COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71110 ARLEN WINTERS, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION THE CLEVELAND CLINIC FOUNDATION : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MAY 1, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-281502. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: Debra J. Dixon, Esq. James L. Deese, Esq. 700 West St. Clair Avenue, #216 Cleveland, Ohio 44113 For Defendant-appellee: Kris H. Treu, Esq. William H. Falin, Esq. Irene Keyse-Walker Arter & Hadden 925 Euclid Avenue 1100 Huntington Building Cleveland, Ohio 44115-1475 SWEENEY, JAMES D., C.J.: Plaintiffs-appellants Arlen and Laura Winters, husband and wife, appeal from the granting of summary judgment in favor of defendant-appellee-movant Cleveland Clinic Foundation on the basis of the statute of limitations having expired prior to the filing of the lawsuit. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Arlen Winters suffered cardio-pulmonary arrest while a patient at the Cleveland Clinic ("Clinic") on June 6, 1992. Mr. Winters was successfully resuscitated and was discharged from the Clinic on June 21, 1992. At the time of this discharge, Mr. Winters was being treated for, among other things, Addison's disease, and after being discharged began to complain of mental confusion, memory loss, excessive thirst and excessive urination. Mr. Winters described his mental capacity as being in a "fog" and that he was "shaky," lacked energy and had "to struggle to do everything." See Mr. Winters' deposition at 17-19, 31. The Clinic prescribed doses of cortico- steroids as treatment for the Addison's disease. In July of 1992, Mr. Winters attempted to return to work, but his lapses of memory precluded his completion of assigned tasks, causing Mr. Winters to wonder what was causing the memory loss and confusion. See Mr. Winters' deposition at 21, 34-35. This attempt to work lasted approximately three months. In September of 1992, Mr. Winters, complaining of excessive thirst, followed by excessive urination after having imbibed - 3 - beverages to quench his thirst, was seen by Dr. John Sheehan at the Clinic. Dr. Sheehan made a diagnosis of diabetes insipidus secondary to the steroid medication being taken for the control of the Addison's disease. On June 17, 1993, counsel for Mr. Winters sent a "180-day letter" to the Clinic pursuant to R.C. 2305.11(B)(1). This "180- day letter" was received by the Clinic on June 18, 1993. The plaintiffs' original complaint for medical malpractice, alleging the failure of the Clinic to prevent the onset of cardiac arrest on June 6, 1992 through timely medical intervention, which allegedly caused the injury of memory loss, was filed on December 17, 1993, and named the Clinic, St. John West Shore Hospital and Westlake Health Campus Association as defendants. On December 21, 1993, Mr. Winters, complaining of mental confusion and memory loss, was the subject of a neuropsychological evaluation performed by Dr. Thomas Swales, a psychologist at MetroHealth Medical Center. Following this evaluation, appellants argue that Dr. Swales allegedly concluded that Mr. Winters' 1992 heart attack had caused Mr. Winters to suffer brain damage as a result of a lack of oxygen, which caused Mr. Winters to experience confusion and memory problems following the heart attack and rendered Mr. Winters "incapable of looking into his personal affairs" between the time of the heart attack and Dr. Swales' evaluation. Appellants cite to the affidavit of Dr. Swales at paragraphs 5 and 6 as the source of this assertion. This affidavit - 4 - of Dr. Swales is attached as an exhibit to plaintiffs' reply brief filed with the trial court on June 27, 1996. On October 3, 1994, with motions for summary judgment by all defendants pending, this original complaint was dismissed without prejudice by plaintiffs. The complaint was refiled on December 8, 1994. On March 25, 1996, the Clinic refiled its motion for summary judgment. Attached to this dispositive motion were affidavits of Mrs. Winters and a member of the Clinic's defense counsel, excerpts from a deposition of Mrs. Winters, and copies of the court's journal and several cases cited within the motion. The plaintiffs filed a brief in opposition to summary judgment on April 18, 1996, supported by excerpts from the depositions of the plaintiffs and a copy of the affidavit of the Clinic's defense counsel which was previously attached to the Clinic's motion for summary judgment. Copies of the plaintiffs' depositions were filed with the court. Both parties filed reply briefs in support of their respective positions. Attached to plaintiffs' supplemental reply brief filed on June 28, 1996, is an unauthenticated photocopy of Dr. Swales' report. On July 29, 1996, the trial court granted the Clinic's motion for summary judgment without opinion after determining that the action had not been filed within the applicable statute of limitations. See Journal Vol. 1983, page 464, journalized July 30, 1996. - 5 - This appeal presents the following lone assignment of error: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED DEFENDANT CLEVELAND CLINIC FOUNDATION'S MOTION FOR SUMMARY JUDGMENT. R.C. 2305.11(B)(1) provides a one year statute of limitations for a claim for medical malpractice and derivative claims for loss of consortium arising therefrom pursuant to R.C. 2305.11(D)(3). This commencement period may be extended for 180-days upon the filing of a letter, within the original one year period, giving notice to the medical provider of the potential claim. Further, the statute of limitations may be tolled during the time that the person entitled to bring the action is of unsound mind. R.C. 2305.16. The issue before us is when the claim herein accrued to begin the running of the statute of limitations and whether plaintiffs' claim against the Clinic is time-barred. This court recently examined the issue at hand in the case of Baliko v. Kuschnir (July 25, 1996), Cuyahoga App. No. 69771, unreported, at 9-10: 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 - 6 - 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 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 - 7 - 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. (All emphasis and underscoring contained in the original.) Also, see, Ruggeri v. Katz (November 21, 1996), Cuyahoga App. No. 70412, unreported, 1996 WL 673991. In addressing this assignment we also note the following language by Judge Krupansky as contained in Wilkerson v. Eaton Corp. (March 10, 1994), Cuyahoga App. No. 65812, unreported, 1994 Ohio App. LEXIS 1043: Civ.R. 56(C) specifically provides that before summary judgment may be granted, the court must determine that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to only one conclusion, and viewing such evidence most strongly in favor of the non- - 8 - movant, the conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 587 N.E.2d 825. