COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71872 ARLENE TANZI, ET AL. : : JOURNAL ENTRY PLAINTIFFS-APPELLANTS : : AND vs. : : OPINION STANLEY NAHIGIAN, M.D. : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas Case No. CV-299015 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: JAMES C. VENIZELOS, ESQ. Two Commerce Park Square 23200 Chagrin Blvd. Suite 2-106 Cleveland, Ohio 44122-5418 For Defendant-Appellee: DALE KWARCIANY, ESQ. PATRICK J. MURPHY, ESQ. JACOBSON, MAYNARD, TUSCHMAN & KALUR CO., L.P.A. 1001 Lakeside Ave., Suite 1600 Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., C.J.: Plaintiffs-appellants Arlene Tanzi and Peter Tanzi appeal from the trial court's order granting the motion for summary judgment filed by the defendant-appellee Dr. Stanley Nahigian. The trial court granted the motion for summary judgment in this medical malpractice claim for failure to file the action within the statute of limitations as set forth in R.C. 2305.11. The undisputed facts as gleaned from Mrs. Tanzi's deposition and affidavit are as follows. On April 8, 1993, Arlene Tanzi severely lacerated her finger with a drinking glass when she fell on stairs in her home. Mrs. Tanzi was hurrying up the stairs because she was due to attend a reception at the Maple Heights City Hall given in honor of her son, a winner of the National High School Wrestling Championship. The laceration began at the web of her middle finger on her right hand and continued down into her palm. Mrs. Tanzi sought immediate treatment at the Bedford Hospital emergency room, where Dr. Raymond Goodman sutured the wound. During her emergency room visit, Mrs. Tanzi informed Dr. Goodman that her hand felt funny, weird, numb and not right. She indicated that she was worried because her finger was crooked, slanted down across her palm towards her little finger. Dr. Goodman believed that there was no significant damage to the hand, but asked if Mrs. Tanzi wanted another physician. Mrs. Tanzi informed Dr. Goodman that since he was the doctor she believed him. Mrs. Tanzi was informed that she could see her family physician to have the -3- stitches removed. Mrs. Tanzi was referred by her family physician to Dr. Nahigian. Dr. Nahigian believed that the appellant had suffered simple nerve damage. Although Mrs. Tanzi questioned the appellee as to why her finger was crooked, he merely indicated that he would take care of it. Dr. Nahigian performed surgery on April 29, 1993, and afterwards informed the appellant's sister that the surgery was a success. At her next office visit, Mrs. Tanzi was informed by Dr. Nahigian that he had repaired the nerve, that she would need therapy, and that her hand would be normal in six to eight weeks. Surgery had done nothing to relieve the condition of the appellant's hand, and the next three to four weeks brought a worsening of the pain. Mrs. Tanzi had to repeatedly request pain medication because the appellee did not believe her. The appellee prescribed a brace for the hand and, even though it caused excruciating pain, Mrs. Tanzi managed to wear it eight hours a day. The appellant ultimately left Dr. Nahigian's care because she did not like the way she was treated, and because Dr. Nahigian did not believe she was in pain. The appellant sought help from Dr. John Schaffer. Dr. Schaffer determined that surgery was required in order to discover the source of Mrs. Tanzi's difficulties. Dr. Schaffer attempted to perform surgery in July 1993, but the surgery was aborted when Mrs. Tanzi's finger turned black and her blood pressure soared. Mrs. -4- Tanzi indicated that she was hospitalized for several days subsequent to the surgery due to an infection. Although nothing was learned during the aborted surgery, Dr. Schaffer sent Mrs. Tanzi back to therapy on a daily basis. Instead of improvement, Mrs. Tanzi's condition worsened and her entire hand became deformed. Dr. Schaffer and/or his therapist informed the appellant that amputation of the finger was a possibility. The first time this possibility was raised was in September 1994. Mrs. Tanzi sought a second opinion from Dr. Morris. Dr. Morris suggested a steel rod and, since his solution was the same as that proposed by Dr. Schaffer, Mrs. Tanzi returned to Dr. Schaffer for treatment. Dr. Schaffer referred Mrs. Tanzi to the University Hospital Pain Management Program where further tests were performed and other physicians consulted. Mrs. Tanzi also consulted with a specialist at Duke University in May 1994. She was not accepted as a patient because nothing could be done for her. The appellant left the care of Dr. Schaffer because she did not want to have her finger amputated. She sought care from Dr. Froimson in November 1994. Prior to the actual surgery, Dr. Froimson promised to make every attempt to save the