Med-Mal Article
I am pleased to report that I recently won a case in the 11th District Court of Appeals, in Trumbull County, Ohio, where a judge had dismissed my client's case on the basis of the statute of limitations. The trial judge had thrown the case out because Mrs. Scott presented within one month after surgery on her right ovary, with recurring abdominal pain. The trial court said that was sufficient information to put her on notice that she indeed had a cause of action against that doctor. The Court of Appeals disagreed and reversed, stating that because Mrs. Scott had gone to her HMO, and they advised her that her complaints were not related to her gynecological surgery, that she cannot be held to have known that she had a cause of action for medical malpractice. This is the first time that a Court of Appeals has specifically stated that a patient cannot be held to a higher standard of knowledge than the doctors who have been treating her. It's a new development in the law of medical statutes of limitations which should help to keep the courthouse door open for plaintiffs. Med-Mal Suit Isn’t Barred Two Years Later
Woman Unaware of Doctor’s Negligence
A woman could sue her gynecologist for malpractice nearly two years after he failed to remove a cyst-ridden ovary, the 11th Ohio District Court of Appeals has ruled.
The plaintiff woman argued that because of assurances by other physicians that the ovary was not the source of her pain, she could not have known about the malpractice—and thus the one-year statute of limitations should have been tolled until the problem was discovered.
The 11th District agreed, reversing a summary judgment for the defendant in the Trumbull County Court of Common Pleas.
"We cannot conclude that [at the time the actin allegedly accrued, the plaintiff] should have been aware that [she] was the victim of medical malpractice," wrote Judge Judith A. Christley. "[T]here is conflicting evidence as to whether the [plaintiff] had reason to know of the specific nature and significance of [her] condition prior to September 10, 1992, the date (she learned) that she had …an enlarged cyst on her right ovary, [which was] supposed to have been previously removed."
The case is Scott v. Rudy T.J. Lee, M.D., Inc. et al. Lawyers Weekly No. 111-113-97.
Physicians’ Onus
Plaintiff’s counsel, Paige A. Martin of Columbus, was "thrilled" with the 11th District’s decision.
"The whole lower court decision just baffled me," said Martin. "So I feel very, very good that the appellate court saw the issues so clearly."
Martin said that the decision was particularly significant because it "clearly puts the onus" on the person with a higher degree of medical understanding.
"Lay people in a hospital setting are often confused, so you need to have someone in the profession explain what the standard of care is," Martin explained. "There has to be some objective information given through diagnosis for a patient to understand that what they’re experiencing is, in fact, related to prior care or treatment. And that’s what this opinion is saying –that a layperson should not be held to a higher standard of knowing medicine than the doctors."
Cleveland attorney Douglas G. Leak, who represented the defendant, was unavailable for comment prior to deadline.
Unremoved Ovary
In May 1986, Plaintiff Anita Scott was referred to a gynecologist by Dr. Dan Olson, her primary care physician at Health Maintenance Plan (HMP, her managed care organization.
The plaintiff had complained of abdominal pains, which Olson suspected were the result of endometriosis.
On July 3, 19886, the defendant – who also worked for HMP – performed a hysterectomy and removed the plaintiff’s left ovary, on which he saw traces of endometriosis.
Although the plaintiff said she asked the defendant to remove both ovaries in the event of endometriosis, he apparently spotted none on the right ovary and left it in.
Following this procedure, the plaintiff suffered increased abdominal pressure with urinary frequency and burning, which the defendant treated as a urinary tract infection. At the time, the plaintiff suspected that her pain was also the result of the defendant’s failure to remove her right ovary, but she accepted his reassurances that the ovary was not the source of her pain.
In July 1988, the plaintiff again complained of abdominal pain, which was diagnosed as a urinary tract infection. In May 1989, her stomach pains were diagnosed as gastritis.
In 1991, as a result of an ultrasound indicating a cyst on her right ovary, Olson referred the plaintiff back to the defendant.
The defendant claimed that the cyst was not the cause of her pain, explaining that the pain was caused by endometriosis. He apparently advised her to stop taking estrogen supplements, suggested Motrin, and told her that her condition would improve with menopause.
Nonetheless, her pain did not subside. She visited various HMP non-gynecological specialists to determine the source of her pain, and when an ultrasound indicated that her cyst had grown, Olson told her to see the defendant once again.
