holding that the statute of limitations begins to run when the plaintiff discovers, or should have discovered in the exercise of reasonable care and diligence, the resulting injury, regardless of whether the plaintiff knows the tortfeasors' identity at that pointSummary of this case from Ruiz-Bueno v. Maxim Healthcare Servs., Inc.
Submitted February 18, 1992 —
Decided May 6, 1992.
APPEAL from the Court of Appeals for Trumbull County, No. 90-T-4347.
In 1986, plaintiff-appellee, Arlene Flowers, visited her gynecologist, Dr. Milheim, for a routine checkup. As part of that checkup, Dr. Milheim ordered an annual mammogram for Mrs. Flowers. Mrs. Flowers avers that she was not aware that the mammogram at St. Joseph's Hospital on November 7, 1986 was performed by defendants-appellants Dr. E.C. Walker and Radiology Associates of Warren, Inc. Dr. Walker interpreted the mammogram and wrote the report. Dr. Milheim reported the results of the mammogram to Mrs. Flowers as negative.
In March 1987, Mrs. Flowers discovered a lump in her right breast and returned to Dr. Milheim. Dr. Milheim did not feel the lump and requested that Mrs. Flowers return in several months for her regular six-month checkup. Mrs. Flowers returned to Dr. Milheim in May for the regular checkup, but again Dr. Milheim did not feel the lump. He reassured Mrs. Flowers that her November 7, 1986 mammogram was normal.
Mrs. Flowers continued to be concerned about the lump in her right breast. In June 1987, she called her family doctor, who referred her to a surgeon, Dr. Schnur. Dr. Schnur scheduled Mrs. Flowers for a mammogram, and then ordered a biopsy, which revealed the presence of cancer in Mrs. Flowers's right breast. On July 1, 1987, Mrs. Flowers underwent a lumpectomy. She subsequently received chemotherapy and radiation treatments.
On or about December 1, 1987, Mrs. Flowers consulted an attorney to investigate a possible medical malpractice claim against Dr. Milheim. Through her attorney, she notified Dr. Milheim of a potential malpractice claim pursuant to R.C. 2305.11(A). In August 1988, during the course of investigating the claim against Dr. Milheim, Mrs. Flowers and her attorney became aware of Dr. Walker's identity and that he might have negligently performed and interpreted the mammogram.
On March 9, 1989, Mrs. Flowers and her husband filed suit against Dr. Walker and Radiology Associates of Warren, Inc., alleging that Dr. Walker negligently performed and interpreted the November 7, 1986 mammogram.
The defendants moved for summary judgment, claiming the plaintiffs had not commenced an action against them within the one-year statute of limitations provided in R.C. 2305.11. They maintained that the statute of limitations began to run on July 1, 1987 when Mrs. Flowers discovered that she had cancer. Plaintiffs argued that the statute of limitations did not begin to run until Mrs. Flowers discovered the identity of Dr. Walker in August 1988.
The trial court granted summary judgment in favor of defendants, holding that the statute of limitations for malpractice began running on July 1, 1987 when the cancerous mass was surgically removed from Mrs. Flowers's right breast.
In a split decision the court of appeals reversed and held that summary judgment was improper as reasonable minds could come to different conclusions as to whether the statute of limitations began to run on July 1, 1987 when Mrs. Flowers learned that she had cancer, or in August 1988 when Mrs. Flowers became aware of Dr. Walker's participation in her November 1986 mammogram.
The court of appeals also separately determined that the derivative claim of Mr. Flowers for loss of consortium was timely brought, finding that it was governed by the four-year limit of R.C. 2305.09, and not by the 1987 amendment to R.C. 2305.11 that expressly subjected derivative claims to the same one-year limit as principal claims. Am.Sub.H.B. No. 327, 142 Ohio Laws, Part II, 3322. Because appellants have not appealed the loss of consortium claim to this court, the court of appeals decision on that issue stands.
The cause comes before the court upon the allowance of a motion to certify the record.
