Herrick v. Zaghlool , 2022 Ohio 2994 ( 2022 )

[Cite as Herrick v. Zaghlool, 2022-Ohio-2994.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
SHAWN HERRICK,
PLAINTIFF-APPELLANT, CASE NO. 3-22-02
v.
DAVID ZAGHLOOL, D.O., ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Crawford County Common Pleas Court
Trial Court No. 19-CV-0081
Judgment Affirmed
Date of Decision: August 29, 2022
APPEARANCES:
Paul Flowers for Appellant
Thomas A. Prislipsky for Appellees
Case No. 3-22-02
ZIMMERMAN, P.J.
{¶1} Plaintiff-appellant, Shawn Herrick (“Herrick”), appeals the judgment of
the Crawford County Court of Common Pleas granting summary judgment in favor
of defendants-appellees, David Zaghlool, D.O. (Dr. Zaghlool”), Avita Surgical
Services, and Avita Health System (collectively “defendants”). For the reasons that
follow, we affirm.
{¶2} This case stems from Herrick’s allegation that Dr. Zaghlool improperly
performed an excision of a lymph node on June 13, 2017, causing pain and other
symptoms to his left arm and shoulder. Herrick had two post-operative
appointments with Dr. Zaghlool—June 19 and 26, 2017—during which Herrick
relayed to Dr. Zaghlool his worsening symptoms. According to Herrick, Dr.
Zaghlool advised him that it would take “a month or two for [him] to get back to
normal,” prescribed him antibiotic medications and a pain medication, and
discharged him from his care. (Herrick Depo. at 38). Importantly, after his final
post-operative appointment with Dr. Zaghlool, Herrick was “worried” and began
“question[ing]” whether “something had gone wrong during the surgery” since he
“wasn’t feeling any better.” (Id. at 43).
{¶3} Nonetheless, after waiting for a couple of weeks, Herrick sought
another appointment with Dr. Zaghlool since his symptoms continued to worsen.
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However, the earliest that Herrick could be seen by Dr. Zaghlool was August 7,
2017. Because of his worsening pain, he was not able to wait for that appointment.
{¶4} Thus, Herrick pursued an appointment with his primary care provider
and was seen by Charlie Davis, PA-C (“Davis”) in his primary-care-provider’s
office on July 28, 2017. Based on Herrick’s complaints of “unbearable” shoulder
and neck pain and a collapsing trapezius muscle, Davis referred Herrick to Kyle
Randall, M.D. (“Dr. Randall”), an orthopedic surgeon. (Herrick Depo. at 49).
Significantly, Herrick testified that, “as soon as [he] took [his] shirt off” for Davis
to examine him, Davis exclaimed that he “need[ed] to see an orthopedic surgeon
and he made [him] the appointment.” (Id. at 50).
{¶5} Dr. Randall saw Herrick on August 7 and 28, and September 6, 2017.
Based on his examination of Herrick, Dr. Randall ordered a MRI, a MRI (with
contrast), and an EMG. According to Herrick, Dr. Randall diagnosed him with
scapula winging (because he could not raise his arm), a torn labrum, and a brachial-
plexus injury. Thereafter, Dr. Randall provided him with an arm sling and referred
him to pain management. However, Herrick testified that he terminated his
physician-patient relationship with Dr. Randall after the September 6, 2017
appointment because, even though he could not “say for sure” that something went
wrong during surgery, he was “fed up with the situation.” (Id. at 54-55).
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Specifically, he knew that his left arm and shoulder “wasn’t right and it was
becoming harder to live with.” (Id. at 55).
{¶6} Nevertheless, because Herrick’s discomfort continued, he consulted
Steven Shook, M.D. (“Dr. Shook”) of the Cleveland Clinic on November 16, 2017,
who told Herrick that he sustained an injury to his spinal accessory nerve as a result
of the surgery performed by Dr. Zaghlool. Consequently, Herrick notified the
defendants on October 25, 2018 that he was considering bringing an action on a
medical claim.