appellant's finger. In January 1995, Dr. Froimson amputated Mrs. Tanzi's finger, and determined that Dr. Nahigian had failed to re-connect the nerves in the finger. A second, but unsuccessful, surgery was performed by Dr. Froimson in September 1995, in an attempt to straighten the appellant's ring finger. -5- In 1994, Mrs. Tanzi consulted an attorney because she believed that a mistake had been committed at the time of her emergency room visit at Bedford Hospital. She first contacted attorney Joseph Rose with regard to a disability case and to investigate the problems with her hand. She was referred to attorney Thomas Repicky to pursue the medical malpractice claim. Mrs. Tanzi did not believe at that point that Dr. Nahigian had done anything wrong. She later learned that Mr. Repicky reviewed her medical records and determined that no evidence existed and no action could be filed on her behalf against Dr. Goodman, Bedford Medical Center, or Dr. Nahigian. The first time she questioned the care provided by Dr. Nahigian was after the surgery performed by Dr. Froimson. Mrs. Tanzi's current treating physician is Dr. Sevastos. Mrs. Tanzi affirmed in an affidavit that she questioned her attorney Thomas Repicky, Dr. Nahigian, Dr. Schaeffer, Dr. Sevastos, and Dr. Froimson prior to her January 5, 1995 surgery as to the reason for her continuing problem, and none of these men could provide an answer. Dr. Sevastos affirmed that: I have reviewed Arlene Tanzi's medical records and am of the opinion that it would be impossible for any physician to have diagnosed the cause of Mrs. Tanzi's injury from a review of the medical records and an examination of Mrs. Tanzi, prior to the surgery performed by Dr. Avrum Froimson on January 4, 1995. And it was only after the surgery by Dr. -6- Froimson that a cause could be found for Mrs. Tanzi's continuing problem with her hand." Attached to the appellee's motion for summary judgment is a copy of the 180 day letter sent by attorney Thomas Repicky to Dr. Raymond Goodman dated April 4, 1994, and a copy of a the 180 day letter sent to Dr. Stanley Nahigian dated March 8, 1994. Both physicians affirm that as a result of these letters they contacted their medical malpractice insurance carriers. The appellant sets forth the following assignment of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT, WHERE THE TRIAL COURT RELIES ON A TYPOGRAPHICAL ERROR IN THE ORIGINAL COMPLAINT, WHEN AN AMENDED COMPLAINT IS FILED PRIOR TO A RESPONSIVE PLEADING AND ACCEPTED BY THE CLERK CORRECTING THE TYPOGRAPHICAL ERROR AND WHERE UN-REBUTTED EVIDENCE PRESENTED BY PLAINTIFF- APPELLANT INDICATES: THAT PLAINTIFF APPELLANT DID NOT SUSPECT PLAINTIFF-APPELLEE(sic) AS THE CAUSE OF HER INJURY PRIOR TO JANUARY 5, 1995; AND THAT IT WAS IMPOSSIBLE FOR ANY ONE TO DISCOVER INJURY PRIOR TO JANUARY 5, 1995; AND PLAINTIFF-APPELLANT ATTEMPTED TO PURSUE HER REMEDIES PRIOR TO JANUARY 5, 1995, BUT IT WAS IMPOSSIBLE FOR ANY ONE TO DISCOVER THE CAUSE OF HER INJURY UNTIL JANUARY 5, 1995. The sole issue before this court is whether or not the appellants filed their claim within the statute of limitations as provided in R.C. 2305.11. The trial court found that they did not, this court is forced to reverse. Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; -7- and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Turner v. Turner (1993) 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977) 50 Ohio St.2d 317, and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. A court is permitted to grant a motion for summary judgment where all of the tests provided in Civ.R. 56 are met. See Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323. The court found where the non-moving party bears the burden of proof at trial on dispositive issues, a summary judgment motion may properly be make in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file. The non-moving party is required to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Id. At 324. Finally, an appellate court reviews the lower court's determination on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. The statute of limitations for medical malpractice is governed by R.C. 2305.11(B)(1). The version of the statute in effect at the time this action was filed is as follows: Subject to division (B)(2) of this section, an action upon a medical, . . . , claim shall be commenced within one year after the cause of 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 -8- against the person notified at any time within one hundred eighty days after the notice is so given. R.C. 2305.11(D)(3) defines medical claim to include any derivative claims for relief which arise from the medical diagnosis, care, or treatment of a person. R.C. 2305.11(D)(7) defines derivative claim to include claims of a spouse of an individual who