Appendix — St. Elizabeth Medical Center v. Browning

(2) 93-832 FILE

In The

8G OE HE EK

Supreme Court of the Unitéedt-Srates

October Term, 1993 ~~

=

ST. ELIZABETH MEDICAL CENTER,

Petitioner,

V.

JIMMIE DEAN BROWNING, et al., and

CONEY MITCHELL,

Respondents.

+

Petition For A Writ Of Certiorari

ty The Ohio Supreme Court

¢

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

¢

DEBORAH R. LYDON

Dinsmore & SHOHL

1900 Chemed Center

255 East Fifth Street

Cincinnati, Ohio 45202

(513) 977-8200

Counsel of Record for Petitioner

K.C. GREEN

SARA SIMRALL RORER

FREDERICK N. HAMILTON

DinsMorE & SHOHL

1900 Chemed Center

255 East Fifth Street

Cincinnati, Ohio 45202

(513) 977-8200

Of Counsel for Petitioner

+} ) PILE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

APPENDIX INDEX

Page

APPENDIX A

Browning v. Burt, 67 Ohio St. 3d 1439, 617 N.E.2d

993 (Ohio, August 25, 1993) (entry denying

stisiaeiescs, RRR Pe Cee Leer A-1

Mitchell v. Burt, 67 Ohio St. 3d 1439, 617 N.E.2d

993 (Ohio, August 25, 1993) (entry denying

Seciacsase ft OR ETERS Pie cote a a re A-2

Petition for Rehearing of Appellant, St. Eliz-

abeth Medical Center, Browning v. Burt, 66 Ohio

St. 3d 544, 613 N.E.2d 993 (1993) (appendices

(IS i acs ec ee A-3

Browning v. Burt, 66 Ohio St. 3d 544, 613 N.E.2d

MOAI aS ie Vs va EtG ok a Cacao A-28

Jimmie Dean Browning, et al. v. James C. Burt,

M.D., et al., No. CA 12176, Slip Opinion (Ohio

PI PO Bs BO ance ines ssa: A-77

Coney Mitchell v. James C. Burt, M.D. et al., No.

CA 12244, Slip Opinion (Ohio App. August 26,

sity SNELL ENE TTT ELE SOREL ET OETT COT EE ORE TE A-91

Jimmie Dean Browning, et al. v. James C. Burt,

M.D., et al., No. 89-1341 (Ohio C.P. December a,

1989) (decision and order granting summary

oetin, aoegs- ag DUET Oe RP Oe De Ce at oe A-96

Coney Mitchell v. James C. Burt, M.D., et al., No.

88-4468, (Ohio C.P. January 12, 1990) (Decision

and order granting summary judgment)........ A-103

Hanks v. Burt, No. 12257, 1991 WL 6312 (Ohio

We I NN oo cake hihi as A-108

li

APPENDIX INDEX - Continued

Page

Related Ohio Cases Pending at the Time of Pub-

lication of Browning v. Burt, 66 Ohio St. 3d 544,

GIS WED DRS Clee ies Gerace vecn st toddeees A-114

APPENDIX B

Provisions of the Health Care Quality Improve-

ment Act of 1986, 42 U.S.C. §§ 11101, et seq...... B-1

APPENDIX C

Ohio Rev. Code § 2305.10 (Anderson 1991)....... C-1

Ohio Rev. Code § 2305.11 (Anderson 1991)....... C-2

Ohio Rev. Code § 2305.25 (Anderson 1991)....... C-7

Ohio Rev. Code § 2305.251 (Anderson 1991)...... C-9

APPENDIX D

Fazzone v. Western Reserve Care System, No. 90

C.A. 72, 1991 WL 124428 (Ohio App. July 2,

be) ) EEC e et et ee ee D-1

Raggazine v. St. Elizabeth Hospital Medical Center,

No. C.A. 129, 1991 WL 184817 (Ohio App. Sep-

tember 29, 1008). <.. 6 cicuudvnkeaeds caktarials iste D-5

APPENDIX A

, ia

A-1

THE SUPREME COURT OF OHIO

1993 TERM

To wit: August 25, 1993

Jimmie Dean Browning Case No. 91-2079

et al.,

Appellees, REHEARING ENTRY

v.

James Burt, M.D., (Montgomery County)

et al.

[St. Elizabeth Medical

Center and Max E. Blue,

M.D.,

Appellants. ]

IT IS ORDERED by the Court that rehearing in this

case be, and the same is hereby, denied.

(Court of Appeals No. CA12176)

/s/ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

A-2

THE SUPREME COURT OF OHIO

1993 TERM

To wit: August 25, 1993

Coney Mitchell, Case No. 91-2121

Appellees,

v. REHEARING ENTRY

wre wart, BE, (Montgomery County)

[St. Elizabeth Medical

Center,

Appellant. ]

IT IS ORDERED by the Court that rehearing in this

case be, and the same is hereby, denied.

(Court of Appeals No. CA12244)

/s/ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

A-3

NOS. 91-2079

91-2121

IN THE SUPREME COURT OF OHIO

ON APPEAL FROM THE COURT OF APPEALS

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY, OHIO

JIMMIE DEAN BROWNING, et al.,

Appellees,

vs.

JAMES C. BURT, M.D.,

Defendant,

and

MAX BLUE, M.D., ET AL.

Appellants.

CONEY MITCHELL,

Appellee,

Vs.

JAMES C. BURT, M.D.,

Defendant,

and

ST. ELIZABETH MEDICAL CENTER,

Appellant.

A-4

MOTION OF ST. ELIZABETH MEDICAL

CENTER FOR REHEARING

Frank C. Woodside, III (0000636)

John E. Schlosser (0007831)

K.C. Green (0005435) |

Dinsmore & Shohl |

1900 Chemed Center

255 East Fifth Street |

Cincinnati, Ohio 45202-3172 |

(513) 977-8200

Attorneys for Appellant,

St. Elizabeth Medical Center

Neil Freund (0012183)

Robert N. Snyder (0030566)

Freund, Freeze & Arnold

1800 Dayton Arcade Center

1 South Main Street

Dayton, Ohio 45402

(513) 222-2424

Attorneys for Defendant-Appellant,

Dr. Max Blue

James J. Hughes (0021996)

Catherine M. Ballard (0030731)

Bricker & Eckler

100 S. Third Street

Columbus, Ohio 43215

Attorneys for Amicus Curiae,

Ohio Hospital Association

John G. Lancione (0006729)

John D. Liber (0012807)

Peter H. Weinberger (0022076)

Spangenberg, Shibley,

Traci & Lancione

1500 National City Bank Bldg.

Cleveland, Ohio 44114-3062

Attorneys for Appellees

2 eno

A-5

Appellant St. Elizabeth Medical Center (“SEMC”)

respectfully urges the Court to grant a rehearing in this

matter for several reasons. First, the decision, as written,

threatens to have a devastating impact upon hospitals in

this State and their peer review systems. Second, the

majority opinion goes far beyond the issues presented by

these two cases and decides questions never briefed and

not properly before the Court. Third, the majority sets

hospitals apart from all other tort defendants and gives

them disparate and punitive treatment as to the statute of

limitations. Fourth, the finding that there is no immunity,

coupled with the inability to present any evidence as to

what was done or known in the peer review process,

violates SEMC’s right to due process. Fifth, the new dis-

covery test fashioned by the majority, applied retroac-

tively here, also violates SEMC’s due process rights.

Finally, the majority opinion is tainted by a possible

prejudging of the merits of these cases.

SEMC supports its request for rehearing in the mem-

orandum below.

Respectfully submitted,

K.C. Green

Frank C. Woodside, III (0000636)

John E. Schlosser (0007831)

K. C. Green (0005435)

Dinsmore & Shohl

1900 Chemed Center

255 East Fifth Street

Cincinnati, Ohio 45202-3172

(513) 977-8200

Attorneys for Defendant-Appellant,

St. Elizabeth Medica! Center

——

A-6

MEMORANDUM IN SUPPORT

I. IMPACT UPON HOSPITAL PEER REVIEW

The opinion of the majority is virtually certain to

have a devastating impact upon hospital peer review and,

accordingly, patient care in the state of Ohio. In light of

that decision, any prudent physician would hesitate to

participate in the peer review process and many would

decline to do so. The reasons for that are several.

First, the decision essentially eradicates the statute of

limitations for claims of negligent credentialing. The test

it establishes, requiring discovery of the negligent cre-

dentialing, means that such actions will accrue only in the

most extreme of circumstances.! Thus, hospitals, and

those who participate on their peer review committees,

are effectively subject to suit forever for any credentialing

decisions they make.

If the possibility of facing litigation at any time into

the indefinite future is not disincentive enough for pro-

spective peer review participants, the decision also elimi-

nates the immunity conferred by the Ohio legislature in

R.C. §2305.25. It expressly finds the immunity specifically

granted to hospitals in R.C. §2305.25 inapplicable in a

1 Here it was only the admissions of Plaintiffs that they had

seen the West 57th Street television program that allowed the

majority to find an accrual date at all. This situation bears

comparison to those cases in which this Court has held that a

period of limitations could not expire before a plaintiff can

know of his claim. Here, the majority opinion holds that a claim

can be sued upon and decided as to one party, a physician,

before claim for the same injury ever accrues as to another party,

the hospital.

as Lad ach Mar

2 ALP ORONO. Ma es OED Sen, ahs wee Te

A-7

negligent credentialing case? (and implicitly so holds as

to all participants in the peer review process).

In short, the majority says to all Ohio hospitals and

physicians or other members of peer review committees:

(1) There is potential liability to patients for any and all

credentialing decisions; (2) Such suits are likely to be

timely whenever brought (i.e. the statute of limitations

provides almost no limit to the bringing of stale claims);

and (3) There is no immunity from such suits regardless

of the diligence or good faith in which the hospital or

peer review committee members performed their duties.

Further, R.C. §2305.251 severely inhibits the ability of the

peer review committee members to defend themselves,

precluding any evidence of what was done by the com-

mittee or what any particular member’s involvement was

(“No person . . . serving as a member of a review commit-

tee shall be permitted or required to testify in any civil

action as to any evidence or other matters produced or

* The reasoning for this ruling is not apparent from the

decision. The majority may be legislating the language “No

hospital, no state or local society, ... ” entirely out of the statute.

Alternatively, the majority may be interpreting the phrase “who

is a member or employee of any of the following committees” to

modify “hospital,” an incredibly strained reading of the statute.

A hospital is not a human being and therefore cannot practice

medicine (as the majority opinion points out at p. 12) and,

similarly, cannot serve as a “member” or “employee” of a peer

review committee. The Ohio legislature could not possibly have

intended that a hospital be a “member” or “employee” of a peer

review committee before the immunity of R.C. §2305.25 would

attach. The Ohio legislature, in fact, intended that hospitals

receive unqualified immunity under R.C. §2305.25. See Ohio

Legislative Service Commission, Summary of Enactments (copy

attached as Exhibit A), at p. 151.

A-8

presented during the proceedings of the committee or as

to any finding, recommendation, evaluation, opinion, or

other action of the committee or member thereof... . ”).

Finally, the majority opinion raises substantial ques-

tions as to liability insurance coverage for peer review

activities. Comprehensive general liability insurers have

apparently already denied coverage in this litigation

based upon an exclusion for bodily injury. The finding of

the majority that a negligent credentialing claim is not a

malpractice action may well be cited by malpractice

insurance carriers to deny coverage as well. Thus, those

who have participated in peer review committees in the

past (as well as those asked to serve in the future), may

find their personal assets at stake.

Under these circumstances, the legal advice to any

physician or other individual is clear: DO NOT AGREE

TO SERVE ON ANY HOSPITAL PEER REVIEW COM-

MITTEE!$

II. ISSUES NOT BEFORE THE COURT

The majority opinion goes far beyond the issues

posed by these two cases and appears to rule upon ques-

tions which were neither fully briefed and argued, nor

within the power of the Court to decide. SEMC urges

rehearing so that there may be an opportunity to brief

3 Without competently staffed peer review committees,

Ohio hospitals will likely lose their accreditation. That could

only result in a decline in the quality of health care in Ohio and

put Ohio hospitals at a competitive disadvantage to health care

facilities in other states.

A-9

and argue these issues and/or so the decision can be

clarified.

A. The Impact Of The Special Consent Form

As the majority opinion notes, the “narrow issue” in

these two cases is whether Plaintiffs’ negligent credential-

ing claims were timely filed - viewed in the context of

whether the trial court’s granting of summary judgment

was correct. Thus, the only question before the Court was

whether, in construing the facts in a light most favorable

to Plaintiffs Browning and Mitchell, there was a genuine

issue of material fact as to the accrual and expiration of

their claims.

The reverse question - did Plaintiffs timely file their

actions as a matter of law - was not before the Court and

could not properly be decided. The majority opinion,

nonetheless, seems to decide this question. Accordingly, a

rehearing is necessary to clarify this point and make clear

that genuine issues of fact remain as to the accrual and

expiration of Plaintiffs’ claims.

The majority opinion sets forth the following discov-

ery rule:

[A] cause of action for negligent credentialing

arises wien the plaintiff knows or should know

that he or she was injured as a result of the

hospital’s negligent credentialing procedures or

practices.

Opinion at p. 17. It further states that:

It is sufficient if a plaintiff discovers or, through

the exercise of reasonable diligence, should have

A-10

discovered some definitive information that

would reasonably warrant investigation of the

hospital’s credentialing practices.

Id.

Whether the hospital’s special consent form did or

did not cause Plaintiffs’ claims to arise under this new

discovery test must be, at minimum, a jury issue. Chief

Justice Moyer (joined by. Judge Cook) concludes that the

special consent form, in conjunction with Plaintiffs’ inju-

ries, was sufficient as a matter of law to begin the running

of the statute of limitations under the majority’s discov-

ery rule. Thus, the question of whether the special con-

sent form was an “alerting event” is clearly a factual issue

upon which reasonable minds could differ. On remand

SEMC should be permitted to try the statute of limita-

tions issues to a jury under the new test announced by

the Court. In so doing, SEMC should be able to rely upon

the Plaintiffs’ execution of the special consent form as a

basis for a factual finding by the jury that Plaintiffs knew

or should have known of the (alleged) negligent creden-

tialing practices and procedures. SEMC suggests that a

rehearing is necessary to give the trial court guidance on

this point.

B. Malpractice Versus Bodily Injury Statute of Lim-

itation

Plaintiffs never disputed in the trial court that their

claims against SEMC were “medical claims” subject to the

one year statute of limitations contained in R.C.

§2305.11(B). The court of appeals in Mitchell, nonetheless,

requested the parties brief the issue. (Rec. at 287) Both

A-11

sides subsequently filed briefs effectively stipulating that

Plaintiffs’ claims were “medical claims” to be governed

by the one year statute. In their brief to this Court (filed

June 11, 1992) Plaintiffs again took the position that the

one year period of limitations was applicable here.4

SEMC concurred and, accordingly, no one briefed, at all,

the issue of whether Plaintiffs’ causes of action were

“medical claims” under R.C. §2305.11(B) or claims for

bodily injury under R.C. §2305.10. On this record, SEMC

submits there was no basis for the Court to reach this

issue. See, e.g., Thompson v. Merrell Dow Pharmaceuticals,

Inc. (6th Cir. 1985), 766 F.2d 1005, aff’d (1986), 478 U.S. 804

(for purposes of deciding matter, court accepts as true the

agreement of the parties that there is no private right of

action under the Food Drug and Cosmetic Act).

Despite the absence of a dispute between the parties,

the majority has concluded that a negligent credentialing

claim is one for bodily injury under the period of limita-

tions set forth in R.C. §2305.10. SEMC submits that this

decision may have substantial adverse consequences° and

should not have been reached on a partial or absent

4 Plaintiffs’ brief contains absolutely no reference what-

soever to R.C. §2305.10, the statute of limitations for bodily

injury claims.

5 It is entirely possible, for example, that insurance carriers

will use this decision to deny coverage for liability arising from

peer review activities. In this litigation coverage has apparently

been denied to peer review participants under general compre-

hensive liability policies because of an exclusion for bodily

injury. The Court's finding that a claim for negligent credential-

ing is not a malpractice action may lead malpractice carriers to

deny coverage as well.

A-12

record. A rehearing is absolutely necessary so that this

issue can be fully briefed and argued.®

C. Adoption Of A Discovery Rule For General Neg-

ligence Claims

Because none of the parties contended Plaintiffs’

claims were for bodily injury subject to R.C. §2305.10,

there was no opportunity to brief or argue whether a

discovery rule should apply to a negligent credentialing

claim so characterized. Again, that is a critical issue that

should have been fully briefed and argued before being

decided.

Before Browning, a cause of action generally arose

under R.C. §2305.10 at the time the wrongful act was

committed. Caliman v. Mize (1989), 63 Ohio App. 3d 231,

233, 478 N.E.2d 531; Doe v. First United Methodist Church

(Ohio App.) 1992 WL281323 (copy attached as Exhibit B)

at p. 2. Caliman and Doe, notably, involved claims against

employers for negligent hiring and retention.” The Doe

6 There are a number of legal and public policy reasons for

concluding that a claim for negligent credentialing is a “medical

claim.” The Court would also benefit from an analysis of how

other jurisdictions have decided the question. E.g. Bronson v.

Sister of Mercy Health Corp., (Mich. 1989) 438 N.W.2d 276. (Claim

of negligence in granting staff privileges to a physician held to

be one for malpractice); Bell v. Sharp Cabrillo Hospital (1989), 260

Cal. Rptr. 37, 211 Cal. App. 3d 1339 (A hospital’s breach of duty

to exercise reasonable care in reviewing the competence of its

staff physicians held to constitute “professional negligence”).

7 Once a claim for negligent credentialing is deemed a

“bodily injury action,” these decisions are directly on point

here.

A-13

court refused to apply a discovery rule and the Caliman

court held that plaintiffs’ claims arose when the alleged

negligent hiring occurred. Doe, slip op. at p. 2; Caliman, 63

Ohio App. 3d at 233-234.

The discovery rule has previously been applied to

claims under R.C. §2305.10 only in latent disease cases.

E.G. O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St. 3d 84,

447 N.E.2d 727. It made sense in those types of cases

because many of those Plaintiffs’ claims would have oth-

erwise expired before any manifestation of injury

occurred. The majority opinion in Browning, however,

threatens to open up all general negligence claims to the

discovery rule. SEMC urges that this issue be fully

explored by rehearing, so that an informed decision with

a complete understanding of the ramifications of same

can be reached.

D. Peer Review Immunity

Neither Browning nor Mitchell, on their records, pre-

sent the question of whether R.C. §2305.25 confers immu-

nity upon hospitals (or peer review participants) in a

negligent credentialing case. That issue was not raised in

8 It will be a very rare negligence case, even among very

stale cases, that a defendant will be able to demonstrate that a

plaintiff should have sooner known, without investigation, not

only that he might have been injured through some one’s fault,

but also the full complement of potential defendants, and the

particular negligence of each. There will be no logical way to

distinguish any negligence case from a negligent credentialing

case, as plaintiffs in all types of personal injury cases are bound

to point out to the lower courts of this State.

cb

A-14

the trial court, nor did the court of appeals address it.

Although SEMC and the Ohio Hospital Association made

passing references to that provision in their briefs (in

footnotes), none of the propositions of law or assign-

ments of error raised by the parties involved any aspect

of R.C. 2305.25.9 Thus, the issue should not have been

decided and the Court’s opinion should clarify the fact

that this question was not presented by the record. Alter-

natively, this matter should be reheard so that the immu-

nity issue can be fully briefed and argued.

III. DISPARATE TREATMENT OF HOSPITALS AS TO

STATUTES OF LIMITATION

The discovery rule fashioned by the majority treats

hospitals differently than all other tort defendants. This

disparate treatment, rendered without any justification,

constitutes a violation of the equal protection and due

process clauses of the U.S. and Ohio Constitution. U.S.

Const. Amend. XVI, §1; Ohio Const. Art. I §§2 and 16.

The new discovery rule to be applied in cases alleg-

ing negligent peer review, according to the majority,

requires not only discovery of the injury, but discovery of

the hospital’s particular negligence as well (see syllabus,

headnote 4). No other tort defendant in the state of Ohio

is faced with such a broad, virtually unlimited discovery

rule.

This Court has expressly rejected a discovery of the

negligence test in cases alleging physician malpractice.

9 R.C. §2305.25 is not cited anywhere in Plaintiff-Appellees’

Brief.

Fe Sai on eee Me FN Fe ee ee ee aN Ne IN ee Ng oe en cep ne eee Oe ee

c Ne 2 be > - Ve ree gitie aes “

A-15

E.g. Hershberger v. Akron City Hospital (1987), 34 Ohio St.

3d 1, 516 N.E.2d 204; Allenius v. Thomas (1989), 42 Ohio St.

3d 131, 538 N.E.2d 93. Even in latent disease cases (e.g.

asbestos, DES, etc.), the plaintiff need not discover the

negligence of the defendant before the statute of limita-

tions, R.C. §2305.10, begins to run. There, the statute

begins to run when the Plaintiff knows, or through the

exercise of reasonable diligence should know, that he or

she has been injured from the exposure. R.C. §2305.10;

O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St. 3d 84, 90,

447 N.Ed.2d 727.10

The majority cites, at p. 15, Burgess v. Eli Lilly & Co.

(1993), 66 Ohio St. 3d 59, 609 N.E.2d 140, even though the

reasoning of that case mitigates against the decision here.

In Burgess the court held the discovery rule set forth in

R.C. §2305.10 to be unconstitutional as applied to a plain-

tiff alleging injury from DES exposure. &.C. §2305.10

provided that a cause of action for bodily injury due to

DES exposure arises when the plaintiff learns he has an

10 With the exceptions of latent disease and malpractice

cases, we are unaware of instances where a discovery rule has

been judicially read into the statutes of limitation of this state.

See Shover v. Cordis Corp. (1991), 61 Ohio St. 3d 213, 218, 574

N.E.2d 457 (“The discovery rule has traditionally been limited

by case law to malpractice actions where the plaintiff in such

actions may remain unaware of his or her injuries until some

time in the future”). Those exceptions have all involved situa-

tions where the statute would otherwise begin running even

though the plaintiff did not know, and had no reason to believe,

he or she had even been injured. That is clearly not the case

here. Thus, by applying a discovery rule in a non-latent bodily

injury action, the majority opens up all general negligence

claims to a discovery rule.

A-16

injury which “may be related” to that exposure. In con-

trast, causes of action for latent diseases due to other

exposures arise under §2305.10 when the plaintiff learns

he “has been injured” by the exposure. The Court in

Burgess reasoned that §2305.10’s disparity in treatment of

DES plaintiffs, giving them a more restrictive statute of

limitations unlike any other in the Ohio Revised Code,

was a violation of due process.

The majority’s discovery rule here is a defendant's

version of the statutory provision deemed unconstitu-

tional in Burgess. The decision applies a much less restric-

tive statute of limitations for the claims brought against

SEMC (and other hospitals) than that applied to any

other tort defendant in the Ohio Revised Code or the

decisional law of this state. Absolutely no rationale is

given for this disparate treatment. Accordingly, SEMC’s

rights to due process and equal protection of the laws

have been violated.

IV. THE INABILITY OF HOSPITALS AND OTHER

PEER REVIEW PARTICIPANTS TO DEFEND

CLAIMS OF NEGLIGENT CREDENTIALING.

The majority finds that the immunity provisions of

R.C. §2305.25 are inapplicable to a hospital sued by a

former patient for the actions or omissions of its peer

review committees.'! Since it is impossible to reasonably

11 The immunity issue was not properly before the Court

and therefore should not have been decided. It was not raised at

all in the trial court, nor was it addressed by the court of

appeals. SEMC and amicus curiae, the Ohio Hospital

if

lial

A-17

construe the statute any other way, the majority decision

also means that those who serve on peer review commit-

tees have no immunity from patient suits claiming negli-

gent credentialing. These findings, considered in

conjunction with the statutory prohibitions of R.C.

§§2305.25 and 2305.251, violate SEMC’s (and all peer

review participants) rights to due process under the Ohio

and U.S. Constitutions.

Due process requires that there be an opportunity to

present every available defense. Lindsey v. Normet (1972),

405 U.S. 56, 66. A hospital (or any participant of a peer

review committee) faced with an action for negligent peer

review, however, is absolutely forbidden from presenting

a defense that it acted reasonably in credentialing the

physician in question. Plaintiffs may allege failures to act

on the part of peer review committees and their individ-

ual members but the hospital and peer review partici-

pants are helpless to respond. R.C. §2305.251 provides, in

pertinent part:

Proceedings and records of all review commit-

tees described in section 2305.25 of the Revised

Code shall be held in confidence and shall not

be subject to discovery or introduction in evi-

dence in any civil action against a health care

professional, a hospital, or not-for-profit health

care corporation which is a member of the hos-

pital or of which the hospital is a member, or

Association, made passing reference to the immunity provision

in R.C. §2305.25, but the issue was never fully briefed or argued.

See Mitchell main briefs, SEMC’s at p. 35, fn 10 and OHA’s at p.

9, fn 5.

A-18

other health care institution arising out of mat-

ters which are the subject of evaluation and

review by the committee. No person in atten-

dance at a meeting of a review committee or

serving as a member of a review committee shall

be permitted or required to testify in any civil action

as to any evidence or other matters produced or

presented during the proceedings of the committee or

as to any finding, recommendation, evaluation, opin-

ion, or other action of the committee or member

thereof. (Emphasis added)

In other words, in attempting to defend a negligent

credentialing claim, a hospital and the members of its

peer review committees cannot offer any evidence as to

what they actually did to peer review the physician or

what they knew or did not know in reaching that creden-

tialing decision.!2 Recognizing the conflict between this

absolute privilege and the possibility of civil liability to

allegedly aggrieved patients or staff physicians, the Ohio

legislature chose to grant unqualified immunity to hospi-

tals and peer review committee members for “any acts,

omissions, decisions, or other conduct within the scope of

the functions of the committee.” R.C. §2305.25; Ohio Leg-

islative Service Commission, Summary of Enactments

(copy attached) at p. 151. The majority opinion revives

this conflict and, in so doing, violates the due process

rights of SEMC.

12 The majority cites only the “otherwise available” caveat

at the end of the statute (opinion at p. 19). The purpose of that

caveat, obviously, is to prevent the use of the peer review privi-

lege to shield otherwise discoverable documents simply by sub-

mitting them to peer review committees.

A-19

V. RETROACTIVE APPLICATION OF THE COURT’S

NEW DISCOVERY RULE

For the past several decades, SEMC and participants

on its peer review committees have engaged in this diffi-

cult, controversial task secure, at least, with the knowl-

edge that their potential liability for peer review

decisions was finite in time. Whether construed as mal-

practice or simple negligence, the negligent credentialing

claims of both Plaintiffs here, Coney Mitchell and Jimmie

Dean Browning, accrued (or arose) and expired before

Plaintiffs filed their actions under any and all previous

interpretations of R.C. §§2305.11(A) or (B) and §2305.10.

The majority now announces a new discovery rule

specifically tailored for negligent credentialing claims

against hospitals. That this ruling was an entirely

unforeseeable break from prior law is evident from the

fact that Plaintiffs, themselves, never advocated this posi-

tion (until after the court of appeals devised this rule on

its own). The retroactive application of this new discov-

ery test here to revive the expired claims of Plaintiffs,

however, would violate SEMC’s right to due process

under the Fourteenth Amendment of the U.S. Constitu-

tion.

