2018 Ohio 719
Ohio Ct. App.2018Background
- In March 2012 George injured his left shoulder and underwent multiple surgeries; Dr. Sohn (UT) performed a reverse total shoulder arthroplasty in December 2013.
- Persistent pain led George to seek a second opinion with Dr. Gobezie, first seen on September 16, 2014.
- At that first Gobezie visit George was told his shoulder was "butchered" and that "they put the wrong stuff in your shoulder."
- Gobezie performed revision surgery on November 21, 2014; George says he learned of malpractice following that revision.
- George sued UT for medical negligence: filed in Erie County Common Pleas on November 19, 2015 (voluntarily dismissed), then refiled in the Court of Claims on February 17, 2016.
- The Court of Claims granted UT summary judgment on statute-of-limitations grounds; George appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the malpractice claim accrue for R.C. 2743.16(A) (one-year limit in Court of Claims)? | George: claim accrued after termination of relationship with Dr. Sohn and after he was explicitly told of malpractice (post-November 2014). | UT: the cognizable event occurred at the Sept. 16, 2014 Gobezie visit (patient told shoulder was "butchered"), so limitations ran from that date. | Court: accrual triggered by the Sept. 16, 2014 cognizable event; claim required filing by Sept. 16, 2015. George filed later — time-barred. |
| Applicability of the savings statute (R.C. 2305.19) after dismissing timely state-court complaint | George: filing in Court of Claims within one year of dismissing Erie County action invoked the savings statute, making the Court of Claims filing timely. | UT: savings statute cannot revive a suit that was not timely commenced; the Erie County action itself was filed after limitations had run. | Court: savings statute inapplicable because the initial Erie County suit was not timely; savings statute does not save untimely claims. |
Key Cases Cited
- Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111 (Ohio 1983) (adopts discovery rule for medical-malpractice accrual)
- Akers v. Alonzo, 65 Ohio St.3d 422 (Ohio 1992) (accrual occurs when patient discovers or should have discovered injury or relationship terminates — whichever later)
- Frysinger v. Leech, 32 Ohio St.3d 38 (Ohio 1987) (discusses accrual under discovery rule)
- Allenius v. Thomas, 42 Ohio St.3d 131 (Ohio 1989) (defines "cognizable event" that should alert a reasonable patient)
- Flowers v. Walker, 63 Ohio St.3d 546 (Ohio 1992) (constructive knowledge of facts starts limitations under discovery rule)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (summary-judgment burden when moving party asserts nonmovant cannot prove essential element)
- Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54 (Ohio 2010) (summary-judgment standard reiterated)