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Clark v. University Hospitals of Cleveland8/30/2001
commenced within one year after the cause of action accrues *. The trial court determined that Dr. Lazarus was entitled to summary judgment because appellants named him as a defendant more than one year after their claim for medical malpractice had accrued.
A court may employ the doctrine of equitable estoppel to prohibit a defendant from asserting the defense of the statute of limitations when it would be inequitable to the plaintiff. In Livingston v. Diocese of Cleveland (1998), 126 Ohio App.3d 299, 710 N.E.2d 330, this court discussed the doctrine of equitable estoppel as it pertains to the defense of the statute of limitations. We stated:
In order to establish equitable estoppel, a plaintiff must demonstrate: (1) that the defendant made a factual misrepresentation; (2) that is misleading; (3) that induces actual reliance which is reasonable and in good faith; and (4) which causes detriment to the relying party. [citations omitted]. With regard to the first two elements set forth above, the Ohio Supreme Court has indicated a showing of `actual or constructive fraud' is necessary. State ex rel. Ryan v. State Teachers Retirement Sys. (1994), 71 Ohio St.3d 362 at 368, 643 N.E.2d 1122.
Furthermore, in the context of a statute of limitations defense, plaintiff must show either `an affirmative statement that the statutory period to bring an action was larger than it actually was' or `promises to make a better settlement of the claim if plaintiff did not bring the threatened suit,' or `similar representations or conduct' on defendant's part. [citations omitted]. Id. at 314-315.
Appellants did not demonstrate that Dr. Lazarus misled them by stating that the statutory period to bring the suit was larger than it actually was or that he promised a larger settlement if the Clarks did not sue him. Even if the Clarks relied upon Dr. Lazarus's alleged statement that he would continue treating Mrs. Clark if he was not named in the lawsuit, appellants have not established that it would be inequitable to apply the statute of limitations against them because they did not attempt to commence their suit against Dr. Lazarus once he terminated the doctor- patient relationship with Mrs. Clark in April 1996. Instead, they waited until June 5, 1998 to name him in their lawsuit, over two years after the issuance of the 180-day letter. We cannot conclude that the trial court erred by granting summary judgment in favor of Dr. Lazarus. Appellants' fifth assignment of error is overruled.
We will not address UHC's assignments of error contained in its cross-appeal because they are rendered moot by our disposition of the Clarks' assignments of error.
Judgment affirmed.
It is ordered that appellees recover of appellants costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directi ng the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
COLLEEN CONWAY COONEY, J., AND TERRENCE O'DONNELL, J., CONCUR.
FRANK D. CELEBREZZE, JR. PRESIDING JUDGE
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