Rose v. TievskyRose v. Tievsky
OPINION
Rendered on the 3rd day of September, 2021.
BERNARD JOSEPH ROSE, M.D., 1318 Laurelwood Road, Kettering, Ohio 45409 Plaintiff-Appellant, Pro Se
MATTHEW L. SCHRADER, Atty. Reg. No. 0074230, 200 Civic Center Drive, Suite 800, Columbus, Ohio 43215 Attorney for Defendants-Appellees
{¶ 2} According to Dr. Rose, he was not required to provide an affidavit of merit because his claims were based on negligence, and the matters in question were within the common knowledge of the trier of fact. Dr. Rose further contends that the statute of limitations for his claims should have been that set forth in
{¶ 3} Dr. Rose also argues that he brought his claims within the proper time after he was informed by a “competent medical authority” that he had an injury related to carbon monoxide exposure, or within the time that, in the exercise of reasonable care and diligence, he should have discovered the resulting injury. In addition, Dr. Rose argues that the statute of limitations should have been tolled because he was of unsound mind.
{¶ 4} After reviewing the record, we conclude that Dr. Rose‘s claims were “medical claims” under
{¶ 5} The trial court did err in finding that Dr. Rose‘s medical claims were barred because he failed to refile them until 21 months after his original claims were dismissed and that, as a result, the requirements of the savings statute in
{¶ 6}
{¶ 7} We further conclude that the trial court correctly dismissed Dr. Rose‘s claims because he failed either to file a proper affidavit of merit or to ask for an extension for filing one. Finally, the trial court did not commit any error in requiring proof beyond the complaint‘s allegations or in considering such evidence. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 8} This case began with an action that was filed and dismissed in 2018, and was then refiled. Concerning the first case, Dr. Rose filed a pro se medical malpractice action against Dr. Tievsky and CCF on June 15, 2018. That action was designated as Montgomery C.P. No. 2018-CV-2727.1
{¶ 9} The 2018 complaint was presented in narrative form. According to the complaint, Dr. Rose was hospitalized at Glenbeigh Rehabilitation Center in 2013. During the hospitalization, a doctor (Dr. Zinni) ordered an MRI because Dr. Rose was having
{¶ 10} In contrast, an August 2011 MRI of Dr. Rose, which was attached as part of the complaint, indicated some changes that might be seen with “hypoxic/anoxic brain injury.” August 1, 2011 University Radiology Associates Diagnostic Radiology Interpretation of Films for: Linder Center of Hope, p. 1.
{¶ 11} Dr. Rose also attached a Final Report of Cleveland Clinic Star Imaging to the 2018 Complaint. The exam date is listed as May 24, 2017, and the history given was of a “58 year old man with chronic heartburn, monoxide exposure, serum imbalance, and low sodium.” Id. at p. 1. On that day, an MRI was done with and without contrast, and the stated impression was: “Abnormal signal intensity at the interior basil ganglia bilaterally with evidence for magnetic susceptibility artifact. The findings may be related to mineralization. * * * [A] previous insult such as from carbon monoxide exposure could also have this appearance.” Id. at p. 2.
{¶ 12} According to the 2018 Complaint, Dr. Rose believed the pathologic changes shown by the 2011 MRI had caused the problems he had during the 2013 hospitalization at Glenbeigh. Dr. Rose alleged that Dr. Tievsky “misdiagnosed pathologic changes in the Globus Pallidus area” and “failed to perform acceptable medical practice by his failure to compare previously abnormal images.” 2018 Complaint at p. 1. Dr. Rose further alleged that CCF was “guilty of failure to follow acceptable care by not obtaining previous
{¶ 13} On July 17, 2018, Dr. Tievsky filed a motion to dismiss the complaint based on the fact that Dr. Rose had failed to file an affidavit of merit as required by
{¶ 14} We dismissed Dr. Rose‘s appeal in January 2019, because the dismissal for lack of an appropriate affidavit of merit was without prejudice, did not prevent refiling, and was not a final appealable order. See Rose v. Tievsky, 2d Dist. Montgomery No. 28184 (Decision and Final Judgment Entry, Jan. 16, 2019), p. 3. In a footnote, we also mentioned Appellees’ argument that, under
{¶ 15} Rather than refiling, Dr. Rose appealed our decision to the Supreme Court of Ohio, which declined jurisdiction over the appeal on May 15, 2019. Dr. Rose then refiled another pro se medical malpractice action (the current action), and again included Dr. Tievsky and CCF as defendants. See 2020 Complaint (May 14, 2020). Again, Dr. Rose failed to attach an affidavit of merit and did not ask for an extension of time to do so. The 2020 Complaint also attached documents that were very similar to those
{¶ 16} On June 12, 2020, Appellees filed a motion to dismiss, contending the action should be dismissed because Dr. Rose failed to file an affidavit of merit and did not request an extension of time to do so. They also filed an answer and raised various affirmative defenses, including that the action was barred by the statute of limitations and by the statute of repose. Tievsky/CCF Answer (June 12, 2020), p. 2. On June 15, 2020, the court set a briefing schedule for the motion to dismiss.
