COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69771 CHARLES BALIKO, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION KONSTANTINE KUSCHNIR, M.D., : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : JULY 25, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 290129 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Ronald V. Rawlin RHOA, FOLLEN, & RAWLIN CO., LPA 1850 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 For defendant-appellee: George S. Coakley Andrew W. Kabat REMINGER & REMINGER 113 St. Clair Avenue Cleveland, Ohio 44114 -2- NAHRA, J.: Plaintiff-appellant Charles Baliko appeals from the trial court order which granted the motion for summary judgment filed by defendant-appellee Dr. Konstantine Kuschnir, thus terminating appellant's medical malpractice action. The record reflects appellant's original injury occurred on July 7, 1990, when a car he was working under rolled off a ramp and onto him. Appellant was pinned underneath the car for a time with his left shoulder on a concrete floor and his right shoulder against the car's frame. On July 9, 1990, appellant consulted appellee for medical treatment. After examining appellant, appellee recommended appellant undergo surgery on his right shoulder to repair the 1 acromioclavicular ("AC") joint. Appellee performed the surgery on appellant on July 12, 1990, consisting of "an open reduction with internal fixation of [appellant's] acromioclavicular joint on the 2 right side." This procedure "entailed moving the bones back together and putting two screws into the bone so as to fix those bones together ...." Approximately a month later, appellant underwent a second surgery in order for appellee to remove the internal fixation 1 According to Stedman's Medical Dictionary (1982), this joint is "the articulation between the clavicle [or collar bone] and the scapula [or shoulder blade] and its ligaments." 2 Quoted material is taken from the pleadings and the exhibits attached to either appellee's motion for summary judgment or appellant's response to the motion. -3- devices. Thereafter, appellant continued to treat with appellee, who prescribed "antiinflammatory medications" for the persistent swelling in appellant's right shoulder area. Appellant's last appointment with appellee took place on March 5, 1991. The record reflects appellant was playing tennis with his attorney when in "casual conversation" appellant mentioned he was "having problems" and "still had the lump on [his] shoulder." Appellant asked his attorney if he knew of "anybody I could go see because I'm not getting any results with [appellee]." Appellant was recommended to Dr. Dennis B. Brooks. On April 4, 1991, appellant consulted Dr. Brooks for a "second opinion" on his shoulder condition. Appellant told Dr. Brooks his medical history and his complaints. Dr. Brooks then examined appellant and took x-rays. Before appellant left, Dr. Brooks told appellant he "still had some residual separation of [his] acromioclavicular joint." Appellant understood Dr. Brooks' medical opinion to be that "the surgery was not successful." Dr. Brooks informed appellant that "they can't go back in and try to do it now because it's been nine months .... [T]he only thing we can do is remove the whole joint." The record reflects that appellant had instituted a lawsuit with regard to his July 7, 1990 injury, and on August 23, 1991, he was deposed in that case. In his deposition testimony, appellant gave the foregoing account of the only consultation he at the time had had with Dr. Brooks. -4- On November 5, 1991, appellant returned to Dr. Brooks. During this consultation, Dr. Brooks "discussed surgery with [appellant];" eventually, appellant agreed to let Dr. Brooks perform another operation. On May 5, 1992, Dr. Brooks was "first asked to assess whether [appellee's] care fell below the standard of care which is reasonable and expected in the orthopedic medical community ...." The record reflects that on that same day, appellant sent a "notice of claim" letter to appellee pursuant to R.C. 2305.11(B)(1). On October 7, 1992, Dr. Brooks "received x-rays taken by [appellee's] office and confirmed [appellee's] failure of care." On October 29, 1992, appellant filed an action against appellee in the Cuyahoga County Court of Common Pleas. In his complaint, appellant alleged appellee "was negligent in the care and treatment rendered to [appellant's] acromioclavicular joint separation," in that appellant "would require additional surgeries in the future to rectify the continued right acromioclavicular joint separation." (Emphasis added.) Appellee filed an answer denying the pertinent allegations of the complaint and asserting several affirmative defenses, including the defense that appellant's claim was barred by the applicable statute of limitations. The record reflects that during