The U.S. Supreme Court has said of statutes of limita-

tion;

Statutes of limitation, which “are found and

approved in all systems of enlightened jurispru-

dence,” represent a pervasive legislative judg-

ment that it is unjust to fail to put the adversary

on notice to defend within a specified period of

time, and that “the right to be free from stale

A-20

claims in time comes to prevail over the right to

prosecute them.” (Citations omitted)

United States v. Kubrick (1979), 444 U.S. 111, 117 (rejecting

the proposition that a claim under the Federal Tort

Claims Act accrues only when the plaintiff becomes

aware his injury was negligently inflicted); See also Chase

Securities Corp. v. Donaldson (1945), 325 U.S. 304, 314; Cox

v. Ohio Department of Transportation (1981), 67 Ohio St. 2d

501, 4 4 N.E. 2d 597.

It follows that the expiration of a statute of limita-

tions has a two-fold effect: (1) the prospective plaintiff

loses a remedy for his alleged injury; and (2) a potential

defendant acquires a vested right to be free from further

litigation. It is respectfully submitted that when a statute

of limitations expires, a vested right to be free from

further litigation arises and that right is protected by the

due process clause of the Fourteenth Amendment of the

United States Constitution. See Goss v. Lopez (1975), 419

U.S. 565.

In this case, SEMC, and those who served on its peer

review committees, were granted a right to be free from

further claims by Plaintiffs by the Ohio General Assem-

bly. This right vested long ago when the prevailing inter-

pretation of the statute of limitations brought an end to

Plaintiffs’ right to seek a remedy. Accordingly, SEMC

cannot be deprived of this vested right to be free from

suit without violating its guarantee to due process under

the U.S. Constitution.

The unfairness of any retroactive application of the

majority’s new discovery rule is clearly revealed when

A-21

tested by the factors the U.S. Supreme Court has estab-

lished for non-retroactive application of judicial decisions

altering statutes of limitations. In Chevron Oil v. Huson

(1971), 404 U.S. 97, the Court set forth three factors to be

considered in deciding whether a judicial decision may

be applied nonretroactively only:

First the decision to be applied nonretroactively

must establish a new principle of law, either by

overruling clear past precedent on which the

litigants may have relied, . . ., or by deciding an

issue of first impression whose resolution was

not clearly foreshadowed, . . . Second, it has

been stressed that “we must . . . weigh the

merits and demerits in each case by looking to

the prior history of the rule in question, its

purpose and effect, and whether retrospective

operation will further or retard its opera-

tion.” ... Finally, we have weighed the inequity

imposed by retroactive application, .. .

Id. at 106-107 (citations omitted). According to Chevron,

the factors to be considered in determining whether a

decision only can be applied nonretroactively are: a) does

the decision establish a new principle of law; b) is the

purpose of the new decisional rule helped or hindered by

retroactive application; and c) will retroactive application

of the new decisional rule result in great inequity?

Consideration of these factors, particularly a and c,

clearly weigh against retroactive application of the new

discovery rule. It obviously establishes a new principle of

law. Why else did the Plaintiffs never argue the proposi-

tion? Similarly, none of the trial courts who granted sum-

mary judgment in a dozen similar cases envisioned such

a rule, nor did the court of appeals which affirmed a

A-22

grant of summary judgment on the statute of limitations

in one case prior to issuing its decision in Browning. See

Hanks v. Burt (Jan. 25, 1991), Montgomery Ct. App. No.

12257 at Appendix of SEMC’s Brief in Browning at pp.

35a-40a.

The inequiiy of retroactive application here is also

readily apparent. At the time Dr. Burt was peer reviewed

relevant to Plaintiffs’ surgeries, no hospital or participant

of a peer review committee could have predicted that a

decade later the traditional interpretations of R.C.

§§2305.11 and 2305.10 would be abandoned and they

would be subject to suit virtually any time into the indefi-

nite future.

This situation is strikingly similar to that presented

in Brinkerhoff-Faris Trust & Savings Company v. Hill (1930),

281 U.S. 673. In Brinkerhoff-Faris the plaintiff brought suit

in a Missouri court to defend against a tax assessment.

On appeal, the Supreme Court of Missouri overruled the

prior well-established rule that the state tax board had no

jurisdiction to hear appeals, and held that plaintiff was

not entitled to relief because it had failed to exhaust its

newly created administrative remedies. Id. at 675.

The Court in Brinkerhoff-Faris held that the Missouri

court’s holding violated due process of law because

plaintiff was denied an opportunity to defend against the

tax assessment. It held that such a denial amounts to a

deprivation of property without due process of law. Id. at

679.

The well-reasoned analysis in Brinkerhoff-Faris is per-

suasive in the present case. See also Chevron, 404 U.S. at

108-109 (holding that application of one year statute of

A-23

limitations to claim under the Lands Act would not be

retroactive because ruling could not be foreseen and

would cause substantial inequitable results). Here, any

retroactive application of the decision changes well-

established law with respect to the statute of limitations.

Until this case, there was no reason to preserve records,

keep track of witnesses, or otherwise stand ready to

defend credentialing decisions of many years past

because potential claims were barred under any known

interpretation of the statute of limitations. In other

words, this decision has the effect of reviving claims

which may no longer be defensible.

Although this new class of defendants may have the

opportunity to appear in court, their ability to defend

themselves has been effectively extinguished. The depri-

vation of any meaningful opportunity to defend oneself

constitutes an unwarranted denial of due process of law.

VI. PREJUDGING THE MERITS OF THESE CASES

The decision in this case was obviously a close and

difficult one, witness the 4-3 vote. Fairness to SEMC

requires that the decision be based upon the law and not

upon emotion or a preconceived notion of how the cases

should be resolved on the merits. E.g. In re Reiner (1991),

74 Ohio App. 3d 213, 218, 598 N.E.2d 768 (due process

under the Ohio and U.S. Constitutions entitles a litigant

to have his case heard by an impartial arbiter).

A-24

The language of the majority opinion suggests a pre-

judging of the merits of these cases. Although acknowl-

edging these cases were not before the Court on the

merits,!5 the majority opinion states as follows:

In reaching our conclusions, we do not pass

judgment (since issues of alleged liability are 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. Per-

haps 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.

Opinion at p. 21 (emphasis added).

Given the foregoing pronouncement, SEMC certainly

may question whether the decision was reached solely

upon an impartial interpretation of the law and facts

before the Court. The record below does not raise the

issue or support the apparent conclusion that there was a

“conspiracy of silence in the local medical community.” !4

13 The record properly before this Court consisted of the

depositions of the female Plaintiffs and the summary judgment

and appellate court briefings on the statute of limitations issues.

No merit issues were addressed below, nor would the scant

record as to the merits support any such resolution.

14 In point of fact, a jury has heard the merits on one of the

similar cases pending in Montgomery County and effectively

rejected the notion of a “conspiracy of silence.” After a seven-

week trial, that jury rendered an unanimous verdict in SEMC’s

favor on the claim of fraudulent concealment. Phillips v. Burt

(June 21, 1991), No. 86-1004 (a copy of the verdict slip is

attached hereto as Exhibit C).

A-25

The characterization of Plaintiffs’ injuries as “atrocities”

and the suggestion that others (whose cases are not

before the Court) have also suffered “atrocities” is also

disconcerting. An atrocity is an atrocious act. Atrocious is

defined as “extremely or shockingly wicked, cruel, or

brutal.” The Random House College Dictionary, 1st Edi-

tion, 1980. Again, the record below provides no basis or

reason for reaching such a conclusion?, particularly as to

SEMC or the Montgomery County medical community.

In State, ex rel. Pratt v. Weygandt (1956), 164 Ohio St.

463, 471, 132 N.E.2d 191, this Court observed:

The purity and integrity of the judicial process

ought to be protected against any taint of suspi-

cion to the end that the public and litigants may

have the highest confidence in the integrity and

fairness of the courts.

(citing Haslam v. Morrison, Judge, 113 Utah 14, 20, 190 P.2d

520, 523). Moreover, Chief Justice Moyer recently empha-

sized the importance of “avoiding even the appearance of

any bias or prejudice . . . to ensure the absolute confi-

dence of the parties and the public in the fair and impar-

tial resolution of all matters.” State v. Warner (July 8,

1991), Ohio Sup. Ct. No. 91-AP-110 (copy attached as

Exhibit D) at p. 2 (emphasis added).

15 In the Browning case, in fact, the record raises a substan-

tial question as to whether Ms. Browning was even malpractice

by her physicians. An attorney who reviewed her claim in 1988

refused to take her case, stating “I could not find a basis for a

malpractice claim for your kidney and bladder problems.” (Rec.

at 176).

A-26

Given the language in the conclusion of the majority

opinion, SEMC’s confidence has reasonably been shaker

as to whether it received a fair and impartial resolution of

this matter. The majority opinion’s concluding statement

that there has been a “conspiracy of silence” in the medi-

cal community and “atrocities” committed, without

doubt, gives at least the appearance that the merits have

been prejudged.'© This “taint of suspicion” strongly sug-

gests a need for rehearing.

A rehearing is also necessary to modify the majority’s

opinion ena delete the offending language. Otherwise,

plaintifts will argue on remand that these conclusions

constitute law of the case. These remarks will also be

frequently cited by plaintiffs in other cases for the propo-

sition that SEMC and the Montgomery County medical

community are liable as a matter of law. Surely this was

not intended by the Court, but that is a potential result of

the majority’s opinion if left unchanged.

VII. CONCLUSION

For the reasons set forth above, SEMC respectfully

urges the Court to grant a rehearing in this matter.

16 Notably, the majority’s opinion can only have the effect

of promoting “conspiracies of silence” in the future. Given the

liability risks created by this decision, peer review committee

members will be further inclined not to speak and to withhold

information.

A-27

Respectfully submitted,

/s/ K.C. Green

Frank C. Woodside, III (0000636)

John E. Schlosser (0007831)

K. C. Green (0005435)

Dinsmore & Shohl

1900 Chemed Center

255 East Fifth Street

Cincinnati, Ohio 45202-3172

(513) 977-8200

Attorneys for Defendant-Appellant,

St. Elizabeth Medical Center

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and

accurate copy of the foregoing was served upon the fol-

lowing, by first-class U.S. mail, this 12th day of July 1993:

Neil F. Freund, Esq.

Freund, Freeze & Arnold

1800 Dayton Arcade Center

1 South Main Street ial

Dayton, Ohio 45402

John G. Lancione, Esq.

Spangenberg, Shibley,

Traci & Lancione

1500 National City Bank Bldg.

Cleveland, Ohio 44114-3062

James Hughes, Esq.

Bricker & Eckler

100 S. 3rd Street

Columbus, Ohio 43215

K.C. Green

A-28

BROWNING ET AL., APPELLEES, JV. BURT;

BLUE ET AL., APPELLANTS.

MITCHELL, APPELLEE, UV. BuRT;

Str. ELizABETH MeEpDICAL CENTER, APPELLANT.

[Cite as Browning v. Burt (1993), 66 Ohio St.3d 544.]

Courts — Limitation of actions — Hospital negligence

arising out of “care” of a patient is a “medical

claim” within meaning of R.C. 2305.11(D)(3) and

subject to period of limitations set forth in R.C.

2305.11(B)(1) — Negligent credentialing of a physi-

cian by hospital is not “medical diagnosis, care or

treatment” within meaning of R.C. 2305.11 — Action

against hospital for bodily injury arising from negli-

gent credentialing of physician subject to two-year

limitations period in R.C. 2305.10 — Limitations

period in R.C. 2305.10 commences to run, when —

~ R.C. 2305.25 does not provide hospital with immu-

nity for negligence in granting or continuing staff

privileges of an incompetent physician.

[Syllabus by the Court]

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 alle-

viation of a physical or mental defect or illness.

Negligent credentialing of a physician by a hospital is

not “medical diagnosis, care, or treatment” within the

meaning of R.C. 2305.11.

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.

A-29

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 immu-

nity from liability for the hospital’s negligence in

granting and/or continuing the staff privileges of an

incompetent physician.

(Nos. 91-2079 and 91-2121 - Submitted January

20, 1993 — Decided June 30, 1993.)

Appeats from the Court of Appeals for Montgomery

County, Nos. 12176 and 12244.

The two cases before us today are representative of

many actions filed in Montgomery County relating to the

drastically unconventional surgical practices of Dr. James

C. Burt during his former service at St. Elizabeth Medical

Center (“SEMC”) in Dayton. Case No. 91-2079 involves

the timeliness of claims asserted against SEMC for its

| alleged negligence in having granted and/or continued

the staff membership or professional privileges of Dr.

Burt and another former member of the SEMC medical

staff, Dr. Max Blue, Jr.! This case also includes a claim for

loss of consortium. Case No. 91-2121 involves the timeli-

ness of a negligence action against SEMC for continuing

Dr. Burt’s staff membership or professional privileges at

1 These claims are referred to by the parties as claims for

“negligent credentialing.”

A-30

the hospital. The two cases have been consolidated sua

sponte for decision. See (1992), 62 Ohio St.3d 1502, 583

N.E.2d 973.

Case No. 91-2079

On April 17, 1989, Jimmie Dean Browning (“Brown-

ing”) and her husband, Lawrence Browning, appellees,

filed a complaint in the Court of Common Pleas of Mont-

gomery County against Dr. Burt and appellants, SEMC

and Dr. Blue. Browning alleged that in February 1982,

Drs. Burt and Blue negligently, willfully and wantonly

performed unnecessary and experimental “vaginal recon-

struction surgery” upon her without her consent, restruc-

turing her genital organs to an unnatural and bizarre

anatomical configuration. Browning alleged that she was

advised by Blue that the surgery was necessary to treat a

bladder condition. Browning also alleged that Blue negli-

gently performed a total of sixteen unnecessary surgeries

upon her between January 1981 and August 1986. Brown-

ing asserted that SEMC negligently, intentionally, and

willfully permitted Drs. Burt and Blue to perform the

unnecessary and experimental surgeries at SEMC by fail-

ing to provide adequate peer review of Drs. Burt and

Blue, and by failing to protect Browning from known

incompetent medical care.