{¶ 17} Dr. Rose filed a response to the motion to dismiss. In his memorandum, Dr. Rose argued that he did not need an expert witness because Appellees’ failure to obtain and review the prior MRI report was “simple” negligence. Rose Reply (July 10, 2020), p. 1-2. Dr. Rose also raised the issue that the legislation requiring an affidavit of merit prevented him from receiving a fair trial because it required him to spend significant sums of money on an expert. Id. at p. 3-4. Finally, Dr. Rose quoted from a report of an affidavit of merit from Dr. DiNella, who was apparently a board certified psychiatrist.
{¶ 18} The quoted portion stated only as follows:
The treating doctors’ failure to carry out their duty to accurately diagnose and treat Dr. Rose directly resulted in harm to him emotionally, medically and financially. Due to the damage to his reputation, his income as a physician dropped by $200,000 that year and took several years to recover. It also caused emotional damage to him due to the damage of his reputation.
Rose Reply at p. 6.
{¶ 19} On the same day that Dr. Rose responded to the motion to dismiss,
{¶ 20} On July 24, 2020, Appellees filed a memorandum replying to Dr. Rose‘s response to their motion to dismiss; they also included a motion to strike the “proffered” affidavit of Dr. DiNella because it failed to comply with
{¶ 21} The trial court then issued an order granting Appellees’ motions and dismissing Dr. Rose‘s action with prejudice. Order (December 29, 2020). The court concluded that Dr. Rose‘s claims were medical claims governed by the statute of limitations in
{¶ 22} Additionally, the court found that Dr. Rose failed to bring his medical claims within the one-year statute of limitations in
{¶ 23} With these facts in mind, we will consider the assignments of error that Dr. Rose has asserted.
II. Status of Dr. Rose‘s Claims and Appropriate Statute of Limitations
{¶ 24} Dr. Rose is acting pro se on appeal, as he did in the trial court. Dr. Rose has asserted eight assignments of error, but he has failed to follow the proper format for briefs as outlined in App.R. 16(A)(1)-(8) and (D). Based on these omissions, we could “either strike the offending portions of the brief or sua sponte dismiss the appeal.” Brazelton v. Brazelton, 2d Dist. Montgomery No. 24837, 2012-Ohio-3593, ¶ 8. However, in the interests of justice, we will review the merits of Dr. Rose‘s claims. Id. This will involve addressing some assignments of error out of order. We will begin with the second assignment of error, which, quoted verbatim, states “Assignment of error No. 2 Denial of Negligence claim.” Appellant‘s Brief at p. 6.
{¶ 25} Under this assignment of error, Dr. Rose contends that the trial court erred in finding that his claims were “medical claims” rather than claims sounding in ordinary negligence or personal injury. Dr. Rose further argues that the matters at issue in this case (the failure to compare prior MRI films) fall within the common knowledge of jurors, which eliminates the need for expert testimony. As a result, Dr. Rose believes he did not need to furnish an affidavit of merit.
Assignment of error No. 4 Common Pleas Court (CPC) was wrong to grant summary judgment 56(c) based solely on Statute of Limitations 2305.113.
{¶ 27} Under this assignment of error, Dr. Rose contends that the trial court should have used the statute of limitations in
{¶ 28} And finally, we will discuss the sixth assignment of error, which is also interrelated. This assignment of error, quoted verbatim, states that:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS/ APPELLEES WHERE THERE IS A QUESTION OF FACT AS TO WHEN THE COGNIZABLE EVENT OCCURRED WHICH TOLLED THAT STATUTE OF LIMITATIONS IN MEDICAL MALPRACTICE CASE, SUMMARY JUDGMENT IS IMPROPER AS A MATTER OF LAW.
