66 Ohio St. 3d 544 | Ohio | 1993
Lead Opinion
The narrow issue in these consolidated cases is whether the negligent credentialing causes of action against SEMC for granting and continuing staff privileges to Dr. Burt (and Dr. Blue in case No. 91-2079) were timely filed pursuant to the applicable statute of limitations. Case No. 91-2079 involves additional issues concerning the court of appeals' reinstate
I
Hospital Liability/Negligent Credentialing
SEMC appeals in both cases, urging that the claims asserted against it for negligent credentialing are time-barred by R.C. 2305.11(B)(1). Specifically, SEMC suggests that the court of appeals erred in determining that discovery (by appellees Mitchell and Browning) of the hospital’s negligence was necessary to commence the running of the R.C. 2305.11(B)(1) period of limitations on the negligent credentialing claims. SEMC asserts that the “cognizable events” triggering the running of the statute of limitations on Mitchell’s and Browning’s medical malpractice claims against the doctor(s) were sufficient to commence the running of the period of limitations on their negligent credentialing causes of action against the hospital.
In support of its position, SEMC cites Allenius, supra, and a number of our other cases such as Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, Richards v. St. Thomas Hosp. (1986), 24 Ohio St.3d 27, 24 OBR 71, 492 N.E.2d 821, Hoffman v. Davidson (1987), 31 Ohio St.3d 60, 31 OBR 165, 508 N.E.2d 958, Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, 516 N.E.2d 204, and Flowers v. Walker (1992), 63 Ohio St.3d 546, 589 N.E.2d 1284. This line of cases deals with the accrual of causes of action for medical malpractice under R.C. 2305.11, and the necessity of investigation and pursuit of remedies when a medical condition and its relationship to a previous medical procedure, treatment or diagnosis are “discovered.”
Conversely, appellees contend that under Allenius, supra, the “West 57th” television program was the “cognizable event” which commenced the running of the R.C. 2305.11(B)(1) period of limitations on the negligent credentialing causes of action. Thus, appellees assert that Mitchell’s and Browning’s claims against SEMC were filed within the R.C. 2305.11(B)(1) period of limitations.
The theory of hospital liability at issue in these cases was discussed at some length in Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 257-260, 553 N.E.2d 1038, 1044-1047. In Albain, paragraph two of the syllabus, this court held that:
“In regard to staff privileges, a hospital has a direct duty to grant and to continue such privileges only to competent physicians. * * * In order to recover for a breach of this duty, a plaintiff injured by the negligence of a staff physician must demonstrate that but for the lack of care in the selection or the retention of the physician, the physician would not have been granted staff privileges, and the plaintiff would not have been injured.” (Emphasis added.)
The general duty imposed upon hospitals to grant and continue staff privileges only to competent physicians was identified in Albain as an “independent” duty of care owed directly to those admitted to the hospital. Id. at 257-260, 553 N.E.2d at 1044-1047. See, also, Taylor v. Flower Deaconess Home & Hosp. (1922), 104 Ohio St. 61, 135 N.E. 287. One of the areas in which the hospital owes the independent and direct duty to a patient is in establishing (and adhering to) reasonable peer review procedures:
“ * * * [0]nce a competent and careful physician has been granted staff privileges, the hospital will not thereafter be liable unless it had reason to know that the act of malpractice would most likely take place. That is, where a previously competent physician, with staff privileges develops a pattern of incompetence, which the hospital should become aware of through its peer review process, the hospital must stand ready to answer for its retention of such physician.” (Footnote omitted.) Albain, 50 Ohio St.3d at 258, 553 N.E.2d at 1045.
In addition, the majority in Albain quoted with approval the following statement:
“‘ * * * [A hospital] is not required to pass upon the efficacy of treatment; it may not decide for a doctor whether an operation is necessary, or, if one be necessary, the nature thereof; but it owes to every patient whom it admits the duty of saving him from an illegal operation [or] false, fraudulent, or fictitious medical treatment.’ ” Albain, at 259, 553 N.E.2d at 1046, quoting Hendrickson v. Hodkin (1937), 250 A.D. 619, 621, 294 N.Y.S. 982, 984-985 (Lazansky, P.J., dissenting), reversed (1937), 276 N.Y. 252, 11 N.E.2d 899.
