Frysinger v. Leech

• Decision Date: 12 August 1987
• Docket Number: No. 86-593,86-593
• Citation: 512 N.E.2d 337,32 Ohio St.3d 38
• Parties: FRYSINGER, Appellant, v. LEECH, Appellee.
• Court: Ohio Supreme Court

Page 38

32 Ohio St.3d 38

512 N.E.2d 337

FRYSINGER, Appellant, v. LEECH, Appellee.

No. 86-593.

Supreme Court of Ohio.

Aug. 12, 1987.

Syllabus by the Court

1. Under R.C. 2305.11(A), a cause of action for medical malpractice accrues and the one-year statute of limitations commences to run (a) when the patient discovers or, in the exercise of reasonable care and diligence should have discovered, the resulting injury, or (b) when the physician-patient relationship for that condition terminates, whichever occurs later. (Oliver v. Kaiser Community Health Found. [1983], 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, explained and modified.)

2. A voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes a failure otherwise than upon the merits within the meaning of the savings statute, R.C. 2305.19.

On October 16, 1977, the defendant-physician, Thomas R. Leech, admitted the plaintiff-patient, Bette M. Frysinger, to Lima Memorial Hospital under his care for "a bilateral reduction mammoplasty." She claims that he negligently chose and performed the procedures and surgery, and caused her to sustain permanent disfiguring injuries.

Their physician-patient relationship continued through two corrective surgeries on November 10, 1977 and February 13, 1978, until her last office visit on June 14, 1978. Approximately eleven months later, on May 10, 1979, the patient's lawyer sent the physician written notice that she contemplated a malpractice claim for that care. She asserts that she thereby extended the time to bring her action for an additional one hundred eighty days, pursuant to the second paragraph in R.C. 2305.11(A).

She filed her malpractice action on October 12, 1979, well within one hundred eighty days after her notice. However, her counsel dismissed her case three years later, when the court precluded him from taking an essential expert's deposition shortly before the scheduled trial. The court denied her counsel's motion for a voluntary dismissal under Civ.R. 41(A)(2). Consequently, her counsel dismissed her case by written notice under Civ.R. 41(A)(1)(a), and refiled it three months later.

After answering the complaint, the physician filed a motion for summary judgment, arguing that the one-year statute of limitations in R.C. 2305.11(A) barred the second case. He did not deny that (a) the patient sent a proper notice within one year after the physician-patient relationship terminated, (b) she filed her suit less than one hundred eighty days later, or (c) she filed the second suit to assert the same claims within one year after dismissing her first suit.

Rather, he contended that the patient's malpractice action accrued and the limitations period began to run when she discovered her alleged malpractice injury. He cited her discovery answers that she learned about her injury shortly after the surgery, or at least when she consulted another physician in March 1978. Consequently, he claimed that her notice had no effect because she sent it more than one year after the action accrued.

Also at issue was whether R.C. 2305.19 could save an action after a Civ.R. 41(A)(1) voluntary dismissal because it constitutes a failure otherwise than upon the merits. If the statute were not applicable, plaintiff's second suit would not relate back to the time when she filed her first case, and was clearly untimely.

The trial court granted the physician's motion for summary judgment, finding the action barred by R.C. 2305.11(A). The trial court further ruled that R.C. 2305.19 was not applicable. The court of appeals affirmed the judgment of the trial court.

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

Carl G. McMahon and Rodney M. Arthur, for appellant.

Gooding, Evans & Huffman, Lawrence S. Huffman and Mathew C. Huffman, for appellee.

MARKUS, Justice.

The physician contends: (1) a malpractice action accrues upon the patient's discovery of the malpractice injury, despite the later termination of the professional relationship, and (2) a Civ.R. 41(A)(1) dismissal precludes a plaintiff's reliance on R.C. 2305.19 to eliminate the limitations bar. We reject both those contentions, reverse the dismissal judgment and remand the cause for further proceedings.

I

R.C. 2305.11(A) established the statute of limitations applicable to medical malpractice cases. At the time relevant herein, it provided:

"An action for * * * malpractice, including an action for malpractice against a physician, podiatrist, or a hospital, * * * 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 a person 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."

Thus, this patient's first suit was timely under R.C. 2305.11(A) if she gave her written notice "within one year after the cause thereof accrued." In earlier decisions, this court repeatedly held that an action for professional malpractice does not accrue and limitations do not run while that professional relationship continues. E.g., Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 865; Bowers v. Santee (1919), 99 Ohio St. 361, 124 N.E. 238; Amstutz v. King (1921), 103 Ohio St. 674, 135 N.E. 973; Delong v. Campbell (1952), 157 Ohio St. 22, 47 O.O. 27, 104 N.E.2d 177; Lundberg v. Bay View Hospital (1963), 175 Ohio St. 133, 23 O.O.2d 416, 191 N.E.2d 821; Wyler v. Tripi (1971), 25 Ohio St.2d 164, 54 O.O.2d 283, 267 N.E.2d 419; Ishler v. Miller (1978), 56 Ohio St.2d 447, 10 O.O.3d 539, 384 N.E.2d 296.

The physician relies on this court's decision in Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, where the court adopted a "discovery rule" for the accrual of medical malpractice actions. The court recently construed the Oliver discovery rule in Hoffman v. Davidson (1987), 31 Ohio St.3d 60, 31 OBR 165, 508 N.E.2d 958. The syllabus in Oliver provides:

"Under R.C. 2305.11(A), a cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury. (Gillette v. Tucker; Bowers v. Santee; Amstutz v. King; Delong v. Campbell; Lundberg v. Bay View Hospital; Wyler v. Tripi, and all other inconsistent cases, overruled.)" (Citations for cited cases omitted.)

The physician also relies on the following language in the opinions of Oliver, supra, and Clark v. Hawkes Hospital (1984), 9 Ohio St.3d 182, 9 OBR 467, 459 N.E.2d 559:

"The narrow issue raised by this appeal is whether a cause of action for medical malpractice pursuant to R.C. 2305.11(A) accrues upon the termination of the medical relationship or upon the time of the discovery of the malpractice." Oliver, supra, 5 Ohio St.3d at 112, 5 OBR at 248, 449 N.E.2d at 439.

"In view of the foregoing, this court finds that it is within its power to adopt a discovery rule, a rule which will ameliorate the obvious and flagrant injustice frequently resulting from the operation of the termination rule, and hence hold that under R.C. 2305.11(A), a cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence should have discovered, the resulting injury." Oliver, supra, at 118-119, 5 OBR at 253, 449 N.E.2d at 443.

"No longer may courts apply the termination of the doctor-patient relationship as the accrual point for medical malpractice causes of action." Clark, supra, 9 Ohio St.3d at 183, 9 OBR at 468, 459 N.E.2d at 561.

However, we must read the syllabus in Oliver and the language in Oliver and Clark in the context of their facts. Rauhaus v. Buckeye Local School Dist. Bd. of Edn. (1983), 6 Ohio St.3d 320, 323, 6 OBR 379, 381, 453 N.E.2d 624, 626; Williamson Heater Co. v. Radich (1934), 128 Ohio St. 124, 190 N.E. 403, paragraph one of the syllabus. In both Oliver and Clark, the patient discovered the malpractice injury long after the physician-patient relationship terminated. In neither case did the court have reason to discuss the situation where the professional relationship continues after the patient discovers the malpractice injury.

Indeed, the syllabus in Oliver significantly omits Ishler v. Miller, supra, from the list of cases which Oliver overrules. In Ishler, the defendant argued for a discovery rule to reduce the plaintiff's time to file a malpractice case. Unlike the cases which Oliver overruled, the evidence showed that Ishler discovered the malpractice before the relationship ended. The per curiam opinion said 56 Ohio St.2d at 448, 10 O.O.3d at 540, 384 N.E.2d at 298:

"This court rejects the view that the discovery rule should apply in the period prior to the termination of the physician-patient relationship."

The court did not actually adopt a discovery rule to extend the time for filing a malpractice action, until its decision in Oliver five years later. Consequently, it resolved Ishler by holding that limitations did not run while the professional relationship continued, despite the patient's earlier discovery of the malpractice injury. At the same time, the Ishler opinion restated the substantial public policy which underlies the termination rule at 449, 10 O.O.3d at 540, 384 N.E.2d at 298:

"The reasons for the termination rule were succinctly set forth by this court in Wyler v. Tripi (1971), 25 Ohio St.2d 164, at pages 167-168 [54 O.O.2d 283 at pages 285-286, 267 N.E.2d 419, at page 421], wherein we stated:

" 'The justification for the termination rule is that it strengthens the physician-patient relationship. The...