{¶ 29} Under this assignment of error, Dr. Rose again argues that the appropriate statute of limitations should be
{¶ 30} Before we address these issues, we will briefly discuss the appropriate
A. Dismissal Under Civ.R. 12(B)(6)
{¶ 31} The law is well-established that orders granting
{¶ 32} In the context of
{¶ 33} A motion to dismiss based on the statute of limitations may be granted where the defect is apparent on the face of the complaint, but such a motion “is erroneously granted where the complaint does not conclusively show on its face the action is barred by the statute of limitations.” Velotta v. Leo Petronzio Landscaping, Inc.,
B. Summary Judgment Decisions
{¶ 34} “A trial court may grant a moving party summary judgment pursuant to
{¶ 35} “A party seeking summary judgment ‘bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party‘s claim.‘” Griffith v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 26, quoting Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in
{¶ 36} As with decisions on motions to dismiss, we review trial court rulings on summary judgment decisions de novo. GNFH, Inc., 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, at ¶ 16. With these standards in mind, we will consider Dr. Rose‘s arguments.
C. Asserted Application of R.C. 2305.10(B)(1)
{¶ 37} Dr. Rose suggests that the statute of limitations in
{¶ 38}
For purposes of division (A) of this section, a cause of action for bodily injury that is not described in division (B)(2), (3), (4), or (5) of this section and that is caused by exposure to hazardous or toxic chemicals, ethical drugs, or ethical medical devices accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first.
{¶ 39} As far as we can tell, Dr. Rose is arguing that using this statute would toll
{¶ 40} This argument is incorrect. First of all, Dr. Rose did not allege that Appellees had anything to do with his exposure to toxic chemicals; he alleged that they failed to obtain prior MRI records and to correctly diagnose his condition. As a result, Dr. Rose‘s claims are “medical claims,” which are defined in
D. Affidavit of Merit
{¶ 41} Because this case involves medical claims under
(a) Except as provided in division (D)(2)(b) of this rule, a complaint
that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in R.C. 2305.113 , shall be accompanied by one or more affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability. Affidavits of merit shall be provided by an expert witness meeting the requirements ofEvid.R. 702 and, if applicable, also meeting the requirements ofEvid.R. 601(D) . Affidavits of merit shall include all of the following:(i) A statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint;
(ii) A statement that the affiant is familiar with the applicable standard of care;
(iii) The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.
{¶ 42} The exception in
{¶ 43} “Clearly, the purpose behind the rule is to deter the filing of frivolous medical-malpractice claims. The rule is designed to ease the burden on the dockets of Ohio‘s courts and to ensure that only those plaintiffs truly aggrieved at the hands of the medical profession have their day in court.” Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 10.
{¶ 45} In Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), the Supreme Court of Ohio stated that:
“The issue as to whether the physician and surgeon has proceeded in the treatment of a patient with the requisite standard of care and skill must ordinarily be determined from the testimony of medical experts. * * * It should be noted that there is an exception to that rule in cases where the nature of the case is such that the lack of skill or care of the physician and surgeon is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it, and in such case expert testimony is not necessary.”
Id. at 130.
{¶ 46} As an example of “common knowledge,” cases involving matters like an unattended patient falling from a bed are “claims of ordinary negligence.” However, matters that involve “professional skill and judgment” are “not within the common knowledge and experience of the jurors.” Ramage v. Cent. Ohio Emergency Serv., Inc.,
{¶ 47} “Expert-opinion evidence * * * is required where the inquiry pertains to a highly technical question of science or art or to a particular professional or mechanical skill.” Jones v. Hawkes Hosp. of Mt. Carmel, 175 Ohio St. 503, 196 N.E.2d 592 (1964), paragraph one of the syllabus. The field of radiology involves professional skill and highly technical scientific questions, and, therefore, is not within the common knowledge of jurors. Accordingly, the trial court did not err in rejecting Dr. Rose‘s assertion of the common knowledge exception, and it did not err in dismissing Dr. Rose‘s action based on his failure to include an affidavit of merit or to ask for an extension.