{¶7} Thereafter, on April 17, 2019, Herrick filed a complaint alleging
medical negligence against the defendants. On May 7, 2019, the defendants filed
their answer.
{¶8} On December 1, 2020, the defendants filed a motion for summary
judgment, arguing that Herrick’s medical-negligence complaint is barred by the
statute of limitations applicable to medical claims. On December 23, 2020, Herrick
filed a memorandum in opposition to the defendants’ motion for summary
judgment. On January 12, 2021, the defendants filed a reply in support of their
motion for summary judgment.
{¶9} On January 7, 2022, the trial court granted the defendants’ motion for
summary judgment. (Doc. No. 28).
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{¶10} Herrick filed his notice of appeal on January 31, 2022. He raises one
assignment of error for our review.
Assignment of Error
The Trial Court erred in granting the Defendants’ Motion for
Summary Judgment since genuine issues of material fact existed
demonstrating that Plaintiff Shawn Herrick’s cause of action for
his medical negligence claim, under Ohio Revised Code
§2305.113, did not accrue and begin to run until he discovered his
injury was related to Defendant’s surgery on November 16, 2017.
{¶11} In his assignment of error, Herrick argues that the trial court erred by
granting summary judgment in favor of the defendants after concluding that his
complaint was not timely. Specifically, the parties dispute the date from which the
statute of limitations applicable to medical claims began to run based on the
happening of a cognizable event which led, or should have led, Herrick to believe
that his injury is related to the surgery performed by Dr. Zaghlool.
Standard of Review
{¶12} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there
is no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, and reasonable minds can reach but one conclusion when viewing the
evidence in favor of the non-moving party, and the conclusion is adverse to the non-
moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd.
of Edn., 69 Ohio St.3d 217, 219 (1994).
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Analysis
{¶13} Under R.C. 2305.113(A), “an action upon a medical * * * claim shall
be commenced within one year after the cause of action accrued.” A “medical
claim” is “any claim that is asserted in any civil action against a physician [or]
hospital, [or] against any employee or agent of a physician [or] hospital, * * * and
that arises out of the medical diagnosis, care, or treatment of any person.
{¶14} “A cause of action for medical malpractice accrues, and the one-year
statute of limitations commences to run when the patient discovers, or in the
exercise of reasonable care and diligence should have discovered, the resulting
injury or when the physician-patient relationship for that condition terminates,
whichever occurs later.” Josolowitz v. Grant/Riverside Methodist Hosp. Corp., 10th
Dist. Franklin No. 99AP-1462, 2000 WL 861836, *2 (June 29, 2000), citing
Frysinger v. Leech, 32 Ohio St.3d 38 (1987), paragraph one of the syllabus.
Importantly, “[t]he statute of limitations begins to run even if the plaintiff has not
‘discovered all the relevant facts necessary to file a claim * * * .’” Price v. United
States, S.D.Ohio No. 2:18-CV-949, 2020 WL 247186, *6 (Jan. 16, 2020), quoting
Flowers v. Walker, 63 Ohio St.3d 546, 549 (1992).
{¶15} To determine when the statue of limitations begins to run,
the court must look to the facts of the case in order to find (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 the condition was related
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to a specific medical service previously rendered him, and (3) whether
the condition would put a reasonable person on notice of the need for
further inquiry as to the cause of the condition.
Tausch v. Riverview Health Inst., 187 Ohio App.3d 173, 2010-Ohio-502, ¶ 39 (2d
Dist.), citing Hershberger v. Akron City Hosp., 34 Ohio St.3d 1 (1987).
Nevertheless, when assessing “the injured party’s awareness of the extent and
seriousness of his condition, the court must find that a ‘cognizable event’ occurred
that put the party on notice that his injury is related to a specific medical procedure
and of the need to pursue his possible remedies.” Id. at ¶ 40, citing Allenius v.
Thomas, 42 Ohio St.3d 131 (1989). See also Komsa v. Terveer, 11th Dist. Lake No.
