Phillips v. Burt

[This opinion has been published in Ohio Official Reports at 

.]




PHILLIPS, APPELLEE, v. BURT; ST. ELIZABETH MEDICAL CENTER, APPELLANT.
                      [Cite as Phillips v. Burt, 

.]
Appeal dismissed as improvidently allowed.
 (No. 95-1522—Submitted November 13, 1996 at the Urbana Session—Decided
                                    January 22, 1997.)
   APPEAL from the Court of Appeals for Montgomery County, No. CA-14532.
                                  __________________
        Spangenberg, Shibley, Lancione & Liber, John G. Lancione, John D. Liber
and Cathleen M. Bolek, for appellee.
        Dinsmore & Shohl, K.C. Green, Deborah R. Lydon and Sara Simrall Rorer,
for appellant.
        Bricker & Eckler, James J. Hughes, Jr. and Catherine M. Ballard; Elsass,
Wallace, Evans, Schnelle & Co., L.P.A., and Stanley R. Evans, urging reversal for
amici curiae, Ohio Hospital Association and Ohio State Medical Association.
                                  __________________
        {¶ 1} The appeal is dismissed, sua sponte, as having been improvidently
allowed.
        DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
        MOYER, C.J., COOK and STRATTON, JJ., dissent.
                                  __________________
        COOK, J., dissenting.
        {¶ 2} I respectfully dissent from the decision of the majority to dismiss this
appeal as improvidently allowed. I would take this opportunity to revisit the issue
of the application of the discovery rule to negligent-credentialing claims.
        {¶ 3} The discovery rule developed to preserve the claims of individuals
who, despite the exercise of diligence, could not have known of an injury until the
                              SUPREME COURT OF OHIO




statute of limitations had run. The rule requires an objective assessment of when
an individual knew or should have known that he or she has been injured. The
“alerting event” rationale of Browning v Burt (1993), 

, 

, is a departure from prior law.
       {¶ 4} The underlying policy behind a statute of limitations is to discourage
fraudulent or stale claims that cannot be fairly defended years after the occurrence
of a claimed injury. Browning postpones the running of the statute of limitations
in negligent-credentialing claims until the plaintiff discovers the legal significance
of his or her injury; that is, discovers the legal theory supporting a claim against the
credentialing entity. The major problem with this analysis is that plaintiffs never
have such knowledge except through consultation with a lawyer about legal
theories of redress.
       {¶ 5} Ms. Phillips’s case aptly demonstrates the sophistry of the Browning
approach. She had tremendous physical problems after the surgery. Realistically,
such symptomology is the only true “alerting event” for a plaintiff with a claim for
bodily injury, which essentially this is. Yet, Phillips did not file a complaint until
over four years after the onset of her problems.
       {¶ 6} Despite Phillips’s knowledge of her problems, under the Browning
standard she was not “alerted” to her claim for negligent credentialing until
sometime during the trial. Surely the legislature could not have intended such a
result when enacting a statute of limitations for bodily injury.
       {¶ 7} I would reverse this case and overrule Browning.
       MOYER, C.J., and STRATTON, J., concur in the foregoing dissenting opinion.
                                __________________




                                           2