Rose v. Tievsky
| Decision Date | 03 September 2021 |
| Docket Number | 29024 |
| Parties | BERNARD JOSEPH ROSE, M.D. Plaintiff-Appellant v. ANDREW TIEVSKY, M.D., et al. Defendants-Appellees |
| Court | Ohio Court of Appeals |
Civil Appeal from Common Pleas Court Trial Court Case No 2020-CV-2018
BERNARD JOSEPH ROSE, M.D., Plaintiff-Appellant, Pro Se
MATTHEW L. SCHRADER, Atty. Reg. No. 0074230, Attorney for Defendants-Appellees
{¶ 1} This matter is before us on the pro se appeal of Plaintiff-Appellant, Bernard Rose, M.D., from an order granting a motion to dismiss and a motion for summary judgment filed by Defendants-Appellees, Andrew Tievsky, M.D., and Cleveland Clinic Foundation (CCF) (collectively "Appellees"). The trial court dismissed the case with prejudice because: (1) Dr. Rose failed to file an affidavit of merit as required by Civ.R. 10(D)(2)(a) and did not move for an extension of time to do so; (2) Dr. Rose failed to comply with the statute of limitations in R.C. 2305.113(A) and the requirements of Ohio's savings statute, R.C. 2305.19(A); (3) the statute of limitations was not tolled under R.C. R.C. 2305.113(C) and R.C.2305.16 for persons of "unsound mind"; and (4) Dr. Rose's claims were barred because they were not brought within the four-year statute of repose in R.C. 2305.113(C).
{¶ 2} According to Dr. Rose, he was not required to provide an affidavit of merit because his claims were based on negligence, and the matters in question were within the common knowledge of the trier of fact. Dr. Rose further contends that the statute of limitations for his claims should have been that set forth in R.C. 2305.10(B(1), which pertains to bodily injury caused by hazardous or toxic chemicals, rather than the statute of limitations for medical claims.
{¶ 3} Dr. Rose also argues that he brought his claims within the proper time after he was informed by a "competent medical authority" that he had an injury related to carbon monoxide exposure, or within the time that, in the exercise of reasonable care and diligence, he should have discovered the resulting injury. In addition, Dr. Rose argues that the statute of limitations should have been tolled because he was of unsound mind. Finally, Dr. Rose mentions certain procedural failings, like the fact that the trial court required him to offer proof when the allegations in the complaint should have been construed as true. Allegedly, the trial court also failed to consider an affidavit that Dr. Rose did file.
{¶ 4} After reviewing the record, we conclude that Dr. Rose's claims were "medical claims" under R.C. 2305.113(E)(3), and not claims for bodily injury due to exposure to hazardous or toxic chemicals or claims for negligence. The one-year statute of limitations in R.C. 2305.113(A) therefore applied. Furthermore, the trial court did not err in fixing the date upon which Dr. Rose's cause of action accrued, which was several years before Dr. Rose refiled his complaint. Dr. Rose also could not salvage his claims based on tolling under R.C. 2305.113(C) and R.C. 2305.16, because there were no genuine material issues of fact concerning whether Dr. Rose was of unsound mind when the cause of action accrued or thereafter.
{¶ 5} The trial court did err in finding that Dr. Rose's medical claims were barred because he failed to refile them until 21 months after his original claims were dismissed and that, as a result, the requirements of the savings statute in R.C. 2305.19(A) were not satisfied. Contrary to the court's holding, R.C. 2305.19(A) did not apply. Any error was harmless, however, because Dr. Rose's claims were barred by R.C. 2305.113(C).
{¶ 6} R.C. 2305.113(C) is a statute of repose, which bars any medical claims that are not filed within four years after the acts or omissions causing an injury. A plaintiff, therefore, may not take advantage of the savings statute in R.C. 2305.19(A) to refile a medical claim after the applicable one-year statute of limitations in R.C. 2305.113(A) has expired if the four-year statute of repose for medical claims has also expired. Here, Dr. Rose's claims were barred because the one-year statute of limitations and the four-year repose period had both expired before Dr. Rose refiled his complaint. In fact, Dr. Rose refiled the complaint more than seven years after the occurrence of the act or omission constituting the alleged basis of his medical claims. Consequently, Dr. Rose could not take advantage of the savings provision in R.C. 2305.19(A).
{¶ 7} We further conclude that the trial court correctly dismissed Dr. Rose's claims because he failed either to file a proper affidavit of merit or to ask for an extension for filing one. Finally, the trial court did not commit any error in requiring proof beyond the complaint's allegations or in considering such evidence. Accordingly, the judgment of the trial court will be affirmed.