II
Medical Claim — R.C. 2305.11(B)(1) and (D)(3)
R.C. 2305.11(B)(1) provides, in part:
“ * * * [A]n action upon a medical * * * claim shall be commenced within one year after the action accrued * *
R.C. 2305.11(D)(3) provides, in part:
“ ‘Medical claim’ means any claim that is asserted in any civil action against a physician, podiatrist, or hospital, against any employee or agent of a physician, podiatrist, or hospital, or against a registered nurse or physical therapist, and that arises out of the medical diagnosis, care, or treatment of any person. * * * ” (Emphasis added.)
A careful reading of R.C. 2305.11(B)(1) and (D)(3)
With the foregoing discussion in mind, we believe that claims asserted against a hospital for negligent credentialing do not arise out of the medical diagnosis, care, or treatment of a person. Negligent credentialing claims arise out of the hospital’s failure to satisfy its independent duty to grant and continue staff privileges only to competent physicians. This independent duty does not directly involve diagnosis or the medical care and treatment of a patient. While the acts or omissions of a hospital in granting and/or continuing staff privileges to an incompetent physician may ultimately lead to an act of medical malpractice by the incompetent physician, the physician’s ultimate act of medical malpractice is factually and legally severable and distinct from the hospital’s acts or omissions in negligently credentialing him or her with staff membership or professional privileges.
Accordingly, we conclude that an action against a hospital for bodily injury arising out of the hospital’s negligence in credentialing a physician is neither “malpractice” nor a “medical claim” to which the limitations period found in R.C. 2305.11 applies.
Discovery Rule — R.C. 2305.10
If a negligent credentialing cause of action is not a claim for malpractice or a medical claim, the obvious question becomes: What is it? It is, simply, a claim for bodily injury arising out of negligence which is not covered by the limitation periods found in R.C. 2305.11. Thus, we look to R.C. 2305.10, which provides in part:
“An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.”
A cause of action for negligent credentialing of a physician by a hospital which results in bodily injury is an action falling under the umbrella of R.C. 2305.10.
Pursuant to R.C. 2305.10, the two-year period of limitations begins to run when a cause of action for bodily injury “arose,” while the R.C. 2305.11(B)(1) statute of limitations for “medical claims” begins to run when a cause of action “accrued.” However, we believe that the terms “arose” and “accrued” are synonymous and that the rule of discovery long recognized in Ohio as applicable to the “accrual” of causes of action should be applied to the R.C. 2305.10 statute of limitations for claims of hospital negligence in credentialing a physician.
The history of the so-called discovery rule in Ohio is long and storied. The rule of discovery was originally recognized by this court in the medical malpractice context, but the rule has been generally accepted and applied in numerous areas of the law. See Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 223-227, 574 N.E.2d 457, 464-467 (Douglas, J., dissenting). Of particular significance, the discovery rule has been judicially applied to the general statute of limitations for bodily injury actions under former R.C. 2305.10. In O’Strieker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727, paragraphs one and two of the syllabus, this court held that:
“1. Absent legislative definition, it is left to the judiciary to determine when a cause ‘arose’ for purposes of statutes of limitations.
“2. When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of
O’Stricker was decided under a version of R.C. 2305.10 in effect prior to the 1980 amendment to the statute. The 1980 amendment to R.C. 2305.10 specifically adopted a discovery rule for bodily injury actions caused by exposure to asbestos and chromium. 138 Ohio Laws, Part II, 3412. In Burgess v. Eli Lilly & Co. (1993), 66 Ohio St.3d 59, 609 N.E.2d 140, where a discovery rule provided by the General Assembly for DES-related injuries was found to be insufficient, we again had occasion to announce that a discovery rule applies to the R.C. 2305.10 general statute of limitations for bodily injury actions. Here, we extend the discovery rule to bodily injury actions resulting from a hospital’s negligence in credentialing a physician.
IV
“Cognizable Event”
Although not directly applicable to the claims of hospital negligence in the cases before us, the rule of discovery for the accrual of causes of action for medical malpractice under R.C. 2305.11 was explained in Allenius, supra, as requiring the 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.” Id. at syllabus.