In her complaint, Browning sought recovery against

Drs. Burt and Blue for medical malpractice. She sought

recovery against SEMC for its alleged negligence in

granting and/or continuing the staff membership or pro-

fessional privileges of Drs. Burt and Blue. Lawrence

A-31

Browning sought recovery against all defendants for loss

of consortium.

Dr. Burt failed to respond to the complaint and, upon

motion, appellees obtained a default judgment against

him.2 SEMC and Dr. Blue, appellants, answered the com-

plaint and asserted defenses based upon the “applicable

statute of limitations.” Appellants then deposed Brown-

ing in July 1989 for purposes of developing their statute

of limitations defenses. The following relevant matters

can be gleaned from Browning’s deposition testimony.

In 1980, Browning sought treatment from Dr. Blue, a

urologist, for bladder infections and difficulties she expe-

rienced voiding urine. Blue performed surgery upon

Browning, but Browning’s condition did not improve. By

1982, Browning began complaining of constant bladder

pain. She also complained of pain she experienced during

sexual relations with her husband. Thus, in February

1982, Blue referred her to Dr. Burt for an “exploratory

pelvic laparotomy with lysis” and “vaginoplasty.”

Dr. Burt met with Browning prior to surgery. Burt

explained to Browning that the pain she experienced

during sexual relations was caused by her husband’s

penis striking her bladder. Burt explained that Drs. Burt

and Blue would perform surgery to place her bladder

upon a “pedestal,” and that this procedure would correct

her problems voiding urine and alleviate the pain she

suffered during intercourse. Burt, also indicated that he

2 A hearing for the assessment of damages was held in

abeyance pending further court order.

A-32

would do some “cosmetic things” to improve Browning's

sex life.

With respect to this special surgical procedure Burt

performed at SEMC, a form letter was required by SEMC

to be submitted to Burt’s patients prior to surgery. A copy

of the letter bearing Browning’s signature (and a “wit-

ness” signature dated February 5, 1982) was presented by

SEMC at Browning’s deposition.? Browning testified that

she could not recall having ever seen the letter. The form

letter, which bears the SEMC letterhead, states:

“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 scien-

tific 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 Commit-

tee of the Medical Staff considers the aforementioned

3 It is undisputed that the letter bearing Browning's signa-

ture appeared in her hospital records at SEMC.

A-33

procedure an unproven, non-standard practice of gyne-

cology.”4

Drs. Burt and Blue performed “vaginal reconstruc-

tion surgery” upon Browning at SEMC in February 1982.

Browning testified at the deposition that she underwent

the surgery explained to her by Burt to correct her painful

bladder condition.°

Browning was required to employ an indwelling urinary

catheter for six months following the reconstruction sur-

gery. When the catheter was removed by Dr. Burt, Brown-

ing could not void properly and became “obstructed.”

The obstruction caused extreme pain and vomiting and

subsequent hospitalization at SEMC. Browning testified

that after her February 1982 “love surgery,” she contin-

ued to suffer from bladder infections and developed

4 An identical form letter appears in the record in case No.

91-2121. Answers to interrogatories in that case reveal that this

“special Burt consent” form was used by SEMC beginning in

1979 in connection with Dr. Burt’s “vaginal reconstruction sur-

geries.” The forms were provided to Burt by SEMC and were

required to be completed before or at the time of hospital admis-

sion. Burt began conducting vaginal reconstruction surgeries at

SEMC in 1969.

5 The parties to this appeal agree that the surgery actually

performed upon Browning consisted of an exploratory pelvic

laparotomy, vaginal reconstruction, circumcision of the clitoris

and insertion of a urinary catheter. The vaginal reconstruction

consisted of, among other things, a redirection and elongation

of her vagina. In her deposition, Browning claimed that she was

not fully informed of the true nature of the surgery, although

she admitted that her signature appeared on a consent form

indicating that the surgical procedure “Pelvic Laparotomy,

Vaginal Reconstruction” had been explained to her satisfaction.

A-34

problems with urinary incontinence. Her bladder infec-

tions after the surgery were worse (more frequent) than

before. Additionally, following the surgery, Browning

could not engage in sexual relations without extreme pain

and difficulties. At some point, she also began to develop

severe kidney problems, for which Dr. Blue provided

treatment. Browning was last treated by Dr. Burt some-

time in 1983. Burt left Browning a message that he was

leaving town and that she need not see him anymore.

Browning continued her treatment at SEMC with Dr.

Blue.

Browning underwent myriad of additional surgeries

performed by Dr. Blue at SEMC between 1982 and 1986.

After each surgery, Dr. Blue told Browning that after the

next surgery, she would be “just fine.” The final surgery

performed by Blue occurred on August 22, 1986, when he

removed Browning’s right kidney. However, none of

these surgeries improved Browning’s condition. Indeed,

Browning stated that her condition worsened. She contin-

ued to suffer bladder infections, difficulties voiding,

problems during sexual intercourse, and periods of urin-

ary incontinence. She also developed bowel problems

sometime during her treatment with Burt and/or Blue.

After the August 22, 1986 surgery, Browning began expe-

riencing right flank pain, and her mental health deterio-

rated.

When her problems persisted, Browning arranged to

be examined by Dr. Montague, a urologist, at the Cleve-

land Clinic. Browning went to see Montague for an expla-

nation why her medical condition did not improve

following Dr. Blue’s August 1986 surgery. Montague

A-35

examined Browning in June 1987 and, according to

Browning:

“A. He told me that I was voiding pretty good and

that he thought that I should go for some counseling

because I wasn’t willing to accept my condition or change

+* + *

my life-style or something.

“Q. What did you tell Dr. Montague?

“A. I told him that I thought that something was

wrong, you know, from the surgery I’d had, that I didn’t

get over it and when he [Blue] took my kidney out, I

thought I wouldn’t have any more problems.”

In June or July 1987, Montague sent a report of his

examination to Browning and Blue. According to Brown-

ing, the report indicated there was a “flaw” in her sur-

gery. Browning, who underwent approximately sixteen

surgeries, did not know the surgery to which Dr. Mon-

tague was referring. She never questioned Montague

about the report.

Sometime between July and August 1987 (but after

receiving the report from Cleveland Clinic), Browning

confronted Dr. Blue in Blue’s office. Browning told Blue

that she thought Blue “had done a malpractice operation”

because her medical condition was not improving. She

also told Blue that before Dr. Burt left town in 1983, Burt

had told Browning that half of Browning’s prior surgeries

were malpractice. Browning had had a number of sur-

geries before she last saw Burt in 1983 (including a

number of surgeries not performed by Burt or Blue), but

Browning assumed that Burt was referring to Blue’s prior

surgeries. Browning said that during the confrontation at

A-36

Blue’s office, Blue denied any wrongdoing and recom-

mended that she see a psychiatrist.

At Blue’s suggestion, Browning entered SEMC for

psychiatric treatment in August 1987 under the care of

Dr. Patwa. According to Browning, Blue visited her at the

hospital “because he wanted me to forget everything that

letter said from Cleveland Clinic and I told him he was a

liar.” Blue tried to prescribe medication for Browning

during this time, but Dr. Patwa would not allow i

Browning stated in her deposition that she began to sus-

pect in August 1987 that Dr. Blue may have committed

malpractice upon her. Browning never returned to see Dr.

Blue for treatment after her August 1987 hospitalization.

Browning told Dr. Patwa in August or September 1987

that Dr. Blue had ruined her life because Blue removed

her kidney and she was not well, and never would be

well.

On September 29, 1989, SEMC filed a motion for

summary judgment, arguing that appellees’ claims

against SEMC, all of which arose from SEMC’s alleged

negligent credentialing of Drs. Burt and Blue, were time-

barred by the one-year statute of limitations set forth in

6 Browning testified at the deposition that she continues to

suffer from urinary incontinence, abdominal flank pain, severe

bowel problems, severe anxiety and depression, chronic back

pain, and pain during sexual intercourse to the point that she is

virtually unable to participate in sexual relations with her hus-

band. She testified that she was told by a gynecologist two

months before the deposition that the surgery performed upon

her could not be corrected, and that Dr. Burt “had cut away

everything.”

i iene MG AAs ON is teh

A-37

R.C. 2305.11(B)(1). Relying upon portions of the deposi-

tion testimony, SEMC argued, citing Allenius v. Thomas

(1989), 42 Ohio St.3d 131, 538 N.E.2d 93, that the statute

began to run by August 1987 at the latest when “cogniza-

ble events” occurred which should have led Browning to

believe that her condition was related to her previous

treatments with Burt and Blue, and which should have

alerted Browning of the need to pursue her remedies. On

November 3, 1989, Blue moved for summary judgment on

Browning’s malpractice claim and Lawrence Browning's

consortium claim. For reasons similar to those advanced

by SEMC, Blue argued that appellees’ claims against him

were barred by R.C. 2305.11(B)(1).

Appellees responded to each motion for summary

judgment and submitted an affidavit by Browning. The

affidavit submitted in response to SEMC’s motion (which

is similar to the one submitted in response to Blue’s

motion) provides, in part:

“I saw the television program West 57th Street on

October 30, 1988. I had the same symptoms as Dr. Burt's

patients, which were on that show, complained of.

“I had surgery performed by Dr. Burt and Dr. Blue,

and I wanted to know whether they had performed

experimental surgery on me.

“oe &

“I did not know or believe prior to seeing the West

57th Street program, that the surgeries performed on me

by Dr. Blue and Dr. Burt were unnecessary and/or exper-

imental.”

A-38

The triat-court granted the motions for summary

judgment and dismissed the action against SEMC and

Blue.” The trial court held that appellees’ claims accrued

in August 1987 at the latest when Browning knew of Dr.

Montague’s report, knew of the continued and/or wors-

ened nature of her condition, and told Blue that Blue had

committed a “malpractice operation.” The trial court held

that under Alienius, supra, appellees were placed on

notice (by a “cognizable event”) in August 1987 to pursue

any possible claims against SEMC and Blue, and because

appellees did not do so within the one-year period of

limitation, R.C. 2305.11 barred the action. By entry dated

April 4, 1990, the trial court expressly determined that

there was “no just cause for delay” of an appeal from the

dismissals of the action against SEMC and Blue, leaving

only the damages on appellees’ default judgment against

Dr. Burt to be adjudicated.

On appeal, the court of appeals reversed the judg-

ment of the trial court with respect to the dismissal of

appellees’ claims against SEMC. Applying the R.C.

2305.11(B)(1) statute of limitations, and the “cognizable

event” test of Allenius, the court of appeals held that there

was no evidence that appellees knew or should have

known, prior to viewing the “West 57th” television pro-

gram, that Browning may have been injured as a result of

7? The trial court granted SEMC’s motion by decision dated

December 5, 1989. All claims against SEMC were dismissed by

entry dated January 3, 1990. The trial court granted Blue’s

motion by decision dated February 2, 1990, and the action

against Blue was dismissed on March 6, 1990. The trial court’s

decisions granting SEMC’s motion and Blue’s motion are nearly

identical.

A-39

SEMC’s negligence in credentialing Drs. Burt and Blue.

Accordingly, the court of appeals held that summary

judgment was inappropriate, as appellees’ causes of

action against SEMC may not have accrued until October

1988, and thus, the action against SEMC (commenced in

April 1989) may have been timely filed.

The court of appeals affirmed the judgment of the

trial court with respect to the dismissal of Browning's

malpractice claim against Blue, finding that the cause of

action accrued in August 1987 at the latest when Brown-

ing knew or should have known that she may have been

the victim of medical malpractice. However, the court of

appeals reversed the judgment of the trial court with

respect to the dismissal of Lawrence Browning’s consor-

tium claim against Blue, finding that Lawrence’s claim

was governed by the four-year statute of limitations set

forth in R.C. 2305.09.

Case No. 91-2121

Coney Mitchell, appellee, underwent “vaginal recon-

struction surgery” performed by Dr. Burt at SEMC in

January 1985. Prior to surgery, Mitchell suffered from

urinary incontinence, bladder infections, bladder and pel-

vic pain, vaginal infections, bowel problems, and painful

sexual intercourse. Before surgery, Burt explained to Mit-

chell that her bladder was being bruised during sexual

relations with her husband, and that surgery was neces-

sary to “lift” her bladder “out of the way.” Burt told

Mitchell that the surgical procedure would alleviate her

pelvic pain and correct her bladder problems. Mitchell

A-40

signed a consent form for “Anterior Colporrhaphy, Vagi-

nal Reconstruction Cystoscopy.” She also apparently

signed the special form letter required by SEMC for

Burt’s vaginal reconstruction surgeries.§

Mitchell’s condition worsened within a short time

after the surgery.? When the catheter was removed, Mit-

chell lost all bladder control. Her bladder pain and vagi-

nal infections continued. She also began to experience

severe bowel problems and felt like everything inside of

her was “tearing loose.” She “stayed sick,” and her condi-

tion never improved.

At Dr. Burt’s urging, Mitchell and her husband

attempted to resume sexual relations approximately four

months after the reconstruction surgery. However, pene-

tration was impossible and Mitchell began bleeding pro-

fusely. At this time, Mitchell examined her vagina and

noticed that it had been “sewn up.” She immediately

contacted Burt, who indicated that everything was nor-

mal, and that she needed time to heal. Burt instructed

Mitchell not to see any other doctor. He told Mitchell that

any other doctor could cause her to bleed to death. Thus,

Mitchell continued treatments with Dr. Burt.

8 The contents of the form letter appear in the facts in case

No. 91-2079, supra. It is undisputed that the letter bearing Mit-

chell’s signature appeared in her hospital file at SEMC.

9 We surmise from the record that the procedure Mitchell

underwent was similar to the surgery performed upon Brown-

ing, which included, among other things, vaginal redirection

and elongation, insertion of a urinary catheter, and a general

restructuring of body organs, muscle and tissue. See fn. 5, supra.

iseeamieaiimeiiie

i i

A-41

During subsequent treatments, Burt continually insis-

ted that Mitchell could resume normal sexual relations

with her husband. However, Mitchell maintained that

this was not possible. At some point, Burt met with

Mitchell’s husband and told him that Mitchell would get

better, and he (Mitchell’s husband) should not “take no

for an answer.” Eventually, in 1987, Mitchell had a heated

argument with Burt and decided to terminate her treat-

ment with him. Mitchell has never been able to resume

sexual relations with her husband.

