Shade v. Bleser12/9/2005
{ } Arlene Shade, as administrator of the estate of William Shade, appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment to Dr. Scott Bleser ("Dr. Bleser") and Bellbrook Medical Center ("Bellbrook"), Dr. Bleser's professional corporation, on her survivorship medical malpractice claim. The court held that the action was not brought within the one-year statute of limitations.
{ } On April 20, 2001, William Shade underwent an ultrasound at the office of Dr. Scott Bleser. Upon examination, Dr. Bleser noticed a deep vein thrombosis in his left leg and instructed Mr. Shade to go to Miami Valley Hospital ("MVH") for treatment. That day, Mr. Shade was admitted to Miami Valley Hospital where he received anticoagulation therapy. Mr. Shade was discharged to his home on April 23, 2001. His discharge instructions stated that he was to receive daily monitoring of his anticoagulation therapy and physical therapy. Fidelity Health Care was retained to perform the home monitoring and blood testing; Mr. Shade was also to continue care with Dr. Bleser. On April 29 and 30, Mr. Shade was not monitored, tested, or visited. On April 30, 2001, he was re-admitted to the hospital due to hemorrhaging. He remained at MVH until July 10, 2001, when he was transferred to the Veterans Administration Medical Center. Mr. Shade died on July 16, 2001.
{ } On January 8, 2003, Arlene Shade, individually and as administrator of her husband's estate, brought suit against Dr. Bleser, Bellbrook, MVH, South Dayton Acute Care Consultants, Inc. ("South Dayton"), Fidelity Health Care, Inc. ("Fidelity"), Dr. Stephen Lucht ("Dr. Lucht"), and Dr. Wendy Schmitz ("Dr. Schmitz"), alleging medical negligence and loss of consortium. With regard to Dr. Bleser, Mrs. Shade alleged that the physician had failed to properly monitor her husband between April 24, 2001, and April 30, 2001. MVH, South Dayton, Dr. Lucht and Dr. Schmitz were subsequently voluntarily dismissed from the litigation.
{ } On March 8, 2004, Dr. Bleser and Bellbrook filed a motion for partial summary judgment, arguing that Mrs. Shade's claims were filed after the expiration of the statute of limitations. They asserted that the statute of limitations began to run on April 30, 2001, when Mr. Shade began to experience hemorrhaging. Dr. Bleser asserted that the termination of the physician-patient relationship occurred on April 30, 2001, as well. Dr. Bleser and Bellbrook also claimed that Mrs. Shade's suit was untimely, because she had failed to notify them of her intent to sue prior to the expiration of the limitations period and, consequently, she could not avail herself of the 180-day extension provided by R.C. 2305.11(B)(1).
{ } On October 6, 2004, the trial court granted Dr. Bleser's and Bellbrook's motion as to the survivorship claim. The court noted that Mrs. Shade had not disputed that the cognizable event occurred on April 30, 2001, and it found that the termination rule did not extend the accrual date, because there was no evidence that "the patient had any future scheduled appointments with Defendant Bleser and no evidence Defendant Bleser continued to provide care, advice, medication or treatment." The court thus held that, because Mrs. Shade did not file suit or provide Dr. Bleser or Bellbrook with a notice of intent by April 30, 2002, i.e., one-year from the cognizable event, the survivorship claim was untimely. The court indicated that Mrs. Shade's loss of consortium claim had been timely filed.
{ } On November 8, 2004, Mrs. Shade filed a notice of appeal regarding the October 6, 2004, order. This appeal was dismissed for lack of a final appealable order. In January 2005, Mr
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