Today, we borrow from Allenius in constructing a rule of discovery applicable to R.C. 2305.10 for bodily injury actions arising from negligent credentialing by a hospital. We emphasize, however, that Allenius and our cases governing the accrual of causes of action for medical malpractice are not applicable to causes of action for hospital negligence in credentialing a physician. By its very nature, the discovery rule (concept) must be specially tailored to the particular context in which it is to be applied. Our decisions concerning the accrual of causes of action for medical malpractice are not applicable to determine the accrual date of claims not related to the medical malpractice of a physician.
The court of appeals found that the critical inquiry for determining, the accrual date of the negligent credentialing causes of action requires pinpointing when the victims should have discovered that SEMC had failed to “provide adequate supervision or review of” Dr. Burt (and Dr. Blue in the Browning case). The court of appeals found no evidence that Mitchell or Browning discovered or should have discovered that SEMC had failed to perform its legal duties until the women viewed the television program in October 1988
We agree with the court of appeals that in both cases the October 1988 television program was the event which triggered the running of the statute of limitations on Browning’s and Mitchell’s claims against SEMC — although it is the R.C. 2305.10 period of limitations which should have been applied. The court of appeals was absolutely correct in recognizing that the facts or events which might trigger the running of the statute of limitations for medical malpractice claims against a doctor do not necessarily commence the running of a statute of limitations on claims against a hospital for hospital negligence unrelated to the medical diagnosis, care, or treatment of a person. We, mildly and respectfully, disagree with the court of appeals to the extent that it found the “cognizable event” test of Allenius to be directly applicable in determining the accrual date of appellees’ negligent credentialing claims. Mere mention of Allenius and the “cognizable event” test conjures up images of medical malpractice (to anyone who is familiar with our cases in this area), which may be one reason for the confusion in the court of appeals, resulting in application of the wrong statute of limitations to appellees’ causes of action for hospital negligence.
V
“Alerting Event”
In tailoring a rule of discovery applicable to R.C. 2305.10 for bodily injury actions arising from negligent credentialing by a hospital, we hold that a cause of action for negligent credentialing arises when the plaintiff knows or should know that he or she was injured as a result of the hospital’s negligent credentialing procedures or practices. In our judgment, the only evidence of any perspicuous event which should have alerted appellees Browning and Mitchell to pursue their negligence claims against SEMC occurred in October 1988. Upon viewing a television program, Browning and Mitchell became aware that many of Burt’s ex-patients suffered from abnormalities similar to their own as a consequence of Burt’s surgical practices at SEMC. The record is devoid of evidence that appellees knew or should have known prior to October 1988 that SEMC may have done something wrong in granting or continuing privileges to Dr. Burt or Blue. The “special Burt consent” form in Browning’s and Mitchell’s hospital records would not have apprised Mitchell
Obviously, we do not hold that a television program like the one at issue in these cases is necessary to trigger the running of the R.C. 2305.10 statute of limitations in every case of negligent credentialing. It is sufficient if a plaintiff discovers or, through the exercise of reasonable diligence, should have discovered some definitive information that would reasonably warrant investigation of the hospital’s credentialing practices. Such an occurrence might be termed an “alerting event,” if for no other reason than to contrast the occurrence triggering the commencement of the statute of limitations for negligence in R.C. 2305.10 from the “cognizable event” of R.C. 2305.11 limitation periods. However, discovery of a physician’s medical malpractice does not, in itself, constitute an “alerting event” nor does such discovery implicate the hospital’s credentialing practices or require investigation of the hospital in this regard. To hold otherwise would encourage baseless claims of negligent credentialing and a hospital would be named in nearly every lawsuit involving the malpractice of a physician.
VI
R.C. 2305.25
SEMC and amicus curiae, Ohio Hospital Association, suggest that hospitals are immune from liability for the acts, omissions and decisions of their peer review committees by virtue of R.C. 2305.25 and that, therefore, a hospital cannot be liable for negligent peer review. We reject this argument.
R.C. 2305.25 provides, in part:
“No hospital, no state or local society, and no individual who is a member or employee of any of the following committees shall be liable in damages to any person for any acts, omissions, decisions, or other conduct within the scope of the functions of the committee:
U * * *
Following a listing of the specific review boards and committees, R.C. 2305.25 provides that:
“Nothing in this section shall relieve any individual or hospital from liability arising from treatment of a patient.
