FRANK V. TROHA, et al. Plaintiffs-Appellants
WILFREDO J. SUNTAY, M.D. Defendant-Appellee
Civil appeal from Common Pleas Court T.C. NO. 12CV3859
MICHAEL B. MILLER, Atty. Reg. No. 0079305 and DAVID M. PIXLEY, Atty. Reg. No. 0083453, 2160 Attorneys for Plaintiffs-Appellants
KEVIN W. POPHAM, Atty. Reg. No. 0066335, 2075 Attorneys for Defendant-Appellee
(¶ 1} Plaintiff-appellants Frank V. Troha, M.D. and Gwendolyn Leigh Troha (hereinafter "Troha") appeal a decision of the Montgomery Court of Common Pleas, Civil Division, sustaining the motion for summary judgment of defendant-appellee Wilfredo J. Suntay, M.D. (hereinafter "Dr. Suntay") in a written decision issued on November 27, 2012. After dismissing the other defendants originally involved in the instant litigation, Troha filed a notice of appeal against Dr. Suntay on March 1, 2013.
(¶ 2} The record establishes that Troha came under the care and supervision of Dr. Suntay on December 17, 2009, when he sought treatment at Dayton Medical Imaging-Centerville (hereinafter "DMI") complaining of abdominal pain. Dr. Suntay, a radiologist employed by DMI, conducted a computed tomography (CT) scan of Troha's abdomen and pelvis. Dr. Suntay interpreted the scans as negative for any bowel obstructions, but identified a possible thickening of the walls of the distal small bowel and terminal ileum. Significantly, Dr. Suntay did not diagnose Troha with Crohn's Disease, an inflammatory intestinal condition. Dr. Suntay did not provide any further medical care or treatment to Troha after December 17, 2009.
(¶ 3} Two days later, on December 19, 2009, Troha went to the emergency room at Sycamore Hospital complaining of abdominal pain, nausea, and a distended abdomen. While at Sycamore Hospital, Troha underwent a second CT scan which revealed an obstruction in his small bowel and the presence of a small metallic foreign body within his terminal ileum. Troha was subsequently admitted to Sycamore Hospital for further evaluation. On December 20, 2009, Troha underwent emergency surgery which successfully eliminated the bowel obstruction. Troha was discharged from Sycamore Hospital on December 29, 2009.
(¶ 4} On May 25, 2012, Troha filed a complaint alleging that "as a direct and proximate result of Dr. Suntay['s] negligence in failing to properly diagnose and evaluate the patient, Troha sustained damages and is entitled to compensation for past and future damages ."
(¶ 5} On October 5, 2012, Dr. Suntay filed a motion for summary judgment in which he argued that Troha failed to comply with the applicable one-year statute of limitations for medical malpractice claims in violation of R.C. 2305.113. Specifically, Dr. Suntay argued that Troha's complaint, filed more than seventeen months after the date of the alleged failure to diagnose the bowel obstruction, was filed outside the applicable statute of limitations set forth in R.C. 2305.113. Dr. Suntay asserted that the cognizable event triggering the accrual of Troha's cause of action was the emergency surgery performed on December 20, 2009, when he should have become aware that he suffered from a bowel obstruction. Thus, Troha's failure to file his complaint within one year of December 20, 2009, was fatal to his malpractice claims.
(¶ 6} Troha filed a memorandum in opposition on October 22, 2012. In support to his memorandum, Troha attached the affidavits of Dr. Carmine A. Grieco, M.D., and Dr. Mark Walsh, M.D. In his memorandum, Troha argued that while he became aware that he had a bowel obstruction on December 19, 2009, during the second CT scan, he did not become aware that he had Crohn's Disease until July 1, 2011, when he states that he was first able to review the CT scan performed by Dr.Suntay with his own treating physician. Essentially, Troha argued that Dr. Suntay was negligent for failing to diagnose him with Crohn's Disease during the CT scan conducted on December 17, 2009. Thus, according to Troha, by filing his complaint on May 25, 2012, within one year of July 1, 2011, he did not violate the statute of limitations on medical malpractice claims. Dr. Suntay filed a reply brief in support of his motion for summary judgment on October 22, 2012.
(¶ 7} On November 27, 2012, the trial court issued a decision sustaining Dr. Suntay's motion for summary judgment. The trial court found that Troha's diagnosis of and surgery for a bowel obstruction on December 20, 2009, constituted a cognizable event that put him on notice regarding Dr. Suntay's alleged failure to properly interpret the CT scan. Specifically, the trial court found that (1) Troha became aware or should have become aware of the extent and seriousness of his medical condition on December 20, 2009, the date of his abdominal surgery; (2) Troha was aware or should have been aware that his medical condition and subsequent surgery were related to the allegedly misread CT scan on December 17, 2009; and (3) Troha's medical condition and consequential surgery on December 20, 2009, would put a reasonable person on notice of the need for further inquiry as to the cause of such condition and resulting injury. It is from this judgment that Troha now appeals.
(¶ 8} Troha's sole assignment of error is as follows:
(¶ 9} "THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS THAT THE ONE YEAR STATUTORY PERIOD EXPIRED UNDER THE DISCOVERY RULE."
(¶ 10} In his sole assignment, Troha contends that the trial court erred when it sustained Dr. Suntay's motion for summary judgment. Specifically, Troha argues that he did not become aware that he had Crohn's Disease until July 1, 2011, when he was first able to review the CT scan performed by Dr. Suntay with his own treating physician. Thus, Troha asserts that the trial court erred when it found that his claims were barred by the applicable ...