COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77496 DORIS M. BERG, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION THE CLEVELAND CLINIC : FOUNDATION, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 26, 2000 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 376214 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Mary Lou Sekula, Esq. 610 United Bank Building 220 Market Avenue, South Canton, Ohio 44702 For defendants-appellees: Victoria L. Vance, Esq. Irene C. Keyse-Walker, Esq. Nicholas M. Miller, Esq. ARTER & HADDEN 1100 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1475 -2- MICHAEL J. CORRIGAN, J.: Plaintiff-appellants herein, Doris Berg and Cornelius Berg, appeal from the trial court's grant of summary judgment in favor of defendant-appellees Dr. Delos Cosgrove and the Cleveland Clinic Foundation.1Because this court's independent review of the record compels us to conclude that the appellants filed the within action well beyond the one year statute of limitations period provided by law, we affirm the judgment of the trial court. Doris Berg underwent a mitral valve repair on July 1, 1997 as part of a course of treatment for various heart conditions she had been experiencing. The procedure was performed by appellee Dr. Delos Cosgrove on the premises of the appellee hospital Cleveland Clinic Foundation. From all accounts the surgery was successful in remedying Mrs. Berg's heart condition. On the day following the surgery the Bergs realized that Mrs. Berg had two incisions on her right thigh. The Bergs did not recall being informed that an incision would be made to the thigh area as part of the mitral valve repair procedure. At this point the Bergs made several inquiries of various hospital personnel as to the origin of the thigh incisions. An unidentified male nurse 1Appellants state in their brief filed with this court that Benjamin Medallion, M.D. was added as a Defendant in this case pursuant to the filing of an amended complaint on July 28, 1999. In fact, appellants failed to obtain leave of the trial court prior to filing the amended complaint on July 28, 1999. Two days later, on July 30, 1999, appellants filed Plaintiffs' Motion for Leave to Amend Complaint and to File Amended Complaint Instanter. This motion was opposed by appellees, but was not ruled on by the trial court prior to the grant of summary judgment in favor of the appellees. Thus, Dr. Benjamin Medallion was not in fact added as a defendant in this case. -3- reportedly told the Bergs that the incisions had been made to obtain a vessel from the leg to replace a vessel in the heart that had collapsed during surgery, but that the leg vessel was never actually used because the collapsed heart vessel spontaneously re- opened making the vessel transplant unnecessary. Thereafter, on July 21, 1997, Doris Berg was seen by her cardiologist, Dr. Wayne Gross, for a scheduled follow up appointment. During this visit the Bergs asked several questions of Dr. Gross regarding the incisions. Dr. Gross informed them that he could not explain the nature or origin of the incisions from the notes contained in the discharge records. On August 24, 1998, almost thirteen months after her first visit with Dr. Gross, Mrs. Berg went for another scheduled appointment with his office at which time she and her husband again asked about the incisions. Once more, Dr. Gross stated that the incisions could not be explained by the discharge report, but this time he also arranged to provide the Bergs with a copy of the report so they could confirm the absence of an entry on the origin of the incisions. The appellants filed the within lawsuit on February 10, 1999 alleging in their complaint that the appellees had fallen below the standard of care of a reasonable practitioner in causing an unexplained thigh incision which would not have occurred if ordinary care had been used in the surgical procedure of a valve transplant. On July 30, 1999, the appellee filed a motion for summary judgment wherein it was alleged that the complaint was filed outside of the one year statute of limitations provided in -4- R.C. 2305.11(B)(1). The trial court granted the motion for summary judgment without opinion on December 20, 1999. The appellants timely filed the within appeal and present for this court's review a singular assignment of error which reads as follows: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S (SIC) MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT PLAINTIFF-APPELLANT'S (SIC) CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS. 