I respectfully dissent from the majority opinion in the casesub judice for the reason that the record clearly shows there was a "cognizable event" on September 4, 1985 which put appellant on notice to inquire as to his condition. Since appellant failed to file his action within a year of that date, summary judgment for appellees was properly granted.
As the majority correctly notes, in explanation of its holding in Hershberger v. Akron City Hosp., supra, the Supreme Court stated the following:
"[T]he `extent and seriousness of his condition' language of the [Hershberger test] * * * requires that there be an occurrence of a `cognizable event' which does or should lead thepatient to believe that the condition of which the patientcomplains is related to a medical procedure, treatment ordiagnosis previously rendered to the patient and where the cognizable event does or should place the patient on notice of the need to pursue his possible remedies." (Emphasis added.)Allenuis v. Thomas (1989), 42 Ohio St. 3d 131, at 133,538 N.E.2d 93, at 96. *Page 341
In the case sub judice, the cognizable event which did or should have placed appellant on notice was appellant's visit with Dr. Selman which occurred on September 4, 1985, when Dr. Selman discussed with appellant the spurs on his cervical vertebrae and recommended surgery.
The language of Allenuis states the test is whether the event "does or should place the patient on notice." There is no requirement as the majority suggests that the patient needs to be told of a previous misdiagnosis. Moreover, the standard is that of a "reasonable person." Oliver v. Kaiser Community HealthFound. (1983), 5 Ohio St. 3d 111, 5 OBR 247, 449 N.E.2d 438. There is nothing in the record of the case sub judice to suggest appellant was not a reasonable person.
Furthermore, the record reveals appellant was referred to Dr. Selman for analysis of his neurological condition. The New College Edition of the American Heritage Dictionary of the English Language (Houghton Mifflin Co. 1976) defines "multiple sclerosis" as "a degenerative disease of the central nervoussystem in which hardening of tissues occurs throughout the brain or spinal cord or both."
Specifically, the medical records indicate Dr. Kamenar, appellant's treating physician just prior to his referral to Dr. Selman, began in May 1985 to question whether appellant hadcervical myelopathy. Appellant was ultimately referred to University Hospitals for further consultation. Appellant saw Dr. Selman on September 4, 1985. Thereafter, Dr. Selman wrote to Dr. Kamenar under date of September 4, 1985 as follows:
"I saw Paul Tober on September 4, 1985. He is a 48 year old right-handed man without medical problems. He had a diagnosis ofmultiple sclerosis since 1976. His initial problem came from left knee weakness. He had a history of playing volleyball previously although there was no acute incident that he remembers with pain. After many procedures and work up including a knee operation in 1976 he was managed with Lioresal for occasional leg spasticity.
"Now he complains of continued knee weakness as well asdecreased dexterity in the left hand and occasional numbness ofthe right leg. There are no bowel symptoms although he does report increasing constipation since 1978.
"His physicl [sic] examination shows the motor strength is 5 out of 5 and symmetrical except for his left foot dorsiflexion which appears to be recovering from the weakness at or around the time of knee surgery. His deep tendon reflexes are accentuated to 3 to 4+ from the triceps on down except only a 1+ at his ankles bilaterally. He has a left upgoing toe and the right is *Page 342 downgoing. There was no clonus. He has bilateral Hoffman's signs. His position sense is intact.
"The MRI shows an extradural defect most prominently at 5-6but also a small defect at 4-5.
"I told Mr. Tober that in light of this extraduralcompression he should undergo a surgical procedure. I explained that it may not be possible to regain lost function and our goal would be more of prevention of further deterioration althoughit is possible that he would receive some benefit to hisprevious loss of dexterity and spasticity. Mr. Tober wished todelay surgery until the first of the year and I suggested that we get further workup [sic] with surface coil MRI studies of both his cervical and lumbar spine in order to determine if a myelogram will be necessary preoperatively." (Emphasis added.)
Thus, Dr. Selman was suggesting two things, viz., (1) that appellant undergo surgery on his neck and (2) that this surgery would likely bring neurological benefits. Since multiple sclerosis is a neurological disease and appellant is presumed to be a reasonable person, it is frankly beyond comprehension that upon being told he needed surgery on his neck (which, of course, is so near the brain that the surgery would engender some concern therefor), appellant would not have asked two simple questions,viz., (1) why is surgery necessary?; and (2) does the condition for which you recommend surgery have anything to do with my multiple sclerosis?
The majority opinion places emphasis on the fact that surgery was able to be postponed, stating that "nothing in the record indicates that a sense of urgency existed to remove the bony spurs or that appellant was made aware of any urgency." However, this begs the question. It was appellant who made the decision to postpone surgery for personal reasons until January 1986. It is clear from the letter to Dr. Kamenar that Dr. Selman only suggested further diagnostic procedures since appellant did not want to have surgery at that time. Thus, it is not sufficient to prove appellant was not put on notice to inquire.2
The majority opinion herein thus ignores the holding ofAllenius v. Thomas, supra, and requires the "cognizable event" to be the time when appellant states he was actually informed of the misdiagnosis of multiple sclerosis contrary to the case law as promulgated by the Ohio Supreme Court. Even *Page 343 construing the available evidence most strongly in favor of appellant, reasonable minds could only conclude appellant wasput on notice and that he should have inquired as to his condition on September 4, 1985. Since he did not so inquire, and since his action against appellees was filed beyond the applicable statute of limitations under R.C. 2305.11(A), appellees' motions for summary judgment were properly granted.
Accordingly, appellant's second and third assignments of error lack merit and the summary judgment of the trial court should be affirmed.
2 A further question is thus also raised that is pertinent to this court's inquiry: viz., was Dr. Selman unable to determine that appellant's condition was not due to multiple sclerosis until he operated? If Dr. Selman had no knowledge appellant's condition was a result of cervical myelopathy until his surgery on January 14, 1986, how could there be malpractice in the previous doctors' actions before that date?