[Cite as Waikem v. Cleveland Clinic Found., 2012-Ohio-5620.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



GEORGE E. WAIKEM, JR., et al.                            JUDGES:
                                                         Hon. Patricia A. Delaney, P. J.
        Plaintiffs-Appellants                            Hon. John W. Wise, J.
                                                         Hon. Julie A. Edwards, J.
-vs-
                                                         Case No. 2011 CA 00234
THE CLEVELAND CLINIC
FOUNDATION, et al.

        Defendants-Appellees                             OPINION




CHARACTER OF PROCEEDING:                             Civil Appeal from the Court of Common
                                                     Pleas, Case No. 2011 CV 00420


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              November 30, 2012



APPEARANCES:

For Plaintiffs-Appellants                            For Defendants-Appellees

LEE E. PLAKAS                                        WILLIAM A. MEADOWS
MEGAN J. FRANTZ                                      W. BRADFORD LONGBRAKE
TZANGAS, PLAKAS, MANNOS                              REMINGER CO., LPA
AND RAIES, LTD.                                      80 South Summit Street
220 Market Avenue South, 8th Floor                   200 Courtyard Square
Canton, Ohio 44702                                   Akron, Ohio 44308
Stark County, Case No. 2011 CA 00234                                                  2

Wise, J.

        {¶1}   Plaintiffs-Appellants George E. Waikem, Jr. and Cynthia Waikem appeal

the September 21, 2011, decision of the Stark County Court of Common Pleas granting

summary judgment in favor of Appellees Khalid M. Abbed, M.D., Raymond G.

Borkowski, M.D., Isador H. Lieberman, M.D., Ryan P. Huffman, M.D., Micah A. Jacobs,

M.D., Thomas S. Keys, M.D., Steven K. Schmitt, M.D., Ali Jahan, M.D. and The

Cleveland Clinic Foundation.

                        STATEMENT OF THE FACTS AND CASE

        {¶2}   The relevant facts are as follows:

        {¶3}   On September 5, 2006, Appellant George Waikem, Jr. underwent spinal

surgery at the Cleveland Clinic.      Post-operatively, Appellant suffered complications

including fibrillation (abnormal heart rhythm), diaphoresis (excessive sweating

associated with shock), acute tubular necrosis (kidney injury), hepatic insufficiency

(inadequate liver function), thrombocytopenia (abnormally low blood platelets), acute

renal failure (kidney failure), tachypnea (rapid breathing), and hypoxemia (low blood

oxygen pressure). After a complicated post-operative recovery, Appellant was

discharged from the hospital on September 28, 2006.

        {¶4}   On October 10, 2006, Appellant was re-admitted to the Cleveland Clinic

for treatment of an infection at the surgical site. He was discharged on October 24,

2006.

        {¶5}   Upon being released from the hospital, Appellant was given a Discharge

Summary relating to his surgery and hospitalization.
Stark County, Case No. 2011 CA 00234                                                     3


       {¶6}     In October, 2007, Appellant, through counsel, requested his medical

records relating to the September 5, 2006, surgery and the October 10, 2006, re-

hospitalization.

       {¶7}     On October 5, 2009, Appellants George and Cynthia Waikem filed a

lawsuit naming the Cleveland Clinic, Dr. Raymond Borkowski, Dr. Khalid Abbed, Dr.

Isador Lieberman and Dr. Ryan Huffman for purported medical malpractice arising out

of the September 5, 2006, surgery, and the subsequent October 10, 2006,

hospitalization relating to a surgical site infection.

       {¶8}     On February 3, 2010, Appellants dismissed their initial lawsuit pursuant to

Civ.R. 41(A).

       {¶9}     On February 3, 2011, Appellants re-filed the lawsuit against the original

defendants and further named four additional physician defendants, including Dr. Micah

Jacobs, Dr. Thomas Keys, Dr. Stephen Schmitt and Dr. Ali Jahan.

       {¶10} The new lawsuit also included an additional basis of negligence for failure

to timely diagnose and treat Appellant’s MRSA infection.

       {¶11} Appellees filed separate motions for summary judgment arguing expiration

of the statute of limitations. Appellants opposed the motions.