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 but to 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 Supreme Court modified and/or clarified the summary judgment standard as applied in Wing v. Anchor Media, 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 -5- 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 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. Under R.C. 2305.11(B)(1), an action for medical malpractice must be brought within one year after the cause of action accrues or the end of the physician-patient relationship, whichever is later. Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337, at paragraph one of the syllabus. See, also, Akers v. Alonzo (1992), 65 Ohio St.3d 422,424-425, 605 N.E.2d 1, 3. See, also, Wiggins v. Waltz (Sept. 30, 1999), Cuyahoga App. No. 74864, unreported. "A cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient -6- discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury." Allenius v. Thomas (1989), 42 Ohio St.3d 131, 133, 538 N.E.2d 93, 95, citing Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 449 N.E.2d 438, at paragraph one of the syllabus. The test for determining the accrual date of the injury was set forth by the Ohio Supreme Court in Hershberger v. Akron City Hosp.(1987), 34 Ohio St.3d 1, 516 N.E.2d 204, at paragraph one of the syllabus. The Hershberger court held that, after examining the facts of the case, the trial court must determine when the plaintiff knew or should have known of the extent and seriousness of his condition, that the condition was related to prior medical treatment, and if the condition would put a reasonable person on notice that he should seek further information about the cause of the condition. The court modified the test in Allenius, as follows: We do not believe that a patient must be aware of the full extent of the injury before there is a cognizable event. It is enough that some noteworthy event, the "cognizable event," has occurred which does or should alert a reasonable person-patient that an improper medical procedure, treatment or diagnosis has taken place. 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. Allenius, 42 Ohio St.3d at 133-134. See, also, Laidley v. St. Luke's Med. Ctr. (June 3, 1999), Cuyahoga App. No. 73553, unreported; Sreshta v. Kaydan (May 6, 1999), Cuyahoga App. No. 74081, unreported. -7- In this case it is absolutely clear that the appellants were each aware of the alleged breach of duty underlying their claim of malpractice by July 21, 1997 (the date of their first follow up appointment with Dr. Gross) at the latest. Yet, the complaint was not filed for nearly nineteen months after the occurrence of this cognizable event. Mr. Berg stated in his deposition that both he and his wife inquired as to the specifics of the presence of thigh incisions on the leg during the July 21, 1997 appointment because they believed that the attending surgeon had potentially been mistaken when he made the incisions: I thought that they messed up there. After them telling me that she had a blood vessel that collapsed, and just as they had got ready to sew it opened up. Clearly then at this juncture the appellants were concerned about the incisions and questioned the veracity of the explanation they had been given as to the reason the thigh incisions were made. Having been alerted of the possibility that an improper medical procedure had been performed during the mitral valve repair, the appellants were duty bound to investigate and to pursue any potential remedies for any injury incurred in a timely manner. Allenius, supra, at 134. Because the complaint in the case sub judice was filed more than a year after the appellants discovered the injury resulting from the alleged malpractice committed by the appellees, the trial court properly granted summary judgment in favor of the appellees. -8- This court declines to discuss the appellants' assertion, made for the first time in the merit brief filed with this court, that the statute of limitations was tolled because Mrs. Berg was of unsound mind during the period in which the statute of limitations was running. It is a well established principle of law in Ohio that a party cannot raise new issues for the first time on appeal. McCarthy, Lebit, Crystal & Haiman Co., LPA v. First Union Management, Inc. (1993), 87 Ohio App.3d 613, 620, 622 N.E.2d 1093, 1097; Addyston Village School Dist. Bd. of Edn. v. Nolte Tillar Bros. Constr. Co. (1943), 71 Ohio App. 469, 26 O.O. 379, 49 N.E.2d 99; State Planters Bank & Trust Co. v. Fifty-Third Union Trust Co. (1937), 56 Ohio App. 309, 9 O.O. 297, 10 N.E.2d 935; Hiller v. Shaw (1932), 45 Ohio App. 303, 187 N.E. 130. Judgment affirmed. -9- 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN JUDGE PATTON, P.J., and PORTER, J., CONCUR. 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. 22. 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). .