COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60284 : ROBERT N. NOWLIN : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : NORTHEAST COMM. MENTAL HEALTH : CENTER : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 9, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 162175 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: SAUNDRA C. PATRICK DANNY R. WILLIAMS 75 Public Square SHARON L. SOBOL Suite 1210 Schneider, Smeltz Huston & Cleveland, Ohio 44113 Ranney 1525 National City Bank Bldg. Cleveland, Ohio 44114 -2- PATRICIA A. BLACKMON, J.: Robert N. Nowlin, plaintiff-appellant, hereinafter Appel- lant timely appeals the trial court's summary judgment in favor of Northeast Community Mental Health Center, defendant- appellee, hereinafter Appellee. For the reasons set forth below, we affirm. Appellant's medical malpractice claim included Appellee, Dr. E. J. Martinez and Mt. Sinai Medical Center; both Appellant and Dr. Martinez filed a joint answer and Mt. Sinai answered separately. Thereafter, Dr. E.J. Martinez was voluntarily dismissed pursuant to Civ. R. 41(A)(1). Apparently, Dr. E. J. Martinez was not served with the written notice of a possible claim, pursuant to R.C. 2305.11(B). However, on June 22, 1988, Appellant delivered a written notice of her claim to Appellee, which was received on the following day. On May 17, 1989, Appellee filed a motion for summary judgment on the grounds that Appellant failed to file his complaint within the one year time limit under R.C. 2305.11(A) for malpractice claims. (Emphasis added.) Appellee argued that the complaint, in pertinent part, alleged that Appellant sought treatment from Appellee on January 5, 1987, and the care of Appellant by Appellee continued through May, 1987. It stated that Appellee failed to follow established medical standards and procedures accepted in this community and failed to properly diagnose Appellant's condition. It further indicated that as a direct and proximate cause of Appellee's "negligence as aforesaid", Appellant was injured. -3- Thereafter, Appellant filed a brief in opposition. Appellant argued that the applicable limitation for the action was not one year under R.C. 2305.11(B), but two years under R.C. 2305.10. Appellee was granted leave to reply to Appellant's brief in opposition until August 17, 1989. Appellant argued that in May, 1987, he was informed by doctors at Mt. Sinai Medical Center he had a brain tumor. Later, surgery was performed followed by the post surgical recovery period. Appellee stated that he delayed consultation with his attorney until December 16, 1987 because of the recovery period. On February 23, 1988, he was advised by counsel that he had a possible claim for malpractice. On December 21, 1988, he filed a suit for "malpractice". Appellee replied to the brief in opposition. On September 15, 1989, the trial court granted Appellee's motion for summary judgment, which was filed on May 17, 1989. Appellee's argument was that the claim be dismissed according to the law stated in R.C. 2305.11(A). Mt. Sinai Medical Center ultimately settled and was dismissed from the lawsuit. Appellant's first assignment of error states: THE TRIAL COURT ERRED WHEN IT DETERMINED THE STATUTE OF LIMITATIONS REQUIREMENTS OF OHIO REVISED CODE SECTION 2305.11(B) ARE APPLICABLE TO A COMMUNITY MENTAL HEALTH CENTER. Appellant's assignment of error lacks merit and is overruled. -4- Appellant argues that the one-year limitation under R.C. 2305.11(B) does not apply to Appellee because it is not a hospital for purposes of a medical claim within the meaning of R.C. 2305.11(D). Appellant further suggests that by virtue of the fact that R.C. 2305.11(B) does not apply to Appellee, then the two year limitation of actions for negligence under R.C. 2305.10 must apply. We disagree. Appellant's argument is premised on the issue of whether Appellee is a hospital. Appellant argued that under prior R.C. 2305.11(A) malpractice was limited to the areas specifically enumerated, and whether an entity was a hospital was material. In this case, it is not, and Appellant's argument fails. The prior R.C. 2305.11(A) in pertinent part, provided the following: An action for libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice, including an action for malpractice against a physician, podiatrist, or a hospital, or upon a statute for a penalty or forfeiture, shall be brought within one year after the cause thereof accrued, provided that an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation, or liquidated damages by reason of the nonpayment of minimum wages or overtime compensation, shall be brought within two years after the cause thereof accrued. Malpractice was limited to the areas specifically enumerated therein and the common-law definition of malpractice. Lombard v. Good Samaritan Med. Ctr. (1982), 62 Ohio St. 2d 471 (Emphasis added.) -5- The new R.C. 2305.11, which was in effect at the time the complaint was filed, sets forth limitations for all malpractice claims, medical or otherwise. It provides, in pertinent part, that: (A) An action for libel, slander, malicious prosecution, or false imprisonment, an action for malpractice other than an action upon a medical, dental optometric, or chiropractic claim, or an action upon a statute for a penalty or forfeiture, shall be commenced within one year after the cause of action accrued. *** (B)(1) Subject to division (B)(2) of this section, an action upon a medical, dental optometric, or chiropractic claim shall be commenced within one year