Vance v. St. Vincent Hospital and Medical Center

• Decision Date: 26 November 1980
• Docket Number: No. 80-8,80-8
• Citation: 414 N.E.2d 406,64 Ohio St.2d 36,18 O.O.3d 216
• Parties: , 18 O.O.3d 216 VANCE et al., Appellants, v. ST. VINCENT HOSPITAL AND MEDICAL CENTER et al., Appellees.
• Court: Ohio Supreme Court

Page 36

64 Ohio St.2d 36

414 N.E.2d 406, 18 O.O.3d 216

VANCE et al., Appellants, v. ST. VINCENT HOSPITAL AND MEDICAL CENTER et al., Appellees.

No. 80-8.

Supreme Court of Ohio.

Nov. 26, 1980.

Syllabus by the Court

A minor of 10 years of age or older must file a medical malpractice action within the time limitations set forth in R.C. 2305.11(A) and (B), notwithstanding R.C. 2305.16.

On March 30, 1978, Marcella Vance and her mother, Doris Vance, appellants herein, filed an action in the Court of Common Pleas of Lucas County against St. Vincent Hospital and Medical Center (hereinafter St. Vincent Hospital) and William J. Meyer, M.D. In the first count of the complaint Marcella Vance alleged that she had been born on October 17, 1958; that during the months of April, May and June, 1976, she had been a patient of Dr. Meyer in St. Vincent Hospital; that she had sustained injuries as the direct and proximate result of the negligence of the agents and employees of the hospital, and the negligence and malpractice of Dr. Meyer; and that those injuries had aggravated and increased to the level of a permanent impairment. She further alleged that within one year after her 18th birthday she had served written notice upon the defendants that she was contemplating bringing an action against them. In the second count, Doris Vance incorporated her daughter's allegations and claimed that she had incurred medical expenses for her daughter while she was a minor and had suffered a loss of her daughter's services, all presumably as a result of the defendants' actions.

By answer, defendants admitted that Marcella Vance had been a patient of Dr. Meyer from April 2, 1976, to April 16, 1976, pursuant to staff patient assignment at the hospital; that she again had been a patient at the hospital from April 21, 1976, to June 21, 1976; that she had been born on October 17, 1958, and that within one year of her eighteenth birthday she had served written notice on them of possible litigation. The remainder of the complaint was denied. The defendants prayed that the complaint be dismissed as plaintiffs' action was barred by the medical malpractice statute of limitations (R.C. 2305.11).

Thereafter the defendants moved, pursuant to Civ.R. 56, for entry of summary judgment in their favor for the reason that the action was not filed within the limitations period.

The Court of Common Pleas held oral argument on the motion and entered judgment for the defendants. The Court of Appeals affirmed in a split decision.

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

Goldberg, Williams, Jilek & Lafferty and David R. Goldberg, Toledo, for appellants.

Shumaker, Loop & Kendrick, Robert M. Anspach, and Dennis P. Witherell, Toledo, for appellees.

SWEENEY, Justice.

Resolution of this cause is dependent upon interpretation of the medical malpractice statute of limitations, R.C. 2305.11, as amended in July, 1975, by Am.Sub.H.B. No. 682, and of its effect on potential malpractice plaintiffs who are minors over the age of 10. ¹

The parties disagree as to the effect of that part of R.C. 2305.11(B) which reads:

"The limitations in this section for filing such a malpractice action against a physician, podiatrist, or hospital apply to all persons regardless of legal disability and notwithstanding section 2305.16 of the Revised Code * * *." ²

Appellants argue that this language refers only to the four-year limitations period contained in the remainder of R.C. 2305.11(B). They contend that this provision has no effect on the one-year limitations period of R.C. 2305.11(A). Under their interpretation, R.C. 2305.16 continues to toll the running of the one-year limitations period until a minor reaches the age of 18. Appellants concede that pursuant to R.C. 2305.11(B), R.C. 2305.16 could not "save" a minor's cause of action for a period longer than four years from the alleged malpractice. ³ Pursuant to appellants' argument, the cause herein was timely because it was filed within one year from Marcella Vance's eighteenth birthday and prior to the expiration of four years "after the act or omission constituting the alleged malpractice."

Conversely, appellees argue that R.C. 2305.11(B) negates in full any tolling effect of R.C. 2305.16 in medical malpractice actions and other actions asserting medical claims. They contend that the sole tolling provision for legal disabilities in medical malpractice actions is for "a minor who has not attained his tenth birthday" when the cause of action accrues, who "shall have until his fourteenth birthday in which to file an action for malpractice against a physician or a hospital." R.C. 2305.11(B). Appellees maintain that, with this sole exception, all persons are subject to identical rules for determining the timeliness of their medical malpractice actions.

