Ishler v. Miller

• Decision Date: 08 December 1978
• Docket Number: No. 78-125,78-125
• Citation: 56 Ohio St.2d 447,384 N.E.2d 296
• Parties: , 10 O.O.3d 539 ISHLER et al., Appellees, v. MILLER, Appellant.
• Court: Ohio Supreme Court

Page 447

56 Ohio St.2d 447

384 N.E.2d 296, 10 O.O.3d 539

ISHLER et al., Appellees, v. MILLER, Appellant.

No. 78-125.

Supreme Court of Ohio.

Dec. 8, 1978.

On November 1, 1972, Robert Ishler and Dorothy Ishler (appellees herein) filed an action for damages against Dr. Paul Miller (appellant herein), a duly licensed and qualified physician specializing in the field of orthopedic surgery, contending, in part, that appellant negligently performed treatment and surgery.

Appellant subsequently submitted a motion for summary judgment on the basis that appellees' claim was barred by the statute of limitations set forth in R.C. 2305.11, since the physician-patient relationship terminated on October 18, 1971, more than one year prior to the time at which appellees filed their complaint. Both Doctor Miller and Robert Ishler submitted affidavits on the issue, Ishler deposing that the physician-patient relationship terminated on March 13, 1972. Because reasonable minds could reach different conclusions concerning the termination date of the physician-patient relationship, the trial court overruled appellant's motion for summary judgment.

Trial commenced before a jury on July 29, 1976. Upon the testimony of Doctor Miller as to the events occurring on March 13, 1972, the trial court sustained the Ishlers' motion In limine to take from the jury the question concerning the termination of the physician-patient relationship.

On August 11, 1976, the jury returned a verdict for appellee Robert Ishler in the amount of $220,000 and against appellee Dorothy Ishler. The trial court subsequently overruled appellant's "motion for judgment" and motion for new trial.

On appeal, the Court of Appeals reversed the judgment of the trial court and remanded the cause solely on the basis that the trial court committed reversible error in holding as a matter of law that the physician-patient relationship ended on March 13, 1972.

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

Bradley & Farris Co., L. P. A., Philip R. Bradley, Tyack, Scott, Grossman & Wiseman and Thomas M. Tyack, Columbus, for appellees.

Lane, Alton & Horst, Jack R. Alton and Thomas A. Dillon, Columbus, for appellant.

PER CURIAM.

I.

In his first proposition of law, appellant would have this court adopt a discovery rule with respect to the time within which a patient must file his malpractice claim, and hold that where a patient determines in his own mind that malpractice has been committed against him and consults lawyers to prosecute his claim, the statute of limitations begins to run at the time he determines he has a claim, although the physician-patient relationship may continue. See, E. g., Ehlen v. Burrows (1942), 51 Cal.App.2d 141, 124 P.2d 82; Annotation, 80 A.L.R.2d 368, 383-384, Section 6(c). Appellant contends that because the evidence reflects that Ishler knew that he had a malpractice claim as early as June 9, 1971, that the statute of limitations should have commenced to run on that date.

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

In Bowers v. Santee (1919), 99 Ohio St. 361, 124 N.E. 238, paragraph two of the syllabus, this court specifically held that the statute of limitations in a medical malpractice action does not begin to run until the physician-patient relationship is terminated. In that case, we rejected the contention that in the situation involving the negligent treatment of a bone fracture, that the statute of limitations could commence to run at the time of the faulty resetting of the bone and not at the later time when "the contract of employment" between the physician-surgeon and patient had ended.

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, 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 patient may rely upon the doctor's ability until the relationship is terminated and the physician has the opportunity to give full treatment, including the immediate correction of any errors in judgment on his part. In short, it was thought that the termination rule is conducive to that mutual confidence which is essential to the physician-patient relationship."

Thus, to require a patient to file suit for malpractice during the course of treatment for a particular injury or disease when he believes or reasonably should believe that he has a malpractice claim would destroy this mutual confidence in the physician-patient relationship. Such a requirement would place the patient in the unacceptable situation of deciding whether to continue the ongoing treatment and thus risk the chance of forfeiting his right to bring suit at a later date, or terminate the relationship, and, perhaps, deny the physician the opportunity of correcting his error.

As noted in Bowers, supra, 99 Ohio St. at page 366, 124 N.E. at page 240:

"The patient relies almost wholly upon the judgment of the surgeon, and under the usual circumstances of each case is bound so to do, and if the injury is not reduced, and a normal condition restored, as fully or as speedily as expected, the patient is still at liberty to rely upon the professional skill, care, and treatment to complete such recovery so long as the surgeon continues his employment with reference to the injury."

In support of his first proposition of law, appellant places great stress on the phrase "at the latest" employed by this court in the Wyler syllabus, which reads:

"Under R.C. 2305.11, a cause of action for medical malpractice accrues, at the latest, when the physician-patient relationship finally terminates. * * * "

Appellant contends that the use of this phrase is a recognition by this court that the statute of limitations may begin to run before the termination of the physician-patient relationship.

In discussing the commencement of the running of the statute of limitations in a medical malpractice case, this court first employed the phrase "at the latest" in DeLong v. Campbell (1952), 157 Ohio St. 22, 26-27, 104 N.E.2d 177, wherein we held that a malpractice claim brought more than one year after the termination of the physician-patient relationship, but within one year of the discovery of the malpractice by the patient, is barred under G.C. 11225, now R.C. 2305.11. Because no issue regarding the possibility of an earlier commencement date for the running of the statute of limitations was present in DeLong or in the subsequent cases citing the language of DeLong with approval, it is misleading to attach special significance to use of the phrase. Correctly interpreted, the phrase "at the latest" in conjunction with the termination rule is simply a negative response to the question of whether the statute of limitations may commence to run at a date later than that on which the physician-patient relationship ends.

Appellant's first proposition of law is, therefore, overruled.

II.

In his second proposition of law, appellant contends that because the appellees based their claim against Doctor Miller on the allegedly unnecessary surgery performed on September 21, 1970, that the claim was one of battery, and thus, the statute of limitations started to run on the date of the unnecessary surgery.

The evidence reflects that although appellees initially brought suit alleging the negligent performance of surgery and treatment, their key witness at trial, Doctor Lawrence I. Kaplan, who was brought to establish the negligence of Doctor Miller, only testified concerning his belief that