Amer v. Akron City Hospital, 75-1063

• Decision Date: 14 July 1976
• Docket Number: No. 75-1063,75-1063
• Citation: 351 N.E.2d 479,47 Ohio St.2d 85
• Parties: , 1 O.O.3d 51 AMER, Appellant, v. AKRON CITY HOSPITAL et al., Appellees.
• Court: Ohio Supreme Court

Page 85

47 Ohio St.2d 85

351 N.E.2d 479, 1 O.O.3d 51

AMER, Appellant, v. AKRON CITY HOSPITAL et al., Appellees.

No. 75-1063.

Supreme Court of Ohio.

July 14, 1976.

Syllabus by the Court

An action by a husband for loss of consortium, loss of services, and medical expenses, arising from an alleged medical malpractice upon his wife, is governed by the time limitation set forth in R.C. 2305.09(D) and must be commenced within the period prescribed thereby, which period is not tolled until termination of the physician-patient relationship.

On September 16, 1974, Richard Amer, appellant herein, filed an amended complaint in the Court of Common Pleas of Summit County, seeking the recovery of consequential damages consisting of loss of servides, consortium and medicial expenses arising from claimed acts of malpractice in the administration of X-ray therapy to his wife, Dolores Amer, which treatment was averred to have proximately resulted in the development of radiation necrosis and which condition manifested itself in 1972. Negligence, assault and battery, and fraudulent concealment were averred in separate counts.

On January 22, 1975, summary judgment was granted in favor of the defendants in the action, the court concluding, essentially, that appellant's cause of action was governed by the time limitation in R.C. 2305.09(D), that appellant's cause of action accrued at the time of administration of the X-ray treatment, the last of such treatments occurring on March 1, 1963, that the time limitation in R.C. 2305.09(D) expired on March 1, 1967, and that the commencement of the action by the original complaint filed on April 23, 1974, was not timely. It was concluded further that the claim of fraudulent concealment did not toll the limitation period in the statute. Upon appeal to the Court of Appeals, the grant of summary judgment was affirmed.

Appellees herein are the Akron City Hospital, Dr. Franklin H. Swenson and Dr. R. H. Hamor, staff physicians of the Akron City Hospital and members of Associated Radiologists of Akron, Inc., also an appellee, which corporation provides radiology services to the Akron City Hospital pursuant to a contract.

Upon appeal to this court, appellant's motion to certify was allowed, but restricted to a proposition of law advanced by appellant, which proposition reads as follows: 'If a husband's cause of action for loss of services, consortium and medical expenses is rooted upon the negligent act or omissions which may also give rise to an action for medical malpractice to his spouse, then the applicable statute of limitations must be tolled until the termination of the physician-patient relationship.'

Davis & Handelman Co., L.P.A., and D'Arnold Davis, Ceveland, for appellant.

Roetzel & Andress and John M. Ulman, Akron, for appellees.

STEPHENSON, Justice.

Although a number of issues were presented to the courts below by appellant, asserting that his cause of action accrued at a date subsequent to March 1, 1963, all such issues were resolved against him. For the purpose of disposition of the narrow issue this appeal presents, we accept as correct, without deciding the same, the conclusion of the courts below that appellant's cause of action accrued on March 1, 1963, within the meaning of the time limitation in R.C. 2305.09(D).

The restricted allowance of the motion to certify in this case was for the purpose of permitting this court to consider appellant's argument that this court should now judicially recognize an exception to the time limitation in R.C. 2305.09(D), where, as here, the cause of action is for consequential damages arising from, or having its origin in, alleged acts of malpractice to a plaintiff's spouse. ¹

The exception appellant urges we adopt is the physician-patient termination exception to R.C. 2305.11, as set forth in Wyler v. Tripi (1971), 25 Ohio St.2d 164, 267 N.E.2d 419, so that a spouse's cause of action for consequential injuries does not accrue under R.C. 2305.09(D), or if the action accrues, that the time limitation is tolled, until the physician-patient relationship of the spouse directly injured by acts of malpractice is terminated. ²

Proper disposition of this appeal requires recognition at the outset that although appellant's cause of action had its origin in, and grew out of, asserted acts of malpractice, his action is not one for malpractice. That issue was presented to this court in Corpman v. Boyer (1960), 171 Ohio St. 233, 169 N.E.2d 14, and was resolved by holding in the syllabus the following:

'1. The right of action of a husband for damages for medical expenses, loss of consortium and loss of services of his wife injured by the malpractice of a physician is not one for malpractice, and action based thereon need not be commenced within the period prescribed by Section 2305.11, Revised Code.

