Mominee v. Scherbarth

• Decision Date: 22 December 1986
• Docket Number: Nos. 85-688 and 85-1039,s. 85-688 and 85-1039
• Parties: , 28 O.B.R. 346 MOMINEE et al., Appellees, v. SCHERBARTH et al., Appellants. * GREGORY et al., Appellees, v. ARMSTRONG et al., Appellants. JORDAN et al., Appellees, v. MAUMEE VALLEY HOSPITAL et al., Appellants. WAINSTEIN, Appellant, v. UNIVERSITY HOSPITALS OF CLEVELAND et al., Appellees.
• Court: Ohio Supreme Court

Page 270

28 Ohio St.3d 270

503 N.E.2d 717, 28 O.B.R. 346

MOMINEE et al., Appellees, v. SCHERBARTH et al., Appellants. ^*

GREGORY et al., Appellees, v. ARMSTRONG et al., Appellants.

JORDAN et al., Appellees, v. MAUMEE VALLEY HOSPITAL et al., Appellants.

WAINSTEIN, Appellant, v. UNIVERSITY HOSPITALS OF CLEVELAND et al., Appellees.

Nos. 85-688 and 85-1039.

Supreme Court of Ohio.

Dec. 22, 1986.

Syllabus by the Court

R.C. 2305.11(B) is unconstitutional as applied to minors under the due course of law provisions of the Ohio Constitution. (Baird v. Loeffler [1982], 69 Ohio St.2d 533, 433 N.E.2d 194 , to the extent inconsistent herewith, overruled.)

The plaintiffs ¹ in these appeals, consolidated sua sponte, challenge the constitutionality of the medical malpractice statute of limitations, R.C. 2305.11(B), ² as it applies to minors. While the statutes of limitations applicable to other claims by a minor are tolled until the child reaches the age of majority, see R.C. 2305.16, ³ any minor with a claim for medical malpractice is subject to the same limitations period as an adult. In each of the suits below, plaintiffs filed a malpractice claim after the expiration of the "adult" limitations period, but before the injured minor had reached age eighteen. All the trial courts ruled that plaintiffs were barred by suing by R.C. 2305.11. The courts therefore summarily disposed of the cases, either by entering a summary judgment for defendants or by dismissing the complaint pursuant to Civ.R. 12(B)(6).

All the cases were appealed to the court of appeals. In the first three of these cases, Mominee v. Scherbarth, Gregory v. Armstrong and Jordan v. Maumee Valley Hospital, the Court of Appeals for Lucas County, in a consolidated opinion, reversed the trial courts' judgments. The appellate court held that R.C. 2305.11 is unconstitutional as applied to minors because it violates the due course of law provision of the Ohio Constitution, Section 16, Article I. In the remaining case, Wainstein v. University Hospitals, the Court of Appeals for Cuyahoga County affirmed the lower court's dismissal.

The cause is now before this court upon the certifications of conflict between the courts of appeals.

Frank W. Cubbon, Jr. & Associates Co., L.P.A., and Frank W. Cubbon, Jr., Toledo, for appellees Paul C. Mominee, Jr. et al.

Manahan, Pietrykowski & Bamman and H. William Bamman, Toledo, for appellant R.E. Scherbarth, M.D.

Shumaker, Loop & Kendrick, Robert G. Clayton, Jr. and H. Frank McDaniel, Jr., Toledo, for appellant Margaret B. Miller, M.D.

Robison, Curphey & O'Connell and E. Thomas Maguire, Toledo, for appellant Flower Hospital.

Frank W. Cubbon, Jr. & Associates Co., L.P.A., and Thomas W. Gallagher, Toledo, for appellees Maurice D. Gregory et al.

Robison, Curphey & O'Connell, E. Thomas Maguire and James R. Brazeau, Toledo, for appellant Carl L. Armstrong, M.D.

Shumaker, Loop & Kendrick, Robert G. Clayton, Jr. and H. Frank McDaniel, Jr., Toledo, for appellant Toledo Hospital.

Frank W. Cubbon, Jr. & Associates Co., L.P.A., and Guy T. Barone, Toledo, for appellees Bliss Jordan, Jr. et al.

Anthony G. Pizza, Prosecuting Atty., and Jeffrey B. Johnston, Toledo, for appellants Maumee Valley Hospital and Lucas County Commrs.

Manahan, Pietrykowski & Bamman and Thomas J. Manahan, Toledo, for appellant Enrico T. Farinas, Jr., M.D.

Jones, Schell & Schaefer, Willis P. Jones, Jr. and Sandra E. Plunkett, Toledo, for appellant S.S. Purewal, M.D.

Michael F. Lyon, Cincinnati, urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.

Nukes & Perantinides Co., L.P.A., Paul G. Perantinides, Elizabeth B. Manning and Linda Tucci Teodosio, Akron, urging affirmance for amici curiae, Michael G. Finegan and Douglas Unrue, minors.

Bricker & Eckler, James J. Hughes, Jr. and Elizabeth A. Squeglia, Columbus, urging reversal for amicus curiae, Ohio Hospital Association.

