Deskins v. Young, 85-1778

• Decision Date: 13 August 1986
• Docket Number: No. 85-1778,85-1778
• Parties: , 26 O.B.R. 7 DESKINS, Appellant, v. YOUNG, Appellee.
• Court: Ohio Supreme Court

Page 8

26 Ohio St.3d 8

496 N.E.2d 897, 26 O.B.R. 7

DESKINS, Appellant, v. YOUNG, Appellee.

No. 85-1778.

Supreme Court of Ohio.

Aug. 13, 1986.

This appeal arises from a medical malpractice claim filed by appellant, Jean H. Deskins, against appellee, Robert E.S. Young, M.D. The complaint alleged that on or about June 22, 1971, appellant underwent an operation, performed by appellee, to remove her gallbladder. Twelve years later, on or about June 3, 1983, appellant underwent a second surgery. At this time it was discovered that the first surgery was not complete. A remnant of appellant's gallbladder was removed. Appellant averred in response to appellee's motion for summary judgment that she could not have discovered and did not discover that the first surgery was incomplete until she was so advised on the date of her second surgery. Appellee admits to receiving timely written notice from appellant that she was contemplating an action against him, thus extending the statute of limitations by one-hundred-eighty days pursuant to R.C. 2305.11(A). Appellant filed her claim against appellee on November 21, 1984.

The trial court granted summary judgment to appellee on the ground that appellant's action was time-barred by the four-year limitation period contained in R.C. 2305.11(B). The court of appeals affirmed the application of the four-year bar to appellant's claim and further held that the statute was not unconstitutional.

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

Lamkin, Van Eman & Trimble and William W. Lamkin, Columbus, for appellant.

Bricker & Eckler, John F. Birath, Jr. and Elizabeth A. Squeglia, Columbus, for appellee.

PER CURIAM

The question presented is whether R.C. 2305.11(B) bars a medical claim in which the cause of action arose prior to the effective date of that statute, but discovery of the alleged negligent act occurred more than four years after the act or omission constituting the alleged malpractice occurred. In Adams v. Sherk (1983), 4 Ohio St.3d 37, 446 N.E.2d 165, a case involving a similar question, this court held that retroactive application of R.C. 2305.11(B) was violative of Section 28, Article II of the Ohio Constitution.

R.C. 2305.11(B) provides that in no event shall a medical claim be brought more than four years after the act or omission constituting the alleged malpractice occurred. This amendment to R.C. 2305.11 became effective July 28, 1975. (136 Ohio Laws, Part II, 2809, 2810.)

In Sherk, supra, appellant's cause of action arose prior to the effective date of R.C. 2305.11(B), but the negligent act itself was not discovered until well after that statute became effective. Appellant had undergone surgery in 1967. Thirteen years later, in 1980, she discovered that a foreign object had been left in her body during the original surgery.

Likewise, in the instant case, appellant underwent surgery for the removal of her gallbladder in 1971. Twelve years later, in 1983, she discovered that a portion of her gallbladder had been left behind during the surgery to remove that organ. Just as the negligent act could not have been discovered within four years in Sherk, the alleged malpractice and injury in the instant case reasonably remained undiscovered more than four years after the act or omission constituting the alleged malpractice occurred.

We observed in Sherk, supra, at 39, 446 N.E.2d 165, that there is a "* * * distinction * * * between the operation of an amended statute of limitations which totally obliterates an existing substantive right and one which merely shortens the period of time in which the remedy can be realized. * * * The latter application of an amended statute is not unlawful as long as the claimant is still afforded a reasonable time in which to enforce his right. The concept of reasonableness must accord a reasonable time after the effective date of the amendment."

Appellant herein could not have had a reasonable time in which to file her claim had she been required to file within one year of the effective date of R.C. 2305.11(B) or within four years of the alleged act of malpractice, for the negligent act, which occurred prior to division (B)'s enactment, reasonably remained undiscovered until 1983. As in Sherk, the retroactive application of R.C. 2305.11(B) to a cause of action arising from an act of malpractice occurring prior to its effective date, where the malpractice could not reasonably have been discovered within four years, would totally eliminate appellant's substantive right in her cause of action without affording her a reasonable time within which to enforce that right. Such an application contravenes the proscription against retroactive laws contained in Section 28, Article II of the Ohio Constitution. Therefore, R.C. 2305.11(B) will not operate to bar appellant's claim.