       {¶12} By Judgment Entry filed September 21, 2011, the trial court granted the

motions for summary judgment. In said Entry, the trial court found:

       {¶13} “… the cognizable event triggering the statute of limitations in this matter

occurred on October 10, 2006. Accordingly, to be timely under the "discovery rule,'' the

plaintiffs' claims were to be filed on or before (or a 180-day extension letter served) on

or before October 10, 2007. Since the 180-day letters in the original filing of this matter
Stark County, Case No. 2011 CA 00234                                                        4


were not sent until April 7, 2009, any claims against the doctors will be barred by the

statute of limitations unless such claims were timely filed using the "termination rule".

         {¶14} The trial court then went on to review the termination rule as it applied to

each individual doctor and found all such claims were barred by the statute of

limitations.

         {¶15} The trial court further found that all claims against the Cleveland Clinic

Foundation sounded in vicarious liability for the alleged malpractice of the individual

defendant doctors, and having found that the defendant doctors could not be held liable

for any alleged malpractice as the statute of limitations and/or repose had expired, the

trial court likewise found that CCF could not “be held liable on a respondeat superior

and/or vicarious liability basis.” The trial court cited Comer v. Risko, 106 Ohio St.3d

185, 2005-Ohio-4559 and Natl. Union Fire Ins. Co. of Pittsburgh v. Wuerth, 122 Ohio

St.3d 594, 2009-Ohio-3601 in support of its findings.

         {¶16} Plaintiffs-Appellants now appeal, raising the following Assignments of

Error:

                               ASSIGNMENTS OF ERROR

         {¶17} “I. ASSUMING ARGUENDO THE STATUE [SIC] OF LIMITATIONS

EXPIRED AGAINST ALL APPELLEE EMPLOYEE DOCTORS, APPELLANTS STILL

HAVE A VIABLE CLAIM AGAINST APPELLEE CLEVELAND CLINIC BECAUSE

APPELLANTS TIMELY FILED THEIR RESPONDEAT SUPERIOR CLAIM.

         {¶18} “II. THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHEN

THE      COGNIZABLE       EVENT      REGARDING       APPELLEES        DR.    ABBED,     DR.

BORKOWSKI, DR. LIEBERMAN, AND DR. HUFFMAN OCCURRED; GEORGE
Stark County, Case No. 2011 CA 00234                                                 5


WAIKEM DID NOT HAVE ANY REASON TO SUSPECT HIS INJURIES WERE

RELATED TO A SPECIFIC PROFESSIONAL SERVICE UNTIL HE READ HIS

MEDICAL RECORDS THAT REVEALED THAT THE APPELLEES INACCURATELY

CLAIMED THAT THEY WERE NOT AWARE THAT MR. WAIKEM WAS ON STEROIDS

PRIOR TO SURGERY.

      {¶19} “III. THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO THE

(SIC) WHEN THE COGNIZABLE EVENT REGARDING APPELLEES DR. MICAH

JACOBS, DR. THOMAS KEYS, DR. STEPHEN SCHMITT, AND DR. ALI JAHAN

OCCURRED; GEORGE WAIKEM WAS NOT AWARE THAT HIS INFECTION WAS

RELATED TO THE MEDICAL CARE HE RECEIVED AT CLEVELAND CLINIC UNTIL

HE RECEIVED EXPERT DR. DREYER'S OPINION.

                                 Standard of Review

      {¶20} This matter comes to us on appeal from the trial court's decision to

grant summary judgment in favor of Appellees. Summary judgment motions are to be

resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme

Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-

Ohio-211:

             Civ.R.   56(C) provides   that   before summary judgment may    be

      granted, it must be determined 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 nonmoving party, that conclusion is
Stark County, Case No. 2011 CA 00234                                                     6


       adverse to the party against whom the motion for summary judgment is

       made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

       628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

       Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.”

       {¶21} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35. Accordingly, our review is de novo and we will not reverse an otherwise

correct judgment merely because the trial court utilized different or erroneous reasons

as the basis for its determination. Howard v. Chattahoochie's Bar, 175 Ohio App.3d 578,

2008-Ohio-742, ¶ 11.

       {¶22} For ease of discussion, we shall address Appellants’ Assignments of Error

out of order.

                                            II.

       {¶23} In their Second Assignment of Error, Appellants argue that the trial court

erred in finding that Appellants’ claims against Drs. Abbed, Borkowski, Lieberman and

Huffman were time-barred. We disagree.

       {¶24} R.C. §2305.113 provides, in relevant part:

       {¶25} (A) Except as otherwise provided in this section, an action upon a medical,

dental, optometric, or chiropractic claim shall be commenced within one year after the

cause of action accrued.

       {¶26} (B)(1) If prior to the expiration of the one-year period specified in division

(A) of this section, a claimant who allegedly possesses a medical, dental, optometric, or
Stark County, Case No. 2011 CA 00234                                                     7


chiropractic claim gives to the person who is the subject of that claim written notice that

the claimant is considering bringing an action upon that claim, that action may be

commenced against the person notified at any time within one hundred eighty days after

the notice is so given.

       {¶27} Further, the Ohio Supreme Court has observed:

              [A] cause of action for medical malpractice accrues and the one

       year statute of limitation commences to run (a) when the patient discovers

       or, in the exercise of reasonable care and diligence should have

       discovered, the resulting injury, or (b) when the physician-patient

       relationship for that condition terminates, whichever occurs later. Frysinger

       v. Leech, 32 Ohio St.3d 38, 41–42, 512 N.E.2d 337 (1987).

       {¶28} Under the discovery rule, a “cognizable event” triggers the running of the

statutory time for bringing suit. A “cognizable event” is “some noteworthy event * * *

which does or should alert a reasonable person-patient that an improper medical

procedure, treatment or diagnosis has taken place.” Allenius v. Thomas, 42 Ohio St.3d

131, 134, 538 N.E.2d 93 (1989). Hence, if a patient believes that her physician has

done something that has caused her harm, such a fact is enough to alert her to the

necessity for investigation for purposes of pursuing redress. Id.

       {¶29} In Flowers v. Walker, 63 Ohio St.3d 546, 589 N.E .2d 1284 (1992), the

Ohio Supreme Court elaborated on the manner in which a cognizable event manifests.

The court observed that “constructive knowledge of facts, rather than the actual

knowledge of their significance, is enough to start the statute of limitations running

under the discovery rule.” Id. at 549. Consequently, the statute of limitations in a
Stark County, Case No. 2011 CA 00234                                                       8


medical malpractice case will be triggered even if a potential plaintiff has not uncovered

all relevant facts to constitute her cause of action to trigger the running of the statute of

limitations. Id. Thus, “[t]he occurrence of a cognizable event makes it incumbent upon

that individual to investigate his or her case completely.” Hans v. The Ohio State Univ.

Med. Ctr., 10th Dist. Franklin No. 07AP–10, 2007–Ohio–3294, ¶ 11, citing Simonds v.

Kearney, 9th Dist. Wayne No. 01CA0035, 2002–Ohio–761.

       {¶30} In the instant case, Appellant argues that the trial court erred in its

determination of when the cognizable event occurred in this case.

       {¶31} In determining when “the patient discovers or, with the exercise of

reasonable care should have discovered, the resulting injury”, the trial court must look to

the facts of the case in order to find (1) when 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 was related to a

specific medical service previously rendered him, and (3) whether the condition would

put a reasonable person on notice of the need for further inquiry as to the cause of the

condition. Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1, 516 N.E.2d 204.

       {¶32} In determining the first prong of the Hershberger test regarding the injured

party's awareness of the extent and seriousness of his condition, the court must find

that a “cognizable event” occurred that put the party on notice that his injury is related to

a specific medical procedure and of the need to pursue his possible remedies. Allenius

v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93. “[C]onstructive knowledge of

facts, rather than actual knowledge of their legal significance, is enough to start the

statute of limitations running under the discovery rule. A plaintiff need not have
Stark County, Case No. 2011 CA 00234                                                        9


discovered all the relevant facts necessary to file a claim in order to trigger the statute of

limitations.” Flowers v. Walker (1992), 63 Ohio St.3d 546, 549, 589 N.E.2d 1284.

       {¶33} In the instant case, Appellant argues that the cognizable event did not

occur until he read his discharge summary in January, 2009. Appellant asserts that was

the first time he became aware that his medical providers claimed that they were

unaware that Appellant was on the drug Florinef prior to surgery.

