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Simonds v. Kearney2/20/2002
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 Stewart and Dulcie Simonds appeal from the decision of the Wayne County Court of Common Pleas granting Appellee Walter Kearney, M.D. ("Dr. Kearney") summary judgment. We affirm.
I.
On November 6, 1996, Stewart underwent carpal tunnel release surgery on his left hand. The surgery was performed by Dr. Kearney. Stewart saw Dr. Kearney on November 14, 1996 for follow-up care, and this was the final time Dr. Kearney treated Stewart for his carpal tunnel condition. Stewart suffered loss of strength and pain in his left hand after the carpal tunnel release procedure. He sought out a second opinion from Dr. Sanford in May 1997, who referred him to Dr. Culver at the Cleveland Clinic. Stewart continued to see Dr. Kearney for other medical procedures. Dr. Kearney removed lesions from Stewart's arm in July 1998. Dr. Kearney also removed a skin tag from Stewart's face in January 1999. Stewart has not sought treatment for any medical condition from Dr. Kearney since the January 1999 visit.
On October 27, 2000, Stewart and Dulcie filed a complaint against Dr. Kearney, alleging that Dr. Kearney negligently performed the carpal tunnel release procedure, causing permanent injury to Stewart. Dulcie filed a derivative claim based on loss of consortium. On March 23, 2001, Dr. Kearney moved for summary judgment on the grounds that their complaint was barred by the statute of limitations. The trial court granted Dr. Kearney's motion for summary judgment on June 19, 2001. This appeal followed.
II. Assignment of Error
The trial court erred when it granted summary judgment in favor of appellee since material issues of fact exist concerning the date of accrual of the statute of limitations.
In their sole assignment of error, the Simondses contend that the trial court erred when it granted summary judgment to Dr. Kearney. We disagree.
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. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12.
Pursuant to Civil Rule 56(C), summary judgment is proper if:
(1) No genuine issue as to any material fact remains 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 to but 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. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327.
To prevail on a motion for summary judgment, the party moving for summary judgment must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The non-moving party must then present evidence that some issue of material fact remains for the trial court to resolve. Id.
The statute of limitations for medical malpractice actions is set forth in R.C. 2305.11(B)(1). R.C. 2305.11(B)(1) provides, in pertinent part, " n action upon a medical, dental, optometric, or chiropractic claim shall be commenced within one year after the cause of action acc
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