Gaines v. Preterm-Cleveland, Inc., PRETERM-CLEVELAN

• Citation: 514 N.E.2d 709,33 Ohio St.3d 54
• Decision Date: 21 October 1987
• Docket Number: PRETERM-CLEVELAN,No. 86-1881,INC,86-1881
• Court: United States State Supreme Court of Ohio
• Parties: , 56 USLW 2286 GAINES, Appellant, v., Appellee.

Page 54

33 Ohio St.3d 54 514 N.E.2d 709, 56 USLW 2286 GAINES, Appellant,
v.
PRETERM-CLEVELAND, INC., Appellee. No. 86-1881. Supreme Court of Ohio. Oct. 21, 1987. Syllabus by the Court

1. A physician's knowing misrepresentation of a material fact concerning a patient's condition, on which the patient justifiably relies to his detriment, may give rise to a cause of action in fraud independent from an action in medical malpractice.

2. R.C. 2305.11(B) is unconstitutional as applied to adult medical malpractice litigants who, following discovery, do not have the time provided by R.C. 2305.11(A) in which to file their actions.

On April 30, 1980, plaintiff-appellant, Evelyn Y. Gaines, went to defendant-appellee, Preterm-Cleveland, Inc., a health care facility, for the dual purpose of having her pregnancy terminated and her intrauterine device ("IUD") removed.

Page 54

The pertinent medical records indicate that the abortion was successfully completed. The IUD was not recovered, apparently because it could not be located, although the records reflect an estimate by the physician of its possible location.

In her complaint, and in the evidence presented to the trial court, appellant alleged that agents or employees of appellee "negligently failed to remove the IUD" as requested by appellant. Moreover, appellant alleged that she "was told by employees or agents of * * * [appellee] Preterm that the IUD had been removed." (Emphasis added.) The complaint further stated that "[i]n reliance on the misrepresentations of the employees or agents of * * * [appellee] Preterm as alleged above, * * * [appellant] did not seek further medical attention in order to remove the IUD." Appellant alleged that "[a]s a result of * * * [appellee] Preterm's negligence in failing to remove the IUD and misrepresenting to * * * [appellant] that the IUD had been removed, * * * [appellant] suffered great physical pain and emotional distress, underwent an operation to remove the IUD, received medical attention and will continue to receive medical attention the rest of her natural life, will suffer great pain of body and mind for the rest of her natural life, and was permanently scarred." Appellant asserted that she did not discover that the IUD remained in her body until she underwent a tubal ligation on October 18, 1983, nearly three and one-half years after the Preterm procedure. At that time, appellant's new physician discovered that the IUD had not been removed, but had perforated appellant's uterus and become embedded in her left ligament. On October 16, 1984, appellant notified appellee pursuant to the second paragraph of R.C. 2305.11(A) (the one-hundred-eighty-day notice) that she was considering instituting an action stemming from professional services rendered to her. On April 11, 1985, appellant filed suit.

Appellee moved for summary judgment

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on June 12, 1985, arguing that appellant's action was barred by the four-year statute of repose for medical malpractice suits embodied in R.C. 2305.11(B). The trial court granted the motion and entered judgment for appellee.

The court of appeals affirmed, holding that appellant's medical malpractice action was time-barred under R.C. 2305.11(B), since her complaint was filed more than four years after the act or omission constituting the alleged malpractice occurred. The court rejected appellant's argument that her allegations stated an independent cause of action in fraud and that such action was timely filed under R.C. 2305.09, the statute of limitations for fraud. The appellate court reasoned that the "gist" of appellant's allegations was medical malpractice and that the statute of limitations for fraud does not apply.

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

Strachan, Green, Miller, Olender & Hobt and Robert G. Miller, Cleveland, for appellant.

Arter & Hadden, Curtiss L. Isler and Irene C. Keyse-Walker, Canton, for appellee.

[514 N.E.2d 712] DOUGLAS, Justice.

