Shade v. Bleser, 2005 Ohio 6544 (OH 12/9/2005)

• Decision Date: 09 December 2005
• Docket Number: C.A. No. 20938.
• Parties: Arlene Shade, Plaintiff-Appellant, v. Scott D. Bleser, D.O., et al. Defendants-Appellees.
• Court: Ohio Supreme Court

Page 1

2005 Ohio 6544

Arlene Shade, Plaintiff-Appellant, v. Scott D. Bleser, D.O., et al. Defendants-Appellees.

C.A. No. 20938.

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on December 9, 2005.

Civil Appeal from Common Pleas Court, T.C. No. 2003 CV 0139.

N. Gerald Dicuccio, Atty. Reg. No. 0017015 and Gail M. Zalimeni, Atty. Reg. No. 0047301, LeVeque Tower, Suite 700, 50 West Broad Street, Columbus, Ohio 43215, Attorneys for Plaintiff-Appellant.

Mark L. Schumacher, Atty. Reg. No. 0018957 and Sandra R. Mcintosh, Atty. Reg. No. 0077278, Capitol Square Office Building, 65 East State Street, Suite 800, Columbus, Ohio 43215, Attorneys for Defendants-Appellees.

OPINION

WOLFF, J.

{¶ 1} Arlene Shade, as administrator of the estate of William Shade, appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment to Dr. Scott Bleser ("Dr. Bleser") and Bellbrook Medical Center ("Bellbrook"), Dr. Bleser's professional corporation, on her survivorship medical malpractice claim. The court held that the action was not brought within the one-year statute of limitations.

{¶ 1} On April 20, 2001, William Shade underwent an ultrasound at the office of Dr. Scott Bleser. Upon examination, Dr. Bleser noticed a deep vein thrombosis in his left leg and instructed Mr. Shade to go to Miami Valley Hospital ("MVH") for treatment. That day, Mr. Shade was admitted to Miami Valley Hospital where he received anticoagulation therapy. Mr. Shade was discharged to his home on April 23, 2001. His discharge instructions stated that he was to receive daily monitoring of his anticoagulation therapy and physical therapy. Fidelity Health Care was retained to perform the home monitoring and blood testing; Mr. Shade was also to continue care with Dr. Bleser. On April 29 and 30, Mr. Shade was not monitored, tested, or visited. On April 30, 2001, he was re-admitted to the hospital due to hemorrhaging. He remained at MVH until July 10, 2001, when he was transferred to the Veterans Administration Medical Center. Mr. Shade died on July 16, 2001.

{¶ 2} On January 8, 2003, Arlene Shade, individually and as administrator of her husband's estate, brought suit against Dr. Bleser, Bellbrook, MVH, South Dayton Acute Care Consultants, Inc. ("South Dayton"), Fidelity Health Care, Inc. ("Fidelity"), Dr. Stephen Lucht ("Dr. Lucht"), and Dr. Wendy Schmitz ("Dr. Schmitz"), alleging medical negligence and loss of consortium. With regard to Dr. Bleser, Mrs. Shade alleged that the physician had failed to properly monitor her husband between April 24, 2001, and April 30, 2001. MVH, South Dayton, Dr. Lucht and Dr. Schmitz were subsequently voluntarily dismissed from the litigation.

{¶ 3} On March 8, 2004, Dr. Bleser and Bellbrook filed a motion for partial summary judgment, arguing that Mrs. Shade's claims were filed after the expiration of the statute of limitations. They asserted that the statute of limitations began to run on April 30, 2001, when Mr. Shade began to experience hemorrhaging. Dr. Bleser asserted that the termination of the physician-patient relationship occurred on April 30, 2001, as well. Dr. Bleser and Bellbrook also claimed that Mrs. Shade's suit was untimely, because she had failed to notify them of her intent to sue prior to the expiration of the limitations period and, consequently, she could not avail herself of the 180-day extension provided by R.C. 2305.11(B)(1).

{¶ 4} On October 6, 2004, the trial court granted Dr. Bleser's and Bellbrook's motion as to the survivorship claim. The court noted that Mrs. Shade had not disputed that the cognizable event occurred on April 30, 2001, and it found that the termination rule did not extend the accrual date, because there was no evidence that "the patient had any future scheduled appointments with Defendant Bleser and no evidence Defendant Bleser continued to provide care, advice, medication or treatment." The court thus held that, because Mrs. Shade did not file suit or provide Dr. Bleser or Bellbrook with a notice of intent by April 30, 2002, i.e., one-year from the cognizable event, the survivorship claim was untimely. The court indicated that Mrs. Shade's loss of consortium claim had been timely filed.

{¶ 5} On November 8, 2004, Mrs. Shade filed a notice of appeal regarding the October 6, 2004, order. This appeal was dismissed for lack of a final appealable order. In January 2005, Mrs. Shade voluntarily dismissed Fidelity as a defendant and all claims other than the survivorship claim against Dr. Bleser and Bellbrook, thereby transforming the prior partial summary judgment order into a final appealable order. Mrs. Shade filed a second notice of appeal on February 28, 2005.

