George v. Univ. of Toledo Med. Ctr. , 2018 Ohio 719 ( 2018 )

[Cite as George v. Univ. of Toledo Med. Ctr., 2018-Ohio-719.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Frederick George, :
Plaintiff-Appellant, :
No. 17AP-559
v. : (Ct. of Cl. No. 2016-00116)
University of Toledo Medical Center, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on February 27, 2018
On brief: Oglesby & Oglesby, Danielle C. Kulik and
Geoffrey L. Oglesby, for appellant. Argued: Danielle C.
Kulik.
On brief: Michael DeWine, Attorney General, Anne Berry
Strait and Stacy L. Hannan, for appellee. Argued: Stacy L.
Hannan.
APPEAL from the Court of Claims of Ohio
KLATT, J.
{¶ 1} Plaintiff-appellant, Frederick George, appeals the judgment of the Court of
Claims of Ohio that granted summary judgment for defendant-appellee, University of
Toledo Medical Center ("UT"). Because UT has established that there are no issues of
material fact and that it is entitled to judgment as a matter of law based upon the
expiration of the applicable statute of limitations, we affirm.
No. 17AP-559 2
FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 9, 2012, George was a truck driver for Penske Logistics in Clyde,
Ohio, when he injured his left shoulder while loading landing gear on his truck. After
initially receiving ineffective conservative treatment, George was referred to an orthopedic
doctor for surgery. That surgical repair did not resolve George's pain, so a second repair
was performed. The second surgery also did not resolve George's symptoms. Therefore,
George went to see Dr. Sohn, a shoulder specialist and chief of the division of sports
medicine at UT.
{¶ 3} Dr. Sohn performed another surgery on George's shoulder in an attempt to
resolve his symptoms. However, George continued to experience pain and lack of
function in his left shoulder. Therefore, Dr. Sohn recommended that George undergo a
reverse total shoulder arthroplasty–a replacement of the shoulder joint in a reverse
configuration. Dr. Sohn performed that surgery in December 2013.
{¶ 4} George continued to experience pain in his left shoulder despite the
shoulder arthroplasty. George last saw Dr. Sohn on August 5, 2014. Dr. Sohn
recommended that George seek another opinion. George went to see Dr. Gobezie in
Cleveland, Ohio.
{¶ 5} George was first seen by Dr. Gobezie on September 16, 2014. During that
visit, Dr. Gobezie and his physician assistant examined George's left shoulder and took X-
rays. Dr. Gobezie then explained his findings to George and recommended that he
perform surgery to revise the shoulder implant. George admitted multiple times during
his deposition that during this initial visit with Dr. Gobezie on September 16, 2014, Dr.
Gobezie told him that his "shoulder had been butchered" and "they put the wrong stuff in
your shoulder."
{¶ 6} Dr. Gobezie operated on George's left shoulder on November 21, 2014.
According to George, following that surgery George learned that he was the victim of
medical malpractice based upon the previous surgery performed by Dr. Sohn.
{¶ 7} On November 19, 2015, George filed a complaint in the Erie County Court of
Common Pleas for medical negligence against UT and others. His medical negligence
claim was based upon his contention that Dr. Sohn used an improperly sized implant
when he performed the reverse total shoulder replacement. Thereafter, UT filed a motion
No. 17AP-559 3
to dismiss the Erie County action based upon lack of subject-matter jurisdiction. In
response, George voluntarily dismissed the Erie County case without prejudice and filed
the instant action in the Court of Claims asserting the same claim of medical negligence
against UT.
{¶ 8} After the parties conducted some discovery, UT filed a motion for summary
judgment on the ground that George's complaint was barred by the applicable statute of
limitations. UT also filed a second motion for summary judgment on the ground that
George's expert witness was not qualified to render an opinion on the standard of care
issues in the case. The trial court granted UT's summary judgment motion based upon
the expiration of the applicable statute of limitations.
{¶ 9} George appeals assigning the following error:
The court should have denied the motion for summary
judgment based on the statute of limitations issue.
LEGAL ANALYSIS
{¶ 10} Summary judgment is appropriate under Civ.R. 56 when the moving party
demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is
entitled to judgment as a matter of law; and (3) reasonable minds can come to but one
conclusion when viewing the evidence most strongly in favor of the nonmoving party, and
that conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc., 127
Ohio St. 3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St. 3d 158,
2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for summary
judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an
independent review, without deference to the trial court's determination. Zurz v. 770 W.
Broad AGA, LLC, 192 Ohio App. 3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v.
Westfall, 183 Ohio App. 3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
{¶ 11} When seeking summary judgment on the ground that the nonmoving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio
St.3d 280, 293 (1996). The moving party does not discharge this initial burden under
Civ.R. 56 by simply making a conclusory allegation that the nonmoving party had no
No. 17AP-559 4
evidence to prove its case. Id. Rather, the moving party must affirmatively demonstrate
by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party cannot
prevail on its claim. Id. If the moving party meets its burden, then the nonmoving party
has a reciprocal burden to set forth specific facts showing that there is a genuine issue for
trial. Civ.R. 56(E); Dresher at 293. If the nonmoving party does not respond, summary
judgment, if appropriate, shall be entered against the nonmoving party. Id.
{¶ 12} A medical negligence claim in the Court of Claims must be brought within
one year of the date the cause of action accrued. Theobald v. Univ. of Cincinnati, 1oth
Dist. No. 09AP-269, 2009-Ohio-5204, ¶ 9; R.C. 2743.16(A). The Supreme Court of Ohio
has adopted the discovery rule in determining when a cause of action for medical
negligence accrues. Oliver v. Kaiser Community Health Found., 5 Ohio St. 3d 111 (1983).