Appellee contends, however, that even if R.C. 2305.11(B) cannot retroactively be applied, appellant's claim cannot proceed pursuant to the discovery rule contained in R.C. 2305.11(A). Appellee asserts that appellant's claim was extinguished in 1972 pursuant to the termination rule then governing R.C. 2305.11 (now R.C. 2305.11[A] ) when her cause of action arose, even though the alleged malpractice had not yet been discovered. We disagree.

In Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 449 N.E.2d 438, this court repudiated the termination rule adopted in our prior decisions. The discovery rule announced in Oliver was judicially incorporated in R.C. 2305.11(A) precisely to ameliorate the "unconscionable result to innocent victims who by exercising even the highest degree of care could not have discovered the cited wrong." Id. at 114, 449 N.E.2d 438.

The effect of decisions of this court overruling our past pronouncements is well-settled. In Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 210, 129 N.E.2d 467 , we stated:

"* * * The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation and the effect is not that the former was bad law, but that it never was the law." (Emphasis added.)

In legal effect, then, the termination rule was rendered a nullity by our decision in Oliver and thus cannot operate to extinguish appellant's claim. Rather, the Oliver discovery rule governs appellant's claim, thereby affording her a reasonable time within which to bring her claim, that is, one year after the discovery of the alleged malpractice. ¹ Appellant's claim was thus timely filed in accordance with R.C. 2305.11(A).

For the foregoing reasons, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings.

Judgment reversed and cause remanded.

CELEBREZZE, C.J., and SWEENEY and CLIFFORD F. BROWN, JJ., concur.

DOUGLAS, J., concurs in judgment only.

LOCHER and HOLMES, JJ., dissent, with opinion.

WRIGHT, J., dissents.

HOLMES, Justice, dissenting.

The real issue presented to this court in this appeal is whether the decision of this court in Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 449 N.E.2d 438, may be applied retroactively to revive a cause of action which was extinguished nearly eleven years before the Oliver decision was rendered. This court, in Oliver, held that a cause of action in medical malpractice accrues, and the statute of limitations begins to run, upon discovery of the injury.

On June 22, 1971, the date the alleged act of malpractice against appellant occurred, the statute of limitations for actions in medical malpractice was that portion of R.C. 2305.11 which is contained in division (A) of the current statute. The 1971 version of R.C. 2305.11 stated, in pertinent part: "An action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued * * *." The four-year absolute bar contained in R.C. 2305.11(B) was not enacted until 1975. See Am.Sub H.B. No. 682, effective July 28, 1975. (136 Ohio Laws, Part II, 2809, 2810-2811.)

At the time the alleged act of malpractice against appellant occurred, this court interpreted the time of "accrual" under R.C. 2305.11 to be, at the latest, the time of termination of the physician-patient relationship, and not the date the injury was discovered. DeLong v. Campbell (1952), 157 Ohio St. 22, 104 N.E.2d 177 ; Wyler v. Tripi (1971), 25 Ohio St.2d 164, 267 N.E.2d 419 .

Other than the statutorily imposed tolling of the statute of limitations for minority and other disabilities contained in R.C. 2305.16, prior to 1983 the only exception to the one-year statute of limitations was the discovery rule in foreign object cases, which was adopted by this court in 1972. Melnyk v. Cleveland Clinic (1972), 32 Ohio St.2d 198, 290 N.E.2d 916 . In Melnyk, this court permitted the statute of limitations to be tolled in cases which involved a foreign object negligently left in the plaintiff's body, until the object was discovered. Until the case of Oliver v. Kaiser Community Health Found., supra, this court had specifically refused to extend the discovery rule to medical malpractice cases which did not involve a foreign object. Wyler v. Tripi, supra.

Thus, at the time the alleged act of negligence in this case occurred in 1971, under the statute of limitations in effect at that time, appellant had one year after the termination of the physician-patient relationship to bring her cause of action. The relationship between appellant and appellee terminated shortly after the surgery in 1971. Since appellant failed to bring an action within the time permitted by the statute, her cause of action was extinguished in 1972.

The rendering by this court in 1983 of the Oliver decision cannot be deemed to have revived appellant's formerly expired cause of action. The law of Ohio has long been that a cause of action once extinguished is not revived by changes in the applicable stat...