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March 12, 2026 Get Citation Alerts Download PDF Add Note

Francis v. Cleveland Clinic Found.

Ohio Court of Appeals

• Citations: 2026 Ohio 829
• Docket Number: 115062

• Judges: Forbes

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (27.2K)

• PDF

Syllabus

Statute of limitations; medical claims; R.C. 2305.113(B); motion in limine, medical negligence; survivorship; loss of chance, Civ.R. 26(B)(7)(b); expert report. Court did not err in granting appellee's motion for summary judgment, resulting in dismissal of appellant's medical-negligence survivorship claim. Claim was filed more than a year after the events that gave rise to this case; therefore, the dismissed claim was commenced outside the limitations period for medical claims. Appellant's counsel failed to extend the limitations period under R.C. 2305.113(B) by sending appellee email notice that he was investigating potential claims, rather than required notice by certified mail. Court did not abuse its discretion in granting appellee's motion in limine, precluding appellant's testimony regarding a loss-of-chance theory, where report of appellant's expert never provided that decedent had a less-than-even chance of the surviving cardiac arrest that caused his death.

Combined Opinion

[Cite as Francis v. Cleveland Clinic Found., 2026-Ohio-829.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

ANTOINE FRANCIS, INDIVIDUALLY :
AND AS ADMINISTRATOR OF THE
ESTATE OF MICHAEL E. FRANCIS, :

Plaintiff-Appellant, :
No. 115062
v. :

CLEVELAND CLINIC FOUNDATION, :
ET AL.,

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 12, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-24-993096

Appearances:

D.W. Smith Legal Services and Derek W. Smith, for
appellant.

Roetzel & Andress, LPA and Emily K. Anglewicz, for
appellee Cleveland Clinic Foundation.

LISA B. FORBES, P.J.:

Antoine Francis, individually (“Antoine”) and as administrator of

Michael Francis’s Estate (“the Estate”) (collectively, “Appellant”), appeals the trial
court’s orders granting Cleveland Clinic Foundation’s (“CCF”) motion for partial

summary judgment and motion in limine. After a thorough review of the facts and

the law, we affirm.

I. Facts and Procedural History

The parties do not dispute the following facts. On December 3, 2020,

Michael E. Francis (“Michael”) underwent hip surgery in a CCF hospital. Before

surgery, Michael presented with several conditions that elevated the risk of adverse

surgical outcomes, including that he was receiving hemodialysis for kidney disease.

On December 4, 2020, after his hip surgery, while in recovery in the hospital,

Michael went into cardiac arrest and died. For a period before Michael’s death, heart

monitors that Michael’s physician had ordered for him were not properly connected.

On April 22, 2022, Appellant sued CCF in the Cuyahoga County

Common Pleas Court, before later voluntarily dismissing his complaint. He refiled

his complaint on February 20, 2024, raising the following claims: Count 1, “Medical

Negligence, Professional Torts and/or General Negligence/Survivorship” and Count

2, “Wrongful Death.” Appellant also requested compensatory and punitive

damages. He alleged that, because CCF’s monitors had not been properly

connected, medical personnel had failed to respond timely to Michael’s cardiac

arrest.

On December 2, 2024, CCF filed a motion for partial summary

judgment, arguing that Appellant commenced the medical-negligence survivorship

claim in this case outside the one-year limitations period that R.C. 2305.113(A)
imposes on medical claims. CCF attached to its motion a copy of an email from

Appellant’s counsel to CCF, dated March 27, 2021, in which Appellant’s counsel

represented that he was investigating potential medical claims arising from

Michael’s death. The parties do not dispute that this email was the first attempt that

counsel made to inform CCF that he was investigating these potential claims. The

parties also do not dispute that the one-year limitations period in R.C. 2305.113(A)

applies to the medical-negligence survivorship claim pled in Count One.

Appellant opposed CCF’s motion, arguing that counsel’s email and a

CCF email in response were sufficient to extend the limitations period by an

additional 180 days under R.C. 2305.113(B), within which time Appellant had filed

his initial complaint. Appellant attached to his summary-judgment briefing a copy

of an email, dated March 28, 2021, that CCF sent to Appellant’s counsel. In this

email, CCF confirmed that it had received counsel’s correspondence regarding his

investigation into potential claims.