“This section shall also apply to any member or employee of a nonprofit corporation engaged in performing the functions of a peer review committee of nursing home providers or administrators or of a peer review or professional standards review committee. No person who provides information under this section and provides such information without malice and in the reasonable belief that such information is warranted by the facts known to him shall be subject to suit for civil damages as a result thereof.”
The purposes of R.C. 2305.25 are clear. The statute extends limited protection to those who provide information to certain review boards and committees to encourage the free flow of information without threat of reprisal in the form of civil liability. See, generally, Jacobs v. Frank (1991), 60 Ohio St.3d 111, 113, 573 N.E.2d 609, 612. The statute also seeks to protect those serving on committees and committee employees for the obvious reason that it could be difficult to staff a committee absent such protections. However, the cases at bar do not involve a situation where SEMC has been either the provider of information to a committee (see, e.g., R.C. 1742.141), or the participant on a committee. It is clear to us that R.C. 2305.25 does not provide blanket immunity to a hospital for negligence in granting and/or continuing staff privileges of an incompetent physician.
SEMC protests that R.C. 2305.25 and 2305.251 prevent a hospital from defending itself against claims for negligent peer review. According to SEMC, these statutes require that no evidence as to any matter brought to the attention of peer review committees, or actions taken by those committees, can be introduced into evidence in the hospital’s defense. We reject SEMC’s contentions for a number of reasons, but quoting from the following portion of R.C. 2305.251 should dispel any notion that SEMC’s arguments are meritorious:
“ * * * Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented during proceedings of a committee nor should any person testifying before a committee or who is
VII
Summary of Holdings re Claims Against SEMC
In summarizing our discussion concerning the claims against SEMC, we hold that:
1. Hospital negligence arising out of the “care” of a patient is a “medical claim” within the meaning of R.C. 2305.11(D)(3) and is subject to the period of limitations set forth in R.C. 2305.11(B)(1). “Care” as used in R.C. 2305.-11(D)(3) is the prevention or alleviation of a physical or mental defect or illness.
2. Negligent credentialing of a physician by a hospital is not “medical diagnosis, care, or treatment” within the meaning of R.C. 2305.11.
3. An action against a hospital for bodily injury arising out of the negligent credentialing of a physician is subject to the two-year limitations period set forth in R.C. 2305.10.
4. The period of limitations set forth in R.C. 2305.10 commences to run when the victim knows or should have discovered that he or she was injured as a result of the hospital’s negligent credentialing procedures or practices.
5. R.C. 2305.25 does not provide a hospital with immunity from liability for the hospital’s negligence in granting and/or continuing the staff privileges of an incompetent physician.
For the reasons stated herein, which differ, in part, from the reasoning of the court of appeals, we affirm the court of appeals’ judgment in case No. 91-2121 (Mitchell) and that portion of the court of appeals’ judgment in case No. 91-2079 (Browning) which reversed the judgment of the trial court with respect to the dismissal of the action against SEMC.
VIII
Consortium Claim of Lawrence Browning Against Blue
The only remaining question before us concerns the appeal of Dr. Blue in case No. 91-2079 (Browning) regarding the reinstatement of Lawrence
Blue contends that Lawrence Browning did not appeal to the court of appeals and, thus, the appellate court had no jurisdiction to reverse the judgment of the trial court on any issue relating to Lawrence’s claim against Blue. However, the record does not support this contention and, therefore, we reject Blue’s argument.
Blue also suggests that the court of appeals abused its discretion in finding that the R.C. 2305.09 statute of limitations applied to Lawrence’s consortium claim against Blue, since no party briefed or argued the issue or raised the question in an assignment of error to the court of appeals. We find no abuse of discretion. The law is clear that spousal consortium claims arising from medical malpractice are governed by the R.C. 2305.09(D) four-year period of limitations, when the principal claim for malpractice accrued, as it did here, prior to the effective date of the October 1987 amendment to R.C. 2305.11. Hershberger, supra, 34 Ohio St.3d at 6, 516 N.E.2d at 208.
