Hanks v. Burt12/21/1994
BROGAN, Judge.
Appellants, TheDA and Howard Hanks, appeal from a judgment overruling their motion for relief from judgment under Civ.R. 60(B)(4) and (5) by the Montgomery County Court of Common Pleas. The appellants submit two assignments of error.
The facts underlying this matter are familiar and undisputed. Mrs. Hanks was a patient of Dr. James Burt. On June 1, 1984, Dr. Burt, assisted by appellee, Dr. Max E. Blue, performed a hysterectomy and, without her consent, his experimental "love surgery" on Mrs. Hanks at St. Elizabeth Medical Center ("SEMC"), appellee herein. Following surgery, Mrs. Hanks experienced severe health problems, "such as painful intercourse, * * * incontinence, vaginal itching and drainage, fever, nausea and vomiting bowel problems[.]" (Plaintiffs' Motion for Relief, Exhibit A, Affidavit of TheDA Hanks, paragraph 3.) Dr. Burt assured her these problems were "normal after hysterectomy, and that they would all improve with time." Id.
Mrs. Hanks' problems did not improve In 1988, a representative of the Ohio State Medical Board contacted Mrs. Hanks concerning her surgery. Seven months later, the appellants filed a complaint against Dr. Burt and the appellees on February 8, 1989. The appellants alleged medical malpractice against Drs. Burt and Blue, and negligent credentialing against SEMC. Dr. Burt did not respond to the complaint and the court issued a default judgment against him on February 7, 1990. Dr. Burt is not a party to this appeal.
SEMC and Dr. Blue moved for summary judgment, alleging that the appellants did not bring their claims within the one-year statute of limitations for medical claims contained in R.C. 2305.11. The appellants maintained that the statute of limitations did not begin to run until Mrs. Hanks was notified of possible problems with the surgery by the State Medical Board. The trial court granted summary judgment, holding that the appellants were "well aware that the medical problems * * * were the result of some improper medical treatment * * * as early as December, 1984, and definitely prior to February 9, 1987."
The appellants brought their appeal of that decision to this court. We affirmed the trial court's judgment, holding "that Mrs. Hanks' significant medical problems were a cognizable event or events, and that Mrs. Hanks was aware of the malpractice prior to February 9, 1987." Hanks v. Burt (Jan. 25, 1991), Montgomery App. No. 12257, unreported, 1991 WL 6312, jurisdictional motion overruled (1991), 61 Ohio St.3d 1413, 574 N.E.2d 1076.
Subsequent to our decision in Hanks, we decided the case of Browning v. Burt (Aug. 20, 1991), Montgomery App. No. 12176, unreported, 1991 WL 227775, affirmed (1993), 66 Ohio St.3d 544, 613 N.E.2d 993, certiorari denied sub nom. St. Elizabeth Med. Ctr. v. Browning (1994), 510 U.S. ---, 114 S.Ct. 1054, 127 L.Ed.2d 375. In Browning, we held that the one-year statute of limitations did not begin to run on claims of negligent credentialing until the occurrence of a "cognizable event." In that case, we determined that there was no evidence "that the appellant knew or should have known that the hospital had failed to perform its legal duty to her until she saw" a television news program which detailed the medical complaints, similar to those suffered by the appellant, of several of Dr. Burt's patients. Id. We also held that, " o the extent our opinion in Hanks Burt * * * conflicts with this opinion, it is overruled." Id.
The Ohio Supreme Court modified and affirmed our decision. The court held that a claim of negligent credentialing is not a medical claim, but rather is subject to the two-year statute of limitations i
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