Our primary purpose in interpreting a statute is to effectuate the intent of the General Assembly. Henry v. Central Natl. Bank (1968), 16 Ohio St.2d 16, 242 N.E.2d 342; 50 Ohio Jurisprudence 2d 139, Statutes, Section 169. Legislative intent is primarily determined from the language of the statute itself. Stewart v. Trumbull County Bd. of Elections (1973), 34 Ohio St.2d 129, 130, 296 N.E.2d 676. The General Assembly must be assumed or presumed to have used the words of a statute advisedly. Wachendorf v. Shaver (1948), 149 Ohio St. 231, 236-237, 78 N.E.2d 370.

Inherent in appellants' argument is the premise that the term "section" in R.C. 2305.11(B) ("the limitations in this section * * * apply to all persons * * * notwithstanding section 2305.16 of the Revised Code") does not mean R.C. 2305.11 in its entirety, but only R.C. 2305.11(B). However, a review of Am.Sub.H.B. No. 682 discloses that throughout the Act, a distinction is made between statutory "sections" and statutory "divisions," e. g., R.C. 2305.11(A) ("if a written notice, prior to the expiration of time contained in this division, is given * * *"); R.C. 2305.27 ("in any medical claim, as defined in division (B) of section 2305.11"); and R.C. 2711.23(J) (patient's rights "under division (B) of this section "). ⁴ Thus, had the General Assembly intended that the disputed language of R.C. 2305.11(B) have reference only to the first sentence of division (B), it would have provided, consistent with the rest of the Act, that the "limitations in this division * * * apply to all persons * * * notwithstanding section 2305.16 of the Revised Code," rather than providing that the "limitations in this section * * * apply * * *."

However, our determination concerning the use of the word "section" rather than "division" in R.C. 2305.11(B) does not conclude our inquiry into the legislative intent of the statute. R.C. 1.49, a codification of judicially formulated rules of statutory construction, provides:

"If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters:

"(A) The object sought to be attained;

"(B) The circumstances under which the statute was enacted;

"(C) The legislative history;

"(D) The common law or former statutory provisions, including laws upon the same or similar subjects;

"(E) The consequences of a particular construction;

"(F) The administrative construction of the statute."

R.C. 2305.11(B) was enacted in July 1975 as part of Am.Sub.H.B. No. 682-legislation declared to be "an emergency measure necessary for the immediate preservation of the public peace, health, and safety" due to "the fact that immediate action is necessary to insure a continuance of health care delivery to the citizens of Ohio." Id., at Section 8. The legislation was comprehensive in nature and consisted of a response to what was largely perceived throughout the country to be a medical malpractice "crisis" ⁵ manifested by sharply increased medical malpractice insurance premiums, cancellation of policies, and physician work slowdowns or stoppages. ⁶

Prior to the adoption of Am.Sub.H.B. No. 682, R.C. 2305.11 provided simply that "(a)n action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued * * * (135 Ohio Laws 982)." Since Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 865, this court has consistently held that a cause of action in medical malpractice does not "accrue," and hence the statute of limitations does not begin to run, until the termination of the physician-patient relationship. ⁷ Additionally, in Melnyk v. Cleveland Clinic (1972), 32 Ohio St.2d 198, 290 N.E.2d 916, it was held that where alleged medical malpractice consists of negligently leaving a foreign object in a patient's body, the one-year statute of limitations is tolled until the patient discovers or, by the exercise of reasonable diligence, should have discovered the negligent act.

It can readily be seen that, prior to the adoption of R.C. 2305.11 (B), a medical malpractice action could, under certain circumstances, be timely filed many years after the malpractice itself occurred, for the reason that the patient's cause of action does not necessarily accrue simultaneously with the act or omission constituting the malpractice. In the Melnyk case, for example, the plaintiff's action was deemed timely although filed nearly 11 years from the allegedly negligent surgery.

We do not believe the purpose of the General Assembly in adopting R.C. 2305.11(B) while leaving R.C. 2305.11(A) virtually unchanged was to alter this court's prior interpretations of the medical malpractice statute of limitations, but rather was to establish, as a rule of general applicability, a maximum period of four years from the alleged malpractice itself within which a potential plaintiff must bring his action irrespective of the date on which his cause of action accrues. ⁸ The purpose of the second sentence of R.C. 2305.11(B) was to totally negate any tolling effect of R.C. 2305.16 in medical malpractice cases. The General Assembly intended...