Did plaintiff fail to comply with statute of limitations? (Legal Focus on Hospital Law Issues).

CASE ON POINT: Koerber v. Cuyahoga Falls General Hospital, 2001 WL1143211 N.E.2d - OH

ISSUE: Generally, each state has its own statute of limitations which designates the specific period during which a person injured as a result of alleged medical malpractice may bring a suit against the responsible party or parties. There are exceptions to the rule. Some of the exceptions apply in situations in which a patient continues a course of treatment with the physician who allegedly committed the medical malpractice. Other exceptions apply in situations in which a patient might have no reason to know that he or she has been the victim of medical malpractice. In those instances, the "discovery" rule may be applicable. In this unusual Ohio case, the courts were confronted with a situation in which the patient's administrator suspected that there might be some evidence of medical malpractice (the patient himself had consulted with an attorney shortly after the incident in question). The administrator's attorney opted not to bring suit against the surgeon and hospital until he received a report from a qualified physician.

CASE FACTS: On September 4, 1995, Robert Koerber presented to the emergency room of Cuyoga Falls General Hospital complaining of abdominal pain which resulted from gastrointestinal bleeding. On September 8, 1995, Drs. Wehmann and Green performed a partial esophagogastrectomy and a reversal of a Nissan fundoplication from a prior surgery. Drs. Cline and Kazmierski, gastroenerologists, began treating the patient during July 1990, and provided ongoing care to the patient until 1996. During September 1996, the patient sought additional medical treatment for his abdominal pain and gastrointestinal disorders from the Cleveland Clinic Foundation. The patient's treatment from the Cleveland Clinic Foundation culminated in abdominal surgery on January 15, 1997. The surgery consisted of a complete esophagectomy, ascending colon interposition, and an ileotraverse colostomy. The patient died on January 26, 1997, from multisystem organ failure, sepsis, and ischemic bowel. During February 1997, one month prior to the patient's death and a subsequent autopsy, the patient sought the advice of an attorney because he was concerned that something "was amiss" with he medical care that he had received. On September 10, 1998, the deceased patient's administrator's attorney received a telephone call from an expert who had been retained. The expert, Dr. Mark Botham, expressed his opinion that the death of the patient was the result of medical malpractice by Cuyahoga Falls General Hospital and the physicians who had treated him at that hospital and not a result of any care or treatment he received either from Cleveland Clinic or the physicians attending him while he was there. Steven Koeber, the administrator of the patient's estate, brought suit against Cuyahoga Falls General Hospital on February 10, 1999. The trial court granted summary judgment in favor of all defendants on the grounds that the plaintiff failed to file suit within the applicable time allowed under the statute of limitations. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals Ohio affirmed the judgment of the lower. The court held, inter alia, that the statute of limitations for medical malpractice claims accrues upon the latter of (1) the termination of the physician-patient relationship, or (2) the discovery by the patient, or point when, in the exercise of reasonable care and diligence, the patient should have discovered, the resulting injury.

LEGAL COMMENTARY: The Ohio Supreme Court had previously held that the patient's awareness of the "extent and seriousness of his condition" must be ascertained by a reference to a "cognizable event." Such a "cognizable event" is an occurrence which does or should lead a 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 a "cognizable event" does or should place the patient on notice of the need to pursue his possible remedies. The identification of such a "cognizable event," in turn "imposes upon the plaintiff the duty to (1) determine whether the injury suffered is the proximate result of malpractice and (2) ascertain the identity of the tortfeasor or tortfeasors." Thus, once a patient becomes aware of an injury, it is incumbent on him to investigate his or her case completely. The court noted that in this case, the patient died on January 26, 1997. An autopsy report produced that same day identified the patient's cause of death as "complications of the abdominal conditions for which the patient had been treated" at the hospital. Moreover, the plaintiff in this case contacted an attorney in February 1997 - less than one month after the patient's death - because he was concerned about the quality of care the patient received. Nonetheless, the plaintiff asserted that there was no cognizable event triggering his duty to investigate possible claims related to the patient's death until a telephone call on September 10, 1998, from an expert retained by the plaintiff supported the position that the treatment the patient received at the defendant's facility and during the course of treatment by the defendant physicians was the cause of the patient's suffering and death.

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well its his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.