McLaughlin, McNally Carlin, Clair M. Carlin and James F. Mathews, for appellee.
Manchester, Bennett, Powers Ullman and Thomas J. Travers, Jr., for appellants.
This case presents the sole issue of whether Mrs. Flowers timely filed her medical malpractice action against Dr. Walker. For the reasons that follow we hold that the statute of limitations in R.C. 2305.11 bars her action.
Former R.C. 2305.11(A), as in effect at the time relevant to the events in this case, provided in part:
The statute of limitations for a medical malpractice claim is currently R.C. 2305.11(B)(1), which provides in part:
"* * * [A]n action upon a medical * * * claim shall be commenced within one year after the action accrued, except that, if prior to the expiration of that one-year period, a claimant who allegedly possesses a medical * * * claim gives to the person who is the subject of that claim written notice that the claimant is considering bringing an action upon that claim, that action may be commenced against the person notified at any time within one hundred eighty days after the notice is so given."
"* * * [A]n action for malpractice against a physician * * * shall be brought within one year after the cause thereof accrued * * *.
"If a written notice, prior to the expiration of time contained in this division, is given to any person in a medical claim that an individual is presently considering bringing an action against that person relating to professional services provided to that individual, then an action by that individual against that person may be commenced at any time within one hundred eighty days after that notice is given." (Emphasis added.) Am.Sub.H.B. No. 319, 141 Ohio Laws, Part II, 3223, 3228-3229.
At dispute in this case is the accrual date of the cause of action by Mrs. Flowers against Dr. Walker.
In Ohio, a cause of action for medical malpractice does not accrue until the patient discovers, or should have discovered in the exercise of reasonable care and diligence, the resulting injury. Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, at syllabus. In Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, 516 N.E.2d 204, this court stated a three-prong test to determine the date that a medical malpractice cause of action accrues under the discovery rule. The three factors to be considered by the trial court are (1) when the injured party became aware, or should have become aware, of the extent and seriousness of his condition; (2) whether the injured party was aware, or should have been aware, that the condition was related to a specific professional service that he previously received; and (3) whether such condition would put a reasonable person on notice of the need to inquire into the cause of his condition. Id. at paragraph one of the syllabus.
In Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93, this court combined the three prongs of the Hershberger test and held that the "extent and seriousness of his condition" language in Hershberger requires the occurrence of a "cognizable event" which leads or should lead the plaintiff to believe that the condition of which he complains is related to a medical diagnosis, treatment, or procedure which the plaintiff previously received and which places or should place the plaintiff on notice of the need to pursue his possible remedies. Id. at syllabus.
Mrs. Flowers argues that the "cognizable event" occurred, and the statute of limitations began to run, when she discovered the identity of Dr. Walker and his role in performing and interpreting the November 7, 1986 mammogram. We disagree.
A "cognizable event" is the occurrence of facts and circumstances which lead, or should lead, the patient to believe that the physical condition or injury of which she complains is related to a medical diagnosis, treatment, or procedure that the patient previously received. Id. at syllabus.
Moreover, 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. McGee v. Weinberg (1979), 97 Cal.App.3d 798, 803-804, 159 Cal.Rptr. 86, 89-90; Graham v. Hansen (1982), 128 Cal.App.3d 965, 973-974, 180 Cal.Rptr. 604, 609-610. A plaintiff need not have discovered all the relevant facts necessary to file a claim in order to trigger the statute of limitations. Allenius, supra, 42 Ohio St.3d at 133-134, 538 N.E.2d at 96. Rather, the "cognizable event" itself puts the plaintiff on notice to investigate the facts and circumstances relevant to her claim in order to pursue her remedies. Id. See, also, Graham, supra, 128 Cal.App.3d at 972-973, 180 Cal.Rptr. at 609; McGee, supra, 97 Cal.App.3d at 803, 159 Cal.Rptr. at 89-90.
