[Cite as Bugh v. Dept. of Rehab. & Corr., 2019-Ohio-112.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Richard Bugh,                                       :

                Plaintiff-Appellant,                :              No. 17AP-779
                                                             (Ct. of Cl. No. 2016-00387)
v.                                                  :
                                                            (REGULAR CALENDAR)
Ohio Department of Rehabilitation                   :
and Correction et al.,
                                                    :
                Defendants-Appellees.
                                                    :



                                           D E C I S I O N

                                    Rendered on January 15, 2019


                On brief: McNamara, Demczyk Co., L.P.A., and Sidney N.
                Freeman, for appellant. Argued: Sidney N. Freeman.

                On brief: Dave Yost, Attorney General, Jeanna V. Jacobus,
                and Brian Kneafsey, for appellee Ohio Department of
                Rehabilitation and Correction. Argued: Brian Kneafsey.

                             APPEAL from the Court of Claims of Ohio

BROWN, J.
        {¶ 1} Plaintiff-appellant, Richard Bugh, appeals from a judgment of the Court of
Claims of Ohio granting the Civ.R. 56(C) motion for summary judgment filed by defendant-
appellee, Ohio Department of Rehabilitation and Correction ("ODRC"). Because the statute
of repose does not bar Bugh's complaint against ODRC, we reverse.
        {¶ 2} On May 4, 2016, Bugh filed a complaint for medical negligence against ODRC
and the Ohio State University Wexner Medical Center ("OSUWMC"). Bugh's complaint
alleged both defendants failed to properly treat, manage, and/or diagnose his
No. 17AP-779                                                                                 2

diaphragmatic paralysis. Bugh asserted he suffered "irreversible diaphragmatic paralysis,"
and associated pain and suffering, as a result of defendants' negligence. (Compl. at ¶ 13, 18.)
       {¶ 3} Bugh was incarcerated in an ODRC institution from 1989 to 2014. Beginning
in 2008, Bugh began to experience difficulty breathing. Bugh sought treatment for his
breathing troubles from doctors at both ODRC and OSUWMC; yet his respiratory distress
continued to progress. Following his release from prison, Bugh went to a Veterans Affairs
("VA") Hospital on November 21, 2014. Doctors at the VA Hospital diagnosed Bugh with
bilateral diaphragmatic paralysis caused by phrenic nerve damage.
       {¶ 4} The parties stipulated Drs. Todd Houglan and Martin Akusoba were
employees of ODRC, and Drs. James O'Brien, Amy Pope-Harman, and Bakari Elsheikh
were employees of OSUWMC.
       {¶ 5} On April 26, 2017, OSUWMC filed a Civ.R. 56(C) motion for summary
judgment. OSUWMC asserted Bugh's claims against OSUWMC were barred by the statute
of repose contained in R.C. 2305.113(C).
       {¶ 6} On July 31, 2017, the Court of Claims granted OSUWMC's motion for
summary judgment and dismissed OSUWMC from the action. The court observed that, in
the expert reports attached to OSUWMC's motion, "the only standard of care violations
identified on the part of any medical professional at OSUWMC were by Dr. James O'Brien."
(Entry of Partial Dismissal at 2-3.) As Dr. O'Brien only saw Bugh in 2008 and 2009, the
court concluded that Bugh's complaint against OSUWMC was time-barred by the statute of
repose.
       {¶ 7} ODRC filed its motion for summary judgment on August 9, 2017. ODRC
supported its motion with an affidavit from its counsel which authenticated copies of the
reports from Bugh's expert witnesses, Drs. John Conomy and David Thomas. ODRC
acknowledged "[b]oth experts opine[d] that DRC should have appreciated the neurological
etiology and provided Mr. Bugh with spinal decompression at some point, but no later than
2011 or very early 2012." (ODRC Mot. for Summ. Jgmt. at 2.) As such, ODRC argued Bugh's
May 4, 2016 complaint was filed outside the R.C. 2305.113(C) four-year repose period.
       {¶ 8} Bugh filed a response to ODRC's motion for summary judgment on
September 1, 2017. Bugh asserted ODRC's failure to properly manage, diagnose, and/or
treat his progressively worsening phrenic nerve impingement continued until his release
No. 17AP-779                                                                                3