was the subject of any medical diagnosis, care, or treatment that seek recovery for damages. Under 2305.11, a cause of action for medical malpractice accrues and the one-year state of limitations commences to run (a) when the patient discovers or, in the exercise of reasonable care and diligence, should have discovered the resulting injury, or (b) when the physician-patient relationship for that condition terminates, whichever occurs later. Frysinger v. Leech (1987), 32 Ohio St.3d 38. The Supreme Court elaborated on the test for determining the accrual date of a medical malpractice action in Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, where the court held: In a medical malpractice action, for purposes of determining the accrual date in applying the statute of limitations under R.C. 2305.11, 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 reasonable person on notice of need for further inquiry as to the cause of such condition. The determination of the extent and seriousness of a patients condition requires the occurrence of a cognizable event. Flowers -9- v. Walker (1992), 63 Ohio St.3d 546, citing to Allenius v. Thomas (1989), 42 Ohio St.3d 131. All of the relevant facts need not have been discovered for a cognizable event to have occurred, rather an event which is noteworthy and should alert a reasonable person that an improper medical procedure, treatment or diagnosis has taken place. Id. Moreover, the Flowers Court held that a plaintiff need not have discovered all the relevant facts necessary to file a claim in order to trigger the statute of limitations. Id. at 549. In the case sub judice, the appellant sought legal counsel regarding the treatment she received to her finger. The attorney issued a letter to Dr. Nahigian on March 8, 1984, placing him on notice that a medical malpractice claim against him was being considered. This letter cited to R.C. 2305.11, and indicated that the potential claim specifically related to alleged negligent care and treatment proved by Dr. Nahigian to Mrs. Tanzi in April of 1993. This letter was sufficient to extend the statute of limitations pursuant to R.C. 2305.11. However, construing the evidence in a light most favorable to the nonmoving party, it is clear that, despite the one-hundred- eighty day letter, a cognizable event triggering the running of the malpractice statute of limitations had not occurred. As required under Hershberger, supra,this court must look to the facts of this particular case. First, Mrs. Tanzi only became aware of the extent and seriousness of her condition after her final surgery. Up until -10- that point, all of the professionals, both legal and medical, did not believe that Mrs. Tanzi's difficulties were caused through negligence of any kind. As a matter of fact, Dr. Nahigian indicated that he not only did not believe that she was having discomfort, but went so far as to insinuate that her complaints were contrived. Second, because Mrs. Tanzi continually sought aid and treatment for herself, and was given no indication that negligence had occurred, she did not relate her condition to any specific professional medical service. Third and finally, it is difficult to conceive how Mrs. Tanzi should have been on notice of the need for further inquiry when those experts she consulted were not aware of or refuted such need. While Flowers, supra, held that a plaintiff need not have discovered all of the relevant evidence, Mrs. Tanzi was able to discover not one whit of relevant evidence leading anyone to attribute her problems to negligence. In short, Mrs. Tanzi acted as a reasonably prudent person and sought professional medical and legal assistance. Even so doing, she was unable to discover any form of negligence. Without some medical basis, the attorney consulted could not have filed an action. Unlike normal medical malpractice cases, the evidence of negligence herein was undiscoverable, and thus no cognizable event occurred which would have triggered the running of the statute. The appellant's assignment of error is well taken. Judgment reversed and remanded. This cause is reversed and remanded. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be ssent to said 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. TERRENCE O'DONNELL, J., CONCURS WITH CONCURRING OPINION ATTACHED, JOSEPH J. NAHRA, J., DISSENTS WITH DISSENTING OPINION ATTACHED. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71872 ARLENE TANZI, et al. : -12- : Plaintiffs-Appellants : : C O N C U R R I N G : -vs- : : O P I N I O N STANLEY NAHIGIAN, M.D. : : Defendant-Appellee : DATE: DECEMBER 18, 1997 O'DONNELL, J., CONCURRING: Again we wrestle with the facts of a case involving allegations of medical malpractice to determine when the cognizable event occurred which led appellant to believe or should have led appellant to believe that her condition related to a medical procedure which put her on notice or should have put her on notice of the need to pursue possible remedies. As cited by Judge Nahra in his dissenting opinion, quoting Allenius v. Thomas (1989), 42 Ohio St.3d 131, at 134: If a patient believes, because of harm she has suffered, that her treating medical professional has done something wrong, such a fact is sufficient to alert a plaintiff *** to the necessity for investigation and pursuit of her remedies ***. Graham v. Hansen (1982), 128 Cal.App.3d 965, 173, 180 Cal.Rptr 604, 609. (Emphasis added.) In my view, appellant had a belief that something had been done mprope rly, and therefore she pursued her medical and legal emedies, but could not determine, until after her finger had been mputated, that her condition related to the medical procedure erformed by Dr. Nahigian; hence, in my view, the cognizable event n this case occurred after Dr. Froimson amputated her finger when e told her that her treating professional, Dr. Nahigian, had failed -2- o reconnect the nerves in her finger which caused her necrotic ondition. The etiology of the law regarding accrual of a medical alpractice action is instructive in resolving this case. In the first paragraph of the syllabus in Hershberger v. Akron ity Hospital (1987), 34 Ohio St.3d 1, the court established a hree-part test to determine the accrual date for application of .C. 2305.11(A), the statute of limitations. The court stated the aw as follows: In a medical malpractice action, for the purposes of determining the accrual date in applying the statute of limitations under R.C. 2305.11(A), 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 reasonable person on notice of need for further inquiry as to the cause of such condition. (Emphasis added.) Further, in Allenius v. Thomas, supra, the court explained the extent and seriousness of his condition language in Hershberger y combining the three parts of the test and stated in its syllabus: The extent and seriousness of his condition language of the test set forth in Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, 516 N.E. 2d 204, paragraph one of the syllabus, requires that there be an 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. (Emphasis added.) In accordance with the court's decision in Allenius, supra, owever, the evidence here does not lead to a conclusion that ppellant believed that Dr. Nahigian had done anything wrong until -3- fter she had been made aware of that fact in 1995, when Dr. roimson amputated her finger and determined that Dr. Nahigian had ailed to reconnect the nerves in the middle finger on her right and. Until that point in time, appellant had continually made easonable efforts to investigate her claim, to seek treatment for he condition of her finger and the deformity in her hand and onsulted, believed in, and followed the recommendations of these pecialists in an effort to remedy her problem. No reasonable erson could have been expected to know that Dr. Nahigian had not econnected the nerves in her finger and this fact is best emonstrated by noting that after Dr. Nahigian had completed the pril 29, 1993 surgery, he reported that he had successfully epaired the nerve; further, neither Dr. John Schaeffer, nor his hysical therapist, nor Dr. Morris, nor representatives at the niversity Hospital Pain Management Program, nor the Duke University onsultant, nor Dr. Froimson, knew or could have known until after roimson had amputated her finger that the nerves had not been econnected. Appellant evidenced this in the trial court by ffering the affidavit of Dr. Sevastos in response to the motion for ummary judgment. Thus, the Supreme Court has admittedly combined the three-part ershberger test and now requires the occurrence of a cognizable vent; that event however, in my view, must alert the patient that he medical condition complained of relates to a specific medical rocedure, treatment or diagnosis previously rendered to the atient. This thinking is in accord with the previously quoted anguage of Allenius v. Thomas, supra, requiring the patient's -4- elief that, her treating professional has done something wrong. Here, appellant may have suspected something was wrong, but ecause she had multiple treating professionals she could not etermine which, if any of them, had mistreated her until after the ognizable event occurred when Dr. Froimson amputated her finger. he reasonably pursued every other possible source of investigation ncluding seeking legal counsel for her condition, but did not learn r could not have learned of Dr. Nahigian's failure until occurrence f the cognizable event in this case. Accordingly, I have concluded that the cognizable event in this ase occurred when Dr. Froimson completed the 1995 amputation urgery and advised appellant of Dr. Nahigian's failure, which for he first time in this case, led her to believe that her problem elated to a specific medical procedure putting her on notice to ursue her remedies, which she had done. For these reasons, I oncur in this judgment. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71872 RLENE TANZI, ET AL., : : Plaintiffs-Appellants : : D I S S E N T I N G vs. : : O P I N I O N TANLEY NAHIGIAN, M.D., : T AL., : : Defendants-Appellees : ATE: DECEMBER 18, 1997 AHRA, J., DISSENTING: I respectfully dissent from the majority opinion. The majority finding on page 10 that despite the one-hundred- ighty day letter, a cognizable event triggering the running of the alpractice statute of limitations had not occurred is inapposite o both the facts of this case and the applicable law. UnderR.C. 2305.11, an action for malpractice must be brought ithin one year after the cause of action accrued. The accrual date or a medical malpractice action is determined by applying the test et forth in the first paragraph of the syllabus of Hershberger v. kron City Hosp. (1987), 34 Ohio St. 3d 1, 516 N.E.2d 204, which tates in part: ***[T]he 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 been 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 -2- professional medical service previously rendered him; and whether such condition would put a reasonable person on notice of need for further inquiry as to the cause of such condition. *** Citations omitted.) In Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93, he syllabus states: The extent and seriousness of his condition language of the test in Hershberger *** requires that there be an 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. The court also stated: Moreover, we do not believe that a patient must be awareof the full extent of the injury before there is a cognizable event. *** If a patient believes, because of harm she has suffered, that her treating medical professional has done something wrong, such a fact is sufficient to alert a plaintiff `***to the necessity for investigation and pursuit of her remedies. ***' d. at 133-34, 538 N.E.2d at 96. (Citations omitted.) person need not have actual knowledge of the legal significance f facts which act as a cognizable event to trigger the running of he statute of limitations. See, Flowers v. Walker (1992), 63 Ohio t.3d 546, 549, 589 N.E.2d 1284, 1287-88; Allenius, 42 Ohio St.3d t 135, 538 N.E.2d at 97-98 (Moyer, C.J. concurring opinion, Holmes, . concurring opinion.) -3- While treating appellant, appellee recommended physical therapy or appellant when she continued to have serious pain. In the ummer of 1994, appellant was first told by her physical therapist hat her finger might have to be amputated and in October, 1994, she as definitively told by her physician that her finger had to be mputated. This treatment, wholly contrary to appellee's recommended reatment, as well as the seriousness and extent of possible mputation constituted a cognizable event which triggered the tatute of limitations. Additionally, in March, 1994, appellant sought legal counsel nd advice in order to pursue a malpractice action and sent appellee one hundred and eighty day notice pursuant to R.C. 2305.11 Thesefacts conclusively demonstrate that separate cognizable vents occurred which triggered the statute of limitations. In ctober, 1994, appellant was informed that her finger needed to be mputated. Under Hershberger and Allenius, this information, oupled with her treatment history, is sufficient to comprise the ognizable event which triggered the statute of limitations. In March, 1994, appellant contacted an attorney to investigate claim of medical malpractice and sent notice to appellee of her ntention to pursue a malpractice claim, another cognizable event hichtriggered the statute of limitations. See, e.g., Marthey v. hottam (Nov. 19 1990), Stark App. No. CA-8042, unreported; Brown . Good Samaritan Hosp. and Health Care Center (Mar. 21, 1997), ontgomery App. No. 15959, unreported. In my opinion, the problems appellant experienced with the area reated by appellee, her consultation with an attorney, and the ending of a one hundred and eighty day notice that a malpractice -4- ction was being contemplated constitute conclusive evidence that ogniza ble events had taken place to trigger the statute of imitations. Even if appellant's consultation with an attorney and he one hundred and eighty day notice did not comprise cognizable vents marking the start of the statute of limitations, the statute f limitations started running by October, 1994 when she became ware from her then treating physician that her finger would be mputate d. Appellant has failed to meet the one year statute of imitations by filing this action in November, 1995. .