Hardy v. VerMeulen

• Decision Date: 12 August 1987
• Docket Number: No. 86-1448,86-1448
• Citation: 32 Ohio St.3d 45,512 N.E.2d 626
• Parties: HARDY, Appellant, v. VerMEULEN et al., Appellees.
• Court: Ohio Supreme Court

Page 45

32 Ohio St.3d 45

512 N.E.2d 626

HARDY, Appellant, v. VerMEULEN et al., Appellees.

No. 86-1448.

Supreme Court of Ohio.

Aug. 12, 1987.

Syllabus by the Court

R.C. 2305.11(B), as applied to bar the claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries, violates the right-to-a-remedy provision of Section 16, Article I of the Ohio Constitution.

The appellant, Carl E. Hardy, M.D., filed a malpractice action against his physicians, the appellees, Victor R. VerMeulen, M.D., and Victor R. VerMeulen, Inc.

Surgical procedures, giving rise to the claim of malpractice, were performed by Dr. VerMeulen on appellant's right ear in 1973 and 1974. The physician-patient relationship ended in 1974.

Appellant asserts that " * * * [t]he malpractice injury which is the subject matter of this action was discovered April 15, 1984." In April 1985, notice was sent by appellant in order to extend the statute of limitations by one hundred eighty days. Appellant subsequently filed his complaint on October 1, 1985, within the one-hundred-eighty-day period.

Pursuant to Civ.R. 12(C), appellees moved to dismiss on the basis that appellant's claim was barred by R.C. 2305.11(B), since appellant failed to bring his action within four years following the act or omission constituting the alleged malpractice.

The trial court sustained appellees' motion and the court of appeals affirmed.

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

Jerry L. Maloon Co., L.P.A., and Jeffrey L. Maloon, Columbus, for appellant.

Robert L. Herron, Salem, for appellees.

HERBERT R. BROWN, Justice.

In this case, the four-year period specified by R.C. 2305.11(B) would, if applied, bar the appellant's claim before he knew of the injury he suffered. ¹ In order to affirm we are required: (1) to find that R.C. 2305.11(B) may constitutionally achieve that result and (2) to apply R.C. 2305.11(B) retroactively to bar a cause of action where the act of malpractice occurred prior to the effective date of the statute.

I

Our analysis begins with an examination of what R.C. 2305.11(B) is and what it is not. It is not a traditional statute of limitations, since the appellant was not aware of his injury and thus his cause of action was extinguished before he could act upon it. ² R.C. 2305.11(B) does not alter the standard of proof in malpractice cases and it does not change the evidentiary requirements of such cases. It does not alter the elements in the tort or change the rule of damages. In short, R.C. 2305.11(B) does not change the substantive character of a malpractice action.

R.C. 2305.11, if applied to those who suffer bodily injury from medical malpractice but do not discover that injury until four years after the act of malpractice, accomplishes one purpose--to deny a remedy for the wrong. In other words, the courts of Ohio are closed to those who are not reasonably able, within four years, to know of the bodily injury they have suffered.

Section 16, Article I of the Ohio Constitution provides:

"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." (Emphasis added.)

The appellant has no remedy for an injury to his body when his claim is extinguished before he knew of the injury or could have reasonably discovered it. ³

Thus, as applied to the facts in the case sub judice, R.C. 2305.11 is in violation of Section 16, Article I of the Ohio Constitution. The language in the Constitution is clear and leaves little room for maneuvering. Our courts are to be open to those seeking remedy for injury to person, property, or reputation.

As this court said in Kintz v. Harriger (1919), 99 Ohio St. 240, 247, 124 N.E. 168, 170:

"Manifestly, when the constitution of the state declares and defines certain public policies, such public policies must be paramount, though a score of statutes conflict and a multitude of judicial decisions be to the contrary.

"No general assembly is above the plain, potential provisions of the constitution, and no court, however sacred or powerful, has the right to declare any public policy that clearly contravenes or nullifies the rights declared in the constitution." (Emphasis added.)

The holding in Kintz reads as follows:

"1. The Constitution of Ohio, Bill of Rights, Section 16, provides, among other things, 'Every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.'

"2. It is the primary duty of courts to sustain this declaration of right and remedy, wherever the same has been wrongfully invaded." Id. at paragraphs one and two of the syllabus.