from prison on November 21, 2014. Bugh filed affidavits from Drs. Conomy and Thomas to
support his response in which the experts opined that procedures in addition to spinal
decompression, such as diaphragmatic plication and/or pacing, could have offered Bugh
some relief through November 21, 2014. (See Conomy Aff. at ¶ 7; Thomas Aff. at ¶ 9.)
       {¶ 9} On October 4, 2017, the Court of Claims granted ODRC's motion for
summary judgment. The court initially observed Drs. Conomy's and Thomas' reports were
properly submitted pursuant to Local Rule of the Court of Claims of Ohio ("L.C.C.R.") 7(E).
The court observed that both doctors were critical of Dr. O'Brien's initial care and treatment
of Bugh, and that Dr. Thomas "criticize[d] the care and treatment rendered by Dr. Houglan
or medical professionals, apparently through January 2012." (Entry Granting Def's. Mot.
for Summ. Jgmt. at 3.) Regarding Drs. Conomy's and Thomas' affidavits, the court held
these affidavits "set forth new opinions on issues that the experts did not raise in their
reports," and that the new opinions in the affidavit were barred under L.C.C.R. 7(E). (Entry
Granting Def's. Mot. for Summ. Jgmt. at 3.) See L.C.C.R. 7(E) (stating that "[a]n expert will
not be permitted to testify or provide opinions on issues not raised in his report").
       {¶ 10} The court observed that "the essence of plaintiff's claim is that defendants
failed to timely diagnose spinal compression as the cause of his breathing problems and to
offer treatment to decompress the spine and prevent him from becoming what his experts
refer to as a 'respiratory cripple.' " (Entry Granting Def's. Mot. for Summ. Jgmt. at 4.) The
court noted Dr. Conomy's report, which stated that Bugh "would have been a candidate for
spinal decompression and very likely relief of his breathing difficulties. This could have
been done as late as 2011." (Dr. Conomy Report at 3.) The court concluded that "[e]ven if
there were continued malpractice through November 21, 2014, the malpractice upon which
plaintiff's claim is based had to have occurred within the timeframe when plaintiff was a
candidate for spinal decompression, which was more than four years before plaintiff
commenced this action." (Entry Granting Def's. Mot. for Summ. Jgmt. at 5.) Accordingly,
the court held the medical negligence statute of repose barred Bugh's action against ODRC.
       {¶ 11} Bugh appeals, assigning the following two errors for our review:
              [I.] THE TRIAL COURT ERRED, TO THE PREJUDICE OF
              MR. BUGH, BY GRANTING ODRC'S MOTION FOR
              SUMMARY JUDGMENT.
No. 17AP-779                                                                                    4

              [II.] THE TRIAL COURT ERRED, TO THE PREJUDICE OF
              MR. BUGH, BY INTERPRETING THE OHIO STATUTE OF
              REPOSE FOR MEDICAL MALPRACTICE ACTIONS IN SUCH
              A WAY THAT HIS RIGHT TO COURT ACCESS UNDER THE
              OHIO CONSTITUTION WAS VIOLATED.

       {¶ 12} Summary judgment is proper only when the moving party demonstrates that:
(1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is
entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable
minds can come to but one conclusion, and viewing such evidence most strongly in favor of
the non-moving party, that conclusion is adverse to the party against whom the motion for
summary judgment is made. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd.,
78 Ohio St.3d 181, 183 (1997). Appellate review of summary judgment motions is de novo.
Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997).
       {¶ 13} Bugh's first assignment of error asserts the Court of Claims erred in granting
ODRC's motion for summary judgment. Bugh does not assign the Court of Claims' award
of summary judgment to OSUWMC as error in the present appeal. (See Appellant's Brief at
9.)
       {¶ 14} The Court of Claims concluded the four-year statute of repose in R.C.
2305.113(C) barred Bugh's complaint against ODRC. The Court of Claims determined on
summary judgment that once Bugh was no longer eligible for spinal decompression
treatment that any alleged medical negligence ended and did not continue. Bugh's expert
stated that had he received spinal decompression treatment he "would not be the
respiratory cripple he is today." (Dr. Thomas Report at 11.) We note the present action
concerns solely a medical negligence claim based on personal injury; the action does not
concern a wrongful death claim.
       {¶ 15} While a statute of limitations "establishes 'a time limit for suing in a civil case,
based on the date when the claim accrued,' " a statute of repose "bars 'any suit that is
brought after a specified time since the defendant acted * * * even if this period ends before
the plaintiff has suffered a resulting injury.' " Antoon v. Cleveland Clinic Found., 148 Ohio
St.3d 483, 2016-Ohio-7432, ¶ 11, quoting Black's Law Dictionary 1637 (10th Ed.2014).
Thus, statutes of repose and statutes of limitation "have distinct applications." Id. While
statutes of limitations "require plaintiffs to pursue 'diligent prosecution of known claims,' "
No. 17AP-779                                                                                 5

