Browning v. Burt

• Citation: 66 Ohio St.3d 544,613 N.E.2d 993
• Decision Date: 30 June 1993
• Docket Number: 91-2121,Nos. 91-2079,s. 91-2079
• Parties: , 62 USLW 2116 BROWNING et al., Appellees, v. BURT; Blue et al., Appellants. MITCHELL, Appellee, v. BURT; St. Elizabeth Medical Center, Appellant.
• Court: United States State Supreme Court of Ohio

Page 544

66 Ohio St.3d 544

613 N.E.2d 993, 62 USLW 2116

BROWNING et al., Appellees, v. BURT; Blue et al., Appellants.

MITCHELL, Appellee, v. BURT; St. Elizabeth Medical Center, Appellant.

Nos. 91-2079, 91-2121.

Supreme Court of Ohio.

Submitted Jan. 20, 1993.

Decided June 30, 1993.

SYLLABUS BY THE COURT

1. Hospital negligence arising out of the "care" of a patient is a "medical claim" within the meaning of R.C. 2305.11(D)(3) and is subject to the period of limitations set forth in R.C. 2305.11(B)(1). "Care" as used in R.C. 2305.11(D)(3) is the prevention or alleviation of a physical or mental defect or illness.

2. Negligent credentialing of a physician by a hospital is not "medical diagnosis, care, or treatment" within the meaning of R.C. 2305.11. 3. An action against a hospital for bodily injury arising out of the negligent credentialing of a physician is subject to the two-year limitations period set forth in R.C. 2305.10.

4. The period of limitations set forth in R.C. 2305.10 commences to run when the victim knows or should have discovered that he or she was injured as a result of the hospital's negligent credentialing procedures or practices.

5. R.C. 2305.25 does not provide a hospital with immunity from liability for the hospital's negligence in granting and/or continuing the staff privileges of an incompetent physician.

The two cases before us today are representative of many actions filed in Montgomery County relating to the drastically unconventional surgical practices of Dr. James C. Burt during his former service at St. Elizabeth Medical Center ("SEMC") in Dayton. Case No. 91-2079 involves the timeliness of claims asserted against SEMC for its alleged negligence in having granted and/or continued the staff membership or professional privileges of Dr. Burt and another former member of the SEMC medical staff, Dr. Max Blue, Jr. ¹ This case also includes a claim for loss of consortium. Case No. 91-2121 involves the timeliness of a negligence action against SEMC for continuing Dr. Burt's staff membership or professional privileges at the hospital. The two cases have been consolidated sua sponte for decision. See (1992), 62 Ohio St.3d 1502, 583 N.E.2d 973.

Case No. 91-2079

On April 17, 1989, Jimmie Dean Browning ("Browning") and her husband, Lawrence Browning, appellees, filed a complaint in the Court of Common Pleas of Montgomery County against Dr. Burt and appellants, SEMC and Dr. Blue. Browning alleged that in February 1982, Drs. Burt and Blue negligently, willfully and wantonly performed unnecessary and experimental "vaginal reconstruction surgery" upon her without her consent, restructuring her genital organs to an unnatural and bizarre anatomical configuration. Browning alleged that she was advised by Blue that the surgery was necessary to treat a bladder condition. Browning also alleged that Blue negligently performed a total of sixteen unnecessary surgeries upon her between January 1981 and August 1986. Browning asserted that SEMC negligently, intentionally, and willfully permitted Drs. Burt and Blue to perform the unnecessary and experimental surgeries at SEMC by failing to provide adequate peer review of Drs. Burt and Blue, and by failing to protect Browning from known incompetent medical care.

In her complaint, Browning sought recovery against Drs. Burt and Blue for medical malpractice. She sought recovery against SEMC for its alleged negligence in granting and/or continuing the staff membership or professional privileges of Drs. Burt and Blue. Lawrence Browning sought recovery against all defendants for loss of consortium.

Dr. Burt failed to respond to the complaint and, upon motion, appellees obtained a default judgment against him. ² SEMC and Dr. Blue, appellants, answered the complaint and asserted defenses based upon the "applicable statute of limitations." Appellants then deposed Browning in July 1989 for purposes of developing their statute of limitations defenses. The following relevant matters can be gleaned from Browning's deposition testimony.

In 1980, Browning sought treatment from Dr. Blue, a urologist, for bladder infections and difficulties she experienced voiding urine. Blue performed surgery upon Browning, but Browning's condition did not improve. By 1982, Browning began complaining of constant bladder pain. She also complained of pain she experienced during sexual relations with her husband. Thus, in February 1982, Blue referred her to Dr. Burt for an "exploratory pelvic laparotomy with lysis" and "vaginoplasty."

