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Sparks v. Blanchard Valley Hosp.3/13/1991
dant and is not advised that his condition was proximately related to prior treatment by the defendant; but is related to an independent, non-related disease."
This assignment of error states the issue too broadly. A person need not be "advised" that a condition is proximately related to prior treatment. Such a requirement goes beyond the test in Hershberger, supra. But we will treat the assignment as asserting error in granting summary judgment against the plaintiff.
After Hershberger, supra, the Supreme Court announced Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93, in which Hershberger was explained as follows:
"The `extent and seriousness of his condition' language of the test set forth in Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, 516 N.E.2d 204, paragraph one of the syllabus, requires that there be an occurrence of a `cognizable event' which does or should lead the patient to believe that the condition of which the patient complains is related to a medical procedure, treatment or diagnosis previously rendered to the patient and where thscognizable event does or should place the patient on notice of the need to pursue his possible remedies."
A review of the facts of this case discloses no cognizable event which should have led this plaintiff to believe that his condition was related to a medical procedure. Several months after the medical procedure in question the plaintiff went to a physician in a city where he was then employed because the shoulder which he had cut previously continued to bother him. He was given a diagnosis of bursitis with a cream to be applied to the shoulder. Certainly there is nothing here that would constitute a cognizable event. If anything this diagnosis would prevent the plaintiff from realizing that his condition was related to a prior medical procedure. What is more reasonable than a diagnosis of bursitis in a shoulder which has been recently injured? We find this applicable comment in Herr v. Robinson Memorial Hospital (1990), 49 Ohio St.3d 6, 9-10, 550 N.E.2d 159, 162:
"The cognizable event analysis allows a patient to reasonably rely on his physician's assurances while placing a continuing duty on the medical profession to act with the requisite skill and care."
Over the intervening years plaintiff experienced pain in his shoulder from time to time depending primarily on the activities he was required to perform at work. whatever the pain was, plaintiff controlled it with non-prescription medication. Thus, we conclude that pain alone could not be the cognizable event in this case.
Without a cognizable event to trigger the statute of limitations we conclude that it was error for the trial court to grant summary judgment on the ground that this action was barred by the statute of limitations.
The third assignment of error is sustained.
Having found error prejudicial to the plaintiff in the particulars assigned and argued, we reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
HADLEY and SHAW, JJ., concur.
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