98-L-275, 2000 WL 522181, *3 (Mar. 31, 2000) (emphasizing that “a cognizable
event puts the plaintiff on notice to conduct an investigation into the facts and
circumstances relevant to his or her claim”), citing Flowers at 548.
“[C]onstructive 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.”
(Emphasis sic.) Tausch at ¶ 40, quoting Flowers at 549.
{¶16} “Having said this, there is one circumstance in which a ‘cognizable
event’ will not necessarily trigger the statute of limitations.” Price at *6.
Specifically, “[w]hen the plaintiff’s medical claim arises out of an ongoing
physician-patient relationship, the statute of limitations does not begin to run until
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after ‘the physician-patient relationship for that condition terminates * * * .’” Id.,quoting Frysinger at paragraph one of the syllabus. “Importantly, the termination
rule does not require that the relationship with the allegedly negligent doctor or
hospital be severed entirely in order to suspend the statute of limitations.” Id.“Rather, the statute of limitations begins to run as soon as the relationship for the
particular condition terminates.” (Emphasis sic.) Id., citing Frysinger at paragraph
one of the syllabus and Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St.3d 385(1988), paragraph one of the syllabus. “This makes sense because the termination
rule is motivated by the twin policy goals of giving the alleged tortfeasor the
opportunity to mitigate the patient’s damages and alleviate the effects of his or her
negligence and encouraging the parties to resolve their dispute short of litigation.”
Id., citing Frysinger at 41 and Ram v. Cleveland Clinic Found., 8th Dist. Cuyahoga
No. 80447, 2002-Ohio-3644, ¶ 24. “Once treatment for a particular condition has
concluded, the opportunity to mitigate has passed, and it makes less sense to
continue to suspend the statute of limitations, even if the medical relationship
remains intact.” Id.{¶17} Nevertheless, “[t]he 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.” Herr v. Robinson
Mem. Hosp., 49 Ohio St.3d 6, 9-10 (1990). “This position is based upon the fact
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that 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.” Peters v. Akron Gen. Med. Ctr., 9th Dist. Summit No.
29479, 2020-Ohio-369, ¶ 18. “Therefore, 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.” Id. The court may also consider a patient’s reasonable
reliance on the assurances from a concurrent- or subsequent-treating physician
against whom malpractice is not alleged. Id. See also Rose v. Garza, 3d Dist.
Marion No. 9-04-17, 2004-Ohio-6960, ¶ 20-22.
{¶18} Here, the trial court did not err by granting summary judgment in favor
of the defendants because there is no genuine issue of material fact that Herrick’s
complaint against the defendants is time barred by the statute of limitations under
R.C. 2305.113(A). Importantly, Herrick did not file his complaint against the
defendants within one-year of when he discovered, or in the exercise of reasonable
care and diligence should have discovered, his injury, and no exception extending
the statute of limitations applies.
{¶19} In this case, the parties dispute the date on which Herrick’s medical
claim accrued for the condition about which he now complains. Herrick contends
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that a cognizable event occurred on November 16, 2017 when Dr. Shook diagnosed
him with a spinal-accessory-nerve injury, which Dr. Shook concluded occurred
during the course of the surgery performed by Dr. Zaghlool. On the contrary, the
defendants contend that a cognizable event occurred on July 28, 2017, the date on
which Herrick sought treatment from his primary care provider relative to his
surgical complications. As a third suggestion, the trial court concluded that a
cognizable event occurred on September 6, 2017—a date by which “Herrick had
seen multiple doctors in addition to Dr. Zaghlool;” “[t]he two-month healing period
had expired;” “Herrick was experiencing severe pain in the same area where the
surgery had taken place;” “[h]e had underwent two (2) separate MRIs and an EMG;”
and “[h]e testified that he knew that there was something wrong and that he
suspected it had something to do with his surgery.” (Doc. No. 28).
