Medical Malpractice Statute of Limitations in Ohio

Gary Thornton, et al. v. Jason Delatore, M.D., et al.

Full Opinion

From the case opinion:
"It has been explained that the occurrence of a cognizable or noteworthy event should lead the plaintiff to believe that his injury is related to a prior medical diagnosis or procedure and should alert the plaintiff of the need to pursue a remedy. Allenius v. Thomas (1989), 42 Ohio St.3d 131,133-134 (plaintiff need not have discovered all of the relevant facts). If the patient believes that he suffered harm due to the physician doing something wrong, then the patient has suffered a cognizable event. Id. at 134. Constructive knowledge of facts, rather than actual knowledge of the legal significance of those facts, is sufficient as the cognizable event puts the plaintiff on notice that he should investigate the facts and circumstances relevant to the injury. Flowers v. Walker (1992), 63 Ohio St.3d 546, 549."

"In Flowers, the plaintiff’s mammogram had been interpreted as negative for cancer. Later, she was diagnosed with breast cancer. The Court held that the cancer diagnosis constituted an occurrence of facts and circumstances that should have led the plaintiff to believe that the cancer was related to a previous misdiagnosis. Id. at 550. The Court ruled that the malpractice statute began to run at the time of the cancer diagnosis even though the plaintiff did not know all the facts and circumstances surrounding the apparent misreading of her earlier mammogram. Id. Thus, the Court upheld the trial court’s grant of summary judgment for the defendant."

The court goes on to conclude:
"Regardless, the trial court did not err in finding that reasonable minds could only find that a cognizable event occurred prior to September of 2004. As aforementioned, appellant’s answer to an interrogatory stated that he filed the lawsuit based upon the negligent act of failing to provide an antibiotic at the early June of 2004 office visit. Appellant’s deposition stated that after Dr. Delatore removed a blister, appellant asked, “don’t you think I need an antibiotic?” Dr. Delatore responded in the negative. (Depo. 22, 24). Appellant thought that since he was a diabetic receiving a foot incision, he would receive an antibiotic. (Depo. 26)."

Gary Thornton, et al. v. Jason Delatore, M.D., et al.
Seventh District Court of Appeals Case number 09-MA-192
Cite as: Thornton v. Delatore, 2010-Ohio-6391