McCluskey practice at trial because it incorrectly granted Dr. Hensley summary judgment on the

wrongful death claim. Therefore, to the extent these two assignments of error address the first

issue outlined above, they are sustained in light of our disposition of the first assignment of error.

{¶32} The McCluskey practice has argued that the trial court’s refusal to permit the

estate to pursue a theory of respondeat superior liability based on the conduct of Dr. Hensley was

harmless error. It has argued that, since the estate presumably has presented all of its evidence

and the first jury found that the practice was not liable, the error is harmless and no retrial against

it is necessary. On the other hand, the estate has argued that, at trial, Dr. Hensley fell on the

sword, adopting the nurse’s treatment plan in order to insulate the practice from liability since

the jury was not permitted to assign any negligence to her.

{¶33} The trial court’s error in so limiting the trial was not harmless to the estate

because the jury forms did not allow the jury to assign any liability to Dr. Hensley. The first

interrogatory indicated that if the jury found that the nurse had not failed to comply with the
 17

standard of care in her treatment of Mr. Scott, then it “must enter a General Verdict for

Defendant[.]” The trial court incorrectly refused to allow the jury to consider whether Dr.

Hensley complied with the applicable standard of care. Further, on retrial absent such a

restriction, the estate may choose to present additional evidence against Dr. Hensley in an

attempt to prove her negligence as an element of its wrongful death claims against both

defendants. The trial court’s error in limiting the theories of liability against the practice at trial

was not harmless. The estate’s second and third assignments of error are sustained.

CONCLUSION

{¶34} The defendants’ motion for partial dismissal of the appeal is denied. The estate’s

appeal is timely because the record contains no evidence that the estate was ever served with

notice of the trial court’s August 13, 2010, judgment entry granting summary judgment to Dr.

Hensley. The estate’s fourth assignment of error is overruled because the trial court exercised

proper discretion under Civil Rule 6(B)(2) by extending the defendants’ time to answer the

complaint and denying the estate’s motion for default judgment. The first assignment of error is

sustained because the trial court incorrectly granted summary judgment to Dr. Hensley based on

the statute of limitations. The estate’s second and third assignments of error are sustained in

light of this Court’s disposition of the first assignment of error. The judgment of the Summit

County Common Pleas Court is affirmed in part, reversed in part, and the cause is remanded for

further proceedings consistent with this opinion.

Judgment affirmed in part,
reversed in part,
and remanded.

There were reasonable grounds for this appeal.
 18

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

CLAIR E. DICKINSON
FOR THE COURT

WHITMORE, P. J.
BELFANCE, J.
CONCUR.

APPEARANCES:

THOMAS R. HOULIHAN, Attorney at Law, for Appellant.

CHRISTOPHER S. HUMPHREY, Attorney at Law, for Appellees.