The Fifth District recently published a decision that stands as a warning to potential plaintiffs; don't wait too long to request the medical records. In Kelly v. Aultman Physician Center, that was the underlying basis of the court's decision affirming the granting of judgment in favor of the defendants. Upon the plaintiff's request, the defendants inserted an intrauterine device known as an IUD on June 18, 2008. In February of the next year, during plaintiff's regular exam by her doctor, it was determined that the IUD needed to be repositioned. In June, the plaintiff experienced problems with the IUD and the defendant hospital performed an ultrasound, which revealed the IUD was mispositioned again. According to the record, plaintiff was never informed of the results of the June ultrasound, and no treatment occurred.
That following October, plaintiff returned to the same hospital, complaining of stomach pains. Her doctor recommended to remove the IUD if the pain did not improve. Evidently the plaintiff felt the pain improved, but in December she was diagnosed with a urinary tract infection. Finally, in April 2010, the plaintiff visited the ER department of the same hospital complaining of stomach pains. A CT scan revealed that the mispositioned IUD caused damage. The remedial surgery required the plaintiff to undergo a hysterectomy, removal of both ovaries and fallopian tubes, bilateral gutter abscess removal, appendectomy, and removal of multiple pelvic abscesses. After the surgery, the plaintiff suffered septic shock, multi-organ failures, and sepsis. She spent almost to weeks in the hospital.
Unfortunately, the plaintiff did not seek her medical records until October 2012 after seeing a commercial about the complications generally associated with her IUD. It was then the plaintiff first learned of the June 2009 ultrasound results that indicated the IUD was mispositioned. She filed her medical malpractice claim in early 2013, well-outside the one year statute of limitations for medical malpractice claims in Ohio. The Fifth District determined she should have been aware of the issues relating to the positioning of the IUD by at least April 2010 when her surgery to correct the problems occurred. The plaintiff wanted to use the date she actually received her medical records in 2013. It's hard to quibble with the court's reasoning. The April surgery was specifically addressing the problems stemming from a mispositioned IUD, so the plaintiff at least had notice of the negligence requiring her to investigate further.
The plaintiff raised an interesting secondary claim. In addition to the medical malpractice claim, she also claimed that the defendants fraudulently concealed the results of the June 2009 ultrasound, which revealed the potential malpractice. That fraud also would have been discovered during the April 2010 surgery, but fraud claims carry a four-year statute of limitations, so her 2013 action was timely. The problem with that claim is a fraudulent concealment action requires proof of concealment of a fact where there is a duty to disclose. The plaintiff attempted to prove the concealment through her medical records from the April surgery, which noted the undisclosed June 2009 ultrasound results. As the Fifth District noted, there was no doubt the failure to disclose the 2009 ultrasound was evidence of negligence, but not of active concealment. Without evidence of concealment, rather than the mere failure to disclose, summary judgment was granted in favor of the defendants.
The case is both a good reminder for patients of the importance of having their medical records reviewed quickly following corrective procedures in Ohio in light of the one year statute of limitations. It also emphasizes a good case-management strategy; if the diagnosis confirming potential malpractice was never disclosed, there may be a factual basis to include a fraudulent concealment claim to avoid the harsh effects of the one-year medical malpractice limitation. Plaintiff had a good theory, she just lacked sufficient evidentiary support to withstand summary judgment.