statutes of repose "effect a legislative judgment that a defendant should 'be free from
liability after the legislatively determined period of time.' " CTS Corp. v. Waldburger, 573
U.S. 1, 8, 9 (2014), quoting Black's Law Dictionary 1546 (9th Ed.2009) and 54 C.J.S.,
Limitations of Actions, Section 7 at 24 (2010).
       {¶ 16} A statute of limitations begins to run when the cause of action accrues. R.C.
2305.113(A). In Prysock v. Ohio State Univ. Med. Ctr., 10th Dist. No. 01AP-1131, 2002-
Ohio-2811, ¶ 11, we provided guidance on how to determine the accrual date for the
purposes of medical negligence:
              In determining the accrual date for a medical malpractice cause
              of action, courts examine three factors: (1) the time at which
              the injured party became aware, or should have become aware,
              of the extent and seriousness of his condition; (2) whether the
              injured party was aware, or should have been aware, that the
              condition stemmed from a specific professional medical service
              previously rendered him; and (3) whether the condition would
              put a reasonable person on notice of the need to inquire about
              the cause of the condition. Hershberger v. Akron City
              Hosp.(1987), 34 Ohio St.3d 1, 516 N.E.2d 204, paragraph one
              of the syllabus.

       {¶ 17} Ohio's statute of limitations for medical negligence actions states that "an
action upon a medical * * * claim shall be commenced within one year after the cause of
action accrued." R.C. 2305.113(A). See also R.C. 2305.113(B)(1) (providing a 180-day
extension to the one-year limitations period in R.C. 2305.113(A) if the prospective medical
negligence claimant provides the defendant with written notice of the forthcoming action).
       {¶ 18} The Court of Claims applied the statute of repose (R.C. 2305.113(C)) to Bugh
and held that his suit was time-barred under the statute of repose. The Court of Claims set
an unspecified date in late 2011 as the time when the medical negligence occurred, noting
this date was the last time Bugh was seen by prison doctors who could have ordered him to
have spinal decompression treatment but instead did nothing. Bugh's condition continued
to worsen thereafter, resulting in Bugh's present condition as a "respiratory cripple."
       {¶ 19} A statute of repose "puts an outer limit on the right to bring a civil action,"
and that "limit is measured not from the date on which the claim accrues but instead from
the date of the last culpable act or omission of the defendant." CTS Corp. at 8. Thus, a
"statute of repose limit is 'not related to the accrual of any cause of action; the injury need
No. 17AP-779                                                                                 6

not have occurred, much less have been discovered.' " Id., quoting 54 C.J.S., Limitations of
Actions, Section 7 at 24 (2010). A repose provision is essentially "equivalent to 'a cutoff.' "
Id., quoting Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363
(1991).
          {¶ 20} Ohio's medical negligence statute of repose, R.C. 2305.113(C), provides that
"[n]o action upon a medical * * * claim shall be commenced more than four years after the
occurrence of the act or omission constituting the alleged basis of the medical * * * claim."
R.C. 2305.113(C)(1). If an action on a medical claim "is not commenced within four years
after the occurrence of the act or omission constituting the alleged basis of the medical * * *
claim, then, any action upon that claim is barred." R.C. 2305.113(C)(2). R.C. 2305.113(C) is
"a true statute of repose that applies to both vested and nonvested claims." Antoon at ¶ 1.
Thus, a medical negligence action "must be filed within four years of the occurrence of the
act or omission alleged to have caused a plaintiff's injury." Id.
          {¶ 21} The medical negligence statute of repose was enacted by the General
Assembly in 1975 as an alleged "emergency measure," in a "legislative 'response to what
was largely perceived throughout the country to be a medical negligence "crisis" manifested
by sharply increased medical malpractice insurance premiums, cancellation of policies, and
physician work slowdowns.' " Mominee v. Scherbarth, 28 Ohio St.3d 270, 273-74 (1986),
quoting Vance v. St. Vincent Hosp. & Med. Ctr., 64 Ohio St.2d 36, 40 (1980). "The statute
of repose exists to give medical providers certainty with respect to the time within which a
claim can be brought and a time after which they may be free from the fear of litigation."
Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, ¶ 19. See id. at ¶ 20 (observing that
forcing medical providers to defend medical claims that occurred "10, 20, or 50 years before
presents a host of litigation concerns, including the risk that evidence is unavailable
through the death or unknown whereabouts of witnesses, the possibility that pertinent
documents were not retained, [and] the likelihood that evidence would be untrustworthy
due to faded memories").
          {¶ 22} "Although in some cases, discovery of an injury will not occur within the time
frame chosen, the General Assembly has struck a rational balance between the rights of
prospective claimants to pursue their allegations and the rights of prospective defendants
to have protection from stale litigation." Id. at ¶ 28. The Supreme Court of Ohio has
No. 17AP-779                                                                                 7

