In its Decision filed on February 5, 2020, the Ohio Court of Appeals Ninth Judicial District (“Ohio Appellate Court”) stated, “in a foreign object medical malpractice case the injury is the presence of the foreign object in the patient’s body … Thus, the patient discovers an injury in a foreign object case when the patient discovers the foreign object in his or her body … the cognizable event in this case was not the discovery of harm alleged to be originating from the foreign object, but rather it was the discovery of the foreign object.”
A “foreign object” is “an object that is not intentionally left in a patient for sound medical reasons.” “[I]n a medical malpractice claim, including foreign object cases, the action accrues and the statute of limitations period begins to run upon whichever occurs later, the discovery of the injury or the termination of the physician-patient relationship.”
The Underlying Facts
On June 22, 2012, the plaintiff was involved in a workplace accident wherein his left leg near the distal femur sustained extensive bone fractures and was denuded of cartilage along with a deep laceration extending to the bone that was contaminated with dirt and oil. An orthopedic surgeon performed multiple surgical procedures on the plaintiff’s leg to repair the bone and to clean out the infection in the open wound.
Due to the damage to his knee, the plaintiff also required a knee replacement. In preparation for the knee replacement surgery, the plaintiff had a free flap surgery to increase blood flow and healing in his leg.
On June 4, 2013, the plaintiff had an x-ray taken of his leg that revealed “a metallic something” on the medial side of his left leg, near the site of the free flap surgery. The surgeon advised the plaintiff of the presence of a vascular clamp in his leg, which the surgeon testified was the extent of the discussion with the plaintiff regarding the clamp on that day. The knee replacement surgery was performed eight days later, on June 12, 2013.
During the next three years, the plaintiff saw numerous physicians for his injuries and suffered chronic infection in his leg. During this time, there were no complaints or any discussions about the clamp between the plaintiff and the surgeon. The plaintiff’s primary concern was his inability to bend his knee and his very limited range of motion in the knee.
Unsatisfied with his knee’s limited range of motion, the plaintiff sought a second opinion from another orthopedic surgeon, in October 2016. During the initial consultation, the second opinion surgeon recommended a knee revision and the removal of the clamp in the plaintiff’s leg. The knee revision required two surgeries: the first surgery in December 2016 removed the original prosthetic knee and the clamp in the plaintiff’s medial thigh, while the second surgery performed in May 2017 placed a new prosthetic knee. The knee revision procedure was successful in significantly increasing the plaintiff’s range of motion in his knee. However, he continues to take antibiotics and most likely will for the remainder of his life.
Ohio’s Medical Malpractice Statute Of Limitations
Pursuant to R.C. 2305.113(A), “an action upon a medical * * * claim shall be commenced within one year after the cause of action accrued.” In a medical malpractice claim, the action accrues and the R.C. 2305.113(A) limitations period begins to run (1) “when the patient discovers or, in the exercise of reasonable care and diligence should have discovered, the resulting injury,” or (2) “when the physician-patient relationship for that condition terminates, whichever occurs later.”
The Ohio Appellate Court stated “the “discovery” and “termination” analysis is also used to determine the accrual date and commencement of the statute of limitations in a medical malpractice action involving a foreign object.” In a foreign object medical malpractice claim, a claim must be commenced within one year from when the patient discovered the foreign object or one year from when the patient, exercising reasonable care and diligence, should have discovered the foreign object. R.C. 2305.113(D)(2).
A “cognizable event” is defined as “the occurrence of facts and circumstances which lead, or should lead, the patient to believe that the physical condition or injury of which he or she complains is related to a medical diagnosis, treatment, or procedure that the patient previously received. The cognizable event does or should place the patient on notice of the need to pursue his possible remedies. The occurrence of a cognizable event is viewed under an objective standard.
Upon the occurrence of the cognizable event, the patient has a duty to (1) determine whether the injury suffered is the proximate result of malpractice and (2) ascertain the identity of the tortfeasor or tortfeasors. Thus, once a patient becomes aware of an injury, it is incumbent upon the patient to fully investigate his or her case.
The cognizable-event analysis allows a patient to reasonably rely on his physician’s assurances while placing a continuing duty on the medical profession to act with the requisite skill and care. In Ohio, a patient may trust the advice of their physician without having their subsequent legal remedies prejudiced (a patient, as a layperson, does not possess medical knowledge regarding the cause of medical complaints and the effects of medical treatment, and depends almost entirely upon the doctor’s judgment and is bound to do so under the usual circumstances in each case).
The Ohio Appellate Court stated that in determining the cognizable event, the court must consider a patient’s reasonable reliance upon the assurances from a treating physician who continues to treat the patient and is alleged to have committed the malpractice. Also relevant is a patient’s reasonable reliance upon the assurances from concurrent and/or subsequent treating physicians against whom malpractice is not alleged.
In the case it was deciding, the Ohio Appellate Court stated that the dispute centers on what was the cognizable event and when did it occur to trigger the statute of limitations in the plaintiff’s causes of action: “the cognizable event in this case was not the discovery of harm alleged to be originating from the foreign object, but rather it was the discovery of the foreign object.”
The Ohio Appellate Court held: “Instead of construing the evidence in the light most favorable to [the plaintiff], the trial court appears to have disregarded this evidence and resolved competing inferences in favor of the moving parties regarding when [the plaintiff] knew or should have known that the clamp was not intentionally left in [his] leg for a sound medical purpose and therefore was a foreign object. Additionally, the trial court failed to apply the proper law in determining the cognizable event when it did not undertake any analysis regarding [the plaintiff’s] reliance upon [the surgeon] and whether his reliance was reasonable … Lastly, the trial court’s decision as to the statute of limitations issue was incomplete as it did not address when the physician-patient relationship between the Medical Defendants and [the plaintiff] ended.”
Source Peters v. Akron Gen. Med. Ctr., 2020-Ohio-369.
If you or a loved one have suffered serious harm as a result of medical negligence in Ohio or in another U.S. state, you should promptly find an Ohio medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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