{¶ 48} Typically, a dismissal for failure to file an affidavit of merit is a dismissal without prejudice. Fletcher, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, at ¶ 20. Here, however, the court dismissed Dr. Rose‘s claims with prejudice because the action was otherwise precluded by the statute of limitations. Order at p. 12. This leads us to the next issue, which concerns when the cognizable event occurred for purposes of the statute of limitations in
R.C. 2305.113(A)
{¶ 49} In connection with the sixth assignment of error, Dr. Rose again argues that the proper statute of limitations is found in
{¶ 50} Under
{¶ 51} There is no dispute here that Dr. Rose‘s relationship with Appellees ended,
{¶ 52} Based on Dr. Rose‘s own allegations in the complaint filed in the present case on May 14, 2020, the trial court found that “the cognizable event occurred on June 15, 2017, when Dr. Rose discovered the resulting injury.” Order at p. 13. The court‘s finding was due to the complaint‘s allegation that on June 15, 2017, “a repeat MRI * * * was read by another radiologist, * * * who reviewed this MRI and felt pathological changes existed,” which Dr. Rose described as a ” ‘revelation.’ ” (Emphasis sic.) Id. at p. 12, quoting Complaint at p. 1. We agree with the trial court this was the date the cause of action accrued. There is simply no evidence otherwise.
{¶ 53} In this context, we stress Dr. Rose‘s admission that he learned about the pathology suggesting carbon monoxide on June 15, 2017. Complaint at p. 1; Appellant‘s Brief at p. 19-20. As indicated, Dr. Rose discounts this fact because the doctor who provided the information was not a neurologist or psychiatrist as required by
{¶ 54} Furthermore, courts must look to a particular case‘s facts and decide “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.” Hershberger v. Akron City Hosp., 34 Ohio St.3d 1, 5-6, 516 N.E.2d 204 (1987), paragraph one of the syllabus.
{¶ 55} “The ‘extent and seriousness of his condition’ language of the test set forth in 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 v. Thomas, 42 Ohio St.3d 131, 538 N.E.2d 93 (1989), syllabus. “If a patient believes, based on a known injury, that her
{¶ 56} The affidavit that Dr. Rose signed on September 15, 2020, indicated that he graduated from The Ohio State University Medical School in 1984 and had been a primary care physician for 33 years. Rose Affidavit (Sep. 28, 2020), p. 1. Dr. Rose further stated that “[o]ver the last 9 years,” he had “been very interested in the effects of Carbon Monoxide on human mental and physical problems,” had “read over 700 peer-reviewed articles,” and had “reviewed over 100 books dealing with carbon monoxide pathology.” Id. at p. 2. In addition, Dr. Rose‘s affidavit stated that since 2016, he had been aware that his automobile “was causing toxic carbon monoxide levels in the driver‘s compartment.” Id. at p. 4, referencing Ex. G attached to the Rose Affidavit.4
{¶ 57} In light of these facts, including Dr. Rose‘s knowledge of carbon monoxide effects and pathology dating back to around 2011, his suspicion since at least 2016 that he had been exposed to inappropriate carbon monoxide, and the MRI abnormalities related to potential carbon monoxide exposure to which he was alerted in June 2017, a reasonably prudent person in Dr. Rose‘s circumstances would have been put on notice of the need for further inquiry as to the cause of his condition and the need to pursue
{¶ 58} Based on the preceding discussion, the second, fourth, and sixth assignments of error are overruled.
IV. Tolling of the Statute of Limitations
{¶ 59} Concerning tolling, Dr. Rose presents the following three assignments of error (all recited verbatim):
Assignment of error No. 3 Common Court stated pg 13 para 18 “Dr. Rose does not provide evidence of unsound mind. . . Furthermore, Dr. Rose does not assert he was of unsound mind at the time the cause of action accrued.......The Court therefore finds the tolling provision of
R.C. 2305.16 to be inapplicable.”Assignment of error 7 Defendant‘s contention “not of unsound mind.”
Assignment of error 8 Failure, by plaintiff to provide proof of allegation in memorandum against Summary Judgment.
{¶ 60} Under these assignments of error, Dr. Rose essentially contends that there were genuine issues of material fact concerning whether he was of “unsound mind” at the time his cause of action accrued, and that the trial court, therefore, should have found the
{¶ 61} Regarding
{¶ 62} As relevant here,
A statute of limitations establishes “a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).” Black‘s Law Dictionary 1707 (11th Ed.2019). A statute of limitations operates on the remedy, not on the existence of the cause of action itself. Mominee v. Scherbarth, 28 Ohio St.3d 270, 290, 503 N.E.2d 717, fn. 17 (Douglas, J., concurring). A statute of repose, on the other hand, bars “any suit that is brought after a specified time since the defendant acted * * * even if this period ends before the plaintiff has suffered a resulting injury.” Black‘s Law Dictionary at 1707. A statute of repose bars the claim -- the right of action -- itself. Treese v. Delaware, 95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th Dist. 1994).