'2. A husband's action for consequential damages occasioned by malpractice of a physician upon his wife is for an injury to his rights not arising on contract or enumerated in the Revised Code sections set forth in paragraph (D), Section 2305.09, Revised Code, and must be commenced within the period prescribed thereby.'

The holding in Corpman was based upon the earlier decision of this court in Kraut v. Cleveland Ry. Co. (1936), 132 Ohio St. 125, 5 N.E.2d 324, wherein it was held, in a non-malpractice tort case, that an action for consequential damages by a husband against a tortfeasor for injury to a spouse was not one for 'bodily injury' within the meaning of the two-year limitation now embodied in R.C. 2305.10, but was within the four-year limitation now embodied in R.C. 2305.09(D).

The conclusion that appellant's action is not one of malpractice, but is simply a common law tort, is critical to appellant's proposition of law when consideration is given to the rationale upon which the physician-patient termination exception in malpractice actions rests.

In Wyler v. Tripi, supra, 25 Ohio St.2d 164, 267 N.E.2d 419, the syllabus provides: 'Under R.C. 2305.11, a cause of action for medical malpractice accrues, at the latest, when the physician-patient relationship finally terminates. (Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865; Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238, and DeLong v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177, follows.)' It was in Gillette v. Tucker that the termination rule was first formulated. What we view, in substance, as central to all the above-cited decisions, either expressly or by implication, is recognition therein that the physician-patient relationship is contractual in character, either express or implied, and the obligation thereby imposed upon physicians is to utilize the requisite degree of care, ot only in initial medical procedures in treating a patient, but to continue to utilize such requisite degree of care thereafter as the case may require during the continuance of the physician-patient relationship. It is because of such continuing duty after initial treatment, which, if breached, constitutes continuing negligence, that justifies allowing the time limitation in R.C. 2305.11 to commence, at the latest, from the termination of the physician-patient relationship. Wyler v. Tripi, supra. The difficulty appellant faces, in asserting the adoption of the termination exception to a cause of action for consequential damages, is that, not being a party to the contract between his spouse and her physician, as to him no contractual duty of continuing care is imposed upon the physician which is the base upon which the termination rule is structured. We deem it not unimportant that in the 40 years that have elapsed since Kraut v. Cleveland Ry. co. supra, 132 Ohio St. 125, 5 N.E.2d 324, followed by Corpman v. Boyer, supra, 171 Ohio St. 233, 169 N.E.2d 14, and Dean v. Angelas (1970), 24 Ohio St.2d 99, 264 N.E.2d 911, where, by these holdings, actions for consequential damages are limited by R.C. 2305.09(D), the General Assembly has not seen fit to alter these holdings.

Conceivably, it may be that the General Assembly has considered the incongruity, that appellant here asserts exists, as to the time when an action for malpractice must be commenced as opposed to the time when a cause of action for consequential damages by a spouse, arising from the same facts, must be commenced, and resolved such incongruity, not by creating exceptions which would increase the time limitation for the spouse's suit, but by decreasing the time within which the malpractice action must be instituted.

Whether intentionally, or coincidentally to the four-year limitation in R.C. 2305.09(D), Am.Sub.H.B. No. 682, ³ effective July 28, 1975, enacted a new section designated (B) in R.C. 2305.11, which provides: 'In no event shall any medical claim against a physician or a hospital be brought more than four years after the act or omission constituting the alleged malpractice occurred. The limitations in this section for filing such a malpractice action against a physician or hospital apply to all persons regardless of legal disability and notwithstanding section 2305.16 of the Revised Code, provided that a minor who has not attained his tenth birthday shall have until his fourteenth birthday in which to file an action for malpractice against a physician or hospital.' Whether the amendatory legislation was prompted in part by the holdings of this court with respect to time limitations for bringing actions for consequential damages having their origin in asserted malpractice, such legislation nevertheless represents a recent reappraisal by the General Assembly of the policy of this state as to time limitations for commencing malpractice actions. ⁴

The absence of any provision in such legislation creating exceptions which extend or otherwise alter the holdings of this court that actions for consequential damages for injury to a spouse must be commenced within the time limitation set forth in R.C. 2305.09(D), is persuasive that...