Rose v. State Med. Bd. of Ohio

Decision Date05 October 2022
Docket Number2022-00373JD
Citation2022 Ohio 3952
PartiesBERNARD ROSE Plaintiff v. STATE MEDICAL BOARD OF OHIO Defendant
CourtOhio Court of Claims
Sent to S.C. Reporter 11/4/22

Judge Patrick E. Sheeran Magistrate Holly True Shaver

DECISION

PATRICK E. SHEERAN Judge

{¶1} On June 14, 2022, the court converted defendant's May 27 2022 motion to dismiss plaintiffs complaint into a motion for summary judgment pursuant to Civ.R. 56, based upon the additional materials that were submitted in support of and in opposition to the motion. On June 17 and July 19, 2022 plaintiff submitted additional materials in opposition to the motion. Pursuant to L.C.C.R. 4(D), the motion is now before the court for a non-oral hearing. For the reasons stated below, defendant's motion is GRANTED.

Standard of Review

{¶2} Motions for summary judgment are reviewed under the standard set forth in Civ.R. 56(C), which states, in part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

"[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of material fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To meet this initial burden, the moving party must be able to point to evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293.

{¶3} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which states, in part:

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 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. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
Facts

{¶4} The following facts are taken from plaintiff's complaint and the attachments thereto. On April 22, 2013, under a contract with defendant, State Medical Board of Ohio, Dr. Richard Whitney evaluated plaintiff for personality changes and possible substance abuse at Shepherd Hill Rehab Facility in Columbus, Ohio. Plaintiff is critical of the evaluation performed by Dr. Whitney and alleges claims of "fraudulent fulfillment of contract" with defendant, fraudulent concealment, constructive fraud, negligence, defamation, personal injury, and severe emotional distress. Plaintiff asserts that Dr. Whitney failed to review an MRI of plaintiff's brain, which had been taken prior to Dr. Whitney's evaluation. Plaintiff asserts that if Dr. Whitney had reviewed the MRI, he would have realized that the MRI showed signs that plaintiff had been exposed to carbon monoxide. Plaintiff also asserts that defendant committed constructive fraud and failed to warn him of possible exposure to a toxic and potentially lethal gas/chemical. Plaintiff submitted with his complaint an inspection report, dated July 13, 2016, from Leshner & Associates, Inc., of a 1992 Cadillac Allante (presumably plaintiff's vehicle) which states that the vehicle emitted high levels of carbon monoxide. Plaintiff asserts that Dr. Whitney's failure to warn him that the brain changes noted on the MRI could have been caused by exposure to carbon monoxide resulted in plaintiff continuing to drive his vehicle, exposing himself and his family to carbon monoxide for a period of years. Plaintiff asserts that he discovered his brain injury was caused by carbon monoxide exposure on May 5, 2020, when he read an affidavit of merit by Kenneth DiNella, M.D., a board-certified psychiatrist from Americus, Georgia. (Plaintiff's Ex. E).

{¶5} In its motion, defendant asserts that any claims that plaintiff may have are barred by the applicable statute of limitations, and that the savings statute does not operate to save plaintiff's claims. Specifically, defendant argues that the conduct that gave rise to plaintiff's complaint occurred in 2013, nine years before plaintiff filed his complaint in this court. In addition, defendant states that even though plaintiff argues that he did not discover the alleged medical negligence until 2020, the complaints that plaintiff filed in another court show that plaintiff has been aware of the alleged negligence since 2017. Defendant further argues that the savings statute does not operate to save plaintiff's claims because he has already availed himself of the savings statute in another court. Lastly, defendant argues that plaintiff's complaint should be dismissed for his failure to comply with the requirement in R.C. 2743.16(B) to first attempt to compromise his claim with the Office of Risk Management (ORM) prior to filing his complaint here.

Statute of Limitations

{¶6} R.C. 2743.16(A) states, in relevant part: "civil actions against the state * * * shall be commenced no later than two years after the date of accrual of the cause of action or within any shorter period that is applicable to similar suits between private parties." As a general rule, "a '[s]tatute of limitations commences to run so soon as the injurious act complained of is perpetrated * * *.'" LGR Realty, Inc. v. Frank & London Ins. Agency, 152 Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 241, ¶ 14 quoting Kerns v. Schoonmaker, 4 Ohio 331 (1831), syllabus.

{¶7} Generally, claims for medical malpractice "shall be commenced within one year after the cause of action accrued." R.C. 2305.113(A). The one-year statute of limitations on a medical malpractice claim begins to run "when the patient discovers or, in the exercise of reasonable care and diligence should have discovered, the resulting injury." Siegel v. State, 10th Dist. Franklin No. 19AP-355, 2020-Ohio-4708, ¶ 31, quoting Frysinger v. Leech, 32 Ohio St.3d 38, 512 N.E.2d 337 (1987), paragraph one of the syllabus.

{¶8} Although plaintiff states in his complaint that he discovered that he was injured by Dr. Whitney in 2020, the previous complaints that plaintiff filed in Montgomery County show that plaintiff knew of the alleged harm caused by Dr. Whitney more than two years prior to filing his complaint in this court. On April 19, 2018, plaintiff filed a complaint in the Montgomery County Court of Common Pleas against Richard Whitney, M.D., wherein plaintiff sought: "compensation for damages due to Dr. Whitney's failure to correctly diagnose my medical problems." (Defendant's Ex. A p. 1.) Therein, plaintiff states that on April 22, 2013, Dr. Richard Whitney evaluated him for changes in personality and possible substance abuse at the Shepherd Hill rehab facility in Newark, Ohio. (Id., p. 2.) Plaintiff states, "This is when I finally realized my case has legitimate merit. Dr. Whitney failed to mention the MRI report of 8/1/11 in 'Lindner center of hope medical records.'" (Id., p. 13.) The date that plaintiff references is April 19, 2017, when John P. German, M.D. stated his impressions on a medical imaging report from Kettering Health Network. (Id.) Construing the...

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