The opinion
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Shaw, Judge,
dissenting.
Because I believe there are genuine and significant issues of fact regarding when the physician/patient relationship may have been terminated during the spring of 1998, I respectfully dissent. Specifically, I respectfully disagree with the factual findings made by the majority on this question.
The majority determines that the physician/patient relationship was not extended beyond the last appointment of October 14, 1997, because the majority finds that the subsequent communications between the parties regarding the follow-up appointment with the doctor in the spring of 1998 involved only compensation rather than treatment. However, in my view, the record is far from clear on this point and, hence, subject to more than one reasonable interpretation. For example, while full payment of the doctor’s fee is clearly an issue to the plaintiff, a letter from Michael Grandillo, spouse of the plaintiff, obviously written on plaintiffs behalf and dated as late as
April 9, 1998,
is unclear about whether or not the plaintiff still intended to have the doctor attempt to surgically correct the problem if the fee problem could be worked out. Hence, after reiterating their dissatisfaction with the initial surgery, the letter states:
“As I have written you previously, I do not intend to pay the remainder of the bill with your office
until this issue is resolved. * *
*
“But, I know we are all reasonable, professional people and
I am sure we can come to some agreement to solve this unfortunate problem. I will call you next week to set up an appointment to discuss this with you on a personal basis.”
(Emphasis added.)
The continued dialogue exemplified in the April 9, 1998 letter is quite consistent with the deposition testimony of the doctor based on his office notes wherein he states his recollection that during a July 28, 1997 appointment the repair was discussed with plaintiff and that plaintiff tentatively agreed that the doctor would repair the appearance of the scar “much later” — meaning within a time period of “up to a year later,” presumably then, to July 1998. The doctor’s office notes for the July 28, 1997 appointment reflect this and further indicate that plaintiff “will return in 3 months for re-evaluation
prior to scheduling,
” which was apparently the purpose of the October 14, 1997 appointment for which the doctor’s notes indicate that “the patient then will return in the spring of 1998 for recheck.”
Finally, the total lack of certainty as to exactly when the physician/patient relationship may have been terminated is unequivocally demonstrated in the plaintiffs own affidavit, which states in part:
“On October 14, 1997 Defendant Montesclaros
continues
his care and treatment of Plaintiff Grandillo. Montesclaros indicates that Grandillo has healed with no evidence of weakness and will return in the spring of 1998 for recheck.
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“Defendant Montesclaros continued his care and treatment of Plaintiff Grandillo through and until spring 1998 when she was scheduled for appointment to continue treatment and then have Defendant Dr. Montesclaros conduct the second part of the surgery at Defendant Mercy Hospital, Tiffin Ohio.
“Plaintiff does not now recall the exact date of the spring appointment with Defendant Montesclaros.” (Emphasis added.)
The majority simply dismisses the foregoing affidavit and apparently the testimony of the doctor as “self-serving” and hence not worthy of raising a genuine issue of fact. However, I do not believe such a determination is appropriate for an appellate court in a summary judgment case. In my view, applying the appropriate, albeit de novo, standard of review for an appellate court, the foregoing evidentiary documents do raise a genuine issue of material fact as to exactly when in the late spring of 1998, the physician/patient relationship in this case may have been terminated. Under the law applicable at the time, the factual determination of that question may well impact the governing statute of limitations regarding the complaint filed on December 7, 1998. I would reverse and remand for a determination of those two issues.