Hoffman v. Davidson

• Decision Date: 10 June 1987
• Docket Number: No. 85-1762,85-1762
• Citation: 508 N.E.2d 958,31 Ohio St.3d 60,31 OBR 165
• Parties: , 31 O.B.R. 165 HOFFMAN et al., Appellants, v. DAVIDSON, Appellee
• Court: Ohio Supreme Court

Page 60

31 Ohio St.3d 60

508 N.E.2d 958, 31 O.B.R. 165

HOFFMAN et al., Appellants, v. DAVIDSON, Appellee.

No. 85-1762.

Supreme Court of Ohio

June 10, 1987.

Appellant Marie Hoffman was a patient of appellee, Dr. J. Phillip Davidson, a podiatric physician, who performed outpatient surgery on Hoffman's left foot to remove a neuroma, correct a bunion and properly align a toe. The surgery was performed on November 3, 1982. Early the following morning, Hoffman contacted Dr. Davidson complaining of pain. Dr. Davidson instructed her to take aspirin and to call back if the pain persisted. When she called back later that morning, she was instructed to come to Dr. Davidson's office. At the office, the doctor reexamined Hoffman's foot, and recommended pain tablets and a nerve block to provide immediate relief. Hoffman declined this treatment and went to the emergency room at St. Elizabeth Hospital Medical Center.

Dr. Davidson received a letter dated November 15, 1982 from Hoffman's attorney. The letter informed the doctor that Hoffman was cancelling the arbitration agreement which existed between the two parties. The letter further stated that Marie Hoffman had retained the attorney to represent her "relative to the care * * * [Dr. Davidson] rendered to her on November 3, 1982." Dr. Davidson was also informed that Hoffman would "pursue her lawsuit against [him] in its normal course through the courts."

Marie Hoffman and her husband filed a complaint against Dr. Davidson in common pleas court on December 13, 1983, seeking damages for allegedly negligent medical treatment relating to the foot surgery. On April 9, 1984, Dr. Davidson filed a motion for summary judgment with his supporting affidavit attesting to his qualifications and his competent treatment of Marie Hoffman. Dr. Davidson contended that plaintiffs' suit was barred by the applicable statute of limitations and that his treatment had not been negligent. No affidavits were timely filed in opposition to the motion. The trial court granted defendant's motion for summary judgment. The judgment entry did not specify the basis for the summary judgment.

The court of appeals affirmed the judgment of the trial court, holding that the medical malpractice statute began running when the patient discovered her injury, whether or not the patient knew or should have known that the injury was caused by malpractice. The court of appeals also held that plaintiffs did not timely oppose Dr. Davidson's motion for summary judgment. The court, finding its decision relative to the statute of limitations to be in conflict with the judgment of the Court of Appeals for Lucas County in Brown v. Blakemore (Feb. 8, 1985), Lucas App. No. L-84-128, unreported, certified the record of the case to this court for review and final determination.

Richard D. Goldberg and William Ramage, Youngstown, for appellants.

Harrington, Huxley & Smith, Susan Stanton Katz and John T. Dellick, Youngstown, for appellee.

MOYER, Chief Justice.

The first issue presented by this appeal is whether summary judgment was properly granted where the plaintiffs-appellants failed to file opposing affidavits to establish that a genuine issue of material fact existed regarding whether Dr. Davidson breached a duty of care owed to Marie Hoffman.

Civ.R. 56(E) provides:

" * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

As we held in Mathis v. Cleveland Public Library (1984), 9 Ohio St.3d 199, 202, 9 OBR 511, 514, 459 N.E.2d 877, 880, this rule clearly provides that plaintiffs were required to file opposing affidavits or some evidence to place in issue the facts alleged in the Davidson affidavit.

Dr. Davidson qualified as an expert in podiatric medicine. By affidavit, he attested to his qualifications; explained the requisite standard of care of a podiatric surgeon; explained the steps he took to inform Marie Hoffman of the alternatives to surgery, the potential complications involved in the surgical procedure and the surgical procedure itself; stated that he reviewed this information with Mrs. Hoffman prior to the surgery; and further attested that his examination, diagnosis and surgery were performed in accordance with proper and accepted standards of podiatric care and treatment.

The only documents before the court in support of plaintiffs' claims were their complaint and their answers to Davidson's interrogatories. Plaintiffs' listing of doctors upon whom they intended to rely to support their claims was not sufficient to counter Davidson's affidavit. Plaintiffs included no doctor's reports in their answers to the interrogatories and, therefore, there was no genuine issue of fact presented to the trial court. Dr. Davidson's affidavit, absent any opposing medical expert testimony, established the standard of care and his conformance thereto. Furthermore, Mrs. Hoffman prevented Dr. Davidson from performing any follow-up care by choosing to go to St. Elizabeth Hospital Medical Center. We have previously held that expert testimony is ordinarily needed to establish the requisite standard of care and skill a physician owes in his treatment of a patient. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673.

The final issue presented by this appeal is whether plaintiffs' claims were timely filed. R.C. 2305.11(A) provides:

"An action for * * * malpractice, including an action for malpractice against a physician, podiatrist, * * * shall be brought within one year after the cause thereof accrued * * *."

Appellants contended that, based on this court's decision in Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, and Bruni v. Tatsumi, supra, the statute of limitations did not begin to run until February 9, 1983, when Mrs. Hoffman received a medical report and discovered the extent of her injuries and the alleged substandard care rendered by Dr. Davidson.

The appellate court below determined that the statute of limitations began to run on November 4, 1982, when Marie Hoffman discovered the injury. This exact issue was clarified in Richards v. St. Thomas Hospital (1986), 24 Ohio St.3d 27, 24 OBR 71, 492 N.E.2d 821, wherein we stated, at 28, 24 OBR at 72, 492 N.E.2d at 823:

"Thus, Oliver does not rely exclusively on the patient's actual discovery of the malpractice alleged; rather, the cause of...