In October 1988, Mitchell viewed the “West 57th”

television program regarding Dr. Burt’s surgical prac-

tices. She realized that her symptoms were the same as

those discussed by Burt’s ex-patients appearing on the

show. Thus, Mitchell contacted a doctor, Dr. Busacco,

whose name she obtained from watching the program.

Mitchell was examined by Busacco in December 1988.

Busacco performed whatever corrective surgery was pos-

sible — reinforcing the rectum, reconstructing the vagina,

removing pockets of urine which had been collecting

bacteria within the urinary system - but Busacco

informed Mitchell that she had been surgically mutilated.

Mitchell commenced suit on December 14, 1988

against Dr. Burt and appellant, SEMC. Mitchell alleged

that Burt negligently and fraudulently performed inap-

propriate, unnecessary and experimental surgery upon

her without her knowledge and consent. Mitchell alleged

that SEMC knew of Burt’s surgical practices and failed to

protect her from a known incompetent physician. Mit-

chell also claimed that SEMC was negligent in failing to

provide adequate peer review of Dr. Burt.

A-42

Mitchell sought recovery from Dr. Burt for medical

malpractice. She sought recovery from SEMC for its

alleged negligence in granting and continuing hospital

privileges to Dr. Burt.

SEMC responded to the complaint and eventually

moved for summary judgment on the basis of the R.C.

2305.11(B)(1) statute of limitations. Burt failed to answer

(or defend against) the claim of medical malpractice.

The trial court granted SEMC’s motion for summary

_ judgment. In its decision, the trial court noted that SEMC

and Mitchell apparently assumed that all claims against

SEMC were “medical claims” within the meaning of R.C.

2305.11(B)(1) and (D)(3). Applying Allenius, supra, the

trial court held that the R.C. 2305.11(B)(1) period of lim-

itations began to run in December 1985 at the latest.

However, it is apparent that the trial court was unsure

whether R.C. 2305.11(B)(1) was applicable. In dismissing

the action against SEMC, the trial court stated, in part:

“The Court finds that an action upon a medical claim

against St. Elizabeth Medical Center was not commenced

within one year after the action accrued and therefore

under R.C. 2305.11(B)(1) the claims should be DIS-

MISSED. The Court further finds that the claims of the

Plaintiff for bodily injury not related to a medical claim

must be DISMISSED because the action was not brought

within the two years after the cause thereof arose pur-

suant to R.C. 2305.10. This case was filed December 14,

1988.”

Subsequently, the trial court entered a default judg-

ment against Burt and in favor of Mitchell. By separate

entry, the trial court expressly determined that there was

a a ae Ne RN Ton er

A-43

“no just cause for delay” of an appeal from the dismissal

of the action against SEMC.

On appeal, the court of appeals reversed the judg-

ment of the trial court. The court of appeals determined

that there was nothing in the record to suggest that

Mitchell should have discovered the alleged negligence

of SEMC prior to viewing the “West 57th” television

program in October 1988. Accordingly, the court of

appeals, relying on its decision in the Browning case, held

that summary judgment was not appropriate.

The two cases, having been consolidated, are now

before this court pursuant to the allowance of motions to

certify the record.

Spangenberg, Shibley, Traci, Lancione & Liber, John G.

Lancione, john D. Liber and Peter H. Weinberger, for appel-

lees Browning in case No. 91-2079 and appellee Mitchell

in case No. 91-2121.

Freund, Freeze & Arnold, Neil F. Freund and Robert N.

Snyder, for appellant Max Blue, Jr., M.D., in case No.

91-2079.

Dinsmore & Shohl, Frank C. Woodside III, John E. Schlo-

sser and K.C. Green, for appellant St. Elizabeth Medical

Center in case Nos. 91-2079 and 91-2121.

Bricker & Eckler, James J. Hughes and Catherine M.

Ballard, urging reversal for amicus curiae, Ohio Hospital

Association, in case Nos. 91-2079 and 91-2121.

A-44

Douglas J. 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’ reinstatement of Law-

rence Browning's consortium claim against Dr. Blue and

SEMC.!° Given the procedural disposition of these cases,

the pertinent facts (where applicable) must be construed

in a light most favorable to appellees who opposed the

motions for summary judgment at the trial court level.

See Civ.R. 56.

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 dis-

covery (by appellees Mitchell and Browning) of the hos-

pital’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

10 The malpractice of Dr. Burt has been established in both

cases by virtue of the default judgments entered against him

even if 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.

A-45

“cognizable events” triggering the running of the statute

of limitations on Mitchell’s and Browning’s medical mal-

practice 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 “cogni-

zable event” which commenced the running of the R.C.

2305.11(B)(1) period of limitations on the negligent cre-

dentialing 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.

Upon reflection, we cannot accept either of the par-

ties’ positions, which assume that R.C. 2305.11(B)(1) and

our cases governing the accrual of causes of action for

A-46

medical malpractice apply to claims of hospital liability for

negligent credentialing.

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 physi-

cians 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:

“*** [Ojnce 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 mal-

practice would most likely take place. That is, where a

previously competent physician with staff privileges

develops a pattern of incompetence, which the hospital

A-47

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:

“+***TA 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.

The complaints against SEMC in the cases before us

allege that the hospital breached these independent

duties owed directly to Browning and Mitchell as patients

at SEMC. The “negligent credentialing” causes of action

include allegations that SEMC failed to exercise prudence

in granting or continuing staff privileges, failed to con-

duct reasonable peer review, failed to protect appellees

Mitchell and Browning from known incompetent medical

care, and otherwise failed to save appellees Mitchell and

Browning from medical treatment (surgery) of an unnec-

essary and experimental nature. These claims are not

claims for medical malpractice and, thus, the medical mal-

practice line of cases and the “cognizable event” test do

not apply. A hospital does not practice medicine and is

A-48

incapable of committing malpractice. See, generally, Lom-

bard v. Good Samaritan Med. Ctr. (1982), 69 Ohio St.2d 471,

23 O.0.3d 410, 433 N.F.2d 162, and Richardson v. Doe

(1964), 176 Ohio St. 370, 27 O.0.2d 345, 199 N.E.2d 878

(only physicians can commit “medical malpractice”). Fur-

ther, appellees’ claims against the hospital have nothing

to do with any issue concerning derivative liability of the

hospital for the acts of its agent or employee-physicians.

The question whether Burt or Blue is employed by SEMC

is neither clear on the record before us nor particularly

relevant to our discussion. Mitchell’s and Browning’s

negligent credentialing claims against SEMC are indepen-

dent claims asserted directly against SEMC for the hospi-

tal’s own acts or omissions in granting and/or continuing

the staff privileges of the doctor(s). Thus, we must deter-

mine what type of claim is being asserted by Browning

and Mitchell against SEMC and, in addition, what statute

of limitations applies to such claims.

II

Medical Claim — R.C. 2305.11(B)(1) and (D)(3)

R.C. 2305.11(B)(1) provides, in part:

“*** TA]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

A-49

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)"?

demonstrates that not all claims asserted against a hospi-

tal are “medical claims” subject to the period of limita-

tions set forth in R.C. 2305.11(B)(1). Rather, a claim

against a hospital is a “medical claim” within the mean-

ing of R.C. 2305.11(D)(3), and is subject to the one-year

limitation period set forth in R.C. 2305.11(B)(i), only if

the claim arises out of the medical diagnosis, care, Or

treatment of a person. The terms “medical diagnosis” and

“treatment” are terms of art having a specific and particu-

lar meaning relating to the identification and alleviation

of a physical or mental illness, disease, or defect. See,

generally, Black’s Law Dictionary (6 Ed.1990), at 453-454

and 1502. Conversely, the word “care” is a general word

without a specific legal meaning until placed in a particu-

lar context. Under the ejusdem generis rule of statutory

construction, “care” as used in R.C. 2305.11(D)(3) (where

the word is preceded by terms such as “physician,” “hos-

pital,” “nurse,” and “medical diagnosis”) means the pre-

vention or alleviation of a physical or mental defect or

illness. Thus, the term “care” in R.C. 2305.11(D)(3) should

not be broadly interpreted when the context in which it is

used is properly understood.

With the foregoing discussion in mind, we believe

that claims asserted against a hospital for negligent cre-

dentialing do not arise out of the medical diagnosis, care,

11 The current version of R.C. 2305.11(B)(1) and (D)(3) has

remained unchanged since the amendment to R.C. 2305.11 effec-

tive October 20, 1987. See 142 Ohio Laws, Part II, 3322-3325.

A-50

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 compe-

tent 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 incom-

petent 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 “mal-

practice” nor a “medical claim” to which the limitations

period found in R.C. 2305.11 applies.12

12 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 Ohio Laws, Part I, 2153; 136 Ohio

Laws, Part II, 3841; and 136 Ohio Laws, Part II, 2810. Again, a

hospital does not practice medicine and cannot commit “mal-

practice.” Lombard and Richardson, supra.

ee ee Nae eM Oe eee On ee eae

A-51

Il

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 cov-

ered 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 lim-

itations 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 applica-

ble 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 con-

text, 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

A-52

(Douglas, J., dissenting). Of particular significance, the

discovery rule has been judicially applied to the general

statute of limitations for bodily injury actions under for-

mer R.C. 2305.10. In O’Stricker 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 imme-

diately, the cause of action does not arise until the plain-

tiff knows or, by the exercise of reasonable diligence

should have known, that he had been injured by the

conduct of defendant, for purposes of the statute of lim-

itations contained in R.C. 2305.10.”

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 creden-

tialing a physician.

ne ee ee ee)

A-53

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 gov-

erning the accrual of causes of action for medical mal-

practice 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 creden-

tialing causes of action requires pinpointing when the

victims should have discovered that SEMC had failed to

“provide adequate supervision or review of” Dr. Burt

A-54

(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 per-

form its legal duties until the women viewed the televi-

sion program in October 1988 and realized that other

former patients of Dr. Burt suffered from maladies similar

to their own. Thus, the court of appeals held that sum-

mary judgment on the basis of the R.C. 2305.11(B)(1)

statute of limitations was not proper in either case, since

the complaints were filed within one year of the discov-

ery of pertinent facts which placed appellees on notice to

pursue a remedy against the hospital.

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 limita-

tions for medical malpractice claims against a doctor do not

necessarily commence the running of a statute of limita-

tions 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 “cogniza-

ble event” test of Allenius to be directly applicable in

determining the accrual date of appellees’ negligent cre-

dentialing claims. Mere mention of Allenius and the “cog-

nizable 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

A-55

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 abnor-

malities similar to their own as a consequence of Burt's

surgical practices at SEMC. The record is devoid of evi-

dence 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 Mit-

chell and Browning that their doctor(s) may have com-

mitted a number of harmful, improper or unwarranted

surgeries upon a number of unsuspecting patients such

that SEMC’s credentialing practices could reasonably be

brought into question. Accordingly, the R.C. 2305.10 stat-

ute of limitations was triggered in October 1988, and the

A-56

complaints against SEMC were filed well within the

applicable two-year period of limitations.

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 infor-

mation 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 com-

mencement 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

13 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.

A-57

acts, omissions and decisions of their peer review com-

mittees 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 individ-

ual 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:

“+e + *

“(E) A peer review committee, professional standards

review committee, or arbitration committee of a state or

local society composed of doctors of medicine, doctors of

osteopathic medicine and surgery, doctors of dentistry,

doctors of optometry, doctors of podiatric medicine, psy-

chologists, or registered pharmacists[.]” (emphasis

added.)

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 perform-

ing 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

A-58

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 informa-

tion to certain review boards and committees to encour-

age 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 protec-

tions. 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 incom-

petent physician.

SEMC protests that R.C. 2305.25 and 2305.251 prevent

a hospital from defending itself against claims for negli-

gent 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 por-

tion 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

A-59

being unavailable for discovery or for use in any civil

action merely because they were presented during pro-

ceedings of a committee nor should any person testifying

before a committee or who is a member of the committee

be prevented from testifying as to matters within his

knowledge, but the witness cannot be asked about his

testimony before the committee or opinion formed by

him as a result of the committee hearing.”

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 hospi-

tal 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.

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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."*

Vill

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) regard-

ing the reinstatement of Lawrence Browning's consor-

tium claim against Blue. For the reasons that follow, we

affirm the judgment of the court of appeals.

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.

14 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.

lr rr

A-61

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.'°

Furthermore, the issue decided by the court of appeals

did not involve the constitutionality of a statute and,

thus, the case of State v. 1981 Dodge Ram Van (1988), 36

Ohio $t.3d 168, 522 N.E.2d 524, is distinguishable. A

number of other cases cited by Blue merely recite the

general rule of law that issues may be treated as waived if

not raised at the first opportunity or assigned as error in

the court of appeals. However, there is no general prohi-

bition in App.R. 12(A) requiring that issues be treated as

waived.

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 mal-

practice claim against Blue “accrued” within the meaning

15 In this regard, we note that the October 1987 amendment

to R.C. 2305.11 specifically made certain derivative claims sub-

ject to the same period of limitations as the principal claim. See

R.C. 2305.11(D)(3); 142 Ohio Laws, Part II, at 3324.

A-62

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. Brown-

ing’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 Brown-

ing’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 her treatment with Blue until

August 1987. See Frysinger v. Leech (1987), 32 Ohio St.3d

38, 512 N.E.2d 337, paragraph one of the syllabus.

IX

Conclusion

In reaching our conclusions, we do not Pass judg-

ment (since issues of alleged liability are yet to be deter-

mined) 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 perfor-

mance of progressive medicine.

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For all the reasons set forth herein, we affirm the

difficult and courageous judgments of the court of

appeals.

Judgments affirmed.

A.W. Sweeney, F.E. SwEENEY AND PFeiFer, JJ., concur.

