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Tober v. Kaiser Foundation Hospitals3/19/1992
JUDGMENT REVERSED AND REMANDED.
Plaintiffs-appellants, Paul E. Tober and his wife Jeanette K. Tober, appeal from the judgment of the common pleas court which rendered summary judgment in favor of defendants-appellees, Kaiser Foundation Hospitals, Dr. Abi Afonja, Dr. Fernando Aymat, Dr. Edward W. Shannon, and Dr. Fernando M. Sekerak. For the reasons that follow, we reverse the judgment of the common pleas court.
Appellants commenced this action on February 5, 1987 alleging the appellees were negligent in misdiagnosing appellant Paul E. Tober's condition as multiple sclerosis, when, in fact, appellant suffered from cervical myelopathy, a surgically correctable spinal disorder. Appellees Kaiser Foundation Hospitals, Dr. Aymat, Dr. Afonja and Dr. Sekerak jointly moved for summary judgment. Drs. Shannon and Toledo thereafter separately moved for summary judgment, Dr. Shannon fully incorporating the previous defendants' motions. Appellants also moved for partial summary judgment. All motions were based on the issue of whether appellants' complaint was time barred pursuant to R.C. 2305.11.
The evidence indicates that beginning in February, 1977, appellant was examined by Dr. Shannon, who diagnosed him as having multiple sclerosis.
Appellant was subsequently treated by a number of physicians, all of whom are or were affiliated with Kaiser Foundation Hospitals. Appellant states all of the defendant/physicians either confirmed the diagnosis of multiple sclerosis or were silent to said diagnosis.
When appellant's condition did not improve, the physicians at Kaiser apparently referred appellant to University Hospitals of Cleveland for a neurological consultation. Appellant avers that on September 4, 1985, he visited Dr. Selman of University Hospitals, who advised appellant he may have bony spurs on his neck. Appellant's deposition testimony indicates he was advised he needed surgery to remove these spurs, but appellant did not want to have surgery until the first of the year. However, appellant's affidavit states Dr. Selman suggested "the possibility of surgery but recommended another 'MRI' (magnetic resonance imaging) test." In any event, it was appellant's understanding that Dr. Selman did not feel surgery was urgent.
Appellant underwent an MRI test on September 16, 1985. Thereafter, sometime during the first week of January, 1986, appellant was told by Dr. Selman that he needed to undergo a myelogram test, which was given to him on January 6, 1985. Appellant was thereafter advised he needed immediate surgery on his neck area. On January 14, 1986, appellant underwent surgery which he believed was called cervical diskectomy and fusion. After the operation, appellant was told he had cervical myelopathy, as opposed to multiple sclerosis.
Appellant avers that prior to January 14, 1986, he "was never given any indication * that he did not have multiple sclerosis" or that the diagnosis of multiple sclerosis was incorrect. Appellant further denied that Dr. Selman told him on September 4, 1985 that he was probably suffering from cervical myelopathy.
Appellees point to a letter dated September 4, 1985 from Dr. Selman to Dr. Elizabeth Kamenar, which states in pertinent part that Dr. Selman told appellant "he should undergo a surgical procedure * which would be more of a prevention of further deterioration *." The letter states that appellant wished to delay surgery until the first of the year. Finally, Dr. Selman wrote he "suggested that we get further workup (sic.) with surface coil MRI studies of both [appellant's] cervical and lumbar spine in order to determine if a myelogram will be necessary preoperatively."
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