See, also, Byers v. Meridian Printing Co. (1911), 84 Ohio St. 408, 95

N.E. 917, paragraph two of the syllabus (a legislative enactment changing the presumption and burden of proof as to malice in defamation cases was found unconstitutional and void under Section 16, Article I); Williams v. Marion Rapid Transit, Inc. (1949), 152 Ohio St. 114, 39 O.O. 433, 87 N.E.2d 334 (denial of remedy to an unborn viable child violated Section 16, Article I); Primes v. Tyler (1975), 43 Ohio St.2d 195, 205, 72 O.O.2d 112, 117, 331 N.E.2d 723, 729 (the Ohio Guest Statute was found in violation of Section 16, Article I, " * * * in that it closes the courts and denies a remedy by due course of law to some but not all the people of this state * * * "). ⁴

In Lafferty v. Shinn (1882), 38 Ohio St. 46, 48, this court recited Section 16, Article I and said that " * * * it is not within the power of the legislature to abridge the period within which an existing right may be so asserted as that there shall not remain a reasonable time within which an action may be commenced." If the legislature may not constitutionally enact an unreasonable statute of limitations, it follows that the legislature cannot deprive one of a right before it accrues.

We agree with the reasoning of the Supreme Court of South Dakota in Daugaard v. Baltic Co-op. Bldg. Supply Assn. (S.D.1984), 349 N.W.2d 419, 424-425, that a statute such as R.C. 2305.11(B) unconstitutionally locks the courtroom door before the injured party has had an opportunity to open it. When the Constitution speaks of remedy and injury to person, property, or reputation, it requires an opportunity granted at a meaningful time and in a meaningful manner. See, also, Kennedy v. Cumberland Engineering Co. (R.I.1984), 471 A.2d 195; Boddie v. Connecticut (1971), 401 U.S. 371, 377-378, 91 S.Ct. 780, 785-786, 28 L.Ed.2d 113; Neagle v. Nelson (Tex.1985), 685 S.W.2d 11, 12; Berry v. Beach Aircraft Corp. (Utah 1985), 717 P.2d 670; Jackson v. Mannesmann Demag Corp. (Ala.1983), 435 So.2d 725; Overland Constr. Co. v. Sirmons (Fla.1979), 369 So.2d 572; Kenyon v. Hammer (1984), 142 Ariz. 69, 75-76, 688 P.2d 961, 967-968.

Accordingly we hold that R.C. 2305.11(B), as applied to bar the claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries, violates the right-to-a-remedy provision of Section 16, Article I of the Ohio Constitution.

II

The result we reach follows logically from our decision of December 22, 1986 in Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, syllabus, in which we held R.C. 2305.11(B) unconstitutional as applied to minors. ⁵ At that time, five of the seven court members suggested a violation of Section 16, Article I.

In Mominee, we expressed no opinion as to the constitutionality of R.C. 2305.11(B) as applied to adults (id. at fn. 6), although Justices Douglas and C. Brown stated the opinion that the statute, when so applied, would be unconstitutional.

Little distinction can be made between an adult plaintiff who did not know of his or her injury and a minor. It may be argued that the adult who was unaware of the injury is under a greater disability than the minor who knew of the injury but did not assert a claim within the four-year period. ⁶

III

We are mindful that acts of the General Assembly are presumed valid. See State v. Dorso (1983), 4 Ohio St.3d 60, 61, 4 OBR 150, 151, 446 N.E.2d 449, 450; Peebles v. Clement (1980), 63 Ohio St.2d 314, 321, 17 O.O.3d 203, 207, 408 N.E.2d 689, 693; State ex rel. Taft v. Campanella (1977), 50 Ohio St.2d 242, 246, 4 O.O.3d 423, 425, 364 N.E.2d 21, 24. We accept the proposition that the legislature enacted R.C. 2305.11(B) in response to a perceived crisis in the area of malpractice insurance.

The right-to-a-remedy provision of Section 16, Article I does not require the analysis of rational-basis that is used to decide due process or equal protection arguments against the constitutionality of legislation. The fault in R.C. 2305.11(B) is that it denies legal remedy to one who has suffered bodily injury. This the legislature may not do even if it acted with a rational basis. ⁷

Further, the legislature when it adopted R.C. 2305.11(B) did not specifically address the situation of one who did not know of his or her injury. The statute was adopted prior to our decision in Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d, 111, 5 OBR 247, 449 N.E.2d 438; thus, presumably the intent of the legislature was to put a limit on the rule that a malpractice action could be filed any time up to one year after the termination of the physician-patient relationship. The physician-patient relationship could continue for many years after the act of malpractice. Where a plaintiff has allowed more than one year to run following discovery of injury, R.C. 2305.11(B) might pass constitutional muster as a limitation on the further time extension accorded by a continuing physician-patient relationship. However, that issue is not before us and we reserve our opinion thereon.

IV

Our determination rests upon denial of remedy. We do not...