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McCulley v. Good Samaritan Hosp.6/5/1998
them in their time of medical need. The public, in looking to the hospital to provide such care, is unaware of and unconcerned with the technical complexities and nuances surrounding the contractual and employment arrangements between the hospital and various medical personnel operating therein."
In this case, the Hospital's attempt to blame the patient for not following up on the anesthesia equipment within the statutory period is all the more remarkable when the Hospital's lawyer made an affirmative representation at McCulley's deposition that the Hospital did not learn of the Ohmeda report and the findings of that report until early 1995. Suffice it to say that if the Hospital only then learned of the report, this court does not intend to charge McCulley with any earlier knowledge.
As far as the Anesthesia defendants are concerned, the Ohmeda investigation report indicated that the company was notified of the equipment-failure incident on October 22, 1993, and this was verified by two Ohmeda on-site investigators on October 26, 1993. The contacts at the hospital were identified as Dr. Cionni and Nurse Anesthetist Becker. The report indicates that at least one responsible hospital representative was to be present for the investigation. And yet, according to McCulley's deposition, several days after the surgery (the record is unclear when), in a telephone call, Dr. Cionni led McCulley in the direction of "operative recall" and away from equipment failure.
While we are not willing to go as far as McCulley urges and conclude that the defendants fraudulently concealed this information from him, we do hold that, by their actions and inactions, the defendants misled McCulley about his appropriate remedies. Construing the evidence most strongly in McCulley's favor, as wsmust with a summary-judgment motion adverse to him, we thus hold that the statute of limitations did not begin to run until McCulley received the Ohmeda report, and thus that his malpractice claim was timely filed.
In the first syllabus paragraph of Gaines v. Preterm-Cleveland, Inc., the Supreme Court held:
"A physician's knowing misrepresentation of a material fact concerning a patient's condition, on which the patient justifiably relies to his detriment, may give rise to a cause of action in fraud independent from an action in medical malpractice."
McCulley urges us to recognize such a claim in this case independent of his malpractice claim. We decline to do this and hold that, on the record presented, the misleading actions only tolled the statute of limitations and did not, on these facts, create a separate claim for fraud.
The summary judgment granted by the trial court in favor of all defendants is affirmed as to a separate claim for fraud, but reversed on the malpractice claim as to all defendants except Dr. Schimpf. The matter is remanded for further proceedings on the malpractice claim.
Judgment affirmed in part, and reversed in part and cause remanded.
HILDEBRANDT, P.J., and SUNDERMANN, J., concur.
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