{¶ 6} Mrs. Shade raises one assignment of error.

{¶ 7} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS-APPELLEES BECAUSE THE OCCURRENCE OF A COGNIZABLE EVENT AND THE DETERMINATION AS TO WHEN THE PHYSICIANP-ATIENT RELATIONSHIP TERMINATES ARE QUESTIONS OF FACT APPROPRIATE FOR THE JURY."

{¶ 8} Mrs. Shade claims that the trial court erred in concluding, as a matter of law, that her medical negligence claim was untimely filed. She asserts that a genuine issue of material fact existed as to whether her husband remained Dr. Bleser's patient until his death on July 16, 2001, and, thus, the trial court erred in concluding that the cause of action accrued on April 30, 2001. Mrs. Shade further asserts, in her reply memorandum, that she gave timely notice to both Dr. Bleser and Bellbrook of her intent to sue.

{¶ 9} At the time of the events at issue, the statute of limitations for medical malpractice actions was set forth in R.C. 2305.11 (now R.C. 2305.113), which provided that "an action upon a medical *** claim shall be commenced within one year after the cause of action accrues." If prior to the expiration of the one-year period a claimant who allegedly possesses a medical malpractice claim gives written notice to the person who is the subject of that claim that the claimant is considering bringing a malpractice action, that action may be commenced against the person notified at any time within one hundred eighty days after the notice is given. Id.

{¶ 10} A cause of action for medical malpractice accrues upon the later of either (1) the termination of the physician-patient relationship for that condition, or (2) when the patient discovers or, in the exercise of reasonable care and diligence should have discovered, the resulting injury. Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337.

{¶ 11} Under the discovery rule, the statute of limitations begins to run when there is a "cognizable event" whereby a reasonable patient is alerted or should have been alerted that an improper medical procedure, treatment or diagnosis has taken place. Akers v. Alonzo, 65 Ohio St.3d 422, 425, 1992-Ohio-66, 605 N.E.2d 1, citing Allenius v. Thomas (1989), 42 Ohio St.3d 131, 134, 538 N.E.2d 93. "Once the cognizable event occurs, the plaintiff must (1) determine whether the injury suffered is the proximate result of malpractice and (2) ascertain the identity of the tortfeasor or tortfeasors. Flowers v. Walker (1992), 63 Ohio St.3d 546, 589 N.E.2d 1284, syllabus. Thus, once a patient becomes aware of an injury, it is incumbent upon that individual to investigate his or her case completely." Simonds v. Kearney, Wayne App. No. 01CA35, 2002-Ohio-761.

{¶ 12} Under the termination rule, a medical malpractice cause of action does not accrue until the physician-patient relationship for the condition at issue has ended. The supreme court has repeatedly stated that "[t]he justification for the termination rule is that it strengthens the physician-patient relationship. The patient may rely upon the doctor's ability until the relationship is terminated and the physician has the opportunity to give full treatment, including the immediate correction of any errors in judgment on his part. In short, it was thought that the termination rule is conducive to that mutual confidence which is essential to the physician-patient relationship. To require a patient to file suit for malpractice during the course of treatment *** would destroy this mutual confidence *** [and] place the patient in the unacceptable situation of deciding whether to continue the ongoing treatment and thus risk the chance of forfeiting his right to bring suit at a later date, or terminate the relationship, and, perhaps, deny the physician the opportunity of correcting his error." Frysinger, 32 Ohio St.3d at 41; Ishler v. Miller (1978), 56 Ohio St.2d 447, 449, 384 N.E.2d 296; Wyler v. Tripi (1971), 25 Ohio St.2d 164, 167-168, 267 N.E.2d 419. Thus, the termination rule "may operate to extend the time of accrual of the cause of action beyond the `cognizable event,' when the professional relationship for the condition remains active." Kiser v. Rubin (Sept. 8, 1995), Montgomery App. No. 15254.

{¶ 13} "Either party to the physician-patient relationship may terminate the relationship if the terminating party takes affirmative steps to do so. The patient may terminate by refusing further treatment, or in the absence of unequivocal action, by failing to keep the next scheduled appointment. The doctor may end the relationship, but must afford the patient reasonable notice of the termination." Kiser, supra (citations omitted).

{¶ 14} In the present case, Mrs. Shade does not rely upon the discovery rule. Rather, she asserts that the statute of limitations began to run when the physician-patient relationship between her husband and Dr. Bleser terminated due to her husband's death on July 16, 2001. Dr. Bleser asserts that the termination rule is not applicable, because Mr. Shade "was not placed in the `unacceptable situation' of deciding whether to continue ongoing treatment with Dr. Bleser or terminate the physician-patient relationship." Alternatively, Dr. Bleser asserts that his relationship with Mr....