{¶ 8} This case began with an action that was filed and dismissed in 2018, and was then refiled. Concerning the first case, Dr. Rose filed a pro se medical malpractice action against Dr. Tievsky and CCF on June 15, 2018. That action was designated as Montgomery C.P. No. 2018-CV-2727.[1]
{¶ 9} The 2018 complaint was presented in narrative form. According to the complaint, Dr. Rose was hospitalized at Glenbeigh Rehabilitation Center in 2013. During the hospitalization, a doctor (Dr. Zinni) ordered an MRI because Dr. Rose was having confusion issues and bizarre behavior. 2018 Complaint, p. 1.[2] The MRI was done on May 3, 2013, and Dr. Tievsky, a neurologist with the Cleveland Health System, read the MRI as normal. Id. See also Ashtabula County Medical Center MRI, "Final Report," p. 1.
{¶ 10} In contrast, an August 2011 MRI of Dr. Rose, which was attached as part of the complaint, indicated some changes that might be seen with "hypoxic/anoxic brain injury." August 1, 2011 University Radiology Associates Diagnostic Radiology Interpretation of Films for: Linder Center of Hope, p. 1.
{¶ 11} Dr. Rose also attached a Final Report of Cleveland Clinic Star Imaging to the 2018 Complaint. The exam date is listed as May 24, 2017, and the history given was of a "58 year old man with chronic heartburn, monoxide exposure, serum imbalance, and low sodium." Id. at p. 1. On that day, an MRI was done with and without contrast, and the stated impression was: Id. at p. 2.
{¶ 12} According to the 2018 Complaint, Dr. Rose believed the pathologic changes shown by the 2011 MRI had caused the problems he had during the 2013 hospitalization at Glenbeigh. Dr. Rose alleged that Dr. Tievsky "misdiagnosed pathologic changes in the Globus Pallidus area" and "failed to perform acceptable medical practice by his failure to compare previously abnormal images." 2018 Complaint at p. 1. Dr. Rose further alleged that CCF was "guilty of failure to follow acceptable care by not obtaining previous medical images from the University of Cincinnati." Id. The implication in the complaint was that Dr. Rose's conduct while at Glenbeigh in 2013 actually resulted from carbon monoxide poisoning, rather than psychological problems and/or substance abuse, and that the failure to diagnose caused permanent damage. Id.
{¶ 13} On July 17, 2018, Dr. Tievsky filed a motion to dismiss the complaint based on the fact that Dr. Rose had failed to file an affidavit of merit as required by Civ.R.10(D)(2). The trial court agreed, finding that the affidavit in question had been authored by Dr. Penny, a Ph.D., and not by a physician, as the rule required. The court therefore dismissed Dr. Rose's claims without prejudice on August 22, 2018. Dr. Rose then appealed to our court.
{¶ 14} We dismissed Dr. Rose's appeal in January 2019, because the dismissal for lack of an appropriate affidavit of merit was without prejudice, did not prevent refiling, and was not a final appealable order. See Rose v. Tievsky, 2d Dist. Montgomery No. 28184 (Decision and Final Judgment Entry, Jan. 16, 2019), p. 3. In a footnote, we also mentioned Appellees' argument that, under R.C. 2305.19(A), Dr. Rose could refile his claims within one year after the trial court's August 2018 decision and entry. Id. at p. 4, fn. 1.
{¶ 15} Rather than refiling, Dr. Rose appealed our decision to the Supreme Court of Ohio, which declined jurisdiction over the appeal on May 15, 2019. Dr. Rose then refiled another pro se medical malpractice action (the current action), and again included Dr. Tievsky and CCF as defendants. See 2020 Complaint (May 14, 2020). Again, Dr. Rose failed to attach an affidavit of merit and did not ask for an extension of time to do so. The 2020 Complaint also attached documents that were very similar to those included with the 2018 Complaint.
{¶ 16} On June 12, 2020, Appellees filed a motion to dismiss, contending the action should be dismissed because Dr. Rose failed to file an affidavit of merit and did not request an extension of time to do so. They also filed an answer and raised various affirmative defenses, including that the action was barred by the statute of limitations and by the statute of repose. Tievsky/CCF Answer (June 12, 2020), p. 2. On June 15, 2020, the court set a briefing schedule for the motion to dismiss.
{¶ 17} Dr. Rose filed a response to the motion to dismiss. In his memorandum, Dr. Rose argued that he did not need an expert witness because Appellees' failure to obtain and review the prior MRI report was "simple" negligence. Rose Reply (July 10, 2020), p. 1-2. Dr. Rose...
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