Dr. Burt met with Browning prior to surgery. Burt explained to Browning that the pain she experienced during sexual relations was caused by her husband's penis striking her bladder. Burt explained that Drs. Burt and Blue would perform surgery to place her bladder upon a "pedestal," and that this procedure would correct her problems voiding urine and alleviate the pain she suffered during intercourse. Burt also indicated that he would do some "cosmetic things" to improve Browning's sex life.

With respect to this special surgical procedure Burt performed at SEMC, a form letter was required by SEMC to be submitted to Burt's patients prior to surgery. A copy of the letter bearing Browning's signature (and a "witness" signature dated February 5, 1982) was presented by SEMC at Browning's deposition. ³ Browning testified that she could not recall having ever seen the letter. The form letter, which bears the SEMC letterhead, states:

"Dear Patient:

"The Executive Committee of the Medical Staff of St. Elizabeth Medical Center wishes to inform you that the 'female coital area reconstruction' surgery you are about to undergo is:

"1. Not documented by ordinary standards of scientific reporting and publication.

"2. Not a generally accepted procedure.

"3. As yet not duplicated by other investigators.

"4. Detailed only in non-scientific literature.

"You should be informed that the Executive Committee of the Medical Staff considers the aforementioned procedure an unproven, non-standard practice of gynecology." ⁴

Drs. Burt and Blue performed "vaginal reconstruction surgery" upon Browning at SEMC in February 1982. Browning testified at the deposition that she underwent the surgery explained to her by Burt to correct her painful bladder condition. ⁵

Browning was required to employ an indwelling urinary catheter for six months following the reconstruction surgery. When the catheter was removed by Dr. Burt, Browning could not void properly and became "obstructed." The obstruction caused extreme pain and vomiting and subsequent hospitalization at SEMC. Browning testified that after her February 1982 "love surgery," she continued to suffer from bladder infections and developed problems with urinary incontinence. Her bladder infections after the surgery were worse (more frequent) than before. Additionally, following the surgery, Browning could not engage in sexual relations without extreme pain and difficulties. At some point, she also began to develop severe kidney problems, for which Dr. Blue provided treatment. Browning was last treated by Dr. Burt sometime in 1983. Burt left Browning a message that he was leaving town and that she need not see him anymore. Browning continued her treatment at SEMC with Dr. Blue.

Browning underwent a myriad of additional surgeries performed by Dr. Blue at SEMC between 1982 and 1986. After each surgery, Dr. Blue told Browning that after the next surgery, she would be "just fine." The final surgery performed by Blue occurred on August 22, 1986, when he removed Browning's right kidney. However, none of these surgeries improved Browning's condition. Indeed, Browning stated that her condition worsened. She continued to suffer bladder infections, difficulties voiding, problems during sexual intercourse, and periods of urinary incontinence. She also developed bowel problems sometime during her treatment with Burt and/or Blue. After the August 22, 1986 surgery, Browning began experiencing right flank pain, and her mental health deteriorated.

When her problems persisted, Browning arranged to be examined by Dr. Montague, a urologist, at the Cleveland Clinic. Browning went to see Montague for an explanation why her medical condition did not improve following Dr. Blue's August 1986 surgery. Montague examined Browning in June 1987 and, according to Browning:

"A. He told me that I was voiding pretty good and that he thought that I should go for some counseling because I wasn't willing to accept my condition or change my life-style or something. * * *

"Q. What did you tell Dr. Montague?

"A. I told him that I thought that something was wrong, you know, from the surgery I'd had, that I didn't get over it and when he [Blue] took my kidney out, I thought I wouldn't have any more problems."

In June or July 1987, Montague sent a report of his examination to Browning and Blue. According to Browning, the report indicated there was a "flaw" in her surgery. Browning, who underwent approximately sixteen surgeries, did not know the surgery to which Dr. Montague was referring. She never questioned Montague about the report.

Sometime between July and August 1987 (but after receiving the report from Cleveland Clinic), Browning confronted Dr. Blue in Blue's office. Browning told Blue that she thought Blue "had done a malpractice operation" because her medical condition was not improving. She also told Blue that before Dr. Burt left town in 1983, Burt had told Browning that half of Browning's prior surgeries were malpractice. Browning had had a number of surgeries before she last saw Burt in 1983 (including a number of surgeries not performed by Burt or Blue), but Browning assumed that Burt was referring to Blue's prior surgeries. Browning said that during the confrontation at Blue's office, Blue denied any wrongdoing and recommended that she see a psychiatrist.

At Blue's suggestion, Browning entered SEMC for psychiatric treatment in August 1987...