Please note that in the case of Tausch vs. Riverview Health Inst., 187 Ohio App. 3d 173 (Feb. 12, 2010), the Second District Court of Appeals in Montgomery County held that the statute of limitations applicable to a physician is tolled under the termination rule until the physician/patient relationship for the condition at issue has ended and a related claim against a hospital on the theory of vicarious liability is likewise tolled. Therefore, if the patient acted reasonably in not having discovered his injury within the one-year accrual date for limitation periods, then the claim against the hospital on the theory of respondeat superior/agency by estoppel is also tolled. This is an excellent case to use for holding a hospital liable if in fact the patient:
1. Looked to the hospital as a provider of medical services.
2. The hospital held itself out to the public as a provider of medical services.
Agency by estoppel is not a direct claim against the hospital, but an indirect claim for vicarious liability of the independent contractor with whom the hospital contracted for professional services. One might consider that if it’s more than one year since the patient was last seen by the doctor and a patient at the hospital, that the statute of limitations against the hospital for the independent contractor physician for agency by estoppel has expired. The court held that under 2305.11(A), the statute of limitations that would be applicable to the independent contractor physician is tolled under the termination rule until the physician/patient relationship for the condition has ended or when the injured party became aware or should have become aware of the extent and seriousness of his condition. The court went on to address in determining the injured party’s awareness of the extent and seriousness of his condition, for statute of limitations purposes, the court must find that a “cognizable event” occurred that put the party on notice that his injury was related to a specific medical procedure and of the need to pursue his possible remedies.
The court held that in that situation, even though the patient may no longer be seen at the hospital until the cognizable event triggers the one-year statute against the doctor, that the patient believed to be an employee of the hospital and as an independent contractor that the claim for vicarious liability on an agency by estoppel claim is also tolled. Please keep this in mind.