       {¶34} As set forth above, a cause of action for medical malpractice accrues, and

limitations period begins to run, either when patient discovers or, in the exercise of

reasonable care and diligence should have discovered, resulting injury, or when

physician-patient relationship for the condition terminates, whichever occurs later. R.C.

§ 2305.11.

       {¶35} Here, Appellant developed an infection at the surgical site less than two

weeks following his discharge from the hospital. This infection required re-

hospitalization.

       {¶36} Appellants in this case were aware of the involvement of Drs. Abbed,

Borkowski, Lieberman and Huffman in his care and treatment. They consequently had

actual knowledge of said doctors actions and had constructive knowledge of potential

inactions. Appellants therefore could have, prior to the expiration of the statute of

limitations, filed a malpractice action against said doctors and met the requirements of

Civ.R. 10(D) by obtaining an extension, per the rule, in an effort to obtain facts

necessary to support an affidavit of merit to support their allegations. We therefore

conclude Appellants were obligated, pursuant to Flowers, to determine whether the care

provide to Appellant by any or all of these doctors was sufficient to implicate them in a
Stark County, Case No. 2011 CA 00234                                                      10


malpractice suit. Appellants had the mechanisms available to file a legally sufficient

complaint within the statutory period.

       {¶37} Based on such, we hold that the cognizable event triggering the running of

the statute of limitations in this case was Appellant’s infection subsequent to his surgery

and attendant re-hospitalization. The infection/re-hospitalization was a “noteworthy

event” that should have alerted Appellants that possible malpractice had occurred.

Appellants were therefore on notice, after the infection, to investigate the facts and

circumstances of the malpractice claim in order to pursue their remedies against all

potentially liable individuals who participated in his care, including these Appellees.

       {¶38} Further, one year later, in October, 2007, Appellant retained an attorney to

request and obtain his medical records relating to his surgery and subsequent re-

hospitalization. Even assuming arguendo that we did not find Appellant’s infection/re-

hospitalization to be the cognizable event in this matter, we would find this to be the

latest triggering event for the statute of limitations to begin to run. This would also be

outside the applicable statute of limitations.

       {¶39} Appellants’ Second Assignment of Error is overruled.

                                             III.

       {¶40} In their Third Assignment of Error, Appellants argue that the trial court

erred in finding that Appellants’ claims against Drs. Jacobs, Keys, Schmitt and Jahan

were time barred. We disagree.

       {¶41} As to these doctors, Appellant maintains that the cognizable event

occurred on December 10, 2010, when he received the opinion from his medical expert

that his infection was related to the medical care he received at the Cleveland Clinic.
Stark County, Case No. 2011 CA 00234                                                      11

       {¶42} Appellant cites Akers v. Alonzo (1992), 65 Ohio St.3d 422, in support of

this position. In Akers, the patient sought treatment with Dr. Alonzo, a urologist, who

examined him, took several biopsies of his bladder, and eventually concluded that he

showed no signs of cancer. Mr. Akers was then referred to a second urologist, Dr. Wise,

who reviewed prior pathology slides and determined that he did have cancer.

Approximately four years later, the Akers filed a medical malpractice action against Dr.

Alonzo along with his oncologist. Akers subsequently learned from his medical expert

that a Dr. de Lamerens had originally misinterpreted the slides as showing no cancer.

One year after filing the complaint, Akers filed a second complaint that included a claim

against Dr. de Lamerens. The trial court granted summary judgment in Dr. de

Lamerens' favor concluding the cause of action was time-barred. The court of appeals

reversed the trial court's judgment, holding there was evidence from which reasonable

minds could draw the conclusion that Akers had no basis for suspecting that he had

been initially misdiagnosed by Dr. de Lamerens until his identity was discovered; to wit,

after the first lawsuit was initiated and the patient's expert re-read the slides discovering

the purported error.

       {¶43} The Supreme Court subsequently affirmed the appellate court's reversal.

