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Dougherty v. Fecsik12/16/1996
JAMES D. SWEENEY, Presiding Judge.
Plaintiff-appellant Frank Dougherty, executor of the estate of Susan C. Dougherty, appeals the trial court's ruling granting the motion for summary judgment of defendant-appellee Alfonz I. Fecsik, M.D. The complaint sets forth a cause of action for both medical negligence and for the wrongful death of Mrs. Dougherty.
The appellee provided gynecological services to Susan Dougherty beginning in 1978. The pap smears taken at Mrs. Dougherty's appointments in 1987, 1988, and 1990 were misread as negative, and, consequently, her cervical cancer was undiagnosed until 1990. In April 1990, Mrs. Dougherty sought help from the appellee because she was experiencing some bleeding. The appellee performed several cryosurgeries between April and September 1990. In September, the appellee ordered a biopsy, and the cancer was finally diagnosed. In December 1990, a hysterectomy was performed, and lymph node samples were taken. Mrs. Dougherty was initially diagnosed with Stage Ib cancer, but the grading was changed to Stage III as a result of the lymph node pathology.
The appellant's expert, Dr. William Sweeney III, testified in his deposition that Mrs. Dougherty had a slow-growing tumor from 1987 to 1990 and that the cryosurgery increased the growth of the tumor. In his opinion, Mrs. Dougherty was "operable" in 1987 and 1988. Dr. Sweeney testified that the appellee failed to recognize Mrs. Dougherty's advanced condition in April 1990, and failed to perform a biopsy and colposcope.
The appellant sets forth one assignment of error:
"It was error for the trial court to grant summary judgment based on the statute of limitations pursuant to Ohio Civil Rule of Procedure 66 based on Ohio Revised Code 2305.11 and 2125.04 and Rule 41(A)(1)."
The appellant argues that the trial court erred when it granted summary judgment based upon the statute of limitations. The appellee argues that the trial court properly granted the motion based upon the absence of proof of medical negligence and on the failure of the appellant to refile the wrongful death case within the statute of limitations. The appellant filed supplemental authority on the issue of medical malpractice.
The parties do not dispute that the appellant's original complaint was filed on September 11, 1991. Mrs. Dougherty passed away on July 16, 1992, and the amended complaint adding a cause of action for wrongful death was filed on August 17, 1992. The appellant filed a voluntary dismissal on March 4, 1994, and refiled this suit on March 6, 1995.
Wrongful death is not a derivative action, but rather is an independent cause of action. Thompson v. Wang (1994), 70 Ohio St.3d 176, 637 N.E.2d 917. Such an action is a new cause of action, distinct and apart from the right of action which the injured person may have had. The statute creates a right for those who suffer pecuniary loss by virtue of the decedent's wrongful death. Prem vsCox (1983), 2 Ohio St.3d 149, 2 OBR 694, 443 N.E.2d 511. An action for wrongful death does not arise until the death of the injured person. Thompson, supra.
A statute of limitations bars a right of action unless it is filed within a specified period of time after an injury occurs. Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 574 N.E.2d 457. The legislature has determined that the statute of limitations on an action for wrongful death is two years. R.C. 2125.02(D).
Since Mrs. Dougherty died on July 16, 1992, the statute of limitations on an action for her wrongful death would run on July 16, 1994. It is clear that the original action for wrongful death was timely file
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