On March 19, 2025, the court granted CCF’s motion for partial

summary judgment. Consequently, the Estate’s medical-negligence survivorship

claim was dismissed.1 The case proceeded on Antoine’s wrongful-death claim.

Before trial, Antoine proposed jury instructions, including one

regarding a loss-of-chance theory. That is, the proposed jury instruction addressed

1 The related request for punitive damages was also dismissed. See Rubeck v.
Huffman, 54 Ohio St.2d 20, 22 (1978) (Punitive damages are not available in a wrongful-
death action.).
whether CCF’s failure to maintain working monitors deprived Michael of a less-

than-even chance to recover from his cardiac arrest.

On March 24, 2025, CCF filed a “motion in limine to preclude plaintiff

from pursuing a loss-of-chance theory at trial,” arguing that Antoine’s medical

expert Dr. David Grundy (“Dr. Grundy”) had offered no opinion in his expert report

or deposition regarding loss of chance. Following in-court arguments by counsel for

each party, the court granted CCF’s motion in limine. On the record, the court

instructed the parties to limit the testimony of experts “to the opinions that are

contained within their expert reports.” The court found that “the loss of less than

even chance of recovery claim . . . [was] not cited to explicitly in the expert witness

report” of Dr. Grundy.

The case proceeded to a jury trial on March 24, 2025. The court did

not issue the proposed jury instruction regarding loss of chance. CCF stipulated that

it had failed to satisfy a duty to Michael to maintain cardiac monitoring but disputed

that doing so had proximately caused his death. The jury returned a verdict in favor

of CCF, finding that Antoine had not proven to a reasonable degree of medical

probability that CCF’s negligence had directly and proximately caused Michael’s

death.

Appellant appealed, raising the following assignments of error:

1. The trial court erred in granting partial summary judgment against the survivorship claim by holding that Appellant’s timely written notice, actually received and acknowledged by Appellee’s law department, was ineffective because it was not transmitted by USPS certified mail.
2. The trial court abused its discretion and erred as a matter of law in granting Appellee’s motion in limine to categorically preclude any loss-of-chance claim, despite Roberts-compliant testimony.

II. Law and Analysis

A. Assignment of Error No. 1 — the Statute of Limitations
Regarding Antoine’s Medical-Negligence Survivorship Claim

Appellant asserts that the trial court erred by granting CCF’s motion

for partial summary judgment and dismissing the medical-negligence survivorship

claim pled in Count 1 of the complaint. According to Appellant, Antoine’s counsel’s

email representation to CCF that he was considering bringing medical claims related

to Michael’s death and CCF’s email acknowledging receipt thereof were sufficient to

extend the one-year limitations period for such claims by an additional 180 days

under R.C. 2305.113(B).2 We disagree.

“Under Civ.R. 56, summary judgment is appropriate when no

genuine issue exists as to any material fact and, viewing the evidence most strongly

in favor of the nonmoving party, reasonable minds can reach only one conclusion

that is adverse to the nonmoving party, entitling the moving party to judgment as a

matter of law.” Madaras v. Applebee’s Neighborhood Grill & Bar, 2025-Ohio-169,

¶ 12 (8th Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

“‘We review an appeal from summary judgment de novo.’” Anderson

v. Mitchell, 2014-Ohio-1058, ¶ 4 (8th Dist.), quoting Grafton at 105. “‘De novo

2 Appellant argues that Antoine commenced his medical-negligence survivorship

claim within the applicable limitations period by suing CCF on April 22, 2022, less than
one year and 180 days after Michael’s death on December 4, 2020.
review encompasses an independent examination of the record and law without

deference to the underlying decision.’” Torres v. Concrete Designs, Inc., 2019-Ohio-

1342, ¶ 48 (8th Dist.), quoting Gateway Consultants Group, Inc. v. Premier

Physicians Ctrs., Inc., 2017-Ohio-1443, ¶ 22 (8th Dist.).

R.C. 2305.113(A) establishes the limitations period for medical

actions, stating that “an action upon a medical, dental, optometric, or chiropractic

claim shall be commenced within one year after the cause of action accrued.” The

parties do not dispute that the dismissed claim related to the care that Michael

received while recovering from his hip surgery in CCF’s hospital and is a medical

claim under this provision.

R.C. 2305.113(B)(1) allows for the one-year limitations period for

medical claims to be extended by 180 days if, prior to the expiration of the one-year

period, a claimant “gives to the person who is the subject of [the] claim written

notice that the claimant is considering bringing an action upon that claim.”

