Denicola v. Providence Hospital

• Decision Date: 28 March 1979
• Docket Number: No. 78-891,78-891
• Parties: , 11 O.O.3d 290 DENICOLA et al., Appellants, v. PROVIDENCE HOSPITAL et al., Appellees.
• Court: Ohio Supreme Court

Page 115

57 Ohio St.2d 115

387 N.E.2d 231, 11 O.O.3d 290

DENICOLA et al., Appellants, v. PROVIDENCE HOSPITAL et al., Appellees.

No. 78-891.

Supreme Court of Ohio.

March 28, 1979.

Syllabus by the Court

1. R.C. 2743.43, effective July 28, 1975, is a law of a remedial nature providing a rule of procedure, and, therefore, it is applicable to a trial conducted after its effective date, even though the cause of action accrued and the complaint was filed before that date. (Paragraph two of the syllabus in Kilbreath v. Rudy, 16 Ohio St.2d 70, 242 N.E.2d 658, approved and followed.)

2. R.C. 2743.43 applies to all "medical claims," as that phrase is defined in R.C. 2305.11.

3. R.C. 2743.43, does not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

This is an appeal by Patricia and Ronald J. Denicola, husband and wife (appellants herein), from a decision of the Court of Appeals in a medical malpractice cause initiated by them in the Court of Common Pleas, in January 1975, for personal injuries, medical expenses and loss of consortium, allegedly caused by the negligence of Providence Hospital, Richard T. Wurzelbacher, M. D., and Thomas Saladin, M. D., (appellees herein) and an unknown nurse/technician, while Mrs. Denicola was hospitalized in Providence Hospital in January 1974.

The trial commenced on June 28, 1976. On the third day of trial, appellants called Jerry L. Maloon, M. D., as their only expert medical witness. Appellees objected to the opinion testimony of Dr. Maloon on the basis that this testimony was incompetent, pursuant to R.C. 2743.43, which became effective on July 28, 1975. Appellees' objection was sustained. Subsequently, each of the appellees moved for and was granted a directed verdict. On May 31, 1978, a majority of the Court of Appeals affirmed the judgment of the trial court.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

White, Getgey & Meyer Co., L. P. A., John J. Getgey, Jr., Marks, Goldsmith & Weiner and Edward G. Marks, Cincinnati, for appellants.

Dinsmore, Shohl, Coates & Dupree, Frank C. Woodside, III, John E. Schlosser, Cincinnati, Spalding, Grause, Robinson & Arnzen and John L. Spalding, Covington, Ky., for appellee Providence Hospital.

Rendigs, Fry, Keily & Dennis and D. Marc Routt, Cincinnati, for appellees, Drs. Wurzelbacher and Saladin.

LOCHER, Justice.

The first issue for this court's decision is whether it was procedural error for the trial court to apply R.C. 2743.43, thereby excluding the testimony of appellants' medical expert. R.C. 2743.43 states, in part:

"(A) No person shall be deemed competent to give expert testimony on the liability issues in a medical claim * * * unless:

"(2) Such person devotes three-fourths of his professional time to the active clinical practice of medicine or surgery, osteopathic medicine and surgery, or podiatric medicine and surgery, or to its instruction in an accredited university."

Appellants conceded during oral argument in this court that their proffered medical expert did not qualify as competent under R.C. 2743.43. They also conceded that R.C. 2743.43 is a procedural statute and, therefore in no way violative of Section 28 of Article II of the Ohio Constitution. ¹ This court has held that Section 28 of Article II has application only to laws affecting substantive rights. It has no application to laws of a remedial nature providing rules of practice, courses of procedure, or methods of review. State ex rel. Slaughter v. Indus. Comm. (1937), 132 Ohio St. 537, 9 N.E.2d 505; Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, 242 N.E.2d 658. Rather, appellants contend that the application of R.C. 2743.43 in this cause violates R.C. 1.48, which states: "A statute is presumed to be prospective in its operation unless expressly made retrospective."

Succinctly stated, appellants maintain that, since their cause of action accrued and was filed before the effective date of R.C. 2743.43, the statute was retrospectively applied even though the cause was not tried until 11 months after its effective date.

We find appellants' contention to be without merit. R.C. 2743.43 pertains to the competency of a witness to testify, and, consequently, it is of a remedial or procedural nature. Being procedural and not substantive, ² it cannot be said to have been retrospectively employed in a trial conducted almost a year after its enactment. This court addressed this issue in Kilbreath v. Rudy, supra. The second paragraph of the syllabus therein reads as follows:

"Laws of a remedial nature providing rules of practice, courses of procedure, or methods of review are applicable to any proceedings conducted after the adoption of such laws. (Paragraph one of the syllabus of State ex rel. Holdridge v. Indus. Comm., 11 Ohio St.2d 175, 228 N.E.2d 621, 624, approved and followed. Cincinnati, Hamilton & Dayton Rd. Co. v. Hedges, 63 Ohio St. 339, 58 N.E. 804, criticized.)"

In following the rule of Kilbreath, we hold that R.C. 2743.43 was not retrospectively applied in this cause; but, rather, it was properly applied prospectively, since the trial took place after its effective date. ³ This being so, R.C. 1.48 was not violated.

The second issue raised by appellants is whether R.C. 2743.43 should apply only to actions brought in the Court of Claims under R.C. Chapter 2743 against the state of Ohio or against hospitals owned or operated by its political subdivisions. They argue that, because this statute was codified in the chapter of the Revised Code which deals with the Court of Claims, it must necessarily be limited in its operation to cases brought in that court.

We agree with the majority of the appellate court that the numbering and placement by the General Assembly of R.C. 2743.43 in the portion of the Revised Code dealing with the Court of Claims is not definitive of its applicable scope. The General Assembly has expressly and clearly declared in R.C. 1.01 that: " * * * Title, Chapter, and section headings and marginal General Code section numbers do not constitute any part of the law as contained in the 'Revised Code.' " Aside from its numerical codification, there is simply no language in R.C. 2743.43, or anywhere else in the Revised Code, which limits its application to Court of Claims' cases.

R.C. 2743.43 was enacted as part of the very comprehensive Am.Sub.H.B.No. 682 (136 Ohio Laws 2809, 2823). The rules of statutory construction require that, when the scope of a provision is doubtful, the various sections of an Act should be read In pari materia when they relate to the same subject matter. In so doing, reference to R.C. 2305.11, also a part of Am.Sub.H.B.No. 682, is helpful. This section defined the term "medical claim" as "any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person." R.C. 2743.43 pertains to the competency of medical experts in "medical claims." Thus, when these sections are read In pari materia it becomes clear that R.C. 2743.43 was not intended by the General Assembly to be limited only to causes brought before the Court of Claims.

Lastly, appellants maintain that the application of R.C. 2743.43 in this cause violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In essence, they argue that, because a similar restriction is not placed upon expert malpractice witnesses in other types of professional negligence cases, E. g., lawyers and dentists, medical...