Finally, Blue suggests that even under the R.C. 2305.09 statute of limitations, Lawrence Browning’s action against Blue for loss of consortium was untimely filed. Specifically, Blue urges that Mrs. Browning’s malpractice claim against Blue “accrued” within the meaning of R.C. 2305.11 as early as 1983 and, thus, Lawrence Browning had four years from that time to commence suit against Blue, but failed to do so. However, Mrs. Browning’s malpractice claim against Blue was found by the trial court and court of appeals to have accrued in August 1987 at the latest. Since the R.C. 2305.09(D) four-year period of limitations on Lawrence’s claim against Blue commenced to run on the same date that the R.C. 2305.11 one-year period of limitations began to run on Browning’s malpractice claim against Blue, Hershberger, supra, paragraph two of the syllabus, Lawrence’s claim was timely filed. This is especially true given the fact that Browning continued
IX
Conclusion
In reaching our conclusions, we do not pass judgment (since issues of alleged liability are yet to be determined) on Dr. Blue or SEMC, although it is tempting to do so given what the record shows has happened to these two women. Perhaps now they, and others, will have their day in court, where the’ conspiracy of silence in the local medical community which permitted the atrocities to be committed, and the atrocities themselves, can be more fully explored. Further, nothing in our opinion should be read to stand in the way of the proper performance of progressive medicine.
For all the reasons set forth herein, we affirm the difficult and courageous judgments of the court of appeals.
Judgments affirmed.
. The malpractice of Dr. Burt has been established in both cases by virtue of the default judgments entered against him even the causes of action for malpractice against Dr. Burt were untimely filed. Browning did not appeal to this court from the determination that her malpractice action against Dr. Blue was untimely filed and, thus, the judgment of the court of appeals on that issue is final.
. The current version of R.C. 2305.11(B)(1) and (D)(3) has remained unchanged since the amendment to R.C. 2305.11 effective October 20,1987. See 142 Ohio Laws, Part II, 3322-3325.
. We reach this conclusion no matter which of the many previous versions of R.C. 2305.11 is considered. Prior to the October 1987 amendment to R.C. 2305.11 (142 Ohio Laws, Part II, 3322-3325), former versions of R.C. 2305.11(A) provided, in part, that “[a]n action for * * * malpractice, including an action for malpractice against a * * * hospital, * * * shall be brought within one year after the cause thereof accrued * * *.” See 141 Ohio Laws, Part II, 3228; 139
. It is interesting to note that even if Browning’s negligent credentialing claims against SEMC . accrued in August 1987 as the trial court suggested, the action would still have been timely filed against SEMC under the applicable two-year period of limitations.
. Lawrence Browning’s consortium action against SEMC, premised upon SEMC’s alleged negligence in credentialing Drs. Burt and Blue, was timely filed and we reject SEMC’s arguments to the contrary.
. In this regard, we note that the October 1987 amendment to R.C. 2305.11 specifically made certain derivative claims subject to the same period of limitations as the principal claim. See R.C. 2305.11(D)(3); 142 Ohio Laws, Part II, at 3324.
Concurrence in Part
concurring in part and dissenting in part. I concur with the majority’s disposition of Lawrence Browning’s consortium claim against Dr. Blue. However, I respectfully dissent from the majority opinion because (1) a “negligent credentialing” cause of action is a “medical claim” and is subject to the one-year limitations period set forth in former R.C. 2305.11, and (2) plaintiffs’ claims against St. Elizabeth Medical Center (“SEMC”) had already accrued and were time-barred by the time plaintiffs viewed the “West 57th” television program..
I
Because the majority’s newly styled “negligent credentialing” cause of action is created from the language of a previous decision of this court, it is important to first consult that language before analyzing the cases sub judice. In Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 553 N.E.2d 1038, we recognized, as an exception to the independent contractor rule, the right of a plaintiff to hold an employer directly liable for injuries proximately caused by the employer’s own negligence in selecting or retaining an independent contractor. We applied this rule to the hospital setting and held that a
“In regard to staff privileges, a hospital has a direct duty to grant and to continue such privileges only to competent physicians. A hospital is not an insurer of the skills of private physicians to whom staff privileges have been granted. In order to recover for a breach of this duty, a plaintiff injured by the negligence of a staff physician must demonstrate that but for the lack of care in the selection or the retention of the physician, the physician would not have been granted staff privileges, and the plaintiff would not have been injured.” (Emphasis added.)
