 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Proctor v. Southwest Gen. Hosp.3/9/1992
JOHN V. CORRIGAN, Judge.
Plaintiff, Linda Proctor, appeals the grant of summary judgment in favor of defendant, Southwest General Hospital ("Southwest"), stemming from a malpractice claim. Proctor raises the following assignments of error:
R.C. 2305.11(B)(1) provides that the statute of limitations for "an action upon a medical * * * claim shall be commenced within one year after the action accrued * * *."
Subsection (D)(3) of the statute defines a "medical claim" as "* * * any claim that is asserted in any civil action against a physician, podiatrist, or hospital, * * * or against a registered nurse or physical therapist, and that arises out of the medical diagnosis, care, or treatment of any person. `Medical claim' includes derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person."
In granting Southwest's motion for summary judgment the trial court found Proctor's action to be a "medical claim" within the meaning of R.C. 2305.11(D)(3). It further found that her complaint was not filed within the applicable statute of limitations. The court stated:
"In the instant case, the statute commenced to run at the earliest on February 23, 1988, when the incident itself occurred or at the latest on March 23, 1988, when plaintiff filed suit. At the very latest, the statutory period ended on March 23, 1989."
In drafting the language of the initial complaint, counsel for Proctor spelled out a medical claim against Southwest. He confirmed this belief by promptly dismissing the original pleading when the failure to attach the affidavit required on medical claims was noted. The second filing about one year later was the same as the original complaint, again asserting a medical claim. Only after the trial court granted the motion for summary judgment as an untimely filed medical claim did counsel for Proctor advance the argument that the complaint is a non-medical negligence action entitling the appellant to the benefit of the two-year statute of limitations. The one-year statute on medical claims would be rendered meaningless if every similarly drafted complaint could be automatically converted and construed as a general negligence action.
A review of plaintiff's complaint and her brief in opposition to defendant's motion for summary judgment indicates her claim arose out of the medical care and treatment provided at Southwest. Specifically, she claims that Southwest "failed to afford plaintiff an appropriate hospital setting, proper psychiatric care and treatment and safe surroundings," and that Southwest "by and through its agents and employees, treated in a negligent manner * * *." Proctor's complaint clearly alleges a cause of action based on a medical claim arising out of her treatment and care at Southwest.
We also note that throughout all the pleadings filed by Proctor in the trial court, she never alleged a cause of action for negligence based on Southwest'sbreach of a non-medical duty. This argument was first raised on appeal, after the trial court had found she failed to meet the one-year statute of limitations for medical claims. we are inclined to find that since this claim was never raised below, it is deemed waived on appeal. We need not do so, however, since we find her complaint on its face alleges a claim for medical malpractice arising out of her care and treatment at Southwest, and not one for negligence based on a non-medical duty.
Accordingly, the first assignment is overruled.
In her second assignment of error, Proctor claims that even if the present action is found to be a medical claim, the court erred
Page 1 2 3 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|