Pursuant to this rule, a cause of action for medical negligence does not accrue until either:
(1) the patient discovers or in the exercise of reasonable care and diligence should have
discovered, the resulting injury; or (2) the physician-patient relationship for the condition
terminates, whichever occurs later. Akers v. Alonzo, 65 Ohio St. 3d 422 (1992), citing
Oliver at syllabus, and Frysinger v. Leech, 32 Ohio St. 3d 38 (1987) at paragraph one of
the syllabus.
{¶ 13} George argues that his medical negligence claim accrued when he
discovered his injury, which was after the termination of his physician-patient
relationship with Dr. Sohn. In determining when a patient discovers, or in the exercise of
reasonable care and diligence should have discovered, the resulting injury, courts look to
the occurrence of a "cognizable event" as the trigger for the commencement of the statute
of limitations. Akers at 134. A cognizable event is "some noteworthy event * * * which
does or should alert a reasonable person-patient that an improper medical procedure,
treatment or diagnosis has taken place." Allenius v. Thomas, 42 Ohio St. 3d 131, 134
(1989); Herr v. Robinson Mem. Hosp., 49 Ohio St. 3d 6 (1990). Therefore, the question of
whether a cognizable event has occurred is viewed objectively. Akers at 134; Rose v.
Women's Health Clinic, 90 Ohio App. 3d 776 (11th Dist.1993).
{¶ 14} The occurrence of a cognizable event imposes upon the plaintiff a duty to:
(1) determine whether the injuries suffered are the proximate result of malpractice; and
(2) ascertain the identity of the tortfeasor or tortfeasors. Flowers v. Walker, 63 Ohio
No. 17AP-559 5
St.3d 546 (1992) ("constructive knowledge of facts, rather than actual knowledge of their
legal significance, is enough to start the statute of limitations running under the discovery
rule"); Akers at 134. Therefore, a "plaintiff need not have discovered all the relevant facts
necessary to file a claim in order to trigger the statute of limitations. * * * Rather, the
'cognizable event' itself puts the plaintiff on notice to investigate the facts and
circumstances relevant to [his] claim in order to pursue [his] remedies." Flowers at 549.
Thus, if a patient obtains information indicating that his physician has done something
wrong that may have caused him harm, such a fact is sufficient to alert the patient to the
necessity for investigation and pursuit of his remedies. Patterson v. Janis, 10th Dist. No.
07AP-347, 2007-Ohio-6860 at ¶ 12, citing Allenius at 134.
{¶ 15} Here, George admitted at multiple points during his deposition that Dr.
Gobezie told him during his first visit on September 16, 2014 that his "shoulder had been
butchered" and "they put the wrong stuff in his shoulder" (referring to the reverse total
shoulder arthroplasty performed by Dr. Sohn). (George Dep. at 51, 53.) Based upon this
undisputed evidence, a reasonable jury could only conclude that George's September 16,
2014 visit with Dr. Gobezie was the cognizable event that triggered the running of the one-
year statute of limitations. Therefore, George had to file his complaint on or before
September 16, 2015.
{¶ 16} George filed his complaint for medical negligence against UT in the Erie
County Court of Common Pleas on November 19, 2015, approximately two months after
the statute of limitations had expired. Likewise, George filed his complaint in the instant
case on February 17, 2016, approximately 5 months after the statute of limitations
expired. Therefore, we agree with the trial court that George's medical negligence claim is
time-barred.
{¶ 17} George advances two arguments to support his contention that his medical
negligence clam is not time-barred. Neither argument is valid.
{¶ 18} First, George contends that his claim did not accrue until he was informed
by Dr. Gobezie on November 26, 2014 that his shoulder problem was the result of medical
malpractice. We disagree for the reasons previously noted. Given his ongoing symptoms,
coupled with what Dr. Gobezie told George during his first visit on September 16, 2014, a
reasonable jury could only conclude that this visit was the cognizable event that triggered
No. 17AP-559 6
the commencement of the statute of limitations period. It was unnecessary for George to
know the full extent of his injury or its specific cause to trigger the commencement of the
statute of limitations. Patterson at ¶ 11.
{¶ 19} Second, George argues that because he filed this action in the Court of
Claims less than one year after he dismissed the Erie County case, his action is timely
under the savings statute. R.C. 2305.19.1 We disagree. It is well-established that the
savings statute does not save a claim that was not timely commenced. Cristino v. Admr.,
Ohio Bur. of Workers' Comp., 10th Dist. 12AP-60, 2012-Ohio-4420, ¶ 35-38. The savings
statute has no application unless an action was timely commenced. Reese v. The Ohio
State Univ. Hosps., 6 Ohio St. 3d 162, 163 (1983); Boozer v. Univ. of Cincinnati School of
Law, 10th Dist. No. 05AP-1099, 2006-Ohio-2610.
{¶ 20} For these reasons, we overrule George's assignment of error, and affirm the
judgment of the Court of Claims of Ohio.
Judgment affirmed.
TYACK and BRUNNER, JJ., concur.
1 Although George's counsel advanced this argument during oral argument and referenced the savings
statute in the statement of the case section of her brief, the argument section of appellant's brief does not
contain any argument on this issue. Exercising our discretion, we considered the argument because it is
addressed in the trial court's decision.