The above-emphasized language underscores a crucial point underemphasized by the majority’s opinion: under Albain, claims against a hospital for negligent retention or selection of a staff physician are dependent on an underlying medical malpractice claim against the staff physician. In order to prevail in a cause of action for negligent credentialing against a hospital pursuant to Albain, the plaintiff must establish not only negligent selection and/or retention of a physician, but also that but for the hospital’s negligence, the plaintiff would not have been injured. That is, Albain requires that the underlying malpractice of the physician be proven before the plaintiff can recover damages against the hospital for its own negligence. Without an underlying harm to the hospital’s patient through medical malpractice, an action against the hospital for negligent credentialing will never arise. Although medical malpractice claims against the doctor and negligent credentialing claims against the hospital are separate causes of action, with separate and distinct duties owed to a singular class of individuals, both causes of action fail without proof that the physician’s failure to abide by ordinary standards of care proximately caused the patient’s harm.
Having failed to fully appreciate the significance of the interdependence between the negligent credentialing claims and the underlying malpractice claims, the majority has also erroneously held that a negligent credentialing cause of action is subject to the two-year limitations period set forth in R.C. 2305.10, rather than the one-year period found in former R.C. 2305.11.
“ * * * The second paragraph of R.C. 2305.11(A) allows one to serve written notice, prior to expiration of the time in R.C. 2305.11(A), upon a person and extend the time in which a suit may be brought against that person by up to 180 days from the time notice is given. This paragraph does not refer at all to malpractice. Rather, it uses the phrase ‘medical claim.’ This is evidence that the General Assembly considered the words ‘malpractice’ and ‘medical claim’ to be synonymous, for if the legislative intent was to give these words different meanings, it would make little sense to include actions such as the present one in a subsection that did not apply to them.”
I would, therefore, hold that a negligent credentialing cause of action against a hospital, like a medical malpractice lawsuit brought against a physician, is subject to the one-year statute of limitations of R.C. 2305.11. Claims asserted against a hospital for negligent credentialing do arise out of a patient’s medical diagnosis, care, or treatment. In every instance, the plaintiff-patient is alleging that the staff physician has rendered him or her substandard diagnosis, care, or treatment which proximately resulted in plaintiff’s alleged injuries. The negligent credentialing claim against the hospital would not have arisen but for the underlying medical malpractice. Accordingly, the instant actions against the hospital are “medical claim[s]” within the meaning of former R.C. 2305.11(D)(3) and the plaintiffs had one year from the time of accrual in which to file their lawsuits.
What remains to be determined is the proper accrual date of the plaintiffs’ negligent credentialing causes of action against SEMC. Our prior decisions establish that a cause of action for medical malpractice accrues when the patient discovers or, in the exercise of reasonable care, should have discovered the resulting injury, or when the physician-patient relationship for that condition terminates, whichever occurs later. Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337, syllabus. The term “cognizable event” was used in Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93, to identify the point in time when the patient in fact discovers or reasonably should have discovered the resulting injury. Allenius cited the following language of Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, paragraph one of the syllabus: “ ‘Under R.C. 2305.11(A), 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.’ ” Allenius, supra, 42 Ohio St.3d at 133, 538 N.E.2d at 95.
Therefore, a “cognizable event” is an occurrence “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 syllabus. Concurring in that opinion in order to emphasize that it is discovery of the physical injury — not discovery of the legal claim — which triggers the statute of limitations, I stated:
“[I]n determining when the statute of limitations is triggered, ‘ “[t]he test is whether the plaintiff has information of circumstances sufficient to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his or her investigation.” ’ * * * As indicated by the majority, it is a cognizable event such as the occurrence of pain or injury ‘ * * * rather than knowledge of its legal significance that starts the running of the statute of limitations.’ ” Allenius, supra, at 135, 538 N.E.2d at 97.
That proposition was recognized in a later decision by this court in Flowers v. Walker (1992), 63 Ohio St.3d 546, 549, 589 N.E.2d 1284, 1287-1288:
“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. * * * 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
The facts or circumstances which give rise to a “cognizable event” for purposes of discovery of a medical malpractice claim do not automatically give rise to a claim against a hospital for negligent credentialing. “A physician’s negligence does not automatically mean that the hospital is liable, and does not raise a presumption that the hospital was negligent in granting the physician staff privileges.” Albain, supra, 50 Ohio St.3d at 258-259, 553 N.E.2d at 1046. As noted by the majority, the statute of limitations for negligent credentialing begins to run when the “plaintiff discovers or, through the exercise of reasonable diligence, should have discovered some definitive information that would reasonably warrant investigation of the hospital’s credentialing practices.” Here, the majority has followed the lead of the court of appeals in determining that there was no evidence before the trial court that the plaintiffs knew or should have known that the hospital had failed to perform its legal duty toward them until plaintiffs viewed the “West 57th” television show. I strongly disagree because I believe the plaintiffs had earlier notice of SEMC’s negligence in granting staff privileges to the defendant-physicians.
