Summary
In Herr the plaintiff was suffering back pain and was advised by his first physician that the source of his pain was a bad disc in his back and eventually the disc was surgically removed.
Summary of this case from Christian v. McDonaldOpinion
No. 88-1694
Submitted November 8, 1989 —
Decided February 7, 1990.
Medical malpractice — Statute of limitations — Accrual date in applying R.C. 2305.11(A) — Factors to be considered — "Cognizable event" analysis applied.
APPEAL from the Court of Appeals for Portage County, No. 1883.
In May 1983, plaintiff-appellant Courtney Herr consulted with appellee Dr. Stephen J. Sveda regarding persistent back problems which dated back to 1978. Dr. Sveda attributed appellant's pain and discomfort to a bad disc, and recommended that appellant undergo a chymopapain injection to alleviate the condition. This treatment was administered by Dr. Sveda on February 2, 1984. Appellant experienced some relief as a result of the procedure, but subsequently he again felt pain and stiffness in his back.
The record shows that appellant was initially seeing one of Dr. Sveda's partners as early as 1978, but did not consult with Dr. Sveda until May 1983.
Thereafter, appellant sought the advice of appellee Albert J. Cook, who is a radiologist. Dr. Cook performed a series of computerized tomography tests (CT scans) from March 1984 to August 1984 on appellant's abdomen, pelvis, and lower back.
After the consultations with Dr. Cook, appellant once again returned to Dr. Sveda on August 21, 1984 for treatment of his continued back problems. Sometime in September 1984 Dr. Sveda performed a discogram on appellant. At that time, Dr. Sveda recommended that appellant have a laminectomy, which is the complete removal of a disc. On September 27, 1984 appellant underwent this surgical procedure under the supervision of Dr. Sveda at Robinson Memorial Hospital. Appellant noticed a slight improvement after the operation, but subsequently his condition and pain worsened. Appellant brought this to Dr. Sveda's attention, and was assured by Dr. Sveda that "these things take time." Dr. Sveda also recommended that appellant seek physical therapy and chiropractic treatment.
In June 1985 appellant returned to Dr. Cook for consultation. Dr. Cook performed various X-rays of appellant's back, and suggested that appellant see a neurosurgeon or an orthopedic specialist. Appellant followed this advice, and on August 22, 1985 went to see Dr. Michael Pryce. Dr. Pryce informed the appellant that his back problems did not stem from a bad disc, but rather that appellant actually had a broken vertebra. Appellant was also informed that procedures that had "anything to do with the disc" would only have served to further increase the instability of his back. Dr. Pryce recommended a spinal fusion to alleviate appellant's condition and then advised him to seek a second opinion. After receiving another medical opinion confirming Dr. Pryce's diagnosis, appellant did in fact submit to a spinal fusion operation on January 10, 1986. Within a year of this surgery, appellant experienced a total recovery.
On August 21, 1986, appellant filed a medical malpractice cause of action against Drs. Sveda and Cook, and against Robinson Memorial Hospital. The defendant doctors and the hospital filed separate motions for summary judgment, which the trial court granted on July 29, 1987. The trial court determined that the malpractice action was not timely filed within the meaning of R.C. 2305.11(A). In effect the trial court ruled that the action was barred by the statute of limitations, and thereby dismissed all the claims of appellant. The court of appeals affirmed this decision finding that appellant discovered or should have discovered the injury shortly after the laminectomy in September 1984, or at the latest in June 1985 when appellant went to see Dr. Cook for the second time. Because the appellant did not file his cause of action until August 21, 1986, the court of appeals held the claim was barred by R.C. 2305.11(A).
Appellant's wife joined in the action claiming loss of consortium.
In doing so, the trial court also dismissed appellant's wife's claim for loss of consortium. The court of appeals reinstated the cause of action. The present appeal does not involve any issues concerning this aspect of the case.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Nukes Perantinides Co., L.P.A., Paul G. Perantinides, Elizabeth B. Manning, Thomas A. Skidmore and Linda Tucci Teodosio, for appellants.
Roetzel Andres, Richard R. Strong and Elizabeth A. Nocera, for appellees Robinson Memorial Hospital et al.
Buckingham, Doolittle Burroughs, Gary A. Banas and Jeffrey E. Schobert, for appellees Drs. Sveda and Cook.
The sole issue presented in this case is whether appellant's medical malpractice cause of action was timely filed pursuant to the requirements of R.C. 2305.11(A).
R.C. 2305.11(A), which was in effect at the time of the commencement of the present action, states in pertinent part: "An action for * * * malpractice against a physician * * * shall be brought within one year after the cause thereof accrued * * *." With the decision in Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, this court abandoned the termination rule. In doing so, we adopted a discovery rule, stating that "* * * a cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury." Id. at syllabus.
R.C. 2305.11 has recently been amended. The above language is now substantially contained in R.C. 2305.11 (B)(1).
