Hershberger v. Akron City Hosp.

• Decision Date: 09 December 1987
• Docket Number: No. 86-1544,86-1544
• Parties: HERSHBERGER et al., Appellants, v. AKRON CITY HOSPITAL et al., Appellees.
• Court: Ohio Supreme Court

Page 1

34 Ohio St.3d 1

516 N.E.2d 204

HERSHBERGER et al., Appellants, v. AKRON CITY HOSPITAL et al., Appellees.

No. 86-1544.

Supreme Court of Ohio.

Dec. 9, 1987.

Syllabus by the Court

1. In a medical malpractice action, for the purposes of determining the accrual date in applying the statute of limitations under R.C. 2305.11(A), the trial court must look to the facts of the particular case and make the following determinations: when the injured party became aware, or should have become aware, of the extent and seriousness of his condition; whether the injured party was aware, or should have been aware, that such condition was related to a specific professional medical service previously rendered him; and whether such condition would put a reasonable person on notice of need for further inquiry as to the cause of such condition. Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438; Clark v. Hawkes Hospital (1984), 9 Ohio St.3d 182, 9 OBR 467, 459 N.E.2d 559; Saunders v. Choi (1984), 12 Ohio St.3d 247, 12 OBR 327, 466 N.E.2d 889; Richards v. St. Thomas Hospital (1986), 24 Ohio St.3d 27, 24 OBR 71, 492 N.E.2d 821; Deskins v. Young (1986), 26 Ohio St.3d 8, 26 OBR 7, 496 N.E.2d 897; and Hoffman v. Davidson (1987), 31 Ohio St.3d 60, 31 OBR 165, 508 N.E.2d 958, explained.

2. The statute of limitations for a loss of consortium claim is initiated on the same date that the statute of limitations for the spouse's medical malpractice claim begins to run.

In 1977, appellant Rickey L. Hershberger consulted Dr. Michael E. Madaras, D.P.M., concerning discomfort in his legs. Eventually, Hershberger was referred to Dr. Thomas M. Schlueter, M.D., who diagnosed that he was suffering from thrombophlebitis. On October 16, 1977, Dr. Schlueter performed a surgical ligation upon the superficial femoral vein of Hershberger's left leg at the Akron City Hospital.

Subsequent to the surgical procedure, Hershberger continued to experience discomfort in the leg. In August 1983, he consulted Dr. Mayors at St. Thomas Hospital and underwent treatment for the leg. However, the discomfort apparently continued and in late October or early November 1984, Hershberger consulted Dr. McLaughlin and was admitted to Cuyahoga Falls General Hospital for an additional work-up. During the course of this admission, Hershberger contends he was advised by his physicians that he was experiencing chronic venous insufficiency in the leg due to an alleged misdiagnosis and mistreatment of the thrombophlebitis by Dr. Schlueter in 1977.

On June 13, 1985, Hershberger filed a complaint in the Court of Common Pleas of Summit County against Drs. Madaras and Schlueter, as well as against Akron City Hospital, appellees herein, seeking damages for the purported negligent medical treatment administered in 1977. In addition, the complaint sought damages on behalf of Hershberger's wife, Brenda, also an appellant herein, for loss of consortium.

Appellees, individually, proceeded to file a variety of motions seeking dismissal of the complaint under Civ.R. 12(B)(6), for failure to state a claim upon which relief could be granted, and for summary judgment under Civ.R. 56, contending that the complaint was not timely filed. Appellees' motions were eventually granted by the trial court, although the orders did not specify whether the dismissals were predicated upon the failure to state a claim upon which relief could be granted or summary judgment. On appeal, the court of appeals affirmed the dismissals by the trial court but did so on the sole ground that the complaint was filed later than four years from the date of the occurrence and thus was not timely, given the limitation period set forth in R.C. 2305.11(B).

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Nukes & Perantinides Co., L.P.A., Paul G. Perantinides, Louise M. Mazur and James J. Gutbrod, Akron, for appellants.

Roetzel & Andress and Edward A. Digiantonio, Akron, for appellee Akron City Hosp Jacobson, Maynard, Tuschman & Kalur Co., L.P.A., Robert C. Maynard, Matthew P. Moriarty and Janis L. Small, Cleveland, for appellee Dr. Thomas M. Schlueter.

Hershey & Browne, David R. Wilson and Robert J. Burns, Akron, for appellee Dr. Michael E. Madaras.

HOLMES, Justice.

The narrow question presented upon appeal is whether appellants' complaint was filed in a timely fashion. We first consider the cause of action alleged by appellant Rickey Hershberger, and whether his claim was timely filed pursuant to R.C. 2305.11(A) and/or 2305.11(B). For the reasons which follow, we reverse the judgments below and remand this cause to the trial court for further proceedings in accordance herewith.

