
    WEST v. MIAMI VALLEY HOSPITAL et al. 
    Court of Common Pleas of Ohio, Montgomery County.
    No. 96-4591.
    Decided May 19, 1998.
    
      
      Leeseberg, Maloon, Schulman & Valentine, Gerald S. Leeseberg and Geoffrey M. Wardle, for plaintiff Christopher West.
    
      
      Neil F. Freund and Robert N. Snyder, for defendant Miami Valley Hospital.
   JEFFREY E. Froelich, Judge.

This matter is before the court on defendant Miami Valley Hospital’s (“MVH’s”) motion for partial summary judgment on the issue of whether the statute of limitations bars plaintiffs claim for medical expenses.

I. FACTS

Lisa Elter is the mother of plaintiff Christopher West. Elter became pregnant with Christopher in 1988. During the period from August 28, 1988 to October 1988, Elter was in the care of MVH’s prenatal care staff. Plaintiff is Elter’s fourth child. .All three other children were preterm labors between thirty-four and thirty-six weeks of gestation. Elter states that in the past, doctors from St. Elizabeth’s hospital had told her that she could not carry a baby full term without a “C stitch” and that she had an incompetent cervix. Elter told the MVH doctors about those earlier diagnoses.

Dr. Parand Yaz conducted an examination of Elter when she was fourteen weeks pregnant. At that time, her cervix appeared thick and closed. Dr. Yaz then scheduled Elter for follow-up treatment at two-week intervals. Elter saw Dr. Yaz two additional times. On August 29, 1988, Dr. Geannie Bennett examined Elter. At twenty weeks gestation, Elter’s cervix was “long, thick, and closed.” Elter had not experienced contractions, cramping, back pain, or vaginal bleeding at that time. On September 15, 1988, Elter was examined by Dr. Tilt and again reported no pain, contractions, or discharge.

On September 29, 1988, Elter went to the MVH labor and delivery area. She had experienced vaginal bleeding that afternoon and reported a history of irregular cramping in the lower abdomen with back pain for the last few days. At that time, Elter’s cervix was dilated five centimeters. After the doctors attempted to delay plaintiffs delivery as long as possible, he was born on October 1, 1988. Plaintiff was not breathing at the time of his birth and experienced other complications as a result of his prematurity. Elter contends that MVH’s failure to diagnose and treat her for an incompetent cervix caused that preterm labor. Elter stated in her deposition that she believed that the doctors had done something wrong at the time that plaintiff was born. Plaintiff brought this action alleging medical negligence and lack of informed consent on November 1, 1996.

Defendant MVH denies that Elter had an incompetent cervix and affirmatively states that it adhered to the relevant standards of care. It further suggests that Elter contributed to plaintiffs premature delivery by failing to immediately report the “last few days” of cramping and pain that occurred immediately prior to September 29,1988.

II. LAW AND ANALYSIS

A. Standard for Summary Judgment

Summary judgment is proper pursuant to Ohio Civil Rule 56(C) when (1) no genuine issue 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. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. “The burden of demonstrating that no genuine issue exists as to any material fact falls upon the moving party requesting a summary judgment.” Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. Civ.R. 56(C) places a duty upon the trial court to consider all appropriate materials before ruling on a motion for summary judgment and to view the facts in a light most favorable to the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 360, 604 N.E.2d 138, 141.

Once this burden has been met, a motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099. In opposing a summary judgment motion, the nonmoving party may not rest upon the mere allegations or denials of its pleadings but must set forth specific facts showing that there is a genuine issue for trial. Reynoldsburg Motor Sales v. Columbus (1972), 32 Ohio App.2d 271, 274, 61 O.O.2d 310, 312-313, 289 N.E.2d 909, 911-912. The moving party cannot discharge its initial burden simply by making a eonclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C). Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273-274.

After adequate time for discovery and upon a motion for summary judgment that meets the test of Dresher and Harless, supra, an entry of summary judgment is appropriate if the party against whom summary judgment is sought fails to make a showing on an element to that party’s case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 274-275. In showing that there is a genuine issue for trial, only disputes over facts that might affect the outcome of the suit (i.e., “material” facts) may preclude summary judgment. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211-212.

Summary judgment must be denied where a genuine issue of material fact exists, where competing inferences may be drawn from undisputed underlying evidence, or where the facts present are uncertain or indefinite. Duke v. Sanymetal Products Co., Inc. (1972), 31 Ohio App.2d 78, 81, 60 O.O.2d 171, 172-173, 286 N.E.2d 324, 327. All doubts or conflicts in the evidence must be construed most strongly in favor of the party against whom judgment is sought. Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45, 47, 517 N.E.2d 904, 906-907. It is with this standard of review that a motion for summary judgment must be considered.

