Millbaugh v. Gilmore, 71-715

• Decision Date: 28 June 1972
• Docket Number: No. 71-715,71-715
• Citation: 30 Ohio St.2d 319,285 N.E.2d 19
• Parties: , 59 O.O.2d 383 MILLBAUGH, Appellee, v. GILMORE, Exrx., Appellant.
• Court: Ohio Supreme Court

Page 319

30 Ohio St.2d 319

285 N.E.2d 19, 59 O.O.2d 383

MILLBAUGH, Appellee, v. GILMORE, Exrx., Appellant.

No. 71-715.

Supreme Court of Ohio.

June 28, 1972.

Syllabus by the Court

1. Where a surgery patient has a date for an appointment with his physician for post-operative care and fails to keep that appointment and declines to ever see his physician again, the physician-patient relationship is finally terminated no later than the day of the appointment which the patient failed to keep.

2. A patient's taking of medicine, prescribed by his physician during the physician-patient relationship but obtained by the patient securing a refill of the prescription, without the knowledge of the physician, after the termination of the physician-patient relationship, does not constitute a continuing course of treatment which will prevent the running of the statute of limitation for malpractice from the date of final termination of the physician-patient relationship.

On June 5, 1961, plaintiff-appellee, William E. Millbaugh, filed an action for damages for personal injuries against defendant, Dr. William L. Gilmore, in the Court of Common Pleas.

In his third amended petition plaintiff alleges that he 'submitted to a surgical operation by defendant for the cure or alleviation' of a prostate ailment, and that defendant negligently, carelessly and unskillfully performed the operation causing permanent damage to the functioning of plaintiff's bladder.

During pendency of the action in the trial court, Dr. Gilmore died and his wife, as executrix of his estate, was substituted as a party defendant.

At the trial, evidence was adduced indicating that the surgery was performed on January 8, 1959, that plaintiff last saw Dr. Gilmore on March 27, 1959, and that the doctor's records bore notations to the effect that plaintiff was to return in one month and could go to work on April 5, 1959. Plaintiff's wife testified that Dr. Gilmore gave plaintiff a prescription which plaintiff continued to have refilled until he sought the services of another doctor, which was on June 9, 1960.

The jury returned a verdict in favor of plaintiff and awarded damages in the amount of $75,000. The trial court, however, concluded that the action was not timely commenced and granted defendant's motion for judgment notwithstanding the verdict.

Upon appeal, the Court of Appeals reversed the judgment. The cause is now before this court pursuant to the allowance of a motion to certify the record.

Moore, Moore & Primm, James D. Primm, Jr., and Riddle, Riddle & Brown, Lisbon, for appellee.

Pfau, Comstock & Springer and William E. Pfau, Jr., Youngstown, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

In Wyler v. Tripi (1971), 25 Ohio St.2d 164, 267 N.E.2d 419, this court, following Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 865; Bowers v. Stantee (1919), 99 Ohio St. 361, 124 N.E. 238, and DeLong v. Campbell (1952), 157 Ohio St. 22, 104 N.E.2d 177, held that:

'Under R.C. 2305.11, a cause of action for medical malpractice accures, at the latest, when the physician-patient relationship finally terminates.'

The Court of Appeals, in reversing the judgment of the trial court in the instant cause, stated in its opinion:

'* * * under the facts in this case * * * reasonable minds could reasonably reach different conclusions, or draw different inferences upon the issue of the termination of the physician-patient relationship; therefore, the issue as to whether the physician-patient relationship had terminated more than one year prior to the filing of the petition for medical malpractice in this case was properly submitted to the jury * * *.'

The determinative question in this cause is whether, under the facts presented, reasonable minds could reach different conclusions on the issue of termination of the physician-patient relationship.

The record reveals that plaintiff's last contact with Dr. Gilmore occurred on March 27, 1959. Although plaintiff was scheduled to see Dr. Gilmore on April 27, 1959, he did not do so, nor did he see him as a patient thereafter. Thus, by necessary implication the physician-patient relationship here was terminated not later than April 27, 1959. Therefore, the action, which was commenced on June 5, 1961, more...