Anello v. Hufziger

• Citation: 48 Ohio App.3d 28,547 N.E.2d 1220
• Decision Date: 04 May 1988
• Docket Number: No. C-870584,C-870584
• Parties: ANELLO, Appellant, v. HUFZIGER, Appellee. *
• Court: United States Court of Appeals (Ohio)

Page 28

48 Ohio App.3d 28

547 N.E.2d 1220

ANELLO, Appellant, v. HUFZIGER, Appellee. ^*

No. C-870584.

Court of Appeals of Ohio, First District, Hamilton County.

May 4, 1988.

Syllabus by the Court

The decision in Evans v. Chapman (1986), 28 Ohio St.3d 132, 28 OBR 228, 502 N.E.2d 1012 (to the effect that the provision in former R.C. 2305.11[A] for extending the malpractice statute of limitations by one hundred and eighty days does not apply to dental claims) has retroactive effect and applies to a dental claim pending in court at the time of the decision.

Gates T. Richards, Cincinnati, for appellant.

Rendigs, Fry, Kiely & Dennis and John Hust, Cincinnati, for appellee.

PER CURIAM.

The question raised by plaintiff-appellant E.M. Anello's assignment of error (that the trial court "improperly" granted defendant's motion for summary judgment) is whether to give retroactive effect to the decision in Evans v. Chapman (1986), 28 Ohio St.3d 132, 28 OBR 228, 502 N.E.2d 1012. In that case, the Supreme Court held that the provision of R.C. 2305.11(A), "which creates a mechanism for extending the statute of limitations by one hundred eighty days, applies only to malpractice claims against physicians, podiatrists, or hospitals, not to malpractice claims against dentists." The court said that this provision is not a denial of the equal protection of the law. Id. at paragraphs one and two of the syllabus. We hold in the instant case that the decision has retroactive effect.

The sparse record on appeal discloses that plaintiff went to defendant-appellee, Dr. Dale Hufziger, on November 5, 1981, for consultation about rebuilding her upper bridges and alleviating her bite malocclusion. His recommendations and treatment, according to plaintiff, were not successful. Her last appointment with defendant was on December 11, 1982, and on January 15, 1983, she formally requested that a complete review be made by the Local Peer Review Committee. On November 1, 1983, plaintiff's attorney mailed the defendant a "written notice" (certified mail letter) which the defendant received on November 2, 1983, advising him that plaintiff was considering an action against him relating to the professional services he had rendered to plaintiff.

Plaintiff's complaint was filed on April 27, 1984, within one hundred eighty days after written notice of the claim was given, but more than one year after defendant's services were terminated (if not on December 11, 1982, then certainly on January 15, 1983). If the provision for the one-hundred-eighty-day letter applies to dental claims, plaintiff filed her complaint within the statute of limitations. The trial court held to the contrary, and we agree with that decision.

While dental malpractice claims were, prior to 1982, governed by the two-year statute of limitations (R.C. 2305.10), R.C. 2305.11 was amended effective March 15, 1982 (see 139 Ohio Laws, Part I, 2153, 2153-2154) to bring dental claims under the one-year malpractice statute of limitations. The pertinent parts of R.C. 2305.11 as thus amended are:

"(A) An action for * * * malpractice, including an action for malpractice against a physician, podiatrist, hospital, or dentist * * * shall be brought within one year after the cause thereof accrued * * *.

"If a written notice, prior to the expiration of time contained in this division, is given to any person in a medical claim that an individual is presently considering bringing an action against that person relating to professional services provided to that individual, then an action by that individual against that person may be commenced at any time within one hundred eighty days after that notice is given.

" * * *

"(D) As used in this section:

" * * *

"(2) 'Physician' means all persons who are licensed to practice medicine and surgery or osteopathic medicine and surgery by the state medical board.

"(3) 'Medical claim' means any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care or treatment of any person.

" * * *

"(5) 'Dentist' means all persons licensed to practice dentistry by the state dental board.

"(6) 'Dental claim' means any claim asserted in any civil action against a dentist arising out of a dental operation or the dental diagnosis, care, or treatment of any person." ¹ (Emphasis added.)

These provisions were in effect at the time plaintiff terminated defendant's services, and no question is raised in this appeal about any unconstitutional application of the statute to plaintiff's case by unreasonably reducing the period within which she had to commence her lawsuit.

From April 27, 1984, the day on which the instant action was commenced, until December 24, 1986, the day the Supreme Court announced its decision in Evans, there was a conflict among Ohio lower courts about whether the one-hundred-eighty-day extension applied to dental claims. For instance, the Sixth District Court of Appeals held in Smith v. McLaughlin (Aug. 24, 1984), Lucas App. No. L-84-107, unreported, 1984 WL 14219, that the extension did not apply to dental claims, whereas this First District Court of Appeals held in Edwards v. Ball (Oct. 15, 1986), Hamilton App. No. C-850872, unreported, 1986 WL 11400, that equal-protection principles required that the extension apply to dental claims. We need not cite other cases to illustrate the conflict. It was a decision of the Ninth District Court of Appeals denying the extension that the Supreme Court affirmed in Evans.

The general rule is that a decision of the Supreme Court interpreting a statute is retrospective in its operation, because it is a declaration of what is and always was the correct meaning or effect of the enactment. See Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 57 O.O. 411, 129 N.E.2d 467. There are exceptions to the general rule, as illustrated by Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296. A high court decision will not be applied retroactively if the decision meets three "separate factors." Id. at 106-107, 92 S.Ct. at 355-56. As applicable to the instant case, these three factors may be expressed in question form:

(1) Is the decision one of first impression that was not clearly foreshadowed?

(2) Will retrospective application retard the...