[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-
{¶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.
JUDGES