{¶20} Even if we construe the evidence and make all inferences in Herrick’s
favor (as we are required to do), we conclude that (based on the specific facts and
circumstances of this case) there is no genuine issue of material fact that the statute
of limitations began to run (at the latest) on September 6, 2017. See Hans v. Ohio
State Univ. Med. Ctr., 10th Dist. Franklin No. 07AP-10, 2007-Ohio-3294, ¶ 29
(concluding that, “even using the latest date,” “appellant failed to timely file the
present cause of action”). Importantly, Herrick testified that he was “worried” and
began “question[ing]” whether “something had gone wrong during the surgery”
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since he “wasn’t feeling any better” after his final post-operative appointment with
Dr. Zaghlool. (Herrick Depo. at 43). Compare Komsa, 2000 WL 522181, at *3
(noting “appellant stated that during his treatment with Dr. Terveer that he was
‘wondering’ about his ‘whole dental treatment’ when assessing when a cognizable
event occurred”).
{¶21} Further, Herrick testified that he suspected something went wrong
during surgery because he knew that his left arm and shoulder were not “right and
it was becoming harder to live with” by the conclusion of his September 6, 2017
appointment with Dr. Randall. (Herrick Depo. at 55). Indeed, by September 6,
2017, Herrick had sought treatment with two other medical providers because he
was experiencing “unbearable” pain and could see that his trapezius muscle was
collapsing. (Id. at 49). Compare Patterson v. Janis, 10th Dist. Franklin No. 07AP-
347, 2007-Ohio-6860, ¶ 20 (concluding “that plaintiff’s continued pain after the
surgery performed by Dr. Janis, which ultimately caused her to seek treatment with
a different doctor, combined with plaintiff first learning after the surgery that a
metallic device had been implanted in her foot, which was contrary to her
understanding of what the surgery would entail, should have placed plaintiff on
notice of the need to investigate possible impropriety and to pursue any available
remedies”).
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{¶22} Thereafter, Herrick contends that this court should consider his
reliance on Dr. Zaghlool’s, Davis’s, and Dr. Randall’s assurances (or lack of a
affirmative diagnosis) indicating that his injury was related to something other than
his surgery when assessing when the cognizable event occurred. Herrick’s
argument is misplaced and is distinguishable from a situation under which a patient
reasonably relied on the assurances from a treating physician (against whom
malpractice is alleged) or a concurrent- or subsequent-treating physician (against
whom malpractice is not alleged). Significantly, regardless of the reason, Herrick
sought medical care from subsequent-treating physicians notwithstanding Dr.
Zaghlool’s assurances—that is, Herrick never returned to Dr. Zaghlool despite his
assurances that it would take “a month or two for [him] to get back to normal.”
(Herrick Depo. at 38). Moreover, there is no contention in the record before us
suggesting that Herrick’s lymph-node-excision surgery was ineffective or that an
intervening injury or event occurred which would have caused Herrick’s
symptomatology. Compare Rose at ¶ 21 (“Holding that appellant should have
known, despite two doctors’ opinions to the contrary, that her pregnancy was the
result of a sterilization improperly performed rather than an ineffective sterilization,
would mean holding appellant to a higher degree of medical knowledge than the
physicians with whom she consulted.”).
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{¶23} Instead, the facts of this case reflect that by September 6, 2017 Herrick
was “aware of facts that would have alerted a reasonable person to investigate the
appropriateness of the surgery performed by Dr. [Zaghlool], and to pursue possible
remedies for any injury sustained as a result of any impropriety.” Patterson at ¶ 20.
That is, Herrick’s continued pain and visible musculature changes following the
surgery performed by Dr. Zaghlool—that continued to persist outside the normal
healing time described by Dr. Zaghlool and which ultimately caused him to seek
treatment with different physicians—should have placed him on notice of the need
to investigate possible impropriety and to pursue his possible remedies. Accord id.Compare George v. Univ. of Toledo Med. Ctr., 10th Dist. Franklin No. 17AP-559,
2018-Ohio-719, ¶ 18 (“Given his ongoing symptoms, coupled with what Dr.