In this case, both parties agree that the discovery of cancer in her right breast and the lumpectomy that Mrs. Flowers underwent on July 1, 1987 gave her reason to believe that malpractice may have been committed in the performance and/or interpretation of her November 1986 mammogram. The discovery of cancer on July 1, 1987, therefore, was the "cognizable event" that alerted Mrs. Flowers of the need to investigate a malpractice claim. In fact, Mrs. Flowers did pursue a malpractice claim, consulted an attorney, and sent a one-hundred-eighty-day letter of notification to Dr. Milheim within one year of the "cognizable event," i.e., the discovery of her cancer.
Mrs. Flowers maintains, however, that she did not discover, and could not have reasonably discovered, the identity of Dr. Walker within one year of discovering her cancer. Mrs. Flowers argues that the "cognizable event" did not occur until she knew the identity of Dr. Walker. We disagree.
In a medical malpractice case, the statute of limitations starts to run upon the occurrence of a "cognizable event." The occurrence of a "cognizable event" imposes upon the plaintiff the duty to (1) determine whether the injury suffered is the proximate result of malpractice and (2) ascertain the identity of the tortfeasor or tortfeasors. The identify of the practitioner who committed the alleged malpractice is one of the facts that the plaintiff must investigate, and discover, once she has reason to believe that she is the victim of medical malpractice.
This interpretation of the "cognizable event" rule places the plaintiff and defendant in malpractice actions on the same footing as plaintiffs and defendants in other tort litigation. In an automobile accident resulting from a blowout, for example, additional time is not given to (1) discover whether the tire was defective or (2) learn the identity of the manufacturer and sellers of the tire. Fraudulent concealment of either the negligence or the tortfeasor is, of course, another matter. This case does not involve fraudulent concealment.
The "cognizable event" rule was adopted by this court to put plaintiffs in malpractice cases on the same playing field as plaintiffs in other tort cases. A plaintiff in a malpractice case can be injured without knowing it (for example, where a sponge has not been removed during an operation). Further, one can discover an injury without having reason to believe that malpractice has been committed (for example, a heart attack). Hence we have delayed the running of the statute of limitations from the traditional date of injury to the date a "cognizable event" is discovered. We did not, however, intend to give medical malpractice plaintiffs an advantage over other tort plaintiffs. Nor does the language in Allenius, supra, or Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, 516 N.E.2d 204, accord such an advantage. To put it plainly, the "cognizable event" rule was adopted to eliminate the unfairness to medical malpractice plaintiffs, not to favor them and excuse them from the duty to identify the tortfeasor once there is reason to know a tort has been committed.
In the case before us Mrs. Flowers was told on July 1, 1987, that she had breast cancer. At that time she also knew that her November 1986 mammogram had been interpreted as negative. Thus, an occurrence of facts and circumstances had taken place which should have led Mrs. Flowers to believe that her condition was related to previous diagnosis and treatment. She suspected her mammogram had been misread to her detriment. What she did not know was who misread the mammogram. That could have been determined before the statute ran. It is no greater burden than that placed on a plaintiff in any tort action.
Mrs. Flowers further argues that the trial court improperly granted summary judgment against her because reasonable minds could come to different conclusions as to when the "cognizable event" occurred. This case, however, does not present an issue of fact to be determined by a jury. Whether the "cognizable event" relates to the discovery of the tortfeasor's identity is a question of law.
Accordingly, we hold that the "cognizable event" which started the statute of limitations running in this case occurred on July 1, 1987, when Mrs. Flowers learned she had cancer. Pursuant to former R.C. 2305.11(A), she should have brought the medical malpractice action or sent a one-hundred-eighty-day letter of notification to Dr. Walker by July 1, 1988. Because Mrs. Flowers did not file an action against Dr. Walker until March 9, 1989, her claim is barred.
We therefore reverse the court of appeals' holding that summary judgment was improper and reinstate the judgment of the trial court on this issue.
MOYER, C.J., HOLMES, WRIGHT and RESNICK, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.