R.C. 2305.113(B)(2) establishes additional requirements for such notice, stating that

“a claimant shall give [the written notice described in division (B)(1)] by sending it

by certified mail, return receipt requested,” addressed to any of several listed

recipients.

Regarding the requirement in R.C. 2305.113(B)(2) that a claimant

“shall give” notice by certified mail, this court has “acknowledged the principle that

‘shall means shall’ and shall is a ‘word of command.’” State v. Walker, 2021-Ohio-

580, ¶ 36 (8th Dist.), quoting State v. Brooks, 2020-Ohio-3826, ¶ 7 (8th Dist.). The
dictionary defines “shall,” in part, as a word “used in laws, regulations, or directives

to express what is mandatory.” Merriam-Webster Online, https://www.merriam-

webster.com/dictionary/shall (accessed February 18, 2026).

[https://perma.cc/RUP3-QHYR]. See Finger v. Liberty Mut. Personal Ins. Co.,

2023-Ohio-2308, ¶ 33 (8th Dist.), quoting Commercial Intertech Corp. v. Guyan

Internatl. Inc., 2001 Ohio App. LEXIS 1556, *5 (11th Dist. Mar. 30, 2001) (“A

dictionary definition ‘is a reliable source for finding the plain and ordinary meaning

of a word.’”). Appellant has proffered no interpretation of R.C. 2305.113(B)(2)

suggesting that the certified-mail requirement is permissive, arguing instead that

the defense waived this requirement by participating in this litigation. Appellant

also argues that CCF received actual notice regarding counsel’s investigation of

claims, demonstrated by CCF’s reply email.

We are not persuaded by Appellant’s argument that the medical-

negligence survivorship claim was commenced within the applicable limitations

period. In a recent case, the Ohio Supreme Court considered a similar issue and

affirmed dismissal of medical claims that it found a plaintiff had commenced after

the one-year limitations period in R.C. 2305.113(A) had passed. See Ackman v.

Mercy Health W. Hosp., L.L.C, 2024-Ohio-3159. In Ackman, the Court addressed

whether a party waives defenses related to insufficient service through participation

in litigation, answering in the negative. Id. at ¶ 7. The plaintiff in Ackman failed to

perfect service of his complaint on a doctor; nonetheless, the doctor, after filing an

answer that included affirmative defenses related to insufficiency of process,
participated in the subsequent litigation. Id. at ¶ 4-5. After the applicable

limitations periods had passed, the doctor successfully moved for summary

judgment based on insufficient service of process. Id. at ¶ 6. The Court rejected

plaintiff-appellant’s arguments that he commenced suit within the applicable

limitations period where “the purpose of service — notice — was achieved.” Id. at

¶ 18. The Court reasoned that, “if notice was the only reason for service, our rule

allowing the defense of insufficiency of service of process to be asserted in an answer

would be illogical because the assertion of that defense would be proof that the

defendant had notice and the defense would necessarily fail.” Id. The Court’s ruling

in Ackman indicates that a defendant’s having actual notice of medical claims does

not protect a plaintiff from dismissal of those claims where plaintiff has not strictly

complied with service rules before the limitations period expires.

In light of the foregoing, we find that the court did not err by granting

CCF partial summary judgment on the basis that the medical-negligence

survivorship claim was commenced more than one year after Michael’s death. We

acknowledge that the undisputed evidence indicates that, less than a year after

Michael died, Appellant’s counsel informed CCF that he was considering bringing

medical claims related to Michael’s death. We also acknowledge that an agent of

CCF sent Appellant’s counsel a reply email that confirmed receipt of this

information. However, we find that the email notice of potential claims was not

sufficient under R.C. 2305.113(B)(1) to extend the limitations period. The statute

prescribes strict requirements on how notice must be made to extend the limitations
period, which Appellant failed to follow. As a result, the one-year limitations period,

which began to run on December 4, 2020, the date of Michael’s death, expired

before Appellant commenced the medical-negligence survivorship claim. Further,

CCF preserved its statute-of-limitations affirmative defense by asserting it in its

answer.

Lastly, we find this case to be distinct from Wiltz v. Cleveland Clinic,

2021-Ohio-62 (8th Dist.), which Appellant cites for the proposition that a

defendant’s actual receipt of notice is sufficient to extend the limitations period

under R.C. 2305.113(B). The facts of Wiltz occurred before the Ohio General

Assembly amended R.C. 2305.113(B) to require that notice of a potential medical

claim be sent by certified mail. See R.C. 2305.113(B) (effective Jan. 21, 2018)

(providing that “written notice” is sufficient to extend the limitations period for

medical claims by 180 days). Further, Wiltz does not identify the method of service

that the plaintiffs in that case used to provide notice that they were investigating

potential claims.

The court properly granted CCF partial summary judgment,

dismissing the medical-negligence survivorship claim in Count 1. Accordingly,

assignment of error No. 1 is overruled.

B. Assignment of Error No. 2 — Exclusion of Expert Testimony in
Support of a Loss-of-Chance Theory

Appellant asserts that the trial court erred by granting CCF’s motion

in limine, precluding testimony that CCF’s failure to maintain working heart

monitors deprived Michael of a less-than-even chance of recovery from his cardiac
arrest. Appellant argues that such testimony was within the scope of Dr. Grundy’s

expert report and should have been permitted at trial. We disagree.

We review a trial court’s decisions regarding motions in limine and

the admissibility of expert testimony for abuse of discretion. 180 Degree Solutions

L.L.C. v. Metron Nutraceuticals, L.L.C., 2021-Ohio-2769, ¶ 57 (8th Dist.); accord

Halenar v. Ameritech-Ohio SBC/Ameritech, 2011-Ohio-2030, ¶ 28 (8th Dist.). An

abuse of discretion occurs when a court exercises “its judgment, in an unwarranted

way, in regard to a matter over which it has discretionary authority.” Johnson v.

Abdullah, 2021-Ohio-3304, ¶ 35. An abuse of discretion “‘implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.’” W.A.F.P., Inc. v. Sky Fuel

Inc., 2024-Ohio-3297, ¶ 13 (8th Dist.), quoting Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

Appellant’s complaint is based on the uncontested allegation that

CCF breached the standard of medical care. To raise a medical claim, a plaintiff

usually “must prove causation through medical expert testimony in terms of

probability to establish that the injury was, more likely than not, caused by the

defendant’s negligence.” Roberts v. Ohio Permanente Med. Group, 76 Ohio St.3d

483, 485 (1996), citing Shumaker v. Oliver B. Cannon & Sons, Inc. 28 Ohio St.3d

367 (1986).

By contrast, “the loss of chance theory, which compensates an injured

plaintiff for his or her diminished chance of recovery or survival,” allows a plaintiff

to bring a medical claim “even though the possibility of survival or recovery is less
than probable.” Roberts at id. “In order to maintain an action for the loss of a less-

than-even chance of recovery or survival, the plaintiff must present expert medical

testimony showing that the health care provider’s negligent act or omission

increased the risk of harm to the plaintiff.” Id. at 488. A loss-of-chance claim “does

not require specific evidence of the percentage of chance lost in order to establish

proximate cause.” Thomas v. Univ. Hosps. of Cleveland, 2008-Ohio-6471, ¶ 33 (8th

Dist.). However, this court has recognized that the doctrine of loss of chance

“applies only to those patients who had less than even chance of survival . . . .” Liotta

v. Rainey, 2000 Ohio App. LEXIS 5475, *11 (8th Dist. Nov. 22, 2000).

Among the cases cited by Appellant, the following are instructive here

as to whether an expert opinion is sufficient to establish a loss-of-chance claim. In

Geesaman v. St. Rita’s Med. Ctr., 2009-Ohio-3931 (3d Dist.), the court of appeals

found that the trial court erred in failing to instruct the jury on loss of chance where

“plaintiff presented evidence that the decedent would have had a 28[] percent

chance of survival had proper and timely care been rendered but that the

defendants’ negligence decreased that chance of survival to zero.” Id. at ¶ 21.

Compare Liotta at *5 (court did not err in granting directed verdict in favor of

defendant as to loss-of-chance claim where, despite medical expert’s testimony that

defendant’s conduct decreased plaintiff’s likelihood of survival, such likelihood

remained 50-60 percent that is, greater than even.) In Liotta, this court found, “At

no time did [plaintiff’s medical expert witness] testify that [plaintiff] had a less than
even chance of recovery. While the chance of recovery did decrease, th[e] decrease

falls within the traditional tort theories of malpractice.” Id. at *12.