after the action accrued, except that, if prior to the expiration of that one-year period, a claimant who allegedly possesses a medical, dental, optometric, or chiropractic claim gives to the person who is the subject of that claim written notice that the claimant is considering bringing an action upon that claim, that action may be commenced against the person notified at any time within one hundred eighty days after the notice is so given. Id. *** Therefore, the question of whether Appellee is a hospital within the meaning of R.C. 2305.11(D)(1) is immaterial; the controlling issue is whether Appellant stated a cause of action for malpractice or general negligence. Compare R.C. 2305.10 and R.C. 2305.11. There is no genuine issue of material fact that Appellant's claim is one for malpractice. Malpractice is a limited area of negligence for professional misconduct. E.g., Richard v. Doe (1964), 176 Ohio St. 370. The complaint alleges failure to follow accepted medical standards and failure to properly -6- diagnose Appellant's conditions, which are clearly standards of professional conduct. Upon determining that Appellant filed a malpractice claim, this court need not determine whether the alleged malpractice arises out of a medical claim against a hospital, because Appellant is out of rule under R.C. 2305.11(A) and R.C. 2305.11(B). Nonetheless, we address the issue of whether Appellee is a hospital, pursuant to our duty under App. R. 12(A). R.C. 2305.11 provides, in pertinent part, that: (1) "Hospital" includes any person, corporation, association, board, or authority that is responsible for the operation of any hospital licensed or registered in the state, including, but not limited to, those which are owned or operated by the state, political subdivisions, any person, any corporation, or any combination thereof. "Hospital" also includes any person, corporation, association board entity or authority that is responsible for the operation of any clinic that employs a full-time staff of physicians practicing in more than one recognized medical specialty and rendering advice, diagnosis, care, and treatment to individuals. "Hospital" does not include any hospital operated by the government of the United States or any of its branches. *** (3) "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. *** In the instant case, there is no evidence that Appellee meets the definition of a hospital under R.C. 2305.11(D)(1) and as a result, this cause of action does not meet the definition of -7- a medical claim under R.C. 2305.11(D)(3). Therefore, the trial court properly found a malpractice action subject to the one- year limitation of actions under R.C. 2305.11(A). Appellant's second assignment of error states: THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WHERE THERE WAS A GENUINE ISSUE OF FACT. Appellant's assignment of error lacks merit and is overruled. Civ. R. 56(C), in pertinent part, provides that: A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. *** The Supreme Court of Ohio further adopted the view: "A motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, citing, Celotex v. Catrett (1986), 479 U.S. 319. In determining the cognizable event from which the limitation on actions begins to run for a cause of action for malpractice: *** the trial court must look to the facts of the particular case and make the following determinations; when the injured party became aware, or should have become aware, of the extent and seriousness of his condition; whether the injured party was aware, or should have been aware, that such condition was related to a specific professional medical service previously rendered him; and whether such condition would put a -8- reasonable person on notice of need for further inquiry as to the cause of such condition. Hershberger v. Akron City Hosp. (1987), 34 Ohio St. 3d 1, paragraph one of the syllabus. There is no dispute that the cognizable event, sub judice, was in May of 1987 when Appellant was informed he had a tumor, after having been misdiagnosed and improperly treated since January, 1987. Consequently, there is no genuine issue as to whether Appellant's complaint was timely filed under R.C. 2305.11(A); it should have been filed by May of 1988. Appellant's third assignment of error states: THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT WHEN PLAINTIFF WAS DENIED AN OPPORTUNITY TO RESPOND TO A NEW ISSUE RAISED IN DEFENDANT'S REPLY BRIEF. Appellant's third assignment of error lacks merit and is overruled. Loc. R. 11(D) prohibits reply or additional briefs upon motions and submissions without leave of court and only upon a showing of good cause. In the instant case, there is no evidence that the trial court considered Appellee's reply brief. Appellee's reply brief was filed on August 18, 1989, one day beyond the time granted for leave of court. Moreover, the trial court specifically stated that its summary judgment granted Appellee's motion on May 17, 1989 only. (Emphasis added.) Because the trial court did not consider the issue raised in Appellee's reply brief, it is not properly before this court. Appellate courts are restrained from making premature -9- declarations upon merely potential controversies. Fortner v. Thomas (1970), 22 Ohio St. 2d 13, 14. Thomas (1970), 22 Ohio St. 2d 13, 14. Judgment affirmed. It is ordered that Appellee recover of Appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. HARPER, J., CONCUR. NAHRA, P.J., CONCURS IN JUDGMENT ONLY PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .