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Sparks v. Blanchard Valley Hosp.3/13/1991
EVANS, Judge.
This is an appeal from a judgment of the Court of Common Pleas of Hancock County granting the defendant-appellee's motion for summary judgment based on the statute of limitations set forth in R.C. 2305.11(B)(1) thereby terminating the plaintiff's medical malpractice action.
On March 16, 1978, in Findlay, the plaintiff-appellant, William A. Sparks (hereinafter "plaintiff"), slipped and fell, cutting his shoulder on broken glass. At the Blanchard Valley Hospital (hereinafter "BVH"), a nurse took thsplaintiff's case history, including a recounting of how he cut his shoulder. After a nurse cleaned the cut, the defendant-appellee, Leroy L. Schroeder, M.D. (hereinafter "defendant"), stitched it up and told the plaintiff to return in a few weeks to have the stitches removed. The plaintiff, however, spent part of each year working in West Virginia. Before the stitches were ready to be removed, he had returned to West Virginia. Thus, he did not return to see the defendant and he subsequently removed the stitches himself.
Three months later, the plaintiff's shoulder still hurt so he went to see Dr. Yojnich in West Virginia. The plaintiff told the doctor that he had previously cut his shoulder, but he did not mention that he cut it by falling on glass. Dr. Yojnich diagnosed the condition as bursitis and prescribed a cream to be applied to the shoulder. The plaintiff did not follow-up his treatment with Dr. Yojnich.
Approximately eight years later, having suffered intermittent pain in his shoulder during certain activities, the plaintiff consulted with Dr. Marshall in Tiffin, Ohio. Initially, Dr. Marshall diagnosed bursitis and prescribed more cream, but the pain persisted. A few weeks later, Dr. Marshall took X-rays and discovered foreign bodies in the shoulder which, upon removal through surgery, proved to be pieces of glass.
On June 17, 1988, the plaintiff and his wife filed suit against the defendant and BVH alleging negligent treatment by the defendant in BVH's emergency room. BVH and the plaintiff's wife were later dismissed as parties. The defendant then filed a motion for summary judgment which the court sustained and dismissed the case. The plaintiff timely appealed to this court.
The plaintiff asserts as his first two assignments of error:
"The court erred in granting summary judgment against plaintiff as issues of material fact exist which require resolution by a jury.
"The court erred in granting judgment for defendant as summary judgment should not be granted on speculation as to what may have occurred if a party had acted in a different manner."
These assignments of error focus on the propriety of the granting of summary judgment and will be consolidated for review.
The rule for the granting of summary judgment states:
"* * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears frossuch evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor." Civ.R. 56(C).
The trial court had before it the
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