COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72507 VANESSA HALL, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION MARK WOYSHVILLE, M.D., ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-306052 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: MICHAEL SHAFRAN (#0028991) 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee, DALE L. KWARCIANY (#0022731) Mark Woyshville, M.D.: LINDA A. EPSTEIN (#0061575) Jacobson, Maynard & Tuschman 1001 Lakeside Ave, Suite 1600 Cleveland, Ohio 44114 CARRIE A. FOLIANO (#0042346) 1370 Ontario Street 800 Standard Building Cleveland, Ohio 44113 For Defendant-Appellee, IRENE KEYSE-WALKER (#0013143) University Hospitals VICTORIA L. VANCE (#0013105) of Cleveland: SUSAN V. BELANGER (#0059325) Arter & Hadden 1100 Huntington Building Cleveland, Ohio 44115-1475 -ii- SPELLACY, J.: Plaintiffs-appellants Vanessa and Larry Hall (collectively appellants ) appeal from the trial court's order granting summary judgment in favor of defendants-appellees Mark Woyshville, M.D. and University Hospitals of Cleveland. Appellants assign the following errors for our review: I. THE TRIAL COURT ERRED IN GRANTING THE -2- SUMMARY JUDGMENT MOTION OF UNIVERSITY HOSPITALS IN THAT MATERIAL ISSUES OF FACT EXIST AS TO WHETHER APPELLANT HAD A REASONABLE BELIEF THAT UNIVERSITY HOSPITALS WAS PROMOTING THE TREATMENT WHICH CAUSED OR CONTRIBUTED TO APPELLANT'S INJURIES. II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE SUMMARY JUDGMENT AND/OR DISMISSAL MOTIONS OF APPELLEE DR. WOYSHVILLE AND UNIVERSITY HOSPITALS IN THAT APPELLANT PROVIDED SUFFICIENT EVIDENCE THAT SHE DID NOT DISCOVER THE CONNECTION BETWEEN DEPAKOTE AND HER DETERIORATED LIVER CONDITION UNTIL HER CONSULTATION WITH DR. TAVILL IN JULY, 1995. Finding appellants' second assignment of error to lack merit and their first assignment of error to be moot, the judgment of the trial court is affirmed. I. On January 20, 1994, plaintiff-appellant Vanessa Hall ( Mrs. Hall ) began her participation in a program which was studying the relevant effects of an experimental drug known as Depakote. Mrs. Hall has claimed that she believed that defendant-appellee University Hospitals of Cleveland ( University Hospitals ) was promoting the Depakote program. During her voluntary enrollment in this program, Mrs. Hall was prescribed Depakote by defendant- appellee Mark Woyshville, M.D. ( Dr. Woyshville ). On March 10, 1994, Mrs. Hall stopped participating in the program. Mrs. Hall began to feel ill and, in November 1994, she sought the medical care of Dr. Harold Thomas. At this time, Dr. Thomas informed Mrs. Hall of the effects Depakote could have on a patient's liver. Specifically, Mrs. Hall offered the following -3- testimony at her deposition: Q. Was it around that same time in November of 1994 that Dr. Thomas told you that the Depakote can do funny things to your liver? A. Yes, ma'am. Q. And when he said that to you, did that sort of stick in your head that Depakote might have something to do with these problems or symptoms you were feeling? A. Of course. In January 1995, Dr. Thomas ordered blood work to be performed. Mrs. Hall's blood test showed that she had elevated liver enzymes. Dr. Thomas then ordered a hepatitis panel, which was performed on January 27, 1995. The hepatitis panel showed that Mrs. Hall had Hepatitis. In February 1995, Dr. Thomas discussed the test results with Mrs. Hall and recommended that she undergo a liver biopsy. Dr. Karl DeHaan performed the biopsy on February 10, 1995, and discussed the results with Mrs. Hall a few days later. The biopsy confirmed the diagnosis of Hepatitis. When Mrs. Hall met with Dr. DeHaan to discuss the test results, she specifically questioned him about the possible link between her use of Depakote and her liver disease: Q. His notes indicate that you wondered whether the medications Depakote and Prozac could have caused the inflammation in your liver. A. Yes, ma'am. Q. In February of 1995. * * * -4- * * * Q. So in your mind, the question of could the Depakote be the cause of my problems was clearly on your mind in February of 1995? A. Yes, ma'am. Dr. DeHaan referred Mrs. Hall to Anthony Tavill, M.D. Dr. Tavill examined Mrs. Hall for the first time on July 3, 1995. Subsequently, Dr. Tavill advised Mrs. Hall that test results revealed that her liver was destroyed; Dr. Tavill opined that Mrs. Hall's chronic liver disease was a result of her use of Depakote. On March 12, 1996, appellants sent a letter to Dr. Woyshville, pursuant to R.C. 2305.11, providing him with one hundred eighty day notice that appellants were considering filing a medical malpractice action against him. No such notice was provided to University Hospitals. On April 2, 1996, appellants filed the underlying lawsuit against Dr. Woyshville and University Hospitals. On February 26, 1997, Dr. Woyshville filed a motion for summary judgment. In his motion, Dr. Woyshville asserted that appellants' medical malpractice claims were barred by the applicable statute of limitations. University Hospitals filed a motion for summary judgment the next day. On April 9, 1997, the trial court granted Dr. Woyshville's motion for summary judgment and, on April 14, 1997, the trial court granted summary judgment in favor of University Hospitals. II. In their second assignment of error, appellants argue that the trial court erred in granting summary judgment in favor of Dr. -5- Woyshville and