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Corcino v. Neurosurgical Services3/27/2002
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellants Mary Ann and Joseph Corcino appeal the decision of the Lorain County Court of Common Pleas granting summary judgment to appellees Juris Dakters, M.D. and Neurosurgical Services, Inc. and the decision granting summary judgment to appellee Rawinson Fernando, M.D. This Court reverses and remands the cause for further proceedings.
I.
On December 7, 1989, Mary Ann suffered the first of three strokes that are the subject of this action. While in the hospital following her first stroke, Mary Ann was treated by Dr. Fernando. Tests revealed the cause of Mary Ann's 1989 stroke to be an atherosclerotic occlusion, or blockage, of the left carotid artery, causing a lack of blood flow to the brain. Dr. Fernando referred Mary Ann to Dr. Dakters, a neurosurgeon, for a determination as to whether a carotid endarterectomy should be performed in an attempt to open up the blocked artery. Dr. Dakters determined that Mary Ann was not a candidate for the surgery. Dr. Fernando provided further care concerning Mary Ann's recovery and rehabilitation, and Mary Ann recovered almost completely from the 1989 stroke.
On January 11, 1993, Mary Ann suffered a second stroke from a lack of blood flow from the left carotid artery. The 1993 stroke resulted in paralysis of the right side of Mary Ann's body and severe cognitive dysfunction. On May 2, 1995, Dr. Hazen performed an endarterectomy on Mary Ann's right carotid after it was discovered that her right carotid had become significantly blocked. Mary Ann suffered her third stroke post-operatively. The third stroke rendered Mary Ann a quadriplegic.
On April 3, 1996, the Corcinos sent 180-day letters to extend the statute of limitations as provided by statute. The Corcinos filed their complaint on October 3, 1996 against Neurosurgical Services, Inc., Dr. Dakters, Dr. Fernando, M.R. Chohan, M.D., and Gale Hazen, M.D, alleging a cause of action for medical malpractice and spousal derivative claims. The Corcinos voluntarily dismissed Dr. Hazen on March 4, 1999.
On July 7, 2000, Dr. Fernando filed his motion for summary judgment. The trial court granted Dr. Fernando's motion on September 8, 2000. Dr. Dakters and Neurosurgical Services filed their motion for summary judgment on December 12, 2000. The trial court granted their motion on January 24, 2001. At this time, the only remaining defendant was Dr. Chohan. On July 25, 2001, the Corcinos voluntarily dismissed Dr. Chohan. This appeal followed.
Assignment of Error
The trial court erred in granting summary judgment on the ground that plaintiffs-appellants were barred by expiration of the statute of limitations when the statute of limitations was tolled by application of the "discovery rule."
In their sole assignment of error, appellants challenge the trial court's decisions to grant summary judgment to Dr. Fernando and to Neurosurgical Services and Dr. Dakter. Appellants argue that their action was not barred by the statute of limitations because it was tolled by the discovery rule. Although this Court disagrees with the basis for appellants' argument, this Court agrees with the conclusion that summary judgment was improper.
An appellate court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Vi
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