The record indicates that both Browning and Mitchell signed the following acknowledgement on SEMC letterhead prior to having Dr. Burt perform vaginal reconstruction surgery:
“Dear Patient:
“The Executive Committee of the Medical Staff of St. Elizabeth Medical Center wishes to inform you that the ‘female coital area reconstruction’ surgery you are about to undergo is:
“1. Not documented by ordinary standards of scientific reporting and publication.
“2. Not a generally accepted procedure.
“3. As yet not duplicated by other investigators.
“4. Detailed only in non-scientific literature.
“You should be informed that the Executive Committee of the Medical Staff considers the aforementioned procedure an unproven, non-standard practice of gynecology.”
The majority completely overlooks the impact of the signed consent form in determining when the plaintiffs’ negligent credentialing causes of action against SEMC accrued. Instead, the majority holds that plaintiffs’ causes of action accrued no earlier than the date Browning and Mitchell viewed the “West 57th” television program. In this regard, the majority asserts that
One is not left to imagine the purpose SEMC had in supplying this form letter to patients about to undergo Dr. Burt’s unusual surgery. SEMC was clearly attempting to insulate itself from liability. In doing so, the hospital was telling its patients that Dr. Burt’s specific brand of reconstruction surgery was unlike any other known form of reconstruction surgery. The experimental nature of this surgery therefore carried with it additional risks not associated with standard and generally áccepted surgical procedures. Because it is not before this court, we leave unresolved the issue whether the hospital can effectively assert this letter as a defense to the Browning and Mitchell lawsuits. However, the letter’s relevance in placing these former patients on notice that SEMC itself may have breached a duty owed to them by allowing such surgeries to be performed on its premises should not likewise go unresolved.
If the majority properly applied Allenius and Flowers to these facts, the conclusion would be that the form letter was effective to place both Browning and Mitchell on notice that SEMC may have failed to properly perform its credentialing duties by permitting a physician’s questionable surgical procedures. The next question to be answered is when the statute of limitations began to run on the patients’ negligent credentialing causes of action against SEMC. Obviously, the statute did not begin to run when Browning and Mitchell were supplied with the form letter because the surgeries had yet to be performed and they, therefore, could claim no resulting injury. Since they had no reason to believe they were harmed, it is equally unfair to hold that the statute of limitations was triggered when the operations were first performed. In medical malpractice cases, the running of the statute of limitations is delayed from the traditional date of injury to the date a “cognizable event” is discovered, in order to eliminate unfairness to medical malpractice plaintiffs. See Flowers, supra, 63 Ohio St.3d at 550, 589 N.E.2d at 1288. Accordingly, it was not until Browning and Mitchell became aware that the injuries they complained of were related to the doctors’ surgeries that they should have appreciated the significance of the hospital’s form letter. Allenius clearly envisions and requires that the patient investigate and pursue all “possible
Among the “possible remedies” of a plaintiff harmed by the malpractice of a physician are claims against a hospital for negligent credentialing procedures when that patient has information of circumstances sufficient to put a reasonable person on inquiry that the hospital may have breached a duty owed to him or her. At the time their causes of action against the doctors accrued, the form letter provided notice to plaintiffs of a possible claim against SEMC or at least should have alerted them to the need to investigate such claim.
In case No. 91-2079, Browning informed Dr. Blue at the latest in August 1987 that he had committed malpractice on her. By that time, Browning had undergone approximately sixteen surgeries and her physical and emotional health was continuing to decline. The trial court, therefore, correctly found that August 1987, at the very latest, was the time when Browning was put on notice by a “cognizable event” to pursue her medical malpractice claim and the one-year statute of limitations of R.C. 2305.11 began to run. To hold otherwise is to cast aside the “cognizable event” test this court announced just four years ago in an effort to give trial courts some useful standard in medical malpractice cases. Because Browning should also have been aware of SEMC’s negligence in permitting her doctor’s experimental surgery, her cause of action against the hospital for negligent credentialing and retention also accrued on this date. Both causes of action were barred because Browning filed her complaint on April 17, 1989, outside the one-year period of limitations.
