[Cite as Nagy v. Ctr. for Orthopedics, 2014-Ohio-3445.]


STATE OF OHIO                     )                            IN THE COURT OF APPEALS
                                  )ss:                         NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

JOANN L. NAGY, et al.                                          C.A. No.   13CA010483

        Appellants

        v.                                                     APPEAL FROM JUDGMENT
                                                               ENTERED IN THE
CENTER FOR ORTHOPEDICS, et al.                                 COURT OF COMMON PLEAS
                                                               COUNTY OF LORAIN, OHIO
        Appellees                                              CASE No.   13CV179087

                                 DECISION AND JOURNAL ENTRY

Dated: August 11, 2014



        MOORE, Judge.

        {¶1}      Joann L. and Richard Nagy appeal from the judgment of the Lorain County Court

of Common Pleas. This Court affirms.

                                                          I.

        {¶2}      On March 1, 2011, Ms. Nagy and her husband, Richard Nagy, filed a complaint

against the Center for Orthopedics and John Krebs, M.D., Robert M. Zanotti, M.D. and William

Stanfield, M.D. (“Appellees”) alleging medical malpractice and loss of consortium. The Nagys

voluntarily dismissed the complaint, and they refiled it on January 17, 2013.            Thereafter,

Appellees filed a motion for summary judgment, arguing that the original complaint was barred

based upon the applicable statute of limitations. The trial court granted Appellees’ motion for

summary judgment. The Nagys timely appealed, and they now present one assignment of error

for our review.
                                                2


                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING [APPELLEES’] MOTION FOR
       SUMMARY JUDGMENT.

       {¶3}    In their sole assignment of error, the Nagys argue that the trial court erred in

granting summary judgment in favor of Appellees. We disagree.

       {¶4}    We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts

of the case in the light most favorable to the non-moving party and resolving any doubt in favor

of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

       {¶5}    Pursuant to Civ.R. 56(C), summary judgment is proper only if:

       (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 party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶6}    Here, in their complaint, the Nagys alleged that Appellees failed to provide Ms.

Nagy with safe and acceptable medical, hospital and surgical care and treatment resulting in her

suffering physical injuries and emotional distress. It is undisputed that, after providing care to

Ms. Nagy, Dr. Krebs was suspended from the practice of medicine from December 9, 2009 until

September 9, 2010. On July 26, 2010, Ms. Nagy’s counsel sent “180-day” letters on her behalf

to the Center for Orthopedics and Drs. Krebs, Zanotti, and Stanfield. These letters were received

by each of the Appellees on July 27, 2010. It is also undisputed that, although the originally

filed complaint does not appear in this record, it was filed on March 1, 2011.
                                                    3


       {¶7}    Based upon these undisputed facts, the parties’ arguments in support of and

against summary judgment focused on the question of law of whether a doctor’s suspension from

the practice of medicine necessarily causes the doctor to be absent or concealed for the purposes

of tolling the statute of limitations or delaying the effect of the 180-day notice.

       {¶8}    Pursuant to R.C. 2305.113(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.” “[A] cause of action for medical malpractice accrues and

the one-year statute of limitations 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 (1987), paragraph one of the syllabus. A derivative loss of

consortium claim is also subject to the one year statute of limitations. Corcino v. Neurosurgical

Services, Inc., 9th Dist. Lorain No. 01CA007903, 2002-Ohio-1375, 2002 WL 462856, *2, citing

former R.C. 2305.11(D)(3) and (7); see also R.C. 2305.113(E)(3). Here, the parties agree that

the doctor-patient relationship between Ms. Nagy and Appellees terminated upon Dr. Krebs’

suspension from the practice of medicine: December 9, 2009. Further, the parties agree that the

statute of limitations began to run on this date.

       {¶9}    The statute of limitations may be tolled pursuant to R.C. 2305.15(A), which

provides:

       When a cause of action accrues against a person, if the person is out of the state,
       has absconded, or conceals self, the period of limitation for the commencement of
       the action as provided in sections 2305.04 to 2305.14, 1302.98, and 1304.35 of
       the Revised Code does not begin to run until the person comes into the state or
       while the person is so absconded or concealed. After the cause of action accrues
       if the person departs from the state, absconds, or conceals self, the time of the
       person’s absence or concealment shall not be computed as any part of a period
       within which the action must be brought.
                                                4


       {¶10} Further, the statute of limitations may be extended under R.C. 2305.113(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
       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.

