2022 Ohio 2994
Ohio Ct. App.2022Background
- June 13, 2017: Herrick underwent excision of a lymph node by Dr. Zaghlool and thereafter experienced worsening left shoulder/arm pain.
- Post-op visits with Dr. Zaghlool on June 19 and June 26, 2017; doctor advised it could take a month or two to recover and prescribed medications.
- Because symptoms worsened, Herrick saw his PCP’s PA on July 28, 2017 (referred to orthopedics), then saw Dr. Randall (orthopedics) on Aug. 7, Aug. 28, and Sept. 6, 2017; MRIs and EMG were ordered.
- Nov. 16, 2017: Dr. Shook (Cleveland Clinic) diagnosed a spinal-accessory-nerve injury he attributed to the June surgery.
- Herrick sent a notice on Oct. 25, 2018 and filed suit on Apr. 17, 2019 alleging medical negligence; trial court granted defendants’ summary judgment as time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the malpractice statute of limitations accrue? | Accrual occurred Nov. 16, 2017 when Dr. Shook diagnosed a surgery-related nerve injury. | Accrual occurred earlier (by July 28, 2017 or at latest Sept. 6, 2017) once symptoms persisted and other physicians saw him. | Accrual occurred at the latest Sept. 6, 2017; one-year period expired Sept. 6, 2018. |
| Did Herrick’s Oct. 25, 2018 180-day notice extend the limitations period? | Notice extended the period. | Notice was untimely because it was given after the one-year accrual window. | Notice did not extend the statute because it was not given within the one-year period. |
Key Cases Cited
- Doe v. Shaffer, 90 Ohio St.3d 388 (Ohio 2000) (de novo standard for appellate review of summary judgment)
- Frysinger v. Leech, 32 Ohio St.3d 38 (Ohio 1987) (discovery rule and termination rule for accrual of medical-malpractice claims)
- Flowers v. Walker, 63 Ohio St.3d 546 (Ohio 1992) (statute begins to run on discovery of injury even if plaintiff lacks all facts)
- Hershberger v. Akron City Hosp., 34 Ohio St.3d 1 (Ohio 1987) (cognizable-event focus in accrual analysis)
- Allenius v. Thomas, 42 Ohio St.3d 131 (Ohio 1989) (cognizable event triggers duty to investigate)
- Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St.3d 385 (Ohio 1988) (termination rule application does not require complete severance of medical relationship)
- Herr v. Robinson Mem. Hosp., 49 Ohio St.3d 6 (Ohio 1990) (patient’s reasonable reliance on physician’s assurances considered in accrual analysis)
- Schmitz v. NCAA, 155 Ohio St.3d 389 (Ohio 2018) (plaintiff need not know full extent or legal significance of injury to trigger statute)
- Tausch v. Riverview Health Inst., 187 Ohio App.3d 173 (Ohio App. 2010) (three-factor cognizable-event test for accrual)