Moyer, C.J., WricHt and Cook, JJ., concur in part and

dissent in part.

DesorsH L. Cook, J., of the Ninth Appellate District,

sitting for REsNick, J.

Moyer, C.J., 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 “medi-

cal 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 cre-

dentialing” 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

A-64

retaining an independent contractor. We applied this rule

to the hospital setting and held that a hospital can be held

liable for the medical malpractice of a staff physician

where the injured party can prove that the hospital was

negligent in granting or in continuing the staff privileges

of the independent physician. Paragraph two of the syl-

labus of that decision reads:

“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

rust 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 cru-

cial 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 under-

lying 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 hos-

pital’s patient through medical malpractice, an action

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against the hospital for negligent credentialing will never

arise. Although medical malpractice claims against the

doctor and negligent credentialing claims against the hos-

pital 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 physi-

cian’s failure to abide by ordinary standards of care prox-

imately 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 major-

ity has also erroneously held that a negligent credential-

ing 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. 2305.11.16

16 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), “medi-

cal claim” includes claims which seek to hold a hospital respon-

sible 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 out of the

medical diagnosis, care, or treatment of any person” before the

one-year limitations period is applicable. (Emphasis added.)

R.C. 2305.11(D)(3) reads:

“ ‘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.)

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Under the version of R.C. 2305.11 in effect at the time

the plaintiffs’ causes of action arose, “medical claim” was

defined in R.C. 2305.11(D)(3) as “any claim asserted in

any civil action against a physician, podiatrist, or hospital

arising out of the diagnosis, care, or treatment of any

person.” (Emphasis added.) 139 Ohio Laws, Part I, 2154.

Although former R.C. 2305.11 did not explicitly state that

a “medical claim” is subject to the one-year limitations

period contained in former R.C. 2305.11(A), I believe that

the one-year statute of limitations is nonetheless applica-

ble. As Justice Holmes correctly explained in his dissent

in Lombard v. Good Samaritan Med. Ctr. (1982), 69 Ohio

St.2d 471, 475-476, 23 O.0.3d 410, 413, 433 N.E.2d 162,

165, the General Assembly intended the words “malprac-

tice” and “medical claim” to be used interchangeably:

“ * * * 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 legisla-

tive 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 malprac-

tice 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

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arise out of a patient’s medical diagnosis, care, or treat-

ment. In every instance, the plaintiff-patient is alleging

that the staff physician has rendered him or her substan-

dard diagnosis, care, or treatment which proximately

resulted in plaintiff’s alleged injuries. The negligent cre-

dentialing 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.

II

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 termi-

nates, whichever occurs later. Frysinger v. Leech (1987), 32

Ohio St.3d 38, 512 N.E.2d 337, syllabus. The term “cogni-

zable 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

A-68

when the patient discovers, or, in the exercise of reason-

able 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 infor-

mation of circumstances sufficient to put a reasonable

person on inquiry, or has the opportunity to obtain

knowledge from sources open to his or her investiga-

tion.” ’ *** As indicated by the majority, it is 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

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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 notice to

investigate the facts and circumstances relevant to her

claim in order to pursue her remedies. * * * ” (Emphasis

sic.)

The facts or circumstances which give rise to a “cog-

nizable 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.

A-70

The record indicates that both Browning and Mitchell

signed the following acknowledgement on SEMC let-

terhead prior to having Dr. Burt perform vaginal recon-

struction 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 scien-

tific 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 Commit-

tee of the Medical Staff considers the aforementioned

procedure an unproven, non-standard practice of gyne-

cology.”

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 notice of a hospital’s

negligent credentialing practices only occurs where the

patient has been apprised that his or her doctor “may

have committed a number of harmful, improper or

unwarranted surgeries upon a number of unsuspecting

A-71

patients such that [a hospital’s] credentialing practices

could reasonably be brought into question.” I disagree

and would hold, contrary to the majority opinion, that

the plaintiffs’ causes of action against SEMC could accrue

even without notice that other former patients were suf-

fering from similar conditions.

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 asso-

ciated with standard and generally accepted surgical pro-

cedures. 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 Mit-

chell 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 ques-

tionable 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

A-72

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 remedies” once he or

she has been put on notice by the cognizable event. See

Allenius, 42 Ohio St.3d 131, 538 N.E.2d 93, syllabus.

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 malprac-

tice on her. By that time, Browning had undergone

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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 negli-

gence 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. Mit-

chell 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 occur-

rences 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

A-74

expected to place Mitchell on notice of the need to pursue

her “possible remedy” against the hospital. Since Mit-

chell’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.

For the foregoing reasons, I would reverse the judg-

ment of the court of appeals as it relates to the claims of

plaintiffs against SEMC and reinstate the grants of sum-

mary judgment by the trial court.

Cook, J., concurs in the foregoing opinion.

Wricut, J., 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 plain-

tiffs’ 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 hold-

ing 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, | 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 “place[s] the patient on

notice of the need to pursue his possible remedies.” Id. at

A-75

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 cre-

dentialing 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 rea-

sonably warrant investigation of the hospital’s credential-

ing practices.” (Emphasis added.)

I disagree with the majority that use of this cogniza-

ble event to trigger the statute of limitations for a negli-

gent 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 overlooks the fact that the mal-

practice action has a one-year limitations period while

the negligent credentialing claim will have a two-year

limitations period. This allows plaintiffs additional time

to investigate whether the injury caused by the malprac-

tice was a result of the hospital’s negligent credentialing

of the physician.

aaa ia iii

A-76

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.

A-77

IN THE COURT OF APPEALS OF

MONTGOMERY COUNTY, OHIO

JIMMIE DEAN BROWNING,

ET AL.

Plaintiffs-Appellants CASE NO. 12176

(C.P. #89-1341)

VS.

JAMES BURT, M.D., ET AL.

Defendants-Appellees

OPINION

Rendered on the 20th day of August, 1991

MARYLEE GILL SAMBOL, 109 North Broadway Avenue,

Olde Towne Professional Building, Trotwood, Ohio 45426

Attorney for Plaintiffs-Appellants

FRANK C. WOODSIDE, III, JOHN E. SCHLOSSER, K.C.

GREEN AND CLARA SUE MILLER, 500 Courthouse

Plaza, S.W., 10 North Ludlow Street, Dayton, Ohio 45402

Attorneys for Appellee, St. Elizabeth Medical Center

NEIL FE. FREUND and ROBERT N. SNYDER, 1800 Dayton

Arcade Center, One South Main Street, Dayton, Ohio

45402

Attorneys for Appellee, Max E. Blue, Jr., M.D.

EARL H. MOORE, JR., 120 West Second Street, 333 Hul-

man Building, Dayton, Ohio 45402

Attorney for Defendant, James C. Burt, M.D.

A-78

BROGAN, J.

Appellant, Jimmie Dean Browning, appeals from the

order of the Montgomery County Common Pleas Court

which granted summary judgment in favor of the defen-

dants Max Blue, M.D. and the St. Elizabeth Medical Cen-

ter upon appellant’s complaint which alleged, inter alia,

medical malpractice. We Affirm with respect to Dr. Blue

and Reverse with respect to St. Elizabeth Medical Center.

On April 17, 1989, Ms. Browning filed a complaint in

which she asserted that Max Blue had negligently, will-

fully, and wantonly referred her to James Burt, M.D., so

he could perform experimental vaginal reconstruction

surgery upon her. She asserted that Blue had advised her

that the surgery was a necessary medical treatment for

her bladder problems. She further asserted that Blue

assisted Burt in the surgical procedure and that she did

not consent to the surgery which was performed upon

her.

In Count Two of the complaint, Ms. Browning

asserted that on January 29, 1981 Blue began a negligent,

willful, and wanton course of performing sixteen medi-

cally unnecessary surgeries upon her culminating in the

removal of her right kidney. She asserted that such sur-

geries damaged her genital-urinary system.

In Count Three she asserted that Dr. Burt at the

request of Dr. Blue performed the experimental surgery

on February 19, 1982, changing her genital organs to an

unnatural and bizarre configuration causing her perma-

nent physical and emotional injury.

A-79

In Count Four, she contended that St. Elizabeth Medi-

cal Center negligently, intentionally, and wilfully permit-

ted Drs. Blue and Burt to perform the unnecessary and

experimental surgeries by failing to provide adequate

peer review and by failing to protect the plaintiff from

known incompetent medical care.

In Count Five, Laurence Browning sought damages

for loss of society and consortium caused by the alleged

conduct of the defendants. He has also appealed.

Both defendants answered generally denying the

allegations of the complaint and both raised the defense

that the plaintiffs’ claims were barred by the statute of

limitations. Both defendants then moved for summary

judgment on the limitations defense which was granted

by the trial court. The plaintiff obtained a default judg-

ment against Dr. Burt but damages remained to be deter-

mined. The court thus entered a Civ. R. 54(B) finding in

order to render its orders appealable.

In the appellants’ first and third assignments of error,

they contend the trial court erred in granting the sum-

mary judgments to the defendants because the evidence

presented a genuine material factual issue as to when

Jimmie Browning should have reasonably discovered or

did discover that she had been the victim of malpractice

by the respective defendants. In their second assignment,

they contend the court erred in considering hearsay evi-

dence in determining the limitations issue.

Both Dr. Blue and St. Elizabeth Medical Center relied

upon the deposition of the plaintiff as the evidentiary

material which they both contend demonstrates that there

A-80

are no material facts in dispute and they were both prop-

erly granted summary judgment as a matter of law on

their defense of the statute of limitations.

The time frame for filing medical malpractice suits is

governed by R.C. 2305.11(B)(1) which provides for a one-

year limitation, judicially construed to run “when the

patient discovers, or in the exercise of reasonable care

and diligence should have discovered the resulting

injury.” Oliver v. Kaiser Community Health Foundation

(1983), 5 Ohio St. 3d 111.

A cause of action for medical malpractice accrues

when the patient discovers or should have discovered the

resulting injury or when the physician-patient relation-

ship for that condition terminates, whichever occurs later.

Frysinger v. Leech (1987), 32 Ohio St. 3d 38.

In medical malpractice actions, for purposes of deter-

mining the accrual date in applying the statute of limita-

tions, the trial court must look to the facts of the

particular case and determine (1) when the injured party

became aware, or should have become aware of the

extent and seriousness of his condition and that such

condition was related to a specific professional medical

service previously rendered him, and whether such con-

dition would put a reasonable person on notice of the

need for further inquiry as to the cause of such condition.

Hershberger v. Akron City Hospital (1987), 34 Ohio St. 3d 1.

The “extent and seriousness of his condition” language

set forth in Hershberger requires that there be an occur-

rence of a cognizable event” which does or should lead

the patient to believe the condition of which the patient

complains is related to a medical procedure, treatment or

A-81

diagnosis rendered the patient and where that event does

or should place the patient on notice of the need to

pursue his remedies. Allenius v. Thomas (1989), 42 Ohio St.

3d 131. A cognizable event was defined as “some note-

worthy event” which does or should alert a reasonable

patient that an improper procedure, treatment, or diag-

nosis has taken place. Id. at 134.

The cognizable event analysis allows a patient to

“reasonably” rely on his physician’s assurances while

placing a continuing duty on the medical profession to

act with the requisite skill and care. Herr v. Robinson

Memorial Hospital (1990), 49 Ohio St. 3d 6.

[he evidence established that the plaintiff experi-

enced bladder and urethra problems for which she was

operated upon at Wright Patterson Air Force Base Hospi-

tal in 1976 and 1977.

The plaintiff began treatment with Dr. Blue a urolo-

gist, for bladder and urinary problems in August of 1980.

In February 1982 Blue referred the plaintiff to Dr. Burt for

an exploratory pelvic laparotomy with lysis and

vaginoplasty. In layman’s terms, Burt explained to the

plaintiff that he was going to place the plaintiff’s bladder

upon a pedestal so that the plaintiff would no longer

experience pain during intercourse with her husband.

Plaintiff also said Burt indicated he would perform a few

cosmetic things to enhance her sex life. (Dep. 49). She

said Burt explained that every time she had sex with her

husband his penis struck her bladder.

A-82

The plaintiff admitted that she signed a consent form

at St. Elizabeth’s authorizing Dr. Burt to perform a pro-

cedure called vaginal reconstruction upon her. (Def. Ex. C

to Dep.)

Dr. Burt put a super pubic catheter in her during the

surgery and the plaintiff wore it for some six months. The

plaintiff said when Dr. Burt took it out she could not void

and became obstructed. (Dep. 53). Ms. Browning said she

experienced a great deal of pain from being obstructed

and she was in such pain she couldn’t turn over in bed.

She said she developed kidney and bladder infections for

which Dr. Blue provided treatment. She said Dr. Blue told

her that her “urethral tube wouldn’t stay open.” (Dep.

55). She said her bladder infections were worse after the

“love surgery” and her sex life actually deteriorated. The

plaintiff also started having problems with holding her

urine after the catheter was removed. (Dep. 55).

Ms. Browning stated she told Dr. Burt about the

problems she was experiencing with her sex life after the

1982 surgery and he told her “she shouldn’t be having

any.” (Dep. 90). She said he told her he was leaving town

and if she had any problems she was to contact a doctor

whose name he supplied. (Dep. 92). In August 1986, Dr.

Blue removed plaintiff’s right kidney. This surgery did

not improve plaintiff's condition. She stated that her

problems were worse and she developed right flank pain

and an “awful lot of swelling” in her back after her 1986

surgery. (Dep. 14). Plaintiff was unable to work after the

1986 surgery and applied for and ultimately received

total disability with the Social Security Administration.

A-83

When the plaintiff’s problems persisted, she made

arrangements through her daughter to see a Dr. Mon-

tague, a urologist, at the Cleveland Clinic in June 1987.

(Dep. 18). The plaintiff told Dr. Montague “I thought that

something was wrong, you know, from the surgery I'd

had, that I didn’t get over it and when he took my kidney

out, I thought I wouldn’t have any more problems.” (Dep.

19,20).