"continued to uphold the constitutionality of statutes of repose in some circumstances," and
specifically has held that "statutes of repose do not automatically violate the Ohio
Constitution's right-to-remedy provision." Antoon at ¶ 18, citing Ruther at syllabus; Groch
v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, paragraph two of the
syllabus; Opalko v. Marymount Hosp., 9 Ohio St.3d 63, 65 (1984). In Mominee at syllabus,
however, the court held the medical negligence statute of repose was unconstitutional as
applied to minors.
        {¶ 23} Exceptions to the R.C. 2305.113(C) repose period exist "for malpractice
discovered during the fourth year after treatment" (and for medical negligence that results
in leaving a foreign object in a patient's body). Ruther at ¶ 2, citing R.C. 2305.113(D)(1) and
(2). Such exceptions permit one additional year after discovery of an injury (as opposed to
when a cause of action "accrues" as is the triggering mechanism in the application of the
statute of limitations) to file suit. Id. Since Bugh discovered the medical negligence on the
date he went to the VA hospital, November 21, 2014, he discovered it in the first three years
of the statute of repose. Accordingly, the exception in R.C. 2305.113(D)(1) is irrelevant. We
focus then solely on the four-year period of the statute of repose.
        {¶ 24} "Simply stated, regardless of the applicable statute of limitations, 'a person
must file a medical claim no later than four years after the alleged act of malpractice occurs
or the claim will be barred.' " York v. Hutchins, 12th Dist. No. CA2013-09-173, 2014-Ohio-
988, ¶ 10, quoting Ruther at ¶ 2. See also Mominee at 273; Pearsall v. Guernsey, 3d Dist
No. 5-16-25, 2017-Ohio-681, ¶ 20. See also Wade v. Reynolds, 34 Ohio App.3d 61 (10th
Dist.1986); Atwood v. UC Health, S.D.Ohio No. 1:16cv593 (Aug. 17, 2018) (holding that
Ohio's saving statute, R.C. 2305.19, applies to "save" a case originally filed within the four-
year repose period which was subsequently dismissed and refiled within one year). To
determine whether the statute of repose bars an action, we must assess the last culpable act
or omission and determine whether the complaint was filed within four years of that
occurrence or, if subsequently dismissed, was refiled pursuant to the savings statute within
one year of the dismissal even though such refiled complaint is past the four-year period.
Wade.
        {¶ 25} Appellant asserts the occurrence date for the statute of repose period "was
the date Mr. Bugh was released from prison, November 21, 2014, when Drs. Houglan and
No. 17AP-779                                                                                8

Akusoba no longer were his physicians." (Appellant's Brief at 16.) The date of Bugh's release
from prison and, thus, the date on which Bugh no longer received medical treatment from
ODRC, would be relevant to the statute of limitations period. See Ruther at ¶ 25
(recognizing that "[f]or purposes of the statute of limitations, * * * a medical claim accrues
upon the later of the termination of the doctor-patient relationship or the discovery of the
injury"). However, the date Bugh was released from prison is irrelevant for purposes of the
statute of repose.
       {¶ 26} In their reports, both Drs. Conomy and Thomas observed that, prior to his
incarceration in 1989, Bugh had experienced traumatic injuries to his neck. These injuries
eventually led to compression of his spine and the resulting nerve damage and paralyzing
of his respiratory muscles. Both doctors were critical of ODRC's medical staff's failure to
adequately diagnose the cause of Bugh's progressively worsening respiratory difficulties
and/or to offer him meaningful relief. Dr. Conomy opined that "[b]y 2013, Mr. Bugh was a
pulmonary cripple unless he was standing or seated upright." (Dr. Conomy Report at 3.)
Dr. Thomas opined that the "definitive procedure" for Bugh's issues would have been "to
release the slow compression of the phrenic nerves in the cervical region," and that the "lack
of actions by [Bugh's] providers were responsible for his crippling status and were a
deviation from standard of care." (Dr. Thomas Report at 11-12.)
       {¶ 27} While Dr. Conomy opined that Bugh would have been a candidate for spinal
decompression surgery as late as 2011, Dr. Thomas opined that "[i]f by 2011 or 2012 [Bugh]
had been offered a laminectomy and discectomy he more likely than not would not be a
respiratory cripple today." (Dr. Thomas Report at 10-11.) Dr. Thomas does not qualify when
in 2012 this procedure had to occur. Viewing the statement in a light most favorable to
Bugh, if Bugh had received a laminectomy and discectomy at any point in 2012, he would
not be a "respiratory cripple" today.
       {¶ 28} Dr. Thomas reviewed Bugh's medical records, and explained that Bugh's
medical providers ignored both "his declining respiratory status," as well as "his nerve
dysfunction on the right side of his body." (Dr. Thomas Report at 10.) Bugh's records
demonstrated that "by 2011 there [was] the new onset of a wing scapula on the RIGHT."
(Emphasis sic.) (Dr. Thomas Report at 12.) "A 'winged' scapula is brought about by a
compromise of the long thoracic nerve whose trunks arise from the cervical vertebrae. This
No. 17AP-779                                                                                9