* * *
Wilson v. Durrani, Ohio Slip Opinion No. 2020-Ohio-6827, ___ N.E.3d ___, ¶ 9.
{¶ 63} The Supreme Court of Ohio further remarked that “[s]tatutes of limitations and statutes of repose target different actors.” Id. at ¶ 10, citing CTS Corp. v. Waldburger, 573 U.S. 1, 8, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014). In this vein, the court explained that:
Statutes of limitations emphasize plaintiffs’ duty to diligently prosecute known claims. [CTS Corp. at 8], citing Black‘s Law Dictionary 1546 (9th Ed.2009). Statutes of repose, on the other hand, emphasize defendants’ entitlement to be free from liability after a legislatively determined time. Id. at 9, 134 S.Ct. 2175. In light of those differences, statutory schemes commonly pair a shorter statute of limitations with a longer statute of repose. California Pub. Emps.’ Retirement Sys. v. ANZ Securities, Inc., ___ U.S. ___, 137 S.Ct. 2042, 2049, 198 L.Ed.2d 584 (2017). When the discovery rule -- that is, the rule that the statute of limitations runs from the discovery of injury -- governs the running of a statute of limitations, the “discovery rule gives leeway to a plaintiff who has not yet learned of a violation, while the rule of repose protects the defendant from an interminable threat of liability.” Id. at ----, 137 S.Ct. at 2050.
{¶ 64} In Wilson, the court stressed that ”
{¶ 65} As applied to the current case, whether or not a prior action was filed and dismissed, this action would be barred, absent tolling, because it was filed on May 14, 2020, more than seven years after the alleged “acts or omissions constituting the alleged basis of the medical * * * claim.”
{¶ 66}
Unless otherwise provided in sections
1302.98 ,1304.35 , and2305.04 to2305.14 of the Revised Code, if a person entitled to bring any action mentioned in those sections * * * is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person may bring it within the respective times limited by those sections, after the disability is removed. * * *
{¶ 67} A second exception in
{¶ 68} “‘Of unsound mind’ includes all forms of derangement or intellectual disability.”
{¶ 69} Dr. Rose argues on appeal that there are factual issues concerning whether he was of unsound mind because he suffered several periods between 2013 and 2017 where he was hospitalized for mental changes that forced him to be off work. Appellant‘s Brief at p. 10. He further argues that while hospitalized at Glenbeigh (a rehabilitation center) in June 2013, his mind was described as “hazy,” or “not in touch with reality.” Appellant‘s Brief at p. 11. In addition, Dr. Rose claims that he “has obtained proof of 52 days of unsound mind since [his] memorandum,” and asks that this data be entered into the record. Id. at p. 12.
{¶ 70} To the extent this latter statement refers to matters outside the record, we
{¶ 71} The trial court rejected tolling for two reasons. First, Dr. Rose failed to submit any evidence that he was of unsound mind on June 15, 2017, or at any time thereafter. Order at p. 13. The court also stressed that Dr. Rose did not claim that he was unsound at these times; rather, he asserted “without proof that he was of ‘unsound mind’ for several periods between 2013 and 2017 and that he was on a 72-hour hold in May of 2017, all of which occurred prior to his discovery of the underlying medical malpractice case.” Id., quoting Complaint at p. 1.
{¶ 72} We agree with the trial court. The only items Dr. Rose submitted in the trial court were: “Plaintiff‘s Memorandum Against Motion to Dismiss” (July 10, 2020), containing only argument and unverified allegations; “Plaintiff‘s Motion Against Summary Judgement [sic] and Request for Jury trial” (Sep. 28, 2020), containing only argument and unverified allegations; and Dr. Rose‘s own affidavit with various unauthenticated materials attached. Rose Aff. (Sep. 28, 2020).
{¶ 73} Dr. Rose‘s affidavit sets forth his qualifications and background as a primary care physician. Rose Aff. at p. 1. He then stated that he experienced “substandard treatment” while a patient at Glenbeigh in May and June 2013. Id. at p. 2. The rest of the affidavit detailed incidents and medical evaluations that occurred between 2011 and April 2017 which indicated, in Dr. Rose‘s opinion, that the prior diagnoses of his medical problems (“schizo-affective, biopolar, obsessive compulsive, alcohol dependent,
{¶ 74} None of this, however, had anything to do with whether Dr. Rose was of unsound mind on June 15, 2017, when the cause of action accrued, or on April 19, 2017, which Dr. Rose suggests in his affidavit was the date he was given an opinion of possible carbon monoxide involvement. Id. at p. 5. This information also had nothing to do with whether Dr. Rose was of unsound mind any time after June 15, 2017.