Plaintiff said Dr. Montague conducted a pelvic exam-

ination of her and sent a report of his examination to Dr.

Blue and her. She said Dr. Montague stated in the report

that she had a benign prostate! gland and based on the

report she was denied Social Security benefits. Dr. Mon-

tague also indicated in the report that there was a “flaw”

in appellant’s previous surgery. The plaintiff said that Dr.

Blue was told by Dr. Montague in a phone conversation

about the flaw. The plaintiff never pursued the “flaw”

statement in further detail.

The plaintiff stated Dr. Montague told her she “was

voiding pretty good and that he thought I should go for

some counseling because I wasn’t willing to accept my

condition or change my lifestyle or something.” (Dep.

19). After plaintiff’s visit to Dr. Montague sometime

between June and August 1987 the plaintiff told Dr. Blue

that she thought “he had done a malpractice operation”

on her because she was not getting well. (Dep. 16). The

plaintiff said that Dr. Blue denied he had committed any

malpractice upon her. She said she asked him why she

1 a term sometimes applied to the periurethral glands in the

upper part of the urethra in the female. Stedman’s Medical

Dictionary, Fifth Unabridged Edition (1982).

A-84

had been through all the surgeries and been in the hospi-

tal so many times if there wasn’t anything wrong with

her and “every time he told me I was going to be just fine

that time.” (Dep. 40). She said she told Dr. Blue that Dr.

Burt had told her that half of the surgeries that she had

performed on her were malpractice. She said Blue said: “I

wouldn’t go so far as to say you had a malpractice

operation. You’ve had a lot of trouble, but I wouldn't

necessarily say it was malpractice.” (Dep. 42).

The plaintiff said Dr. Burt made his remark to her

right before she quit seeing him in 1983. She said she

assumed Dr. Burt was referring to Dr. Blue. (Dep. 44).

Prior to her hospitalization under the care of Dr. Patwa

the plaintiff was informed by attorney Ingolf Dinklage

that “I’d probably had a malpractice surgery.” (Dep. 97).

Subsequently, in August 1987, the plaintiff was hos-

pitalized under the care of a psychiatrist, a Dr. Patwa.

While plaintiff was hospitalized she again encountered

Dr. Blue. She said Dr. Blue “wanted me to forget every-

thing that letter said from the Cleveland Clinic and I told

him he was a liar.” (Dep. 35). She testified she told her

psychiatrist, Dr. Patwa, in 1987 that she hated Dr. Blue

because she felt like he had ruined her life because after

her kidney was removed she still wasn’t well. (Dep. 63).

She said she thought ever since 1987 that Blue had com-

mitted malpractice upon her. (Dep. 35). The evidence

indicates the plaintiff never returned to see Dr. Blue after

August 1987.

Ms. Browning filed the following affidavit in opposi-

tion to the motions for summary judgment:

A-85

After Dr. Max Blue performed sixteen (16) sur-

geries on me, I was very upset and angry with

him, because he kept telling me that each addi-

tional surgery would make me well and I did

not get any better after the surgeries.

I was also angry with Dr. Blue, because I became

aware that he destroyed some of my records

which were in his office.

I saw the television program West 57th Street on

October 30, 1988. I had the same symptoms as

Dr. Burt’s patients, which were on that show,

complained of.

I had surgery performed by Dr. Burt and Dr.

Blue, and I wanted to know whether they had

performed experimental surgery on me.

I went to see attorney Ingolf Dinklage, 333 West

First Street, about a claim, against Dr. Blue and

Dr. Burt. Attorney Dinklage told me by letter on

December 21, 1988 that I had no malpractice

claim. Exhibit #1 attached hereto is a true and

exact copy of the letter which I received from

attorney Dinklage.

After I received attorney Dinklage’s letter, I con-

sulted my present attorney who referred me to

Dr. Richard Salzer for examination, and had my

medical records reviewed by Dr. Salzer M.D.

and Dr. Stanesic in Arizona, and filed suit on my

behalf.

In granting the summary judgment for the appellees

the trial court made these observations:

From these bits of testimony and numerous

others spread throughout [Browning's] deposi-

tion the Court concludes that Mrs. Browning

knew at the latest in August, 1987, that she had

A-86

problems that required further inquiry when she

told Dr. Blue he had committed malpractice on

her. After she had a pelvic examination in June,

1987, Dr. Montague put in a letter that there was

a “flaw” in her surgery, that she knew about.

The continuing worsening of symptoms culmi-

nated by being informed there was a “flaw” in

her surgery is a “cognizable event” which did

lead Mrs. Browning telling Dr. Blue that he had

“committed malpractice” on her and should

have placed her on notice to pursue her

remedies, but she did not do [sic] until April 17,

1989.

The evidence is uncontroverted that no later than

August 1987 the plaintiff believed that Dr. Blue had com-

mitted malpractice in his medical treatment of her. She

admitted that her medical problems were not alleviated

by her 1982 surgery. She admitted Dr. Burt told her in

1983 that half of her surgeries were unnecessary and she

assumed Burt was talking about Blue. (Dep. 43). She

admitted that she believed that Dr. Blue had committed

malpractice after her consultation with Dr. Montague at

the Cleveland Clinic and that Montague had indicated

the presence of a “flaw” in plaintiff's previous surgery.

Finally sometime in the summer of 1987 an attorney told

the plaintiff he believed the plaintiff had been the victim

of malpractice.

If a patient believes, because of harm she has suf-

fered, that her treating medical professional has done

something wrong, such a fact is sufficient to alert a plain-

tiff to the necessity for investigation and pursuit of her

remedies. Allenius v. Thomas, supra at 134. The trial court

properly granted summary judgment in favor of Dr. Blue

A-87

upon Ms. Browning's claim for malpractice. See Civ. R.

56. Ms. Browning's first and third assignments of error

with respect to Dr. Blue are overruled.

However, the limitations period on a claim for loss of

consortium is four years, R.C. 2305.09, and it begins to

run on the date that the limitations period begins to run

on the spouse’s medical malpractice action. Hershberger v.

Akron City Hospital (1987), 34 Ohio St. 3d 1. As the limita-

tions on Ms. Browning's claim began to run no later than

August 1987, and the complaint was filed on April 17,

1989, it was error for the trial court to grant summary

judgment to Dr. Blue on Mr. Browning’s loss of consor-

tium claim. Mr. Browning's first and third assignments of

error are sustained.

Hospitals are not generally liable for the alleged neg-

ligence of physicians who have been granted staff privi-

leges but who are not hospital employees. These

physicians are considered independent contractors for

whom the hospital generally bears no responsibility. The

mere granting of staff privileges to an independent pri-

vate physician, which the hospital may revoke under its

procedures, does not establish the requisite level of

authority or control to justify liability under the doctrine

of respondeat superior. Albain v. Flower Hospital (1990), 50

Ohio St. 3d 251.

It is well established that an employer must exercise

reasonable care in the selection of a competent and care-

ful independent contractor. In a hospital setting, this rule

translates into a duty by the hospital only to grant and to

continue staff privileges of the hospital to competent

physicians. Taylor v. Flower Deaconess Home & Hosp.

A-88

(1922), 104 Ohio St. 61. Once a competent and careful

physician has been granted staff privileges, the hospital

will not thereafter be liable unless it has 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 a physician. Albain, supra,

at 258.

A “cognizable event” occurs when a patient dis-

covers or should have discovered both the injury and the

negligence. Allenius, supra.

The critical inquiry is when should the appellant have

had reason to believe that St. Elizabeth Hospital had

failed to provide adequate supervision or review of Drs.

Burt and Blue? There is no evidence before the court that

the appellant knew or should have known that the hospi-

tal had failed to perform its legal duty toward her until

she saw the West 57th Street television show in late 1988.

Appellant filed her lawsuit against the hospital within six

months of viewing that program. The trial court improp-

erly granted summary judgment in favor of the hospital

defendant. To the extent our opinion in Hanks v. Burt (Jan.

25, 1991), Mont. App. No. 12257 conflicts with this opin-

ion, it is overruled.

In her second assignment, appellants contend that

“inadmissible and/or hearsay evidence may not be con-

sidered by the court as a cognizable event under

A-89

Allenius.” The Brownings contend the trial court improp-

erly considered hearsay evidence in resolving the appel-

lees’ motions for summary judgment. Specifically,

appellants object to the trial court’s reference to the

alleged letter of Dr. Montague to Dr. Blue regarding a

flaw in Ms. Browning’s surgery. Appellants contend that,

since Dr. Montague’s letter was not produced in evi-

dence, testimony concerning the letter was “hearsay.”

The appellees respond that the testimony was not

hearsay because the contents of Dr. Montague’s letter to

Dr. Blue was not offered for the truth of the matters

asserted therein, to wit, that there was a flaw in Dr. Blue’s

surgery, but whether Ms. Browning learned from Dr. Blue

or Dr. Montague about such an allegation. Ms. Browning

admitted in her deposition that Dr. Blue reported to her

in June 1987 that Dr. Montague informed him there was a

flaw in Ms. Browning’s surgery. (Dep. 19). The evidence

was properly admitted as relevant to appellant’s state of

mind in August 1987. See Evid. R. 803(3). This assignment

is overruled.

The judgment of the trial court will be Affirmed as to

Ms. Browning’s medical malpractice claims against Dr.

Blue, Reversed as to Mr. Browning’s loss of consortium

claim against Dr. Blue, and Reversed as to St. Elizabeth

Medical Center. The matter will be Remanded for further

proceedings consistent with this opinion.

A-90

FAIN, P.J., and WILSON, J., concur.

Copies mailed to:

Marylee Gill Sambol

Frank C. Woodside, III

John E. Schlosser

K.C. Green

Clara Sue Miller

Neil F. Freund

Robert N. Snyder

Earl H. Moore, Jr.

Hon. W. Erwin Kilpatrick

A-91

IN THE COURT OF APPEALS OF

MONTGOMERY COUNTY, OHIO

CONEY MITCHELL : CASE NO. 12244

Plaintiff-Appellant

vs.

JAMES C. BURT, M.D., ET AL

Defendants-Appellees

OPINION

Rendered on the 26th day of August, 1991

FRANK WOODSIDE, 511 Walnut Street, 2100 Fountain

Square Plaza, Cincinnati, Ohio 45202-3017

Attorney for Defendant-Appellee St. Elizabeth Medi-

cal Center

MARYLEE GILL SAMBOL, 109 North Broadway Avenue,

Olde Towne Professional Building, Trotwood, Ohio 45426

Attorney for Plaintiff-Appellant

WILSON, J.

The plaintiff-appellant, Coney Mitchell, filed a medi-

cal malpractice complaint on December 14, 1988. She

alleged that she was injured when James Burt, M.D. per-

formed unnecessary experimental surgery on her on Jan-

uary 23, 1985, without her consent. Ms. Mitchell also

er

A-92

alleged that the defendant-appellee, St. Elizabeth Medical

Center, improperly allowed Dr. Burt to perform the sur-

gery at its hospital where Dr. Burt had staff privileges.

Ms. Mitchell has appealed from the order of the trial

court sustaining the hospital’s motion for summary judg-

ment. There are four assignments of error.

1.

THE TRIAL COURT ERRED BY FINDING

THAT THE PLAINTIFF'S STATUTE OF LIMITA-

TIONS COMMENCED TO RUN IN DECEMBER

1985 AT THE LATEST, WHEN THE PHYSI-

CIAN-PATIENT RELATIONSHIP DID NOT

TERMINATE UNTIL 1987.

2.

THE COURT MUST REVERSE THE LOWER

COURT’S ORDER GRANTING SUMMARY

JUDGMENT BECAUSE, TAKING THE EVI-

DENCE IN LIGHT MOST FAVORABLE TO MS.

MITCHELL THERE WAS A GENUINE ISSUE

AS TO WHEN A “COGNIZABLE EVENT”

OCCURRED.

x

THE FRAUDULENT CONDUCT OF DEFEN-

DANT ST. ELIZABETH MEDICAL CENTER

ABSOLUTELY ESTOPS AND BARS THE

DEFENDANT FROM RAISING THE STATUTE

OF LIMITATIONS AS A DEFENSE.

4.

OHIO REVISED CODE 2305.11(B) IS UNCON-

STITUTIONAL AS APPLIED TO MS. MIT-

CHELL.

eR RE i Poe IE ORE PE Pe NET Ae

4

=

q

4

|

A-93

The parties agree that plaintiff's claim against the

hospital is a “medical claim” as defined in R.C.

2305.11(D)(3) and is a malpractice claim. They further

agree that R.C. 2305.11(B)(1) requires that “an action

upon a medical *** claim shall be commenced within

one year after the action accrued.” The parties differ as to

when the action accrued.

The plaintiff argues that R.C. 2305.11(B) is uncon-

stitutional as applied to her. In support of her argument

the plaintiff has cited us to Hardy v. VerMeulen (1987), 32

Ohio St. 3d 45. In this case, Hardy did not discover the

malpractice until approximately ten years after the physi-

cian-patient relationship ended. The trial court dismissed

his claim because R.C. 2305.11(B)(a) provides that in no

event shall a medical malpractice action be commenced

more than four years after the act or omission which

constitutes the malpractice. In a four to three opinion, the

Supreme Court of Ohio held:

R.C. 2305.11(B), as applied to bar claims of

medical malpractice plaintiffs who did not know

or could not reasonably have known of their

injuries, violates the right-to-a-remedy provi-

sion of Section 16, Article I of the Ohio Constitu-

tion.

Ms. Mitchell filed her complaint less than four years

after her operation. Her claim does not involve the four

year statute.

The fourth assignment of error is overruled.

In her third assignment of error, the plaintiff con-

tends that the hospital’s fraud bars or estops the hospital

from raising the statute of limitations as a defense. The

A-94

claim against the hospital sounds in negligence and con-

tains no averments of fraud as required by Civ. R. 9(B).

The fourth assignment of error is overruled.

The hospital’s motion for summary judgment was

supported by the deposition of Coney Mitchell. Ms. Mit-

chell filed an affidavit contra the motion in which she

stated that she was not aware of any medical malpractice

until she became aware of the West 57th Street tv pro-

gram of October 30, 1988. Her complaint was filed

approximately seven weeks later.

A cause of action for medical malpractice accrues

when a “cognizable event” occurs or when the physician-

patient relationship terminates, whichever is last to occur.

Allenius v. Thomas (1987), 42 Ohio St. 3d 131. Herr v.

Robinson Memorial Hosp. (1990), 49 Ohio St. 3d 6.

Ms. Mitchell’s affidavit establishes the material fact

that she did not discover the alleged negligence on the

part of the hospital until after she saw the West 57th

Street tv program. Nothing in the record suggests that the

plaintiff should have discovered the alleged negligence of

the hospital prior to seeing the program.

The summary judgment in favor of the hospita!

should not have been granted. Browning v. Burt (Aug. 20,

1991), Mont. App. No. 12176, unreported.

We reverse and remand for further proceedings.

BROGAN, J., and WOLFF, J., concur.

Copies mailed to:

Frank Woodside

Marylee Gill Sambol

Hon. William MacMillan, Jr.

A-96

IN THE COMMON PLEAS OF

MONTGOMERY COUNTY, OHIO

JIMMIE DEAN BROWNING, ; CASE NO.

et al., : 89-1341

Plaintiffs, (Judge W. Erwin

Kilpatrick)

-VSs-

JAMES BURT, MLD., et al., DECISION

(Filed December

Defendants. 5, 1989)

PPUTTTTTTTTETTLTLIELILT Te eee

Perr rrr rrr rr rrrrrrrrrerrrrree eee eed

This case is before the Court on a motion for sum-

mary judgment made by Defendant St. Elizabeth Medical

Center on the ground that the action against it is barred

by the Statute of Limitations.

This case was commenced against James Burt, M.D.,

Max Blue, M.D., for medical malpractice and against St.

Elizabeth Medical Center for inadequate peer review.

After surgery was performed on Plaintiff 16 times by the

Defendant Doctors or one of them in Defendant St. Eliz-

abeth Medical Center.

St. Elizabeth Medical Center has moved the Court for

summary judgment on the ground that the action against

it is barred by the statute of limitations.

Section 2305.11(B)(1) provides in pertinent part:

[A]n action upon a medical, dental, optometric,

or chiropractic claim shall be commenced within

one year after the action accrued... .

A-97

The Supreme Court of Ohio in Allenius v. Thomas, 42 |

Ohio St. 3d 131, 133 says: |

“In Hershberger v. Akron City Hosp. (1987), 34

Ohio St. 3d 1, 516 N.E. 2d 204, paragraph one of

the syllabus, we established a three-prong test

for determining the accrual date of “resulting

injury” when applying the statute of limitations

under R.C. 2305.11(A). In Hershberger, we held:

“*** [T]he trial court must look to the facts of

the particular case and make the following

determinations: when the injured party became

aware, or should have become aware, of the

extent and seriousness of his condition; 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 condi-

a

“Admittedly, “extent and seriousness” are not

terms of art and, therefore, do not lend them-

selves to easily discernible definitions. Since the

three prongs of Hershberger overlap considera-

bly, we believe that the best manner in which to

explain “extent and seriousness of his condi-

tion” is to combine the three prongs. Thus, we

now hold that the “extent and seriousness of his

condition” language of the test set fourth in

Hershberger v. Akron City Hosp. (1987), 34 Ohio

St. 3d 1, 516 N.E. 2d 204, paragraph one of the

syllabus, 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

A-98

rendered to the patient and where the cogniza-

ble event does or should place the patient on

notice of the need to pursue his possible

remedies.

Moreover, we do not believe that a patient must

be aware of the full extent of the injury before

there is a cognizable event. It is enough that

some noteworthy event, the “cognizable event,”

has occurred which does or should alert a rea-

sonable person-patient that an improper medi-

cal procedure, treatment or diagnosis has taken

place.

If a patient believes, because of harm she has

suffered, that her treating medical professional

has done something wrong, such a fact is suffi-

cient to alert a plaintiff “’ * * * Graham vs.

Hansen (1982), 128 Cal. App. 3d 965, 973, 180

Cal. Rptr. 604, 609.”

Plaintiff says in her affidavit submitted in opposition

to the motion for summary judgment:

“1. I am the plaintiff in the above entitled

action.

2. After Dr. Max Blue performed sixteen (16)

surgeries on me, I was very upset and

angry with him, because he kept telling me

that each additional surgery would make

me well and I did not get any better after

the surgeries.

3. I was also angry with Dr. Blue, because I

became aware that he destroyed some of

my records which were in his office.

I did not know or believe prior to seeing

the West 57th Street program, that the sur-

geries performed on me by Dr. Blue and

A-99

Dr. Burt were unnecessary and/or experi-

mental.”

Plaintiff’s deposition, which is used to support

Defendant’s motion is replete with indications that Plain-

tiff knew something was wrong.

Mrs. Browning’s deposition shows that Drs. Burt and

Blue treated and operated on Mrs. Browning between

1982 and 1986 for inability to void urine, urinary inconti-

nence, bladder problems and infections, sexual problems

and kidney problems which worsened.

In June, 1987, Mrs. Browning went to the Cleveland

Clinic and they sent back a report.

“A. Yes, Dr. Blue had talked to that doctor on

the phone and that doctor stated that there

was a flaw in my surgery.

Q. And that would have been in June of 1987?

A. Yes.

Q. So, according to your testimony, this Dr.

Montague - what did he say to you?

A. He told me that I was voiding pretty good

and that he thought that I should go for

some counseling because I wasn’t willing

to accept my condition or change my life-

style or something. Whatever Dr. Blue

called up and told him and -

What did you tell Dr. Montague?

A. I told him that I thought that something

was wrong, you know, from the surgery

I’d had, that I didn’t get over it an [sic]

when he took my kidney out, I thought I

wouldn’t have any more problems.

0

Q.

With regard to the 1982 surgery we find at page 56 of

A-100

And your kidney was taken out in August

of 1986?

the transcript:

“Q. And you became aware of that probably

A.

Q.

A.

shortly after the surgery, didn’t you?

Yes. When I - when he took that catheter

out and I couldn’t go is when I became

aware of I had problems then.

And that condition or those conditions,

your problems with your sex life, prob-

lems with infections, the problems with

your kidneys, the problems with your

bladder, and your right flank pain, they’ve

all continued on since that surgery in 1982

on a continuous basis from then until

today?

I didn’t have that flank pain until Dr. Blue

operated on my kidney.

In 1986?

Right.”

At page 33 of Plaintiff's deposition we find:

“—

A.

From these bits of testimony and numerous others

spread throughout her deposition the Court concludes

that Mrs. Browning knew at the latest in August, 1987,

that she had problems that required further inquiry when

We know that you told Blue that he com-

mitted malpractice on you sometime

between June of ‘87 and August of ‘87?

Yes.”

A-101

she told Dr. Blue he had committed malpractice on her.

After she had a pelvic examination in June, 1987, Dr.

Montague put in a letter that there was a “flaw” in her

surgery, that she knew about. The continuing worsening

of symptoms culminated by being informed that there

was a “flaw” in her surgery is a “cognizable event” which

did lead to Mrs. Browning telling Dr. Blue that he had

“committed malpractice” on her and should have placed

her on notice to pursue her remedies, but she did not do

until April 17, 1989.

The Court concludes that there is no genuine issue of

material fact and that Defendant St. Elizabeth Medical

Center is entitled to judgment as a matter of law because

the claim against it was filed more than 1 year after

Plaintiff was put on notice by a “cognizable event” to

pursue her claims, Allenius v. Thomas, 42 Ohio St. 3d 131,

133 and Section 2305.11B, Ohio Revised Code.

Judgment will be awarded to the moving Defendant

at Plaintiff’s cost. Defense counsel should prepare and

circulate an appropriate entry for signature.

SO ORDERED:

W. ERWIN KILPATRICK, JUDGE

Copies of the above were sent to all parties listed

below by ordinary mail this date of filing.

MARYLEE GILL SAMBOL, Attorney for Plain-

tiffs, 109 N. Broadway Avenue, Trotwood, Ohio

45426

A-102

FRANK C. WOODSIDE, III/MARK A. VANDER

LAAN/K.C. GREEN/CLARA SUE ROSS, Attor-

neys for Defendant, St. Elizabeth Medical Cen-

ter, 500 Courthouse Plaza, S.W., 10 North

Ludlow Street, Dayton, Ohio 45402 (513)

228-8012

NEIL F. FREUND, Attorney for Defendant, Max

W. Blue, Jr., M.D., 1000 Talbott Tower, Dayton,

Ohio 45402 (513) 222-2424

EARL H. MOORE, Attorney for Defendant,

James Burt, M.D., 333 Hulman Building, Dayton,

Ohio 45402

JAMES BURT, M.D., Defendant, 15369 Iona Lake

Drive, Ft. Myers, Florida 33908

TOM TUNNEY, Bailiff

A-103

IN THE COMMON PLEAS COURT OF

MONTGOMERY COUNTY, OHIO

CONEY MITCHELL, : CASE NO. 88-4468

Plaintiff, : (Judge

_ William MacMillan, Jr.)

DECISION AND ORDER

SUSTAINING MOTION

-VSs-

JAMES BURT, M.D., et al., :

Defendants. : FOR SUMMARY JUDG-

_~MENT AND JUDGMENT

“ENTRY DISMISSING

> CLAIMS AGAINST ST.

. ELIZABETH MEDICAL

CENTER

' (Filed January 12, 1989)

a

The Defendant, St. Elizabeth Medical Center, requests

this Court to grant a summary judgment in its favor and

against the Plaintiff pursuant to Rule 56 of the Ohio Rules

of Civil Procedure. The Court having considered the

pleadings, the affidavits, the deposition of Coney Mit-

chell and the memoranda of counsel finds that the motion

for summary judgment filed by St. Elizabeth Medical

Center should be SUSTAINED.

The Plaintiff’s complaint sets forth four claims

against the Defendant, James C. Burt, M.D. The complaint

sets forth three enumerated claims against St. Elizabeth

Medical Center, which claims may be characterized as the

hospital’s negligence in granting staff privileges to James

C. Burt and failing to review his qualifications from time

to time so that it failed to protect his patients who were

A-104

undergoing surgery at the St. Elizabeth Medical Center.

The Plaintiff claims that the hospital knew of the experi-

mental nature of the surgery that Dr. Burt performed at

St. Elizabeth Medical Center. The Plaintiff further claims

that it should have known that he was performing sur-

geries outside his areas of expertise and that the hospital

was aware of numerous malpractice suits and injuries

that occurred to patients who underwent the same type

surgery by Dr. Burt.

St. Elizabeth Medical Center filed an answer assert-

ing that the Plaintiff’s claims against it should be dis-

missed because the Plaintiff has failed to file suit within

the appropriate time and that Statutes of Limitations

require the causes of action against St. Elizabeth Hospital

to be dismissed.

R.C. Section 2305.11(B)(1) provides in part:

“4

... and action upon a medical, dental, optom-

etric or chiropractic claim shall be commenced

within one year after the action occurred... ”

R.C. Section 2305.11(D)(3) defines a medical claim as:

44

. 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.)

The Defendants’ memorandum assumes that R.C.

Section 2305.11(B)(1) applies to the claims of the Plaintiff.

If that is so, then the Statute of Limitations has clearly

run prior to the filing of this action on December 14, 1988.

tein A LE Wars 2 AS, rn Pres,

lg RA a Ra a ous Ad aa led a He ee SRR DA

Dit raze Walrad acl a okies iaakn ecb Ss WWasin loons aotbiad a

A-105

The accrual date for the commencement of the run-

ning of the Statute of Limitations has been established in

the cases of Hershberger v. Akron City Hospital, (1987) 34

Ohio St. 3d 1 and Allenius v. Thomas, (1989) 42 Ohio St.

3d 131. Applying these standards, the Court finds that the

commencement of the running of the Statute of Limita-

tions in this case was in December, 1985 at the latest.

In January, 1985, the Plaintiff underwent surgery by

Dr. Burt at St. Elizabeth Medical Center. According to the

Plaintiff’s answers in her deposition, the pre-existing

medical condition of urinary incontinence and bowel

problems worsened after the January, 1985 surgery. She

further claims that her inability to engage in sexual inter-

course after the January, 1985 surgery was known to her

within a few months after that surgery. Within the same

few months after January, 1985, she became aware of the

unusual appearance of her vaginal area. It is undisputed

that all these problems either became worse or originated

with the January, 1985 surgical procedure performed at

St. Elizabeth Medical Center and were known and experi-

enced before the end of 1985. It is further certain that the

Plaintiff had no other contact with St. Elizabeth Medical

Center after the 1985 surgery.

The Plaintiff’s claims against St. Elizabeth Medical

Center depend on when the injured party became aware,

or should have become aware of the extent and serious-

ness of her condition; that such condition was related to a

specific professional medical service and whether such

condition would put a reasonable person on notice of the

need for further inquiry as to the cause of such condition.

These three conditions were set forth in Hershberger v.

Akron City Hospital, supra and the phrase of “extent and

A-106

seriousness of his condition” was further explained in

Allenius v. Thomas, supra by requiring the occurrence of

a cognizable event that should place the patient on notice

of the need to pursue possible remedies.

Looking for one or more cognizable events that

would require a reasonable person to believe an improper

medical procedure took place so as to require some inves-

tigation and pursuit of a remedy, the Court finds that the

unusual appearance of the vagina and the inability to

engage in sexual intercourse is such an event that took

place in the middle months of 1985. The accompanying

urinary incontinence and blocked bowels also were

known during the middle months of 1985.

The Court finds that an action upon a medical claim

against St. Elizabeth Medical Center was not commenced

within one year after the action accrued and therefore

under R.C. 2305.11(B)(1) the claims should be DIS-

MISSED. The Court further finds that the claims of the

Plaintiff for bodily injury not related to a medical claim

must

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