Montanez v. MetroHealth Medical Center, 2009 Ohio 3881 (Ohio App. 8/6/2009)
| Decision Date | 06 August 2009 |
| Docket Number | No. 92567.,92567. |
| Citation | 2009 Ohio 3881 |
| Parties | Victor Montanez, et al., Plaintiffs-Appellants, v. Metrohealth Medical Center, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Paul W. Flowers, Paul W. Flowers Co., LPA, Terminal Tower, 35th Floor, 50 Public Square, Cleveland, Ohio 44113, Richard J. Berris, Weisman, Kennedy & Berris Co., LPA, 1600 Midland Building, 101 Prospect Avenue, West, Cleveland, Ohio 44115, Attorneys for Appellants.
James L. Malone, Brian D. Sullivan, Reminger & Reminger Co., LPA, 1400 Midland Building, 101 Prospect Avenue, West, Cleveland, Ohio 44115-1093, For MetroHealth Medical Center.
Susan M. Audey, Anthony M. Gantous, Edward E. Taber, Tucker Ellis & West LLP, 1150 Huntington Bldg., 925 Euclid Avenue, Cleveland, Ohio 44115, For Cleveland Clinic Foundation, et al., Attorneys for Appellees.
Before: Cooney, A.J., Rocco, J., and Dyke, J.
JOURNAL ENTRY AND OPINION
COLLEEN CONWAY COONEY, A.J.
{¶ 1} Plaintiffs-appellants, Victor and Nelsa Montanez ("Victor" and "Nelsa"), appeal the trial court's grant of summary judgment to defendants-appellees, Cleveland Clinic Foundation ("Cleveland Clinic"), R. Thomas Temes, M.D. ("Temes"), and MetroHealth Medical Center ("MetroHealth"). Finding no merit to the appeal, we affirm.
{¶ 2} This case arose on August 27, 2007, when Victor and Nelsa sued MetroHealth, Cleveland Clinic, and Temes for medical malpractice after Temes allegedly unnecessarily removed part of Victor's lung in December 2005. Cleveland Clinic and Temes moved for summary judgment, claiming that the one-year statute of limitations had expired. The trial court granted summary judgment to both of these defendants. Soon after, the trial court granted summary judgment to MetroHealth.
{¶ 3} Victor and Nelsa now appeal, raising two assignments of error for our review.
{¶ 4} In the first assignment of error, Victor and Nelsa allege that the trial court erred in granting summary judgment to Cleveland Clinic and Temes. They claim that a question of fact exists as to when the statute of limitations began to run, so the court should not have granted summary judgment. Specifically, they claim that they timely commenced this action under the "termination rule."
Facts
{¶ 5} The following facts underlie this case. In September 2005, Victor was struck in the back by a wooden board. He obtained emergency medical treatment at MetroHealth and was diagnosed with pneumothorax (a condition in which gas is trapped in the pleural cavity, often resulting in injury to the lung tissue).
{¶ 6} In the course of his treatment for this injury, several nodules and other features were found, suggesting cancer in Victor's right lung. Victor consulted Temes, a general and thoracic surgeon. Temes was employed by Cleveland Clinic but treated patients, including Victor, at a MetroHealth facility.
{¶ 7} Temes conducted several medical tests and advised Victor that he had cancer, and all or part of his right lung needed to be removed. Victor agreed to have surgery. In December 2005, Temes surgically removed the diseased portion of the right lung. Further tests showed, however, that the lesions in the lung were not cancerous. Victor attended his last follow-up visit with Temes on January 13, 2006. Temes instructed Victor to use an over-the-counter analgesic for his remaining pain and to consult with Temes "as needed." He referred Victor to pulmonary specialists to treat his other lung conditions. No further follow-up appointments were scheduled, and Victor never consulted with another thoracic surgeon.
Standard of Review
{¶ 8} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co. (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. The Ohio Supreme Court set forth the appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201, as follows:
{¶ 9} Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E); Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138.
{¶ 10} In the instant case, Victor and Nelsa claim that they timely commenced this action based upon the "termination rule." Victor's last medical appointment with Temes took place on January 13, 2006, and Victor claims that he intended to return to see Temes as necessary to treat his lung condition. Accordingly, Victor and Nelsa claim that Victor's relationship with Temes did not end until August 27, 2006, or afterwards. Temes and Cleveland Clinic claim that the relationship ended in January 2006. Victor and Nelsa argue that because the parties dispute the date the statute of limitations commenced, there exists a disputed issue of fact that makes summary judgment inappropriate. We disagree.
{¶ 11} R.C. 2305.113 establishes a one-year statute of limitations for medical malpractice claims. The Ohio Supreme Court has explained that the statute of limitations begins to run "(a) when the patient discovers or, in the exercise of reasonable care and diligence should have discovered, the resulting injury, or (b) when the physician-patient relationship for that condition terminates, whichever occurs later." Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337, at paragraph one of the syllabus, citing Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 449 N.E.2d 438.
{¶ 12} The termination rule enhances the physician-patient relationship, allowing a physician to correct any medical errors while he or she is still treating the patient. Frysinger, citing Ishler v. Miller (1978), 56 Ohio St.2d 447, 384 N.E.2d 296, and Wyler v. Tripi (1971), 25 Ohio St.2d 164, 267 N.E.2d 419. "To require a patient to file a malpractice action during the course of treatment when the patient believes he or she has a malpractice claim would destroy this mutual confidence." Ryan v. Katz (Dec. 18, 1997), Cuyahoga App. No. 71893, citing Frysinger.
{¶ 13} In Wells v. Johenning (1986), 63 Ohio App.3d 364, 367, 578 N.E.2d 878, this court observed several ways that the physician-patient relationship may terminate. If the patient needs post-operative care and fails to keep an appointment and never sees the physician again, then the relationship ends on or before the date of the missed appointment. Id., citing Millbaugh v. Gilmore (1972), 30 Ohio St.2d 319, 285 N.E.2d 19, paragraph one of the syllabus. Thus, the relationship ends when the patient refuses further treatment from the physician or on the date that "either party takes affirmative steps to end the relationship." Id., citing Buckley v. Jefferies (Jan. 27, 1983), Cuyahoga App. No. 44724 and Smales v. Portman (Nov. 5, 1981), Franklin App. No. 81AP-522.
{¶ 14} On the other hand, if the patient obtains ongoing treatment, the relationship ends on the date of a missed appointment. Id. A court may find a continuing course of treatment where "the patient is taking prescribed medication with the knowledge of the physician and under his supervision." Id., citing Ishler at 303, and Kraus v. Cleveland Clinic (N.D.Ohio 1977), 442 F.Supp. 310, 314. The point at which a physician-patient relationship terminates and the statute of limitations begins to run depends on the conduct of the...
To continue reading
Request your trial