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Reaume v. Mendoza9/14/2001
DECISION AND JUDGMENT ENTRY
This medical malpractice appeal comes to us from a summary judgment issued by the Fulton County Court of Common Pleas in favor of an emergency room physician and the agency responsible for his employment placement. Because we conclude that the emergency room physician failed to establish a date for a "cognizable event," we reverse the judgment received in his favor.
On September 29, 1995, an individual struck a single blow to the face of appellant, Joseph A. Reaume. The next day, when appellant experienced extreme pain and swelling in his right eye, he went to the emergency room at the Fulton County Health Center. There, he was treated by appellee Dr. Jose Mendoza. While Mendoza's course of treatment and post-treatment instructions are in dispute, they are not germane to this appeal.
On October 1, 1995, appellant sought care at the Medical College of Ohio Hospital ("MCH") in Toledo. According to appellant, he was totally blind in the affected eye when he arrived at MCH. Doctors admitted him and over the next two weeks operated in an unavailing attempt to restore the vision in his right eye. Appellant was released from MCH on October 13, 1995.
On September 23, 1996, appellant's counsel mailed "180 day" letters to appellee Mendoza and the organization responsible for his employment placement, appellee National Emergency Services, Inc. ("NES"). The letters to appellee Mendoza were sent in care of the Fulton County Health Center and NES. Identical letters to each location were posted by both certified and ordinary mail. At the same time, appellant's counsel sent "180 day" letters to NES on the basis of respondeat superior liability.
The certified letters to appellee Mendoza were returned unclaimed. Dr. Mendoza worked only occasionally at the Fulton County Health Center. As a result, workers taped the unopened "180 day" letter which was mailed to him via ordinary mail to an interior window. Appellee Mendoza later testified that he found the letter on October 26, 1996. Dr. Mendoza testified that he never received the letter addressed to him in care of NES.
On September 27, 1996, NES's risk manager sent Dr. Mendoza a letter advising him that NES had received notice of appellant's claim. In his subsequent deposition, appellee Mendoza testified that he did not remember when, or if, he received this letter from NES.
Appellant initiated the lawsuit which underlies this appeal on January 17, 1997. Named as defendants were appellees Mendoza, and NES, as well as the Fulton County Health Center and a second treating physician. This appeal is interlocutory, pursuant to Civ.R. 54(B), and involves only appellees Mendoza and NES.
At trial, appellee Mendoza moved for summary judgment on the ground that appellant's suit was untimely under the statute of limitations for medical claims, R.C. 2305.11.
Appellee NES moved for summary judgment on grounds that any liability it might have was vicarious, pendent on the claim against appellee Mendoza. Alternatively, NES argued that no employment relationship existed between it and Dr. Mendoza. Therefore, NES could not be held vicariously liable for the doctor's negligence.
The trial court granted both of appellees' summary judgment motions and found there was no just cause for delay, pursuant to Civ.R. 54(B). Appellant now appeals this judgment, setting forth the following three assignments of error:
"1. The trial court erred in granting a motion for summary judgment for defendant-appellee Jose Mendoza, M.D.
"2. The trial court erred in denying plaintiff- appellant's motion to extend the discovery deadl
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