University Hospitals. Specifically, appellants contend that Mrs. Hall did not discover the connection between Depakote and her deteriorated liver condition until her consultation with Dr. Tavill on July 3, 1995; therefore, appellants claim that their medical malpractice lawsuit was filed within the one-year limitations period. Civ.R. 56(C) sets forth the standard of review for cases involving summary judgment: * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * Contrary to appellants' contentions, there was no genuine issue of material fact in the instant case and, as set forth below, Dr. Woyshville and University Hospitals were entitled to judgment as a matter of law. Pursuant to R.C. 2305.11(B)(1), an action upon a medical claim must be commenced within one year after the action accrued. However, R.C. 2305.11(B)(1) allows a plaintiff to serve written notice, prior to expiration of the one-year statute of limitations, upon a defendant and extend the time in which a suit may be brought against that person by up to one hundred eighty days from the time notice is given. "[A] cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, -6- or, in the exercise of reasonable care and diligence should have discovered, the resulting injury." Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, syllabus. In determining the accrual date of a medical malpractice action, trial courts should examine the following factors: (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 such condition was related to a specific professional medical service previously rendered him; and (3) whether such condition would put a 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. The Hershberger test 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. Allenius v. Thomas (1989), 42 Ohio St.3d 131, syllabus. The patient need not be "aware of the full extent of the injury before there is a cognizable event. Allenius, 42 Ohio St.3d at 133-134. Rather, some noteworthy or cognizable event which has occurred is sufficient if it does or should place a reasonable patient on notice that an improper medical procedure, treatment, or diagnosis has taken place. Id. at 134. -7- 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. A plaintiff need not have discovered all the relevant facts necessary to file a claim in order to trigger the statute of limitations. Allenius, 42 Ohio St.3d at 133-134. 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. The occurrence of a "cognizable event" imposes upon the plaintiff the duty to: (1) determine whether the injury suffered is the proximate result of malpractice; and (2) ascertain the identity of the tortfeasor(s). Flowers v. Walker (1992), 63 Ohio St.3d 546, syllabus. 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; Akers v. Alonzo (1992), 65 Ohio St.3d 422. In the instant case, Mrs. Hall was experiencing serious health problems in the fall of 1994. Therefore, Mrs. Hall sought medical care from Dr. Thomas in November 1994. In her deposition, Mrs. Hall testified that Dr. Thomas told her of the effects Depakote could have on a patient's liver. Dr. Thomas performed a series of tests which indicated that Mrs. Hall had elevated liver enzymes and -8- Hepatitis. By February 1995, Mrs. Hall's doctors confirmed that she had an inflamed liver and Hepatitis. When discussing her test results with Dr. DeHaan in February 1995, Mrs. Hall inquired into whether Depakote could have caused her liver problems. Appellants argue that Mrs. Hall did not discover the connection between Depakote and her deteriorated liver condition until her consultation with Dr. Tavill on July 3, 1995. However, her own deposition testimony demonstrates that she suspected the connection between Depakote and her medical problems as early as November 1994 or, at the very latest, February 1995. Therefore, we find that appellants' medical malpractice claims accrued and the one-year statute of limitations commenced to run in February 1995. Pursuant to R.C. 2305.11(B), appellants were required to file suit or provide one hundred eighty day notice by February 1996. Appellants sent the one hundred eighty day notice to Dr. Woyshville on March 12, 1996. No such notice was provided to University Hospital. On April 2, 1996, appellants filed the underlying lawsuit. Based upon the foregoing, we find that appellants' medical malpractice claims were barred by R.C. 2305.11(B) as a matter of law. Accordingly, appellants' appeal is without merit and the judgment of the trial court is affirmed. III. As for their first assignment of error, appellants argue that the trial court erred in granting summary judgment in favor of University Hospitals because Mrs. Hall had a reasonable belief that -9- University Hospitals was promoting the Depakote study which allegedly caused her health problems. In light of our disposition of appellants' second assignment of error, and our determination that appellants' claims against both Dr. Woyshville and University Hospitals were barred by the applicable statute of limitations, the second assignment of error is moot. Therefore, pursuant to App.R. 12(A)(1)(c), we decline to address this assignment of error. Judgment affirmed. It is ordered that appellees recover of appellants 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. -10- A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, ADM. J. and TIMOTHY E. McMONAGLE, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .