# Appendix — St. Elizabeth Medical Center v. Browning > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0823%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1111 ## Text (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. A-60 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. A-63 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 A-65 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.) A-66 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 A-67 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 A-69 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 A-73 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 su [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0823%3A2. Public record. Not legal advice.