nerve has importance in respiratory movements." (Dr. Thomas Report at 10.) Dr. Thomas
explained that "[w]hen Mr. Bugh developed a RIGHT wing scapula it should have become
obvious that there was some cervical impingement on the right side of his spinal column as
well as the known issues on the left." (Emphasis sic.) (Dr. Thomas Report at 12-13.)
       {¶ 29} Dr. Thomas notes a January 25, 2012 report from a neurologist, in which
Bugh's "left hemi-diaphragmatic paralysis is noted" and additionally that Bugh "is starting
to develop a RIGHT hemi-diaphragmatic paralysis." (Emphasis sic.) (Dr. Thomas Report
at 13.) Dr. Thomas observes that "[i]n spite of this nothing definitive is done by [Bugh's]
primary prison providers other than a note in the record that on July 26, 2012 this is
acknowledged, but * * * there is nothing in the record that indicates any of his providers are
considering progressive spinal compression as an etiology." (Dr. Thomas Report at 13.)
       {¶ 30} Thus, the "development of the left diaphragmatic hemi-paralysis, the
'winged' scapula on the right and the eventual right sided diaphragmatic paralysis
continually point to a generalized slow neck compression which is never considered by any
of [Bugh's] providers." (Dr. Thomas Report at 11.) Again, Dr. Thomas opined that "[i]f by
2011 or 2012 [Bugh] had been offered a laminectomy and discectomy he more likely than
not would not be a respiratory cripple today." (Dr. Thomas Report at 11.)
       {¶ 31} Dr. Thomas' report, viewed in a light most favorable to Bugh, demonstrates
that Bugh remained a candidate for spinal decompression surgery involving laminectomy
and discectomy through 2012. Dr. Thomas' report also indicates that, on July 26, 2012,
Bugh's ODRC medical providers reviewed a neurological report which noted that Bugh had
started to develop right hemi-diaphragmatic paralysis in addition to his already present left
hemi-diaphragmatic paralysis and winged scapula on the right. Thus, as of July 26, 2012,
Bugh's ODRC medical providers should have considered spinal compression as an etiology,
and both should have and could have offered Bugh spinal decompression surgery at that
time. Had ODRC taken these actions, Bugh would not be respiratorily disabled today.
       {¶ 32} Accordingly, reviewing the Civ.R. 56(C) evidence, and construing that
evidence in a light most favorable to Bugh, the last culpable act or omission by ODRC
occurred July 26, 2012. Because Bugh's May 4, 2016 complaint was filed within four years
of the last culpable act or omission committed by ODRC, Bugh's action against ODRC was
not barred by R.C. 2305.113(C).
No. 17AP-779                                                                                10

       {¶ 33} Based on the foregoing, Bugh's first assignment of error is sustained. Our
ruling on Bugh's first assignment of error renders his second assignment of error moot.
       {¶ 34} Having sustained Bugh's first assignment of error, rendering Bugh's second
assignment of error moot, we reverse the judgment of the Court of Claims of Ohio and
remand the case to that court for further proceedings in accordance with law and consistent
with this decision.
                                                  Judgment reversed and cause remanded.
                                  BRUNNER, J., concurs.
                                   TYACK, J., dissents.

TYACK, J., dissenting.

       {¶ 35} I personally believe that the statute of limitations had lapsed because the
claim for professional negligence accrued over one year before the filing of this lawsuit. As
a result, I believe the trial court was correct. I would overrule the two assignments of error.
Since the majority of this panel reaches a different conclusion, I respectfully dissent.
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