I

Recently this court decided the cases of Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 512 N.E.2d 626, and Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 514 N.E.2d 709. With regard to the question of whether appellant Rickey Hershberger's claim was timely filed pursuant to R.C. 2305.11(B), we hereby remand this cause to the trial court to decide this question giving consideration to our holdings in Hardy and Gaines.

II

In their presentations before this court, the parties did not brief or argue the R.C. 2305.11(A) issue separate and apart from the R.C. 2305.11(B) question. In the court of appeals, the R.C. 2305.11(A) issue was raised, briefed and argued, but the question was not decided in that court because of the court's finding that the claim was time-barred by R.C. 2305.11(B). In the trial court, the R.C. 2305.11(A) issue was raised, but the orders of the trial court granting appellees' motions only indicate that the motions of appellees to dismiss were well-taken. No specific basis for the dismissal was given by the trial court, and neither R.C. 2305.11(A) nor 2305.11(B) was expressly relied upon.

The parties disputed as to the time when plaintiff discovered his cause of action. Since the complaint was filed in June 1985, the date of appellant's discovery becomes crucial for a determination as to whether appellant's cause of action is time-barred by R.C. 2305.11(A).

As the trial court considers the application of the one-year statute of limitations found in R.C. 2305.11(A), it must focus upon whether appellant discovered his injury within one year of filing the complaint. In the case of Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, this court adopted the so-called "discovery rule" as it would apply to the accrual date for a cause of action for medical malpractice pursuant to the one-year limitation under R.C. 2305.11(A). In Oliver, the syllabus law stated that: "Under R.C. 2305.11(A), a cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury. * * * " (Emphasis added.)

Although the syllabus refers to that which is to be discovered as "the resulting injury," the body of the opinion makes reference to that which would be discovered as "the malpractice." Accordingly, Justice William B. Brown, in the opening statement of the opinion, stated as follows: "The narrow issue raised by this appeal is whether a cause of action for medical malpractice pursuant to R.C. 2305.11(A) accrues upon the termination of the medical relationship or upon the time of the discovery of the malpractice." (Emphasis added.) Id. at 112, 5 OBR at 248, 449 N.E.2d at 439.

In cases that followed, the court made varying references to that which would be discovered by using alternatively the words "injury," "physical injury complained of," "resulting injury," or "malpractice." See Clark v. Hawkes Hospital (1984), 9 Ohio St.3d 182, 183, 9 OBR 467, 468, 459 N.E.2d 559, 561 (" 'discovered the resulting injury' " and "an injury which is the result of malpractice"); Saunders v. Choi (1984), 12 Ohio St.3d 247, 248, 12 OBR 327, 328, 466 N.E.2d 889, 890, at fn. 1 (" 'discovered' the alleged malpractice"); Richards v. St. Thomas Hospital (1986), 24 Ohio St.3d 27, 28, 24 OBR 71, 72, 492 N.E.2d 821, 823 (discovery of " 'the resulting injury' "); Deskins v. Young (1986), 26 Ohio St.3d 8, 11, 26 OBR 7, 9, 496 N.E.2d 897, 899 ("discovery of the alleged malpractice"); Hoffman v. Davidson (1987), 31 Ohio St.3d 60, 62, 31 OBR 165, 167, 508 N.E.2d 958, 961 (" 'the physical injury complained of' ").

In none of these cases was the term "injury" specifically defined for the purpose of determining the accrual date of any cause of action that might be maintained for malpractice. However, in the later case of Richards, and again referred to in Hoffman, this court suggested what the term "injury" did not mean, at least in the view of the majority. The court, in Richards, stated: "Thus, Oliver does not rely exclusively on the patient's actual discovery of the malpractice alleged; rather, the cause of action accrues when the physical injury complained of is or should have been discovered by the patient." Richards, supra, 24 Ohio St.3d at 28, 24 OBR at 72, 492 N.E.2d at 823; also quoted in Hoffman, supra, 31 Ohio St.3d at 62, 31 OBR at 167, 508 N.E.2d at 961.

There are, of course, a number of possible interpretations for the word "injury" which courts have utilized. A number of courts across the country have specifically held the accrual date for a cause of action for malpractice to begin at the date of the alleged negligent act or omission. See, e.g., Landgraff v. Wagner (1976), 26 Ariz.App. 49, 546 P.2d 26, appeal dismissed (1976), 429 U.S. 806; Dunn v. St. Francis Hospital, Inc. (Del.1979), 401 A.2d 77. Some courts have adhered to the conclusion that the mere awareness of physical manifestations resulting from the act or omission, such as pain, non-function of bodily organ, or observed physical indicia which might include scar tissue, skin rash, etc., would...