The Court found its ruling in Flowers was distinguishable from the facts before it. In

Flowers, the patient was aware that other individuals were involved in the faulty

interpretation of her mammogram, but she was unaware of their identities. The patient

discovered, nearly eight months later, she had cancer. That discovery was the

cognizable event giving rise to a duty to determine the identity of the potential

tortfeasors. In Akers, however, there was nothing in the record indicating that the patient
Stark County, Case No. 2011 CA 00234                                                      12


knew or should have known that the pathology slides had been wrongly read. The

cognizable event was when the patient discovered, through his expert, that the

pathology slides had been misinterpreted by Dr. de Lamerens. The Court underscored

that [w]hile Flowers, supra, holds that the occurrence of the cognizable event imposes a

duty of inquiry on the plaintiff, it does not hold that the plaintiff has a duty to ascertain

the cognizable event itself, especially in a situation such as here, where the patient had

no way of knowing either that there had been another physician involved or that that

other physician had made an incorrect diagnosis. Akers, supra, at 425–426.

       {¶44} We find Akers to be distinguishable from the instant case. In Akers there

was no prior cognizable event such as that present in the case sub judice. There was

no infection/re-hospitalization to place the plaintiff on notice that potential malpractice

had occurred. The plaintiff in Akers did not have the opportunity to obtain such

knowledge until an expert witness reviewed her pathology slides. Accordingly, Akers

does not support Appellant's proposition that the cognizable event occurred upon the

identification and review by their expert witness.

       {¶45} Additionally, in this case, the Appellants' attorney had possession of

Appellant’s medical records as early as October, 2007. At that time Appellants had the

opportunity to obtain knowledge of the identity of Appellant’s treating doctors and any

alleged malpractice.

       {¶46} The claims against these doctors were not filed until February 3, 2011,

four years after Appellant’s hospitalization for the infection. Two years had also elapsed

since the date when Appellant claims to have cleaned his office and read his discharge
Stark County, Case No. 2011 CA 00234                                                     13


summary for the first time and three years had elapsed from the time Appellant had

requested his medical records through counsel.

        {¶47} Further, in addition to the statute of limitations having expired as to these

four doctors, we also find that the statute of repose as set forth in R.C. §2305.113(C)

had also expired.

        {¶48} Appellants’ Third Assignment of Error is overruled.

                                             I.

        {¶49} Appellants herein argue that the trial court erred in dismissing their claims

against the Cleveland Clinic Foundation even if the statute of limitations had run as to

all treating doctors. We disagree.

        {¶50} In the instant case, Appellants’ claims against the Cleveland Clinic

Foundation are based on vicarious liability/respondeat superior.

        {¶51} Appellants herein rely on the “termination rule” as set forth above, to argue

that Waikem’s patient-physician relationship with the Cleveland Clinic Foundation did

not terminate until April 18, 2008. Appellants claim that Mr. Waikem continued to treat

at the Cleveland Clinic for a condition related to the negligence alleged in this case until

April 18, 2008, and that they served 180 day letters to the Cleveland Clinic on April 8,

2009.

        {¶52} Termination Rule

        {¶53} In Clark v. Southview Hosp. (1994), 68 Ohio St.3d 435, 628 N.E.2d

46, syllabus, the Supreme Court held:

              A hospital may be held liable under the doctrine of agency by

        estoppel for the negligence of independent medical practitioners practicing
Stark County, Case No. 2011 CA 00234                                                        14


      in the hospital when: (1) it holds itself out to the public as a provider of

      medical services; and (2) in the absence of notice or knowledge to the

      contrary, the patient looks to the hospital, as opposed to the individual

      practitioner, to provide competent medical care. (Albain v. Flower

      Hosp. [1990], 50 Ohio St.3d 251, 553 N.E.2d 1038, paragraph four of the

      syllabus, overruled.)

      {¶54} Subsequently, in Comer v. Risko, 106 Ohio St.3d 185, 833 N.E.2d 712,

2005-Ohio-4559, ¶ 27–28, the Supreme Court explained:

             Agency by estoppel is not a direct claim against a hospital, but an

      indirect claim for the vicarious liability of an independent contractor with

      whom the hospital contracted for professional services. Furthermore, if the

      independent contractor is not and cannot be liable because of the

      expiration of the statute of limitations, no potential liability exists to flow

      through to the secondary party, i.e., the hospital, under an agency theory.

             Therefore, we hold that agency by estoppel is a derivative claim of

      vicarious liability whereby the liability of the hospital must flow through the

      independent-contractor physician. Consequently, there can be no viable

      claim for agency by estoppel if the statute of limitations against the

      independent-contractor physician has expired.

      {¶55} Appellants        herein   argue   that   the   above   cases   are   limited   to

principal/agent or agency by estoppels situations. Upon review, we find no real

distinction. Here, Appellants’ claims against the Cleveland Clinic Foundation are based

upon the negligence of the individual employee doctors, which, as set forth above,
Stark County, Case No. 2011 CA 00234                                                  15


cannot be found liable because no medical malpractice claims were brought against

them within the required statute of limitations period.

       {¶56} We further find that Appellants’ reliance on Sawicki v. Lucas County Court

of Common Pleas, 126 Ohio St.3d 198, 2010-Ohio-3299, to be misplaced, in that in

Sawicki, unlike here, Appellant’s respondeat superior claim against the employer was

timely filed.

       {¶57} In this case, we find that Appellants are trying to do indirectly that which

they are barred from doing directly.

       {¶58} The malpractice victim must pursue his remedies in a timely fashion or

abandon them at his peril. Powell v. Rion, 2nd Dist. App. No. 24756, 2012-Ohio-2665

       {¶59} Appellant’s First Assignment of Error is overruled.

       {¶60} For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is affirmed.



By: Wise, J.

Delaney, P. J., concurs in part and dissents in part.

Edwards, J., concurs.


                                              ___________________________________


                                              ___________________________________


                                              ___________________________________

                                                                   JUDGES
JWW/d 1011
Stark County, Case No. 2011 CA 00234                                                    16

Delaney, J., dissenting in part and concurring in part

       {¶61} I respectfully dissent from the majority opinion in regards to the disposition

of Appellants’ First Assignment of Error.

       {¶62} The majority finds Appellants’ claims against the Cleveland Clinic are

barred because the statute of limitations has run against the individual employee

doctors. The majority relies upon the Ohio Supreme Court’s ruling in Comer v. Risko,

106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, in stating the “Appellants are

trying to do indirectly that which they are barred from doing directly.” I disagree and

offer the following analysis of this assignment of error.

       {¶63} At the outset, there are two facts which are undisputed by the parties: (1)

the defendant doctors are or were, at all relevent times, employees of the Clinic, not

independent contractors; and (2) Mr. Waikem continued medical treatment with the

Clinic until April 18, 2008.

       {¶64} In Frysinger v. Leech, supra, the Ohio Supreme Court held that a cause of

action for medical malpractice accrues and the statute of limitations begins to run (1)

when the patient discovers or, in the exercise of reasonable care and diligence, should

have discovered the resulting injury, or (2) when the physician-patient relationship for

that condition terminates, whichever occurs later.

       {¶65} The termination rule applies to hospitals that have an ongoing relationship

with the patient.    Amadasu v. O’Neal, 176 Ohio App.3d 217, 2008-Ohio-1730, 891

N.E.2d 802, ¶ 13 (1st Dist.). Therefore, the second part of the Frysinger test applies as

it did in Amadasu, and the cause of action against the Clinic accrued on April 18, 2008,

the date Mr. Waikem alleged that the Clinic terminated treatment. It is also undisputed
Stark County, Case No. 2011 CA 00234                                                    17


that Appellants served a 180 day letter to the Clinic within one year of Mr. Waikem

terminating treatment at the Clinic. Appellants filed their original lawsuit on October 5,

2009 within 180 days of serving the letter. The original lawsuit was dismissed without

prejudice on February 3, 2010. Appellants refiled their action against the Clinic on

February 3, 2011.

      {¶66} Therefore, there is no dispute of material fact the lawsuit against the Clinic

was timely filed. Nevertheless, the trial court held, and the majority herein agrees, that

even though the Clinic continued to treat Mr. Waikem, the statute of limitations had

expired against the Clinic because the statute of limitations had expired against all the

individual employee doctors.

      {¶67} I find persuasive the analysis of other appellate courts that have

addressed the potential expansion of the Ohio Supreme Court’s ruling in Comer, and

subsequently in Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d

594, 2009-Ohio-3601, 913 N.E.2d 939, as to claims, including medical claim cases,

where the negligent actors are “employees” of their business, as opposed to

independent contractors, partners or co-owners of the entity.

