Akers v. Alonzo

Sweeney, J. The determinative issue in this cause is whether plaintiffs’ action against Dr. de Lamerens was timely filed pursuant to R.C. 2305.11 and controlling precedents. For the reasons that follow, we answer this issue in the affirmative, thereby affirming the judgment of the court of appeals below. With respect to the issue on appeal, defendants contend that under Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, 516 N.E.2d 204, and Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93, Mr. Akers was chargeable with knowledge in October 1984 that the symptoms of which he had complained since March 1984 were due to cancer of the bladder, and that he was aware or should have been aware that there was some change in his diagnosis as of October 1984. Defendants assert that the change in the course of Akers’s treatment was sufficient to place him on notice of the extent and seriousness of his condition, and that the “cognizable event” took place when he first learned he had cancer and began to receive chemotherapy treatments in October 1984 or, at the latest, in June 1987 when he terminated his relationship with Holzer Clinic, Ltd. In support of their argument, defendants rely on this court’s recent decision in Flowers v. Walker (1992), 63 Ohio St.3d 546, 589 N.E.2d 1284. Defendants further submit that Akers should have known that more than one physician was involved because that is the common practice in a modern hospital setting. In reviewing the controlling precedents, this court notes that a cause of action for medical malpractice accrues and the R.C. 2305.11 limitations period begins to run either (1) when the patient discovers or, in the exercise of [425] reasonable care and diligence should have discovered, the resulting injury, or (2) when the physician-patient relationship for the condition terminates, whichever occurs later. Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, syllabus; Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337, paragraph one of the syllabus. In Hershberger and Allenius, supra, we set forth and clarified an analysis to determine the accrual date for a medical malpractice claim, wherein the occurrence of a “cognizable event” will trigger the running of the statute of limitations. In Allenius, supra, 42 Ohio St.3d at 134, 538 N.E.2d at 96, we noted that a “cognizable event” is “some noteworthy event * * * which does or should alert a reasonable person-patient that an improper medical procedure, treatment or diagnosis has taken place.” (Emphasis added.) See, also, Herr v. Robinson Mem. Hosp. (1990), 49 Ohio St.3d 6, 550 N.E.2d 159. More recently, in Flowers, supra, this court held in the syllabus that “ * * * [t]he occurrence of a ‘cognizable event’ imposes upon the plaintiff the duty to (1) determine whether the injury suffered is the proximate result of malpractice and (2) ascertain the identity of the tortfeasor or tortfeasors.” Contrary to defendants’ assertions, we do not believe that Flowers compels a reversal of the court of appeals’ judgment below, but rather find it to be readily distinguishable from the cause sub judice. In Flowers, supra, the patient was aware that other persons were involved in the faulty interpretation of her mammogram, but she was not aware of their identities. When Mrs. Flowers discovered approximately eight months later she had cancer, that discovery constituted the “cognizable event” which gave rise to a duty to ascertain the identity of the tortfeasors who misinterpreted her prior mammogram. In contradistinction, there is nothing in the record herein that indicates that plaintiffs knew or should have known before March 21, 1989 that the pathology slides had been erroneously diagnosed as being negative for cancer. The “cognizable event” in the instant cause took place when plaintiffs discovered through an expert pathologist they had employed during the initial lawsuit that the pathology slides had been misread by Dr. de Lamerens and that Akers actually had cancer eight months before it was correctly diagnosed. Mrs. Akers has stated in two affidavits that neither she nor her husband was aware of Dr. de Lamerens’ role in diagnosing the pathology slides or that such slides were even in existence, let alone that they had been misinterpreted by some physician other than Dr. Alonzo. While Flowers, supra, holds that the occurrence of the cognizable event imposes a duty of inquiry on the plaintiff, it does not hold that the plaintiff has a duty to ascertain the cognizable event itself, especially in a situation such as here, where the patient had no way of knowing either that there had [426] been another physician involved or that that other physician had made an incorrect diagnosis. Given the fact that plaintiffs filed their action pursuant to R.C. 2305.11, i.e., within one year of discovering the cognizable event, we hold that the court of appeals correctly reversed the summary judgment rendered below. Turning our focus to the issue on cross-appeal, plaintiffs contend that the loss of a legal cause of action pursuant to a statute of limitations due to fraudulent concealment of material information by a physician constitutes the harm or injury element of a cause of action in fraud. See Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 514 N.E.2d 709. However, given our holding on the main issue on appeal, we believe the cross-appeal issue is moot, since plaintiffs have not “lost” their cause of action due to the applicable statute of limitations. Based on all the foregoing, we affirm the judgment of the court of appeals. Judgment affirmed. Douglas, H. Brown and Resnick, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., dissent.