In case No. 91-2121, Mitchell underwent Dr. Burt’s reconstruction surgery in January 1985. The medical problems to be alleviated by this surgery (which, included urinary incontinence, bladder and vaginal infections and painful sexual intercourse) actually worsened within a few months after the January 1985 surgical procedure. The record indicates that by mid-1985, intense pain and massive vaginal bleeding made it impossible for Mitchell to engage in sexual intercourse with her husband. Mitchell was also aware of the unusual appearance of her vagina at this time. She discovered that her vagina “was covered over” and “sewn up.” Certainly, these occurrences gave rise to a “cognizable event” for purposes of Mitchell’s discovery of her medical malpractice claim. Like Browning, the SEMC form letter could reasonably be expected to place Mitchell on notice of the need to pursue her “possible remedy” against the hospital. Since Mitchell’s complaint against the hospital was filed more than three years after she was placed on notice, the trial court correctly found it was time-barred.
. Current R.C. 2305.11(B)(1), unlike the former version of the statute, specifically states that an action on a “medical * * * claim” (like those actions based upon a dental, optometric, or chiropractic claim) is required to be commenced within one year after the action accrued. Under R.C. 2305.11(D)(3),- “medical claim” includes claims which seek to hold a hospital responsible for its own torts as well as those alleging the hospital is vicariously liable for the wrongful acts of its employees and agents. In both cases, the claim must be one that “arises
“ ‘Medical claim’ means any claim that is asserted in any civil action against a physician, podiatrist, or hospital, against any employee or agent of a physician, podiatrist, or hospital, or against a registered nurse or physical therapist, and that arises out of the medical diagnosis, care, or treatment of any person. ‘Medical claim’ includes derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person.” (Emphasis added.)
Concurrence in Part
concurring in part and dissenting in part. Along with the Chief Justice, I agree with the majority’s disposition of Lawrence Browning’s consortium claim, but disagree with the majority’s disposition of the plaintiffs’ negligent credentialing claims against St. Elizabeth Medical Center. Unlike the Chief Justice though, because I believe a negligent credentialing claim is necessarily grounded in negligence, I agree with the majority’s holding in paragraph three of the syllabus that “[a]n action against a hospital for bodily injury arising out of the negligent credentialing of a physician is subject to the two-year limitations period set forth in R.C. 2305.10.”
However, I find it completely unnecessary to create a new event, the “alerting event,” as the accrual date for the running of the statute of limitations. The “cognizable event” which we recognized in Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93, the event by which “ ‘the patient discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury,’ ” is the event which “placets] the patient on notice of the need to pursue his possible remedies.” Id. at 133, 538 N.E.2d at 95, and at syllabus (quoting, in part, Oliver v. Kaiser Community Health Found. [1983], 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, paragraph one of the syllabus). One of the “possible remedies” of which the plaintiff is on notice is a negligent credentialing claim.
I certainly agree with the majority that not every case of malpractice will give rise to a negligent credentialing claim. However, as the Chief Justice points out, every negligent credentialing claim will by necessity arise out of a malpractice claim because the plaintiff must have been injured by the hospital’s actions in negligently credentialing the physician in question. Therefore, it seems to me that the cognizable event which is the accrual date for a malpractice action is the same point in time at which, as the majority writes, the “plaintiff discovers or, through the exercise of reasonable diligence, should have discovered some definitive information that would reasonably warrant investigation of the hospital’s credentialing practices.” (Emphasis added.)
I disagree with the majority that use of this cognizable event to trigger the statute of limitations for a negligent credentialing claim will “encourage baseless claims of negligent credentialing and a hospital would be named in nearly every lawsuit involving the malpractice of a physician.” The majority
My view of the record is that the “cognizable event” as to both appellees with respect to the hospital took place at a far earlier time than the television show described by the majority. Accordingly, I would remand the matter to the trial court to determine the precise time frames involved.