{¶ 75} The materials attached to Dr. Rose‘s affidavit (208 pages of documents) consisted of various medical records and other records, which were not properly authenticated. Nonetheless, even if these materials were considered, a consultation with Dr. Goldstick dated May 26, 2017, stated that after being admitted to Kettering Hospital on May 20, 2017, for a “brief period of psychological decompensation,” Dr. Rose “returned to his normal mentation * * * ” Rose Aff., Ex. A, May 26, 2017 Report of Dr. Goldstick p. 2. At that time, according to the patient history, Dr. Rose noted that “in 2010, he bought a used car and was driving this for quite some time. He feels there may have been exposure of carbon monoxide at the time and when the car was tested at one point it registered 300 ppm of carbon monoxide.” Id.
{¶ 76} In Dr. Goldstick‘s examination of Dr. Rose on May 26, 2017, Goldstick stated that Dr. Rose‘s attention and concentration were “normal,” his speech was “normal,” his level of consciousness was “alert,” his knowledge was “good,” and his
{¶ 77} Accordingly, even if we considered Dr. Rose‘s affidavit and the attached materials, they would only disprove any contention that he was of unsound mind as of June 15, 2017, or any time thereafter.
{¶ 78} In connection with the eighth assignment of error, Dr. Rose questions why the trial court required him to show proof of his “unsound mind,” when
{¶ 79} Next, regarding the “proof” requirement, the trial court was entitled to consider what the evidence established, because two motions were pending: a motion to dismiss and a motion for summary judgment. As we mentioned, a court does construe a complaint‘s allegations as true for purposes of motions to dismiss. However, when Dr. Tievsky and CCF submitted materials to satisfy their burden on summary judgment, Dr. Rose had the reciprocal burden of showing there were genuine issues of material fact precluding summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). This,
{¶ 80} As a pro se litigant, Dr. Rose clearly does not understand legal procedure, and, like most such litigants, finds the law difficult. However, we have repeatedly emphasized that “[i]n Ohio, a pro se litigant ‘is presumed to have knowledge of the law and of correct legal procedure and is held to the same standard as all other litigants.‘” Citibank S. Dakota, N.A. v. Wood, 169 Ohio App.3d 269, 2006-Ohio-5755, 862 N.E.2d 576, ¶ 57 (2d Dist.), quoting Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996). See also Williams v. PNC Bank, Natl. Assn., 2d Dist. Montgomery No. 28933, 2021-Ohio-977, ¶ 2; State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10.
{¶ 81} Having agreed with the trial court that tolling does not apply, a few additional points about
{¶ 82} We agree that this would normally be the case, and further observe that Dr. Rose has not assigned error specifically on this issue. However, the Supreme Court of Ohio recently issued a decision that impacts what previously would have been true in
R.C. 2305.113(C) is a true statute of repose that, except as expressly stated inR.C. 2305.113(C) and(D) , clearly and unambiguously precludes the commencement of a medical claim more than four years after the occurrence of the act or omission that forms the basis of the claim. Expiration of the statute of repose precludes the commencement, pursuant to the saving statute, of a claim that has previously failed otherwise than on the merits in a prior action.
Wilson, Ohio Slip Opinion No. 2020-Ohio-6827, ___ N.E.3d ___, at ¶ 38. Therefore, a plaintiff may not “take advantage of Ohio‘s saving statute to refile a medical claim after the applicable one-year statute of limitations has expired if the four-year statute of repose for medical claims has also expired.” Id. at ¶ 1.
{¶ 83} The trial court was likely unaware of the Wilson decision, as it was issued on December 23, 2020, only a few days before the court dismissed Dr. Rose‘s case with prejudice on December 29, 2020. The effect of Wilson is that Dr. Rose could not have used the savings statute in
{¶ 84} Specifically, Dr. Rose‘s latest contact with Dr. Tievsky and CCF ended at the latest on May 3, 2013. Four years from that date would have been May 4, 2017. Thus, by the time Dr. Rose filed his initial action in this matter on June 15, 2018, the four-year statute of repose in
{¶ 85} As a result, even if the first action had been timely filed, Dr. Rose could not have used
{¶ 86} Any error by the trial court, however, was harmless, because the end result was the same. See
{¶ 87} Based on the preceding discussion, the third, seventh, and eighth assignments of error are without merit and are overruled.