"For many years, the courts of Ohio demonstrated a commitment to the rule that the termination of the medical relationship is the event which commences the running of the one-year statute of limitations in medical malpractice actions now contained in R.C. 2305.11." (Citations omitted.) Oliver, supra, at 113, 5 OBR at 248, 449 N.E.2d at 440.
In Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, 516 N.E.2d 204, this court explained the holding in Oliver, setting forth a three-prong analysis to be utilized by Ohio trial courts in determining the accrual date for a medical malpractice claim. In Hershberger, we held that "* * * the trial court must look to the facts of the particular case and make the following determinations: when the injured party became aware, or should have become aware, of the extent and seriousness of his condition, which, of course, may occur without the necessity of further medical consultation; whether the injured party was aware, or should have been aware, that such condition was related to a specific professional medical service previously rendered him; and whether such condition would put a reasonable person on notice of need for further inquiry as to the cause of such condition." Id. at 5-6, 516 N.E.2d at 208.
This court has recently applied and further clarified the tripartite analysis set forth in Hershberger in the recent case of Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93. While explaining the phrase "extent and seriousness of his condition," we refined Hershberger and combined the three-part test contained therein by adding the "cognizable event" element to the foregoing test. We stated in Allenius, supra, as follows:
"* * * Since the three prongs of Hershberger overlap considerably, we believe that the best manner * * * is to combine the three prongs. Thus, we now hold that * * * [ Hershberger] * * * requires that there be an occurrence of a `cognizable event' which does or should lead the patient to believe that the condition of which the patient complains is related to a medical procedure, treatment or diagnosis previously rendered to the patient and where the cognizable event does or should place the patient on notice of the need to pursue his possible remedies." Allenius, supra, at 133, 538 N.E.2d at 96. A "cognizable event" was defined as "* * * some noteworthy event * * * which does or should alert a reasonable person-patient that an improper medical procedure, treatment or diagnosis has taken place." Id. at 134, 538 N.E.2d at 96.
In applying the foregoing tests to the facts of the instant case, we find that appellant was consistently seeking medical attention from both Dr. Sveda and Dr. Cook. Appellant first saw Dr. Sveda in May 1983. When his condition did not improve, appellant sought the advice of Dr. Cook in March 1984. Appellant again returned to Dr. Sveda in August 1984. Lastly, appellant once more sought medical advice from Dr. Cook in June 1985. During this two-year period, both doctors performed the procedures previously described. Furthermore, when appellant informed Dr. Sveda about his continuing pain, appellant received assurances from Dr. Sveda that "these things take time."
"Legal theories are not ordinarily within the province of the average layman." Hershberger, supra, at 5, 516 N.E.2d at 207. Likewise, the causes of medical problems and the effects of prescribed treatments are not within the realm of a layman's knowledge. This court has stated long ago that "[t]he patient relies almost wholly upon the judgment of the * * * [doctor], and under the usual circumstances of each case is bound to do so * * *." Bowers v. Santee (1919), 99 Ohio St. 361, 366, 124 N.E. 238, 240 (overruled on other grounds in Oliver, supra). See, also, Wyler v. Tripi (1971), 25 Ohio St.2d 164, 167-168, 54 O.O. 2d 283, 285, 267 N.E.2d 419, 421. This concept remains true today. Appellant had been under the care of Drs. Sveda and Cook for some time. They did not determine his actual problem. Hence, it would be illogical to hold a patient to a higher degree of knowledge than his treating physicians. Indeed, to say that a patient may not reasonably rely on the assurances of a treating physician would cause irreparable harm to the doctor-patient relationship.
We are aware of this court's historical goal of seeking to encourage and facilitate the doctor-patient relationship. The major premise for the perpetuation of the termination rule was that it was conducive to the mutual confidence that is so highly important to the relationship between a doctor and his patient. See Frysinger v. Leech (1987), 32 Ohio St.3d 38, 41, 512 N.E.2d 337, 340-341. It is our belief that by clarifying Ohio law in this manner, we encourage the open exchange of information and confidence that is vital to the association between patient and physician.
In applying the "cognizable event" analysis set forth in Allenius, we find that in this case the cognizable event occurred on August 22, 1985, when appellant was first informed by Dr. Pryce that he had a broken vertebra. Prior to that time, appellant followed the advice of the appellee doctors and permissibly relied on the assurances of one of those doctors. Based upon the facts of this case, pain alone cannot be the cognizable event. However, we do not intimate that pain alone may never be a cognizable event, but given the particular facts of the case before this court, continued pain could not be considered a cognizable event.
The cognizable-event analysis allows a patient to reasonably rely on his physician's assurances while placing a continuing duty on the medical profession to act with the requisite skill and care. We find that the cognizable event occurred when appellant was informed that he had a broken vertebra, and thus his cause of action was timely filed within the requirements of R.C. 2305.11(A).
We again note that R.C. 2305.11 has recently been amended by the General Assembly, and that R.C. 2305.11(B)(1) now contains the statutory language we interpret today.
We therefore reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
HOLMES, J., concurs in judgment only.