      {¶68} Although Appellees strenuously argue that “Comer applies with equal

force to agents, employees, and to independent contractors,” appellate courts across

the state have refused to read Comer as broadly. See, Taylor v. Belmont Community

Hospital, 7th Dist. No. 08CV98, 2010-Ohio-3986 (refusing to extend the narrow holding

of Wuerth to situations other than those existing in that case and finding that traditional

respondeat superior law applies to physician employed by hospital, noting that the

Supreme Court also specifically warned Comer         was a narrow holding); Stanley v.
Stark County, Case No. 2011 CA 00234                                               18

Community Hospital, 2nd Dist. 2010-CA-53, 2011-Ohio-1290 (the holding in Wuerth

must be given narrow application). See also, Holland v. Bob Evans Farms, 3rd Dist.

No. 17-07-12, 2008-Ohio-1487 (Comer clearly distinguishable since an employer is in a

different position than would be the principal who hired an independent contractor);

Orebaugh v. Wal-Mart Stores, Inc., 12th Dist. No. CA2006-08-185, 2007-Ohio-4969

(Comer limited to the narrow issue before it, whether “a viable claim exists against a

hospital under a theory of agency by estoppels for the negligence of an independent-

contractor physician when the physician cannot be made a party because the statute of

limitations has expired.”).

       {¶69} I agree with Appellants the doctrine of respondent superior controls and

permits suit to be filed against the employee, the employer, or both and there is no

requirement that the employee be named as a party. Losito v. Kruse, 136 Ohio St. 183,

187, 24 N.E.2d 705 (1940). I am reluctant to expand and apply Comer and Wuerth to

R.C. 2305.113(A) medical claims, including medical malpractice claims, where the

individual doctors are involved in the traditional employer-employee relationship. See

also, Tisdale v. Toledo Hospital, 197 Ohio App.3d 316, 2012-Ohio-1110, 967 N.E.2d

280 (6th Dist.) (Wuerth acknowledged and retained Losito’s rule that the plaintiff can

choose to sue the employer or       the employee or both and Comer does not apply

because agency by estoppel presupposes that the tortfeasor’s relationship to the

hospital is that of an independent contractor, not employee).

       {¶70} Until the Ohio Supreme Court addresses the issue, I find the reasoning of

the above-cited authorities to be persuasive under the facts of this case. Presumably,

both Mr. Waikem and the Clinic benefitted from the long term patient-hospital
Stark County, Case No. 2011 CA 00234                                                    19


relationship that continued despite the post-surgical infection. Placing a patient in the

position of suing an ongoing treatment provider and its employees seems contrary to

common sense and good medicine.

       {¶71} For these reasons, I would sustain the First Assignment of Error.

       {¶72} I concur in the majority’s disposition of the Second and Third Assignments

of Error, finding the Appellants’ claims are outside the statute of limitations as to the

individual doctors, but disagree the infection/re-hospitalization of Mr. Waikem was a

cognizable event triggering the accrual of the statute of limitations.

       {¶73} Infection is a common risk of surgery and Mr. Waikem developed a MRSA

infection at the surgical site causing complications and continued treatment at the Clinic.

Construing this evidence in a light most favorable to Appellants as we must, I cannot

say that the infection, by itself, should have put Appellants on notice that malpractice

had occurred.

       {¶74} However, in looking at the combination of infection and Mr. Waikem’s

request to his attorney to obtain his medical records in October 2007 and receipt

thereafter, Appellants should have been put on notice that potential improper medical

treatment had occurred.

       {¶75} For these reasons, I would affirm the judgment of the trial court as to the

individual employee doctors and reverse the judgment as to the Clinic.

                                           ______________________________
                                           JUDGE PATRICIA A. DELANEY
Stark County, Case No. 2011 CA 00234                                         20


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




GEORGE E. WAIKEM, JR., et al.             :
                                          :
       Plaintiffs-Appellants              :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
THE CLEVELAND CLINIC                      :
FOUNDATION, et al.                        :
                                          :
       Defendants-Appellees               :         Case No. 2011 CA 00234




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to Appellants.




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                                                             JUDGES