       {¶11} “Where a party complies with the requirements of R.C. 2305.11(B)(1) and sends

multiple written notices of intent to sue prior to the expiration of the one-year statute of

limitations set forth in R.C. 2305.11(B)(1), the one-hundred-eighty-day period begins to run

from the date the last notice is received by the potential defendants.” Marshall v. Ortega, 87

Ohio St.3d 522 (2000), syllabus.

       {¶12} Although the present case commenced with the refiling of the previously

dismissed complaint, the first filed action must be filed within the applicable time periods set

forth above. See Senz v. Mills, 9th Dist. Wayne No. 95CA0020, 1996 WL 73378, *2, citing

Reese v. Ohio State Univ. Hosp., 6 Ohio St.3d 162, 163 (1983).

       {¶13} Here, Appellees moved for summary judgment, arguing that there was no

question of fact that the defendants each received the 180-day notice on July 27, 2010, and the

last potential defendant, who was not ultimately named as a defendant, received the 180-day

notice on July 29, 2010. Therefore, pursuant to law, the 180-day time period expired no later

than the end of January, 2011, making the March 1, 2011 complaint time-barred. See R.C.

2305.113(B)(1), and Marshall at syllabus.

       {¶14} The Nagys responded that Ms. Nagy was a patient of Dr. Krebs until he was

suspended from his practice on December 9, 2009, and the Nagys maintained that this is when

the cause of action accrued for purposes of the statute of limitations. They then sent the 180-day

letter to Appellees on July 26, 2010. The Nagys alternatively maintained that (1) the statute of
                                                5


limitations was tolled during Dr. Krebs’ suspension from December 9, 2009 through September

9, 2010, because, during this time, Dr. Krebs was concealed due solely to his suspension, and

thus they had until September 9, 2011 to file their action, and (2) the 180-day time period set

forth in their notices did not commence until September 9, 2010 because Dr. Krebs was

concealed due to his suspension. The Nagys also assert that the same computations would apply

to Center for Orthopedics and Drs. Zanotti and Stanfield.

       {¶15} It is undisputed that Ms. Nagy’s patient-physician relationship with Dr. Krebs

terminated on December 9, 2009, and the parties agree that this is when the statute of limitations

would commence in this case. However, as to the tolling of the statute of limitations, the Nagys

point to no authority holding that a medical suspension automatically tolls the statute of

limitations or delays the effect of 180-day notice, and we have not located any authority which

stands for these propositions. See App.R. 16(A)(7) (appellant’s brief to contain “the contentions

of the appellant with respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of the record on

which appellant relies”). The Nagys have advanced no other argument that Appellees were

“conceal[ed]” for purposes of R.C. 2305.15(A). Therefore, based upon the undisputed facts set

forth above, the statute of limitations commenced December 9, 2009. This statute of limitations

would have ended one-year from that date. See R.C. 2305.113(A). However, the Nagys sent the

180-day letters to Appellees, which were received no later than July 29, 2010. Therefore, the

Nagys had no later than January 24, 2011 to file their original complaint.               See R.C.

2305.113(B)(1), and Marshall at syllabus. Because the Nagys did not file their complaint until

March 1, 2011, the trial court did not err in determining that no issue of fact remained as to the

complaint being time-barred.
                                                 6


       {¶16} Next, the Nagys argue that alternate theories of liability other than medical

malpractice could be supported against Drs. Zanotti and Stanfield based upon whether they had

knowledge of purported substance abuse on the part of Dr. Krebs. However, the Nagys do not

state what these alternative theories of liability could be, nor do they direct us to where they have

alleged these causes of action in their complaint. Therefore, we cannot say that this potential

question of fact was material to the instant action. See Wochna v. Mancino, 9th Dist. Medina

No. 07CA0059-M, 2008-Ohio-996, ¶ 9, (“A disputed fact is material if it is an essential element

of the claim as determined by the applicable substantive law – one which might affect the

outcome of the litigation.” (Citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).))

       {¶17} Accordingly, the Nagys’ assignment of error is overruled.

                                                 III.

       {¶18} The Nagys’ assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                7


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                    CARLA MOORE
                                                    FOR THE COURT



CARR, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

PAUL M. KAUFMAN, Attorney at Law, for Appellants.

CLIFFORD C. MASCH and THOMAS B. KILBANE, Attorneys at Law, for Appellees.