On Apr. 23, 1992, the defendant operated on the plaintiff. According to the plaintiff, the defendant told her that her ovary had burst, that he had removed it and that he had removed all of the endometriosis he could see.
After the procedure, the plaintiff’s pain persisted. When she called the defendant, he apparently told her to see Olson. The last time she saw the defendant was May 22, `1992 at a post-operative follow-up.
Following the surgery, the plaintiff began keeping a diary of her condition and treatment because she believed she was not getting proper care. On Aug. 8, 1992, she visited Urgent Care, a provider of her managed care organization – now known as Trumbull-Mahoning Medical Group (TMMG)—and was again told she had a urinary tract infection.
Two days later, she saw another doctor. He had a CT scan done on September 22, 1992, and informed her that the cyst on her right ovary had grown larger.
When the plaintiff told him that she had no ovaries, he called the hospital to see if he had the correct CT scan analysis. The hospital confirmed that he did.
On May 14, 1993, after visits to various other specialists, the plaintiff was referred to Dr. Michael Makii, who was not affiliated with TMMG. Makii removed the remaining portion of the plaintiff’s right ovary and her abdominal pain subsequently subsided.
After serving her 180-day letters on Aug. 31, 1993, the plaintiff filed an action against both the defendant and TMMG on Feb. 28, 1994. She alleged medical negligence in the defendant’s failure to remove her ovary.
The trial judge awarded summary judgment for the defendant, finding that –because the last "cognizable event" placing the plaintiff on notice of a possible malpractice claim was her May 22, 1992 follow-up visit with the defendant – and the one-year statute of limitations barred her claim.
‘Cognizable Event Test’
Christley first noted that pursuant to R.C. 2305.11(B)(1), a medical malpractice claim must be commenced within one year after the action has accrued.
"The Supreme Court of Ohio has defined ‘accrual" to mean the time when the patient discovers, or in the exercise of reasonable care and diligence should have discovered, the resulting injury," stated the judge, laying out the "cognizable-event" test.
Christley added that under the Ohio Supreme Court’s 1990 decision in Herr v. Robinson Mem. Hosp., the cognizable events test had been expanded to allow for reasonable reliance on the diagnosis and reassurances of the patient’s physician.
Looking at the facts of this case, the judge noted that as early as 1986, the plaintiff had blamed the defendant’s failure to remove her right ovary for her recurrent abdominal and back pain.
Additionally, Christley pointed out, the plaintiff actually began keeping a diary of her condition in April 1992 because she did not feel she was getting proper treatment.
"However, . . . there is a material issue of fact as to whether (the plaintiff’s) unsupported conviction should have prevailed over the various diagnoses of a urinary tract infection, gastritis, irritable bowel syndrome, and orthopedic or neurological problems," the judge stated. "Pursuant to Herr, a fact finder could determine that none of these incidents should be considered as a cognizable event because of [the plaintiff’s] continuing reliance on (the defendant) and the other consulting physicians and their repeated non-gynecological diagnoses of pain."
Thus, the 9th District found, summary judgment was inappropriate because reasonable minds could determine that the cognizable event actually occurred on Sept. 10, 1992 – when the plaintiff discovered she still had her right ovary – which would have given her until Sept. 10, 1993 to file the 180-day letters.
Ongoing Relationship
Christley also noted that a medical-malpractice action could not accrue for the purposes of the statute of limitations until the patient and physician had terminated their relationship.
Thus, said the judge, the plaintiff may have actually had until April 1994, one year after her referral to Dr. Makii, to send the 180-day letters.
"Under the theory of apparent agency or agency by estoppel, " explained the judge, "it is possible that a reasonable juror could find that [the plaintiff’s] relationship with )[the defendant] did not terminate in May 1992, but was extended because of her on-going relationship with the other TMMG physicians and, therefore, was not concluded until her referral to Dr. Makii in April, 1993."
This is the case, said Christley, because patients whose health plans require them to use a particular physicians’ group have a continuing relationship with the group and all its members.
"Accordingly, the trial court also erred in granting summary judgment to [the defendant] on this basis as well," the judge concluded, vacating the trial court’s judgment and remanding the case for new proceedings.
Reprinted with permission from Ohio Lawyers’ Weekly.
LW. Eric T. Berkman
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