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095 (syllabus). The evidentiary materials must be timely filed. Civ.R. 56(C). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. J. Pollack & Co. (1992), 82 Ohio App.3d 656, 612 N.E.2d 1295. Also see Celotex v. Catrett (1986), 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265, 273-274. Additionally, [T]he dispute must be "material" in that the facts involved have the potential to affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the non-moving party. Id. 477 U.S. at 248- 252, 106 S.Ct. at 2510-2512, 91 L.Ed.2d at 211- 214. Manofsky v. Goodyear Tire & Rubber Co. (Summit, 1990), 69 Ohio App.3d 663, 666. The first issue to be resolved is when the cognizable event occurred which would trigger the accrual of the cause of action. Appellants attempt to use the December 21, 1993 evaluation of Dr. Swales as the cognizable event to begin the running of the one- year statute of limitations. This is absurd for the reason that both the receipt of the 180-day letter and the filing of the - 9 - original complaint, both of which are sufficient in themselves to represent the accrual of the action, preceded the evaluation of Dr. Swales. Thus, this evaluation is irrelevant for determining the accrual of the cause of action. Viewing the record objectively, it is clear that Mr. Winters first experienced unexplained memory loss after he experienced the heart attack on June 6, 1992, and that this condition concerned him greatly as to the reason for its occurrence. Mr. Winters stated in his deposition that he suspected the cause of his problems with something which occurred at the Clinic. See Mr. Winters' deposition at 35-36. Thus, by his own statements, Mr. Winters suspected that his injury was related to his treatment for the heart attack at the Clinic. This suspicion is corroborated by Mrs. Winters' testimony that her husband's memory loss started at the time of the heart attack and she began her attempts to discover the cause of the memory loss before Mr. Winters' discharge from the Clinic. See Mrs. Winters' deposition at 78-80, 83-84. This cognizable event, the memory loss following the June 6, 1992 heart attack, placed him on notice of the need to pursue his legal remedies and therefore the one-year statute of limitations began to run on June 6, 1992. The record indicates that the original complaint was filed on December 17, 1993, almost six months past the one year statute of limitations. The appellants next argue that the action was timely filed following the June 18, 1993 receipt of the 180-day letter. This is - 10 - without merit. This 180-day letter was not filed within the original one-year statute of limitations period as required by R.C. 2305.11(B)(1), and even if the letter had been timely filed, the original complaint was untimely filed 182 days after receipt of the letter. Appellants next argue that the statute of limitations was tolled due to Mr. Winters' unsound mind. As noted by counsel, the version of R.C. 2305.16 in effect at the time of this action provides two different accrual periods for purposes of tolling the statute of limitations, as follows: Unless otherwise provided in sections 1302.98, 1304.35, and 2305.04 to 2305.14 of the Revised Code, if a person entitled to bring any action mentioned in those sections, unless for penalty or forfeiture, is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person may bring it within the respective times limited by those sections, after the disability is removed. When the interests of two or more parties are joint and inseparable, the disability of one shall inure to the benefit of the other. After the cause of action accrues, if the person entitled to bring the action becomes of unsound mind and is adjudicated as such by a court of competent jurisdiction or is confined in an institution or hospital under a diagnosed condition or disease which renders him of unsound mind, the time during which he is of unsound mind and so adjudicated or so confined shall not be computed as any part of the period within which the action must be brought. (Underscoring added.) Appellants argue that the first paragraph of R.C. 2305.16 applies because Mr. Winters was of unsound mind simultaneous with - 11 - the heart attack on June 6, 1992. The evidence used to support this assertion is the affidavit of Dr. Swales, which was attached to the plaintiffs' reply brief in opposition to summary judgment, wherein the affiant stated that Mr. Winters was "incapable of looking into his personal affairs" from the time of the occurrence of the heart attack through his evaluation by Dr. Swales. In order for a court to consider an affidavit containing opinions as part of a motion for summary judgment, the affidavit must meet the requirements of Civ.R. 56(E), which rule requires that supporting and opposing affidavits be made on the personal knowledge of the affiant and set forth facts that would be admissible in evidence. The affiant in question, Dr. Swales, did not have personal knowledge of Mr. Winters' state of mind at the time of the heart attack or prior to the date of Dr. Swales' evaluation. Accordingly, those averments relied upon in Dr. Swales' affidavit to prove unsound mind could not be considered by the trial court. See Casey v. Casey (March 18, 1996), Cuyahoga App. No. 69027, unreported. R.C. 1.02(C) defines "unsound mind" to include "all forms of mental retardation or derangement." The evidence provided in the record on appeal falls short of establishing this degree of impairment on the date of the heart attack. Thus, any period of unsound mind must have occurred, if it did occur, after the accrual of the cause of action. Appellants' reliance on the first paragraph of R.C. 2305.16, therefore, is mistaken. Applying the - 12 - second paragraph of R.C. 2305.16 to the facts before us, the record does not indicate that after the accrual of the cause of action (June 6, 1992) Mr. Winters was adjudicated as being of unsound mind by a court of competent jurisdiction and was also not confined to an institution or hospital with a diagnosis of a condition or disease rendering him of unsound mind. Having failed to properly demonstrate unsound mind, the argument that the statute of limitations was tolled is without merit. Assignment overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant its 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. JOHN T. PATTON, J., and KENNETH A. ROCCO, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .