Keetly Marc v. Jackson Eck, D.O.

This appeal concerns the discovery rule. Dr. Jason C. Eck, D.O. (“Defendant”) performed spinal surgery on Keetly Marc (“Plaintiff”). On November 10, 2020, Plaintiff’s counsel, who then was representing Plaintiff only in a workers’ compensation case, received information through discovery reflecting that Plaintiff’s surgery was performed at the wrong level. Counsel reviewed the material on November 30, 2020, and informed Plaintiff by December 4, 2020. On November 24, 2021, Plaintiff sent pre-suit notice. On March 30, 2022, Plaintiff sued Defendant in the Circuit Court for Hamilton County (“the Trial Court”) alleging health care liability. Defendant filed a motion for summary judgment asserting the statute of limitations. The Trial Court granted summary judgment to Defendant. Plaintiff appeals. We hold that Plaintiff cannot be charged with constructive notice based on her attorney’s November 10, 2020, receipt of the relevant information because counsel was then representing Plaintiff only in a workers’ compensation case, and a potential health care liability claim was beyond the scope of her representation. Thus, the knowledge obtained by Plaintiff’s counsel on November 10, 2020, may not be imputed to Plaintiff. Plaintiff was made aware of the relevant information at some point from November 30, 2020, through December 4, 2020, meaning her lawsuit against Defendant was timely filed. We reverse the Trial Court’s judgment and remand for this case to proceed.