COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71893 DONNA J. RYAN : : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION STEVEN J. KATZ, D.D.S. M.S. : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-311690. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Donna J. Ryan, pro se 29580 Gleneagles Road Perrysburg, OH 43551 For Defendant-Appellee: Roy A. Hulme, Esq. Reminger & Reminger The 113th St. Clair Building Cleveland, OH 44114 -2- DAVID T. MATIA, P.J.: Donna J. Ryan, plaintiff-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas granting the motion for summary judgment filed by Steven J. Katz, D.D.S., M.S., defendant- appellee. Plaintiff-appellant assigns one error for review. This court, finding error, reverses the decision of the trial court and remands this case back for further proceedings. I. STATEMENT OF FACTS As this appeal stems from defendant-appellee's motion for summary judgment, we adduce the following facts from the parties' corresponding motions and evidentiary attachments for purposes of our review. On June 12, 1992, Donna J. Ryan, plaintiff-appellant, visited the offices of Dr. Steven J. Katz, D.D.S., M.S., defendant- appellee, for the completion of root canal therapy previously initiated by plaintiff-appellant's general dentist, Dr. Gaglione. Plaintiff-appellant returned to defendant-appellee's office on July 6, 1992, in order to complete the root canal treatment. The procedure left plaintiff-appellant with tingling and numbness on the left side of her lower jaw. Plaintiff-appellant called defendant-appellee on July 7, 1992 to report the condition. Plaintiff-appellant states that defendant-appellee told her that the problem should pass in a day or two but that sometimes it takes months to disappear. Plaintiff-appellant stated that within the next few weeks she had reported her condition to her family dentist, Dr. Gaglione, -3- whom she knew was keeping defendant-appellee advised. Plaintiff- appellant stated that on several occasions, she returned phone calls to defendant-appellee's office keeping them advised of her condition. Plaintiff-appellant also states that she had called defendant-appellee on her own to advise him of her progress. Defendant-appellee claimed that shortly after the July treatment, plaintiff-appellant was referred to Dr. Faulkner by an attorney who works with her husband. Dr. Faulkner is a specialist in Endodontics, i.e., root canal. Defendant-appellee argued that on September 24, 1992, plaintiff-appellant visited Dr. Faulkner for the sole purpose of retaining him as an expert witness in a lawsuit against Dr. Katz. Defendant-appellee argues this action by the plaintiff-appellant terminated the physician-client relationship. On January 25, 1993, plaintiff-appellant scheduled an appointment with defendant-appellee to determine if anything could be done to correct her condition. Plaintiff-appellant states that she went to defendant-appellee for the sole purpose of receiving treatment that could help her condition. Plaintiff-appellant states that at the appointment, defendant-appellee suggested she see an oral surgeon in the same building named Dr. Hauser. That same day, plaintiff-appellant made an appointment with Dr. Hauser. Approximatelyone week later, plaintiff-appellant went to the oral surgeon who informed her that the only way to fix her condition was to surgically take a section of nerve from another part of her body, cut into her chin and graft the nerve. Dr. Hauser said the surgery would leave a scar and he could not guarantee that -4- the procedure would be successful. At this point, plaintiff- appellant decided against the procedure. On January 24, 1994, plaintiff-appellant sent defendant- appellee a 180 Day Letter informing him that she was contemplating filing a lawsuit against him. On July 11, 1994, plaintiff-appellant commenced this action for dental malpractice. On September 20, 1996, defendant-appellee filed a motion for summary judgment arguing that plaintiff-appellant is time barred from bringing this action pursuant to R.C. 2305.11. Specifically, defendant-appellee argued: 1) since the cognizable event occurred on July 6, 1992, plaintiff-appellant's 180 Day Letter falls outside the one year statute of limitations, and 2) the termination of the physician-patient relationship occurred, at the latest, on September 24, 1992 when plaintiff-appellant visited Dr. Faulkner for the sole purpose of retaining him as an expert witness in a lawsuit against defendant-appellee. Thus, defendant-appellee argued, the termination rule does not apply and the 180 Day Letter falls outside the one year statute of limitations. On November 15, 1996, the trial court granted defendant- appellee's motion holding that while defendant-appellee's actions on January 24, 1993 illustrate his attempt to complete his treatment of plaintiff-appellant, plaintiff-appellant's visit to Dr. Faulkner demonstrates she did not consider her relationship with defendant-appellee to have continued beyond the date of the root canal procedure. Plaintiff-appellant timely files this appeal. -5- II. ASSIGNMENT OF ERROR Donna J. Ryan, plaintiff-appellant, states as her sole assignment of error: I. THE COURT OF COMMON PLEAS ERRED BY GRANTING SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT ON STATUTE OF LIMITATIONS GROUNDS. A. ISSUE RAISED: WHETHER THE TRIAL COURT PROPERLY GRANTED DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Donna J. Ryan, plaintiff-appellant, argues the trial court erred when it granted defendant-appellee's motion for summary judgment. Plaintiff-appellant argues that she was told by defendant-appellee in July of 1992 that her condition could last for up to six months. Approximately six months later, plaintiff- appellant went back to defendant-appellee and underwent an oral exam. After the examination, defendant-appellee referred plaintiff-appellant to an oral surgeon in his building. That same day, plaintiff-appellant made an appointment to see the oral surgeon. It was only after she learned that her treatment option was an operation that would leave a scar and which had limited chances of success that she decided to end the relationship with defendant-appellee. Moreover, plaintiff-appellant argues that consulting with another physician regarding the possible existence of a malpractice claim does not, in and by itself, establish the physician-patient relationship with defendant-appellee was terminated. For all of these reasons, plaintiff-appellant argues the trial court erred in granting defendant-appellee's motion for summary judgment. Plaintiff-appellant's sole assignment of error is well taken. -6- B. STANDARD OF REVIEW: SUMMARY JUDGMENT. Civ.R. 56 provides that summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain 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 but one conclusion 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. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio App.2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. It is well established that the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. V. Catrett (1987), 477 U.S. 317, 330; Mitseff v, Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio State Supreme Court modified and/or clarified the summary judgment standard as applied in Wing v. Anchor Medina, Ltd. of Texas (1991), 59 Ohio St.3d 108. Under Dresher, *** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or material element of the nonmoving party's claim. Id. at 296. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293. The -7- nonmoving party must set forth specific facts by the means listed in Civ.R. 56(C) showing a genuine issue for trial exists. Id. This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. Of Commrs. (1993), 87 Ohio App.3d 704. An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). The reviewing court evaluates the record *** in light most favorable to the nonmoving party ***. [T]he motion must be overruled if reasonable minds could find for the party opposing the motion. Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. C. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. The Ohio Supreme Court held in Frysinger v. Leech (1987), 32 Ohio St.3d 38, paragraph one of syllabus, that: Under R.C. 2305.11(A), a cause of action for medical malpractice accrues and the one-year statute 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. (Citations omitted). Accordingly, under Ohio law, the latest time at which the statute starts running is at the point which the physician-patient relationship finally terminates. See Richard v. Staehle (1980), 70 Ohio App.2d 93; Wyler v. Tripi (1971), 25 Ohio St.2d 164. The purpose behind the termination rule is that it strengthens the physician-patient relationship. The rule allows the patient to rely upon the physician's ability to give full treatment, including -8- correcting any errors of judgment. To require a patient to file a malpractice action during the course of treatment when the patient believes he/she has a malpractice claim would destroy this mutual confidence. Frysinger, supra. In this case there is no dispute between the parties that if the statute of limitations began to run on January 24, 1993, the lawsuit was timely filed. Thus, the sole question on appeals is at what date did the patient-physician relationship terminate. In Wells v. Johenning (1986), 63 Ohio App.3d 364, 367, we held: [T]he precise point at which the physician-patient relationship terminates will be the point where the patient refuses to submit to further treatment by the physician. Buckley v. Jefferies (Jan. 27, 1983), Cuyahoga App. No. 44724, unreported, or at the point at which either party takes affirmative steps to terminate the relationship. See, Smales v. Portman (Nov. 5, 1981), Franklin App. No. 81AP-522, unreported. Absent such action, the relationship is terminated by the patient's failure to keep the next scheduled appointment. Id. See, also, Hause v. H. Leimbach, M.D. (Oct. 31, 1991), Franklin App. No. 90AP-1008, unreported. In support of its decision that the physician-patient relationship terminated with plaintiff-appellant's visit to Dr. Faulkner, the trial court held Plaintiff visited Dr. Faulkner on September 24, 1992, for the express purpose of consulting with him regarding the filing of a lawsuit or making a claim against Defendant. She went to Dr. Faulkner because she was looking for an expert witness. Further, Plaintiff admits she was referred to Dr. Faulkner not by a dentist, but by an attorney. -9- Again, we stress that in reviewing the trial court's decision, the evidence must be viewed in light most favorable to the party against whom the motion was made. Norris, supra; Temple, supra. In this case, there is other deposition testimony by the plaintiff which supports the conclusion that plaintiff did not visit Dr. Faulkner for the sole purpose of seeking an expert witness. Plaintiff stated the following: Q. What did Dr. Faulkner tell you -- what did he do for you? A. He took x-rays, did an oral exam. He said that he thought the material had gone down into the nerve. He also -- I went to see Dr. Faulkner twice. The second time he said he thought I may have been given too much Novocaine. At that point I asked him if he -- I asked him if he would be a witness, if he would be an expert. Moreover, in her response to defendant-appellee's motion for summary judgment, plaintiff-appellant attached defendant-appellee's office notes which established he told plaintiff-appellant the condition could last from six weeks to six months. The office notes also indicate that defendant-appellee was in contact with both Dr. Gaglione and Dr. Faulkner and that Dr. Faulkner reported that everything seems to be in order. Finally, with regard to plaintiff-appellant's appointment with defendant-appellee which was approximatelysix months after the root canal, plaintiff-appellant stated in her affidavit that she went to see if anything could be done to correct her condition and that the sole purpose of her appointment was to receive treatment. It was at that point, -10- plaintiff-appellant was referred to the oral surgeon by defendant- appellee. In light of the foregoing and construing the evidence most strongly in favor of plaintiff-appellant, we find reasonable minds could reach divergent conclusions as to when the physician-patient relationship had terminated. See Wells, supra. Accordingly, the trial court erred in granting defendant-appellee's motion for summary judgment. Judgment reversed and remanded for further proceedings. -11- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent 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. TIMOTHY E. MCMONAGLE, J., CONCURS; JOSEPH J. NAHRA, J., DISSENTS (WITH DISSENTING OPINION ATTACHED). DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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. 71893 DONNA J. RYAN, : : Plaintiff-Appellant : : D I S S E N T I N G vs. : : O P I N I O N STEVEN J. KATZ, D.D.S. M.S., : : Defendant-Appellee : DATE: DECEMBER 18, 1997 NAHRA, J., DISSENTING: I agree with the trial court's finding that the physician- patient relationship terminated when plaintiff consulted with another dentist to see if he would be an expert witness in a malpractice action against the defendant. The plaintiff definitely had problems with the procedure performed by the defendant. She was referred to another dentist, by an attorney to see if that dentist would be an expert witness against the defendant. At that point the relationship was terminated and, in my opinion, was not re-established by the plaintiff making another appointment with the .