Porter, Wright, Morris & Arthur, James E. Pohlman, William M. Todd and Kathy N. Seward, Columbus, urging reversal for amicus curiae, Ohio State Medical Assn.

Spangenberg, Shibley, Traci & Lancione, John G. Lancione and Paige A. Martin, Cleveland, for appellant.

Reminger & Reminger Co., L.P.A., and Gary H. Goldwasser, Cleveland, for appellee University Hospitals of Cleveland.

Rhoa, Follen, Rawlin & Johnson Co., L.P.A., Albert J. Rhoa and W. Andrew Hoffman III, Cleveland, for appellee Marvin L. Whitman, M.D.

SWEENEY, Justice.

The single issue raised in this consolidated cause is whether R.C. 2305.11(B), as applied to minors, violates the due process or due course of law provisions of the Ohio Constitution.

Given the important considerations involved in these controversies, a brief history of the various challenges to R.C. 2305.11 is essential to the resolution of the cause sub judice.

Prior to the effective date of the amended statute in issue (July 28 1975), R.C. 2305.11 provided that a person had one year from the date the cause of action accrued to file suit for medical malpractice. However, this limitations period was tolled pursuant to R.C. 2305.16, the "disabilities" statute, for minors until they attained the age of majority. Thus, injured minors whose causes of action accrued before they reached the age of majority had until their nineteenth birthday to commence a malpractice action.

R.C. 2305.11 was amended in 1975 by Am.Sub.H.B. No. 682 (136 Ohio Laws, Part II, 2809, 2810-2811). Under the amended statute there exists in addition to the one-year limitations period, an absolute limit of four years in which an individual can bring an action alleging medical malpractice. Thus, under the 1975 statutory amendment, an individual with a claim for medical malpractice is required to commence suit within one year from the date the cause of action accrued, or four years from the date the alleged malpractice occurred, whichever comes first. In addition, and of particular importance to the instant cause, the amendment specifically excepted R.C. 2305.11 from the "disabilities" tolling statute provided in R.C. 2305.16. Under the amended version of R.C. 2305.11(B), only minors under the age of ten had their limitations period tolled, but only until they reached their fourteenth birthday, by which time they had to file their claim.

Subsequent to the General Assembly's amendment to the instant malpractice statute of limitations, this court has been presented with a number of various challenges to R.C. 2305.11(B) as it applies to minors.

In Vance v. St. Vincent Hospital (1980), 64 Ohio St.2d 36, 414 N.E.2d 406 , we were first asked to interpret the new statutory language. The question presented in Vance was whether the abrogation of the tolling provision, division (B) of R.C. 2305.11, applied only to the absolute four-year limitation, or whether it also applied to the one-year limitations period set forth in division (A). After examining the language of Am.Sub.H.B. No. 682, in light of the circumstances surrounding its passage, this court concluded that the challenged language applied to the entire statute, and not merely to division (B). However, in Vance, we specifically refrained from determining the constitutionality of the provision abrogating the "disabilities" tolling statute, since the same was not raised as an issue therein.

The first opportunity this court was presented with a challenge to the constitutionality of R.C. 2305.11(B) occurred in Schwan v. Riverside Methodist Hospital (1983), 6 Ohio St.3d 300, 452 N.E.2d 1337. In Schwan, the statutory distinction between children ten years of age and older, who had no tolling period, and those under ten, who did have a grace period, was questioned on equal protection grounds pursuant to Section 2, Article I of the Ohio Constitution. In applying the pertinent test for equal protection, we determined that the final clause of R.C. 2305.11(B) failed the "rational basis" test, and was therefore unconstitutional.

Our holding in Schwan, together with our decision in Opalko v. Marymount Hospital, Inc. (1984), 9 Ohio St.3d 63, 458 N.E.2d 847, abrogated any and all irrational and unconstitutional classifications of minors within their own class. Hence, in light of equal protection analysis, the effect of our decisions in both Schwan and Opalko was that minors and adults are subject to the same time limitations set forth in divisions (A) and (B) of R.C. 2305.11. Nevertheless, neither Schwan nor Opalko raised or determined the constitutionality of R.C. 2305.11(B) in the context of due process or due course of law.

In the causes consolidated sub judice, we are asked to review the constitutionality of R.C. 2305.11(B) as it relates to minors in light of due process considerations.

Section 1, Article I of the Ohio Constitution provides:

"All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety."

Section 16, Article I, states in relevant part:

"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."

In testing the constitutionality of a legislative enactment, we begin with the common ground that all such enactments enjoy a presumption of constitutional validity. Schwan, supra, 6 Ohio St.3d at 301, 452 N.E.2d 1337. Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 377, 402 N.E.2d 519 ; State, ex rel. Taft, v. Campanella (1977), 50 Ohio St.2d 242, 246, 364 N.E.2d 21 ; State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59 , paragraph one of the syllabus.

A legislative enactment will be deemed valid on due process grounds " * * * if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public and if it is not...