V. Failure to Consider Dr. Rose‘s Affidavit
{¶ 88} Dr. Rose‘s first assignment of error states as follows:
Assignment of error No. 1. Failure to Recognize
Civ.R. 56 Qualified Affidavit by Dr. Rose.
{¶ 89} Under this assignment of error, Dr. Rose appears to be arguing that the trial court erred by failing to admit his affidavit into the record or to consider it. Dr. Rose contends that he was qualified to give an opinion under
{¶ 90} The trial court did not err in this regard. While the court did not specifically mention Dr. Rose‘s affidavit and the attached documents during its discussion, we have already said that even if the content of Dr. Rose‘s affidavit and the attached documents were considered, they indicated that a reasonably prudent person in his circumstances would have been put on notice of the need for further inquiry as to the cause of his condition and the need to pursue remedies, at the latest, on June 15, 2017. These materials also established that Dr. Rose was of sound mind at the relevant time and thereafter.
{¶ 91} In addition, Dr. Rose admitted in his brief that he was not certified as a neuro-radiologist. Appellant‘s Brief at p. 5. Dr. Rose did not specifically argue that his affidavit could substitute for an affidavit of merit in the trial court, although that is, perhaps, implied. However, that argument would fail for two reasons. First, Dr. Rose did not make this argument in the trial court.
{¶ 92} A fundamental rule of appellate procedure is that appellate courts “will not consider any error which could have been brought to the trial court‘s attention, and hence avoided or otherwise corrected.” Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982). Accord Jackson v. Internatl. Fiber, 169 Ohio App.3d 395, 2006-Ohio-5799, 863 N.E.2d 189, ¶ 11 (2d Dist.). We can recognize plain error in such situations, but it is disfavored in civil cases “and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process
{¶ 93} Even if we did consider “plain error,” any such notion would be squelched by our second reason for rejecting Dr. Rose‘s argument. Specifically, Dr. Rose‘s affidavit could not be substituted for a proper
{¶ 94} Furthermore,
{¶ 95} As a result, the trial court did not err in any manner relating to Dr. Rose‘s affidavit. The first assignment of error, therefore, is overruled.
{¶ 96} Dr. Rose‘s fifth assignment of error, again quoted verbatim, states as follows:
Fraudulent Concealment, Fraudulent Conveyance, by Dr. Spreitzer, Employee of CCF.
{¶ 97} Under this assignment of error, Dr. Rose alleges that Dr. Spreitzer purposely failed to compare Dr. Tievsky‘s 2013 MRI reading because Dr. Spreitzer realized an error had been made previously. This is apparently based on a comment in Dr. Spreitzer‘s notes that “[a] previous study 5/03/2013 is not available for comparison.” Appellant‘s Brief at p. 14-15. During the rest of his argument, Dr. Rose refers to facts he allegedly learned after he filed his summary judgment motion, by apparently looking up the phone number for “CCF‘s Star Imagining” in Kettering, Ohio, by reviewing a CCF advertisement, and by making a telephone call to the Ashtabula Radiology Department. Id. at p. 15-16. Somehow, according to Dr. Rose, this adds up to some sort of claim for fraudulent concealment.
{¶ 98} Dr. Rose did not sue Dr. Spreitzer. Based on documents attached to the complaint, Dr. Spreitzer apparently reviewed an MRI done on Dr. Rose on May 24, 2017, based on a history of “chronic heartburn, monoxide exposure, imbalance, and low serum sodium.” The original report indicated that a prior study done on May 3, 2013, was not available for comparison. However, a June 15, 2017 update (less than a month later) added that the previous study of May 3, 2013, was now available for comparison. There was no difference between the original and updated reports with respect to the findings made about the May 24, 2017 MRI.
{¶ 100} Based on the preceding discussion, the matters discussed in connection with this assignment of error either are completely irrelevant or relate to information that Dr. Rose learned after his case was dismissed. Consequently, the fifth assignment of error is without merit and is overruled.
VII. Conclusion
{¶ 101} All of Dr. Rose‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
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DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Bernard Joseph Rose, M.D.
Matthew L. Schrader
David Valent
Hon. Mary Lynn Wiseman