discovery in the case, appellant was deposed on March 29, 1993. In his deposition, appellant stated in regard to his initial visit to Dr. Brooks, -5- "after [Dr. Brooks] brought the x-rays back, he said, `You still have an AC joint separation.'" On November 14, 1994, the trial court held a hearing on the issue of whether appellant's claim was time-barred. Appellant testified at the hearing. During cross-examination, appellant admitted making the statement in the August 1991 deposition that on April 4, 1991, Dr. Brooks had told him the original surgery performed by appellee "was not successful." The record reflects that on November 23, 1994, before the court ruled on the statute of limitations question, appellant filed a notice of voluntary dismissal of his action pursuant to Civ.R. 41(A)(1). On May 26, 1995, appellant refiled the action against appellee. In his complaint, appellant restated his original allegation viz., that appellee was negligent in his medical treatment of appellant's right acromioclavicular joint. Appellee's answer, in turn, restated the affirmative defense that appellant's action was time-barred. On July 31, 1995, appellee filed a motion for summary judgment. Appellee argued appellant had been aware of appellee's alleged malpractice since his first consultation with Dr. Brooks on April 4, 1991; therefore, since appellant had not filed his original action by May 4, 1992, his claim was barred pursuant to R.C. 2305.11(B)(1). Appellee attached to his motion the following documentary evidence: 1) excerpts from appellant's August 23, 1991 deposition -6- testimony; 2) excerpts from appellant's March 23, 1993 deposition testimony; 3) excerpts from the hearing held on November 14, 1994; and 4) appellant's answers to appellee's first set of interrogatories. On September 22, 1995, appellant filed a brief in opposition to appellee's motion, arguing that he did not "question" appellee's care of his shoulder until his second consultation with Dr. Brooks on November 5, 1991. Appellant asserted that in view of this, his May 5, 1991 notice of claim letter to appellee and the subsequent October 29, 1991 filing of his original claim were timely. Attached to appellant's brief in opposition were the following relevant documents: 1) Dr. Brooks' affidavit; 2) appellant's affidavit; 3) a portion of appellant's August 23, 1991 deposition testimony; and 4) a portion of the transcript from the November 14, 1994 hearing. Appellant also attached several other documents viz., Dr. Brooks' office notes and his "medical reports" directed 3 to appellant's attorney. On September 29, 1995, appellee filed a reply brief. Therein, appellee requested the trial court not to consider evidence which 4 did not comply with the requirements of Civ.R. 56(E). Appellee also asserted that even with appellant's evidence, it was clear 3 The record reflects that on October 3, 1995, appellant filed a motion to supplement his brief with Dr. Brooks' deposition, to which the doctor's office notes and reports were attached as exhibits. Although the trial court granted the motion to supplement, the deposition itself was not included in the record on appeal. 4 See footnote 3. -7- appellee was entitled to judgment on appellant's claim as a matter of law. Appellee attached to his brief the complete transcript of the November 14, 1994 hearing. On October 13, 1995, the trial court issued an order granting appellee's motion for summary judgment with the following statement: The evidence is overwhelming that [appellant] discovered the injury no later than April 4, 1991. His claim is time[-]barred. Appellant has filed a timely appeal from the foregoing order, stating the following as his sole assignment of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE, KONSTANTINE KUSCHNIR, M.D.'S MOTION FOR SUMMARY JUDGMENT. Appellant argues the trial court improperly applied Civ.R. 56 in ruling on appellee's motion for summary judgment. Appellant contends the evidence demonstrated a material issue of fact remained concerning when appellant was put on notice of appellee's alleged negligent care of his shoulder. This court has reviewed the record and finds the trial court's action was appropriate. Civ.R. 56(C) makes summary judgment proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Once it is made and properly supported, a motion for summary judgment forces the nonmoving 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. -8- In reviewing a motion for summary judgment, the inferences to be drawn from the evidence are to be viewed in a light most favorable to the nonmovant; nevertheless, if reasonable minds could come only to the conclusion there is no genuine issue of material fact, summary judgment must be granted. Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266 at 269; Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344 at 346; Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6. R.C. 2305.11 is the statute of limitations for medical malpractice actions; it states in pertinent part as follows: 2305.11 Time limitations for bringing certain actions; definitions. * * * (B)(1) ... [A]n action upon a medical ... 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 ... 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. * * * (D) As used in this section: * * * (3) "Medical claim" means any claim that is asserted in any civil action against a physician, ... that arises out of the medical diagnosis, care, or treatment of any person. *** (Emphasis added.) -9- Recently, the Ohio Supreme Court summarized the guidelines to be followed in applying this statute: In Ohio, a cause of action for medical malpractice does not accrue until the patient discovers, or should have discovered in the exercise of reasonable care and diligence, the resulting injury. Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, at syllabus. In Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, 516 N.E.2d 204, this court stated a three-prong test to determine the date that a medical malpractice cause of action accrues under the discovery rule. The three factors to be considered by the trial court are (1) when the injured party became aware, or should have become aware, of the extent and seriousness of his condition; (2) whether the injured party was aware, or should have been aware, that the condition was related to a specific professional service that he previously received; and (3) whether such condition would put a reasonable person on notice of the need to inquire into the cause of his condition. Id. at paragraph one of the syllabus. In Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93, this court combined the three prongs of the Hershberger test and held that the "extent and seriousness of his condition" language in Hershberger requires the occurrence of a "cognizable event" which leads or should lead the plaintiff to believe that the condition of which he complains is related to a medical diagnosis, treatment, or procedure which the plaintiff previously received and which places or should place the plaintiff on notice of the need to pursue his possible remedies. Id. at syllabus. * * * A "cognizable event" is the occurrence of facts and circumstances which lead, or should lead, the patient to believe that the physical condition or injury of which she complains is related to a medical diagnosis, treatment, or procedure that the patient previously received. Id. at syllabus. Moreover, constructive knowledge of facts, rather than actual knowledge of their legal significance, is enough to start the statute of limitations running under the discovery rule. McGee v. Weinberg (1979), 97 Cal.App.3d 798, 803-804, 159 Cal.Rptr. 86, 89-90; Graham v. Hansen (1982), 128 Cal.App.3d 965, 973-974, 180 -10- Cal.Rptr. 604, 609-610. A plaintiff need not have discovered all the relevant facts necessary to file a claim in order to trigger the statute of limitations. Allenius, supra, 42 Ohio St.3d at 133-134, 538 N.E.2d at 96. 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. Id. See, also, Graham, supra, 128 Cal.App.3d at 972-973, 180 Cal.Rptr. at 609; McGee, supra, 97 Cal.App.3d at 803, 159 Cal.Rptr. at 89-90. Flowers v. Walker (1992), 63 Ohio St.3d 546. (Emphasis in original; underscoring added.) Thus, the question of whether a "cognizable event" has occurred is objectively viewed; for purposes of determining a motion for summary judgment, it is not necessarily dependent on the plaintiff's subjective awareness but instead turns upon the facts and circumstances of the case. Rose v. Women's Health Clinic (1993), 90 Ohio App.3d 776; see, also, e.g., Akers v. Alonzo (1992), 65 Ohio St.3d 422. Therefore, summary judgment must be denied only when reasonable minds could differ as to whether a plaintiff was put on notice his condition was related to medical treatment previously received. Id.; Herr v. Robinson Memorial Hospital (1990), 49 Ohio St.3d 6; Tober v. Kaiser Foundation Hosp. (1992), 79 Ohio App.3d 333; McKoy v. Furlong (1990), 69 Ohio App.3d 62; Shadler v. Purdy (1989), 64 Ohio App.3d 98. In this case the following facts were established by the evidence: 1) the July 12, 1990 surgery appellee performed on appellant was intended to "fix" the bones of the AC joint "together;" 2) subsequent to the removal of the fixation device, -11- appellant continued to experience swelling and limited mobility of the shoulder; 3) appellant last saw appellee on March 5, 1991; 4) because of the continuing shoulder problems, on April 4, 1991 appellant consulted with Dr. Brooks; and 5) after x-rays were taken and during that consultation with Dr. Brooks, appellant was made aware his AC joint was still separated and it could no longer be surgically repaired. In