Gobezie told George during his first visit on September 16, 2014, a reasonable jury
could only conclude that this visit was the cognizable event that triggered the
commencement of the statute of limitations period. It was unnecessary for George
to know the full extent of his injury or its specific cause to trigger the
commencement of the statute of limitations.”).
{¶24} Yet, Herrick argues that “the knowledge of an injury or complication
alone is not enough to initiate the statute of limitations as a matter of law * * * .”
(Emphasis added.) (Appellant’s Reply Brief at 7). However, “[a] plaintiff need not
be aware of the full extent of his or her injury to trigger the statute of limitations.”
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Asai v. Obstetrics & Gynecology Assoc., Inc., 12th Dist. Butler No. CA2020-02-
018, 2020-Ohio-4350, ¶ 17, citing Schmitz v. NCAA, 155 Ohio St.3d 389, 2018-
Ohio-4391, ¶ 22. Consequently, that Herrick did not receive his spinal-accessory-
nerve diagnosis and its corresponding nexus with the surgery performed by Dr.
Zaghlool until November 16, 2017 does not change the outcome of this case. See
George at ¶ 18. In other words, even though Herrick did not know the exact
diagnosis of his injury, he was aware (or should have been aware) of the extent and
seriousness of his condition, putting him on notice that his injury was related to the
surgery and that he needed to pursue his possible remedies. Compare Komsa, 2000
WL 522181, at *3 (“Appellant’s claim that he had no idea of what the resulting
injury would be from his condition until he met with Dr. Rosenberg on July 10,
1996, unfortunately runs contrary to the law in Ohio. Although appellant may not
have known that his condition would require gum surgery and retroactive care until
meeting with Dr. Rosenberg, the Flowers decision shows that a person who knows
that he has a certain condition has the duty to inquire into the cause and facts of such
situation.”).
{¶25} Based on this evidence, and when viewing the evidence in favor of
Herrick, we conclude that a reasonable jury could only conclude that the cognizable
event triggering the commencement of the one-year statute of limitations under R.C.
2305.113(A) occurred (at the latest) on September 6, 2017. Accord George at ¶ 18;
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Patterson at ¶ 22. Accordingly, the one-year statute of limitations would have
expired on September 6, 2018. Therefore, Herrick was required to commence his
medical-negligence action on or before September 6, 2018.
{¶26} Because Herrick filed his complaint on April 17, 2019, we must
determine if the statute of limitations was extended. “R.C. 2305.113(B) (formerly
R.C. 2305.11(B)) ‘provides an exception to [R.C. 2305.113(A)] by affording
litigants the opportunity to extend the one-year statute of limitations for an
additional one hundred eighty days from the time proper notice is given to potential
defendants.’” Szwarga v. Riverside Methodist Hosp., 10th Dist. Franklin No. 13AP-
648, 2014-Ohio-4943, ¶ 8, quoting Marshall v. Ortega, 87 Ohio St.3d 522, 523
(2000). R.C. 2305.113(B)(1) provides:
If prior to the expiration of the one-year period specified in division
(A) of this section, 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 against the person notified at
any time within one hundred eighty days after the notice is so given.
To extend the one-year statute of limitations, the 180-day letter must comport with
the requirements of R.C. 2305.113(B)(1)—that is, the letter must be received within
the one-year period described in R.C. 2305.113(A) and must state that the claimant
is considering bringing a malpractice action against the recipient. Szwarga at ¶ 10,
citing Marshall at 525-526.
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{¶27} In this case, Herrick notified the defendants on October 25, 2018 that
he was considering bringing an action on a medical claim. In other words, Herrick’s
notice was not a 180-day letter that extended the statute of limitations beyond
September 6, 2018 because Herrick did not provide it to the defendants within the
one-year period set forth in R.C. 2305.113(A). Consequently, because Herrick’s
letter did not extend the statute of limitations, Herrick’s complaint filed on April 17,
2019 was untimely.
{¶28} Therefore, because Herrick failed to timely file his suit against
defendants, summary judgment in favor of defendants was appropriate.
{¶29} Herrick’s assignment of error is overruled.
{¶30} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
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