The opinions of expert witnesses must be laid out in a report. The

Ohio Rules of Civil Procedure provide that the “reports of expert witnesses expected

to be called by each party shall be exchanged with all other parties.”

Civ.R. 26(B)(7)(b). “An expert will not be permitted to testify or provide opinions

on matters not disclosed in his or her report.” Civ.R. 26(B)(7)(c). See Holly v.

Greater Cleveland Regional Transit Auth., 2022-Ohio-3236, ¶ 21, 25 (8th Dist.)

(Trial court did not abuse its discretion in granting motion in limine to preclude

plaintiff’s treating physician from testifying, where physicians written evaluations of

plaintiff “did not opine as to causality of appellee’s bilateral carpal tunnel syndrome”

and physician’s supplemental report on that topic was not timely provided to

opposing counsel.). Compare O’Connor v. Cleveland Clinic Found., 2005-Ohio-

2328, ¶ 23 (8th Dist.) (Trial court abused its discretion by allowing doctor “to offer

a new opinion on the possible cause of [a] cautery burn” that had not been disclosed

in an expert report or in supplements to doctor’s deposition or interrogatories.).

We find that the court did not abuse its discretion by granting CCF’s

motion in limine based on its conclusion that Dr. Grundy did not opine, in his expert

report, that CCF’s failure to monitor Michael deprived him of a less-than-even

chance of recovery from his cardiac arrest. Regarding Michael’s recovery from his

hip surgery, the report opines, “Even if we accept 46 months as an upper boundary

for a 50% chance of survival for Mr. Francis, it is still more likely than not that he
had a life expectancy of between three and four additional years.” This conclusion

appears to be based on another doctor’s discussion of risk factors that Michael had

exhibited before surgery, including that he was receiving hemodialysis. Neither this

analysis of risk factors that Michael exhibited before surgery nor Dr. Grundy’s

discussion thereof address Michael’s likelihood of surviving cardiac arrest during

recovery.

In his report, Dr. Grundy concluded that “it is more likely than not

that by failing to carry out their own physicians’ monitoring orders, the substandard

care delivered . . . at the Cleveland Clinic took this chance at life from Mr. Francis.”

Dr. Grundy also articulated that “had Cleveland Clinic carried out Mr. Francis’

appropriately ordered cardiac and oxygen monitoring . . . Mr. Francis’ decline and

death could have likely been prevented.” (Emphasis added.) As in Liotta,

Dr. Grundy’s report never offered the opinion that Michael’s chance of survival was

less than 50 percent at the time of CCF’s negligence. Instead, the report presented

Dr. Grundy’s opinion in terms of traditional medical negligence.

Further, though Dr. Grundy’s report discusses a person’s general

declining blood-oxygen saturation levels at different time increments during cardiac

arrest, it does not address whether proper monitoring would have allowed CCF

personnel to respond to Michael’s arrest more quickly or the likelihood that any

subsequent life-saving measures that could have been rendered would have been

successful. As such, we cannot say that the court abused its discretion by concluding
that Dr. Grundy did not opine in his report that CCF’s negligent monitoring deprived

Michael of a less-than-even chance of recovery from cardiac arrest.

Lastly, we note that Appellant argues that expert testimony sufficient

to support a medical claim may be introduced through cross-examination.

Appellant directs us to testimony, given by CCF witnesses during cross-examination,

that purportedly addresses whether CCF’s failure to monitor Michael decreased his

likelihood of surviving cardiac arrest. However, such testimony is not pertinent to

Appellant’s assignment of error, which is limited to whether the court erred in

granting CCF’s pretrial motion in limine, precluding the Appellant from introducing

his own expert testimony about loss of chance. See Yagour Group, LLC v. Ciptak,

2024-Ohio-73, ¶ 31 (8th Dist.), quoting Hamid v. Univ. Manors, Ltd., 2021-Ohio-

2115, ¶ 16 (10th Dist.), quoting Huntington Natl. Bank v. Burda, 2009-Ohio-1752,

¶ 21 (10th Dist.) (“Appellate courts rule on assignments of error, ‘“not mere

arguments.”’”).

We do not find that the court abused its discretion by granting CCF’s

motion in limine. Accordingly, assignment of error No. 2 is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant 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.

---

LISA B. FORBES, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
DEENA R. CALABRESE, J., CONCUR