his deposition testimony of August 1991, appellant stated he contacted Dr. Brooks, who was referred to him by his attorney, because "I just didn't feel like [my shoulder] was right." Thus, appellant's statements clearly indicate he had a suspicion before April 4, 1991 appellee's treatment had been inadequate; he sought another physician in order to confirm or disprove it. Burris v. Romaker (1991), 71 Ohio App.3.d 772; Leeth v. Zohoury (Dec. 31, 1987), Wyandotte App. No. 16-84-4, unreported; cf., Sparks v. Blanchard Valley Hosp. (1991), 72 Ohio App.3d 830. Moreover, appellant's August 1991 deposition testimony proves that during his initial visit with Dr. Brooks, appellant subjectively understood appellee's treatment of him had failed because the AC joint was still separated. Hause v. Leimbach (August 13, 1991), Franklin App. No. 40AP-1008, unreported. Cf., Shadler v. Purdy, supra; Fisher v. Deerhake (1987), 41 Ohio App.3d 139. Based upon these facts, the "cognizable event" had occurred: appellant was put on notice as of April 4, 1991 to further investigate the "legal significance" of Dr. Brooks' observations. -12- Flowers v. Walker, supra; cf. Herr v. Robinson Memorial Hosp., supra. Neither of the affidavits appellant provided to the trial court were sufficient to create a genuine issue of material fact concerning the occurrence of the cognizable event. Although Dr. Brooks states in his affidavit he did not "discuss surgery" with appellant on April 4, 1991, that "fact" was not material: appellant's deposition testimony of August 1991 and March 1993 makes it clear that at the initial consultation, Dr. Brooks was not a treating physician. Thus, Dr. Brooks merely identified the problem and then discussed potential alternative methods of treatment for appellant's residual AC joint separation. Since appellant was not yet his patient, Dr. Brooks would neither have "discussed surgery" nor given an opinion on appellee's prior treatment. In reviewing Dr. Brooks' affidavit, therefore, it must be concluded it does not constitute evidence sufficient to support appellant's assertion the "cognizable event" did not occur on April 4, 1991. Cf., Herr v. Robinson Memorial Hosp., supra. In his affidavit, appellant stated in pertinent part the following: 1) "on April 4, 1991, I had no reason to believe that any care rendered by [appellee] was substandard;" and 2) "it was not until my appointment of May 5, 1992 with Dr. Brooks that I was first made aware of the potential relationship between the residual separation of my acromioclavicular joint and potential negligence of [appellee];". -13- Nevertheless, the foregoing statements do not create a genuine issue of material fact, since a fair reading of appellant's statements reveals he also admitted that by August 23, 1991, he considered appellee's surgery to be "unsuccessful" and he no longer "assumed" the residual separation was "a natural consequence of the type of injury [he] sustained and the subsequent surgery." Since appellant did not see Dr. Brooks again until November 1991, his awareness could have stemmed only from the initial visit to Dr. Brooks. Therefore, appellant's own affidavit establishes the cognizable event in this case occurred on April 4, 1991. See, e.g., Branam v. Village of Batavia (April 10, 1995), Clermont App. No. CA94-09-075, unreported; cf., Turner v. Turner (1993), 67 Ohio St.3d 337; Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84; Akers v. Alonzo, supra; Tober v. Kaiser Foundation Hosp., supra; Delong v. Greene County Memorial Hospital (Feb. 2, 1994), Montgomery App. No. 14161, unreported; McCullough v. Spitzer Motor Center, Inc. (Jan. 27, 1994), Cuyahoga App. No. 64465, unreported. Appellant's complaint established his claim of medical malpractice was based upon appellee's failure "to rectify the continued right acromioclavicular joint separation." Even considering the statements appellant made in his affidavit and construing the evidence most favorably in appellant's favor, reasonable minds could conclude only that appellant was put on notice of his claim on April 4, 1991. Since appellant did not send his notice of claim letter to appellee prior to the expiration of one year after his cause of -14- action accrued, his action against appellee was untimely pursuant to R.C. 2305.11(B)(1). No genuine issues of material fact remained in this case; therefore, the trial court did not err in granting appellee's motion for summary judgment based upon the statute of limitations. Accordingly, appellant's assignment of error is overruled. The order of the trial court is affirmed. -15- It is ordered that appellee recover of appellant his 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. SPELLACY, C.J., and BLACKMON, J., CONCUR. JOSEPH J. NAHRA 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 journalization, at which time .