B. Whether the Statute of Limitations Bars Plaintiffs Claim for Medical Expenses

Defendant MVH filed its motion for partial summary judgment stating that no genuine issue of material fact remains as to whether the statute of limitations bars plaintiffs claim for medical expenses. R.C. 2305.11.

R.C. 2305.11(B)(1) imposes a one-year statute of limitations on “medical claims.” “Medical claims” are 'defined to include “derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person.” R.C. 2305.11(D)(3). A “derivative claim for relief’ includes “claims of a parent * * * of an individual who was the subject of any medical diagnosis, care, or treatment.” R.C. 2305.11(D)(7). “Expenditures of the parent * * * for medical * * * care or treatment, for rehabilitation services, or for other care, treatment, services, products, or accommodations provided to the individual who was the subject of the medical diagnosis, care or treatment” are included in the derivative damage claim available to a parent. Recovery of a child’s medical expenses by a parent is subject to a one-year statute of limitations. Brown v. Good Samaritan Hosp. & Health Care Ctr. (Mar. 21, 1997), Montgomery App. No. 15959, unreported, 1997 WL 165431.

“The one-year statute of limitations period contained in R.C. 2305.11(B)(1) begins to run when the cause of action on the medical claim accrues. ‘In Ohio, a cause of action for medical malpractice does not accrue until the patient discovers, or should have discovered in the exercise of reasonable care and diligence, the resulting injury.’ ” Brown, supra, quoting Flowers v. Walker (1992), 63 Ohio St.3d 546, 548, 589 N.E.2d 1284, 1287. Three factors are considered when determining the date on which a medical claim accrues:

“(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 professional service that he previously received; and (3) whether such condition would put a reasonable person on notice of the need to inquire into the cause of his condition.” Flowers, 63 Ohio St.3d at 548, 589 N.E.2d at 1287.

“Extent and seriousness” requires the occurrence of a “cognizable event.” A “cognizable event” is defined as “facts and circumstances which lead, or should lead, the patient to believe that the physical condition or injury of which she complains is related to a medical diagnosis, treatment, or procedure that the patient previously received.” Flowers, supra, 63 Ohio St.3d at 548-549, 589 N.E.2d at 1287, citing Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93, syllabus. Constructive knowledge of facts, rather than actual knowledge of the legal significance of those facts, will begin the running of the statute of limitations. Flowers, supra, 63 Ohio St.3d at 549, 589 N.E.2d at 1287-1288.

In the present case, Elter stated that she was aware on the date of Christopher’s birth that the doctors had done something wrong. It is further apparent that Christopher’s prematurity resulted in “frequent” hospitalization and medication from lung problems and ear infections. Elter’s stated awareness of the alleged malpractice began with Christopher’s nonbreathing at birth is a cognizable event sufficient to begin the running of the statute of limitations. The statute of limitations therefore expired on October 1,1989.

Plaintiff argues, however, that the suit does not allege a derivative claim, but rather the direct claim of the minor even though brought by another on his behalf because of his (the minor’s) legal incapacity. From a policy point of view, the plaintiff argues that the minor is secondarily liable for expenses incurred for necessaries such as medical bills and that a child should not be punished for the dilatory manner in which his legal guardian pursues a claim for these expenses.

In Darwish v. Harmon (1992), 91 Ohio App.3d 630, 633 N.E.2d 546, appeal dismissed as having been improvidently allowed (1994), 69 Ohio St.3d 1203, 631 N.E.2d 157, the father brought suit on behalf of his son for injuries sustained by the minor in a bicycle-automobile accident. The defendant then brought a third-party claim against the parents, alleging that they failed to properly equip their son’s bike with reflectors. The trial court disallowed all evidence of the minor’s medical expenses. The appellate court held that this was error and that the minor had a “right to recover damages for his medical expenses.” Id. at 633, 633 N.E.2d at 548, citing Bagyi v. Miller (1965), 3 Ohio App.2d 371, 32 O.O.2d 518, 210 N.E.2d 887. In Bagyi, the plaintiff, a minor, brought suit for damages from an auto accident. After citing the general rule that damages and other expenses necessarily incurred for the treatment of the injuries of a minor belong to the parents, the court asked whether the father of the minor can waive or relinquish this right by bringing an action as next friend of his daughter in which a claim was made for such expenses and by testifying on behalf of his minor daughter; the court answered in the affirmative.

The court specifically held that “[t]he right of a parent to recover damages for medical expenses by reason of injury to his unemancipated child may be waived or relinquished by the parent in favor of the minor child as where the parent as next friend brings an action on behalf of the minor child in which claim is made for such expenses and testifies on behalf of his child. In such case, the child is entitled to recover the full amount to which both he and his parents would be entitled if separate suits had been brought, and the parent is estopped from afterward bringing any action in his own right.” Darwish, 91 Ohio App.3d at 633, 633 N.E.2d at 548, citing Bagyi, supra.

The plaintiff argues that this language recognizes an independent claim of the child and that this suit is brought by the minor (albeit through his legal guardian) as contrasted with a suit brought by the parent which is a derivative claim. The plaintiff argues that although R.C. 2305.11(D)(7) includes “claims of a parent” within the definition of a “derivative claim for relief’ available to a parent, this language in no way limits the claim of the child but rather statutorily acknowledges a claim of the parent.

In Blakeman v. Condorodis (1991), 75 Ohio App.3d 393, 599 N.E.2d 776, the administrator of a deceased infant’s estate brought an action against a physician. The defendant moved to strike the claim for medical expenses, arguing that the expenses were the obligation of the parents who incurred the expenses and that their claim was barred by the statute of limitations. The court held that there was no evidence of record that the parents, or their insurance company, failed or refused to pay any of the medical expenses and, since a minor is only secondarily liable to one who furnishes necessaries, the estate of the minor was not the real party in interest to recover the medical expenses.

In so holding, Blakeman cited its previous holding of Univ. of Cincinnati Hosp. v. Cohen (1989), 57 Ohio App.3d 30, 566 N.E.2d 187, wherein the court held that a minor who sustains injuries and incurs substantial medical bills is liable for and cannot avoid the debt for necessaries such as medical services. Id., paragraph one of the syllabus. In Cohen, the hospital agreed with the parents to grant them a one-year grace period to pay the debt and to forgive the interest during that period if they made two $50,000 payments within ninety days. In holding that the minor was still liable, the court found that the minor had exposure and therefore summary judgment against the minor was proper.

R.C. 2305.16, which provides for the tolling of the statute of limitations in certain circumstances, including minority, also provides that “when the interests of two or more parties are joint and inseparable, the disability of one shall inure to the benefit of all.” The claims of the parents for medical expenses incurred for the minor and the minor’s claim for damages are not “joint and inseparable.” Brown, supra, at 8. This is entirely consistent with Grindell v. Huber (1971), 28 Ohio St.2d 71, 57 O.O.2d 259, 275 N.E.2d 614, which held, “Where a minor sustains an injury allegedly as the result of negligence of defendant, two separate and distinct causes of action arise: an action by the minor child for his personal injuries and a derivative action in favor of the parents of the child for the loss of his services and his medical expenses.” Id. at paragraph one of the syllabus.

The defendant’s citation of Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10, actually supports the plaintiffs position. Prior to the trial in common pleas court, the parents of the minor brought suit in municipal court for the loss of the minor’s services and medical expenses against General Telephone. The municipal court entered a judgment for the telephone company. Subsequently, the minor, through her father and next friend, brought suit against General Telephone and received a jury award. The defendant appealed, arguing that the injured minor was estopped to relitigate the identical issues involved in her parents’ derivative action in the municipal court for loss of services and medical expenses. The Supreme Court affirmed the award, holding that neither bar nor collateral estoppel is involved when there is an absence of identity of parties or their privies. The court found that the interest the parents pursued in municipal court was separate and distinct from the interest the child pursued in common pleas court. The parents lost their derivative claim in municipal court, but the minor could still pursue her direct claim in common pleas court. If they were the same claim by the same (or only) party, collateral estoppel would control.

Seguin v. Gallo (1985), 21 Ohio App.3d 163, 21 OBR 174, 486 N.E.2d 1270, cited by the defendant, is also not on point. The injury to the minor occurred in 1977 when he was fourteen years old; he reached the age of majority on December 27, 1980. He and his parents filed suit in May 1983. The court held that the parents’ derivative claim was barred by the statute of limitations (R.C. 2305.09), starting with the 1977 injury, and that the minor’s claim was also barred by the statute that started when he turned eighteen in 1980. Again, the court analyzed the two separate and distinct causes of action.

Therefore, since the minor child has a distinct and separable claim for his injuries and damages and since medical expenses proximately caused by another’s negligence are a part of such damages, a minor’s claim for such damages survives the dismissal of the parents’ claim based on the statute of limitations. This is especially the situation where the parents bring the claim on behalf of the minor child, thus relinquishing their claim in favor of the minor child.

The defendant’s motion for partial summary judgment is made on the basis that “no genuine issue of material fact exists on whether the statute of limitations bars Plaintiffs claim for medical expenses.” In its reply to plaintiffs memorandum in opposition to defendant’s motion for partial summary judgment, the defendant suggests that neither the plaintiff nor his mother is the real party in interest because of the subrogation position of the Ohio Department of Human Services. This issue was not raised in the motion for partial summary judgment and was not responded to by the plaintiff. Therefore, it will not be addressed by the court.

III. CONCLUSION

The derivative claim of the parents is barred by the statute of limitations. The separate and distinct claim of the child remains, and the motion of the defendant for partial summary judgment is DENIED.

SO ORDERED.

Judgment accordingly.  