The instant appeal presents two distinct issues for our review and determination. The first is whether a positive misrepresentation of a patient's condition, upon which the patient reasonably relies to his detriment, constitutes a cause of action in fraud independent of any claim of malpractice. We hold that the allegations advanced by appellant generated a genuine issue of fact as to whether fraud occurred, a cause of action which we deem to be cognizable under these facts. The second question is whether plaintiffs in medical malpractice actions who reasonably do not discover the cause of their injuries until more than three years after the act constituting the alleged malpractice may constitutionally be deprived of a full year to pursue a medical claim by virtue of the four-year statute of repose contained in R.C. 2305.11(B). We rule that such deprivation violates the Constitution of the state of Ohio.

I

Appellant argues that the allegations in her complaint state a cause of action in fraud, separate and independent from malpractice, and that such cause of action was timely filed under R.C. 2305.09. We agree.

The elements of an action in actual fraud are: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 23 OBR 200, 491 N.E.2d 1101, paragraph two of the syllabus; Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 10 OBR 500, 462 N.E.2d 407.

A review of appellant's complaint and of the evidence reveals that the allegations therein clearly establish a jury question on the issue of fraud, rendering the trial court's entry of summary judgment inappropriate. This conclusion is particularly compelling given the requirement of Civ.R. 56(C) that the evidence must be construed most strongly in favor of appellant, against whom the motion for summary judgment was made.

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From the allegations and supporting evidence, a reasonable person could conclude that all six of the elements of an action in actual fraud are present in this case. The first element, the representation of a fact, is satisfied by appellant's assertion that she was told by appellee's agents or employees that her IUD had been removed. This representation was material to the transaction at hand, since appellant had consulted appellee for the very purpose of having the IUD removed. The second element is thereby fulfilled. A reasonable person could also conclude that the third element of knowing falsity is present, given the evidence that the IUD had not been removed, and that appellee knew that it had not. It could reasonably be believed that the representation was made with the intent of inducing appellant to rely on it, since reliance was to be expected under the circumstances, and such reliance would benefit appellee by lulling appellant into a false belief that she had been successfully treated. The fifth element of justifiable reliance may reasonably be deemed to have occurred, since appellant had no apparent reason to doubt the veracity of the statement, and insufficient training to evaluate its accuracy. Finally, it could reasonably be concluded that appellant's abdominal pain and gynecological problems were caused by the unretrieved IUD, which had perforated her uterus and become embedded in her left ligament.

A jury question is clearly generated under these facts such that the entry of summary judgment was inappropriate. We cannot agree with the court of appeals' conclusion that these allegations sounded in malpractice only. A physician's knowing misrepresentation of a material fact concerning a patient's condition, on which the patient justifiably relies to his detriment, [514 N.E.2d 713] may give rise to a cause of action in fraud independent from an action in medical malpractice. Annotation (1973), 49 A.L.R.3d 501, 506; Leach v. Shapiro (1984), 13 Ohio App.3d 393, 397, 13 OBR 477, 482, 469 N.E.2d 1047, 1054. The fraud action is separate and distinct from the medical malpractice action which stems from the surrounding facts where the decision to misstate the facts cannot be characterized as medical in nature. ¹ In the instant cause, it cannot be said that the statement to appellant that her IUD had been removed when in fact it had not was motivated by any medical consideration. Cases may exist where the withholding of information may be medically justified, e.g., where the patient's known tendency to react hysterically to bad news would interfere with vital treatment. Reasonable minds could certainly conclude that the misstatement in the instant cause was prompted not by medical concerns but by motivations unrelated and even antithetical to appellant's physical well-being.

As a cause of action separate and distinct from medical malpractice, a claim of fraud is subject not to the medical malpractice statute of limitations contained in R.C. 2305.11, but rather to R.C. 2305.09, ² which provides

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a four-year limitations period for fraud. The statutory period does not commence to run until the cause of action accrues, which occurs when the fraud and the wrongdoer are discovered. R.C. 2305.09; Burr, supra, at paragraph three of the syllabus. In the instant cause, reasonable minds could conclude that appellant did not discover the existence of the fraud and the identity of the wrongdoer until October 18, 1983, when the IUD which appellee told her had been removed was found still inside her body. Appellant's complaint was filed April 11, 1985, less than four years after the accrual of her cause of...