COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60407 FONNIE ZUCKERMAN, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellants : : : and -vs- : : OPINION : CLEVELAND METRO-GENERAL HOSPITAL, : ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT APRIL 30, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 186082. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANTS: FOR DEFENDANT-APPELLEES: Michael J. Godles Stephanie Tubbs-Jones Svete & Nolan Cuyahoga County Prosecutor 1720 Cooper Foster Park Road By: Richard A. Goulder Lorain, Ohio 44035 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Plaintiffs, Fonnie and Henry Zuckerman raise two assignments of error which challenge the dismissal of their complaint against Metrohealth Medical Center ("Metrohealth") and the denial of the plaintiffs' motion to amend it. Upon review, we affirm the judgment of the common pleas court. The Zuckermans sued Metrohealth and "Jane Doe," an unidentified employee on March 8, 1990. They based their initial claim on an incident at Metrohealth which occurred two years previously, on March 13, 1988. The plaintiffs alleged "Jane Doe" negligently inserted an intravenous drip bag during Fonnie Zuckerman's chemotherapy treatment. Metrohealth moved to dismiss plaintiffs' complaint, arguing that, since it alleged a claim for medical malpractice, it was untimely under the applicable one-year statute of limitations (R.C. 2305.11). Defendant also contended that plaintiffs failed to include an affidavit of reasonable cause with their complaint as required by R.C. 2307.42. The Zuckermans responded to defendant's motion to dismiss asserting that, since their claim was based on the "simple" negligence of the Metrohealth employee, the medical malpractice states were inapplicable. They posited that the two-year statute of limitations applied and thus their complaint was timely. The Zuckermans also moved to file an amended complaint based on newly-discovered facts. In this proposed pleading, plaintiffs - 2 - added a cause of action against another unidentified employee of Metrohealth ("Jane Doe #2"), alleging that, while transporting Fonnie Zuckerman to the Radiology Department, this employee "negligently stumbled and/or tripped *** while pushing the IV stand containing the chemotherapy medication." The court denied plaintiffs' motion to file an amended complaint and granted defendant's motion to dismiss. In their first assignment of error, Zuckermans challenge the denial of their motion to amend. Civ. R. 15(A) provides that an amendment to pleading requiring leave of court "shall be freely given when justice so requires." See, also, Hoover v. Sumlin (1984), 12 Ohio St. 3d 1, paragraph one of syllabus. In Peterson v. Teodosio (1973), 34 Ohio St. 2d 16, the Supreme Court observed: "Although the grant or denial of leave to amend a pleading is discretionary, where it is possible that the plaintiff, by an amended complaint, may set forth a claim upon which relief can be granted, and it is tendered timely and in good faith and no reason is apparent or disclosed for denying leave, the denial of leave to file such amended complaint is an abuse of discretion. Id. at 175; See, also, Holsman Electric Sign Co. v. Kohn (1986), 34 Ohio App. 3d 53. The Supreme Court recently modified this standard in Wilmington Steel v. Cleveland Electric Illuminating Co. (1991), 60 Ohio St. 3d 120 when it held: - 3 - "Where a plaintiff fails to make a prima facie showing of support for new matters sought to be pleaded, a trial court acts within its discretion to deny a motion to amend the pleading." (Solowitch v. Bennett [1982], 8 Ohio App. 3d 115, 8 OBR 169, 456 N.E. 2d 562, approved.) Id. at syllabus. (Emphasis original). Although the trial court did not specify its reason for overruling plaintiffs' motion, it appropriately denied leave since the action patently constituted a medical claim under R.C. 2305.11(B) and therefore, was untimely under the one-year statute of limitations. R.C. 2305.11(B) provides: "(3) 'Medical claim' means any claim that is asserted in any civil action against a physician, podiatrist, or hospital, against any employee or agent of a physician, podiatrist, or hospital, or against a registered nurse or physical therapist, and that arises out of the medical diagnosis, care, or treatment of any person. 'Medical claim' includes derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person." Upon review of plaintiffs' complaint and proposed amended complaint, we find they spelled out a medical claim against Metrohealth. The complaint alleged that "Jane Doe' negligently inserted the drip bag and failed to follow the proper procedure for the insertion of the drip bag." The proposed amended complaint alleged that "Jane Doe #2" negligently stumbled and/or tripped while transporting plaintiff Fonnie Zuckerman to the Radiology Department for X-rays. "*** thereby allowing seepage of the chemotherapy medication into the soft tissue surrounding [her] left breast." These allegations clearly fall within the confines of a medical claim under R.C. 2305.11(B) since they delineate a suit - 4 - against an employee or agent of Metrohealth arising out of the care or treatment of Fonnie Zuckerman. The initial complaint, however, was filed over one year after the cause of action arose and therefore was untimely. Moreover, we note the proposed amended complaint merely seeks to include a cause of action against "Jane Doe #2" which also arose out of the care or treatment of Fonnie Zuckerman. This proposed the additional action is also time barred. We conclude the Zuckermans have not made out a prima facie showing to support their motion to file an amended complaint. See Wilmington Steel, supra. Accordingly, the first assignment of error is overruled. In their second assignment of error, the Zuckermans argue the court erred in granting Metrohealth's motion to dismiss. As previously explained, since plaintiffs' complaint set forth a cause of action for medical malpractice, it was untimely. Because the court did not have jurisdiction to hear the matter, it properly dismissed the complaint. The second assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 5 - It is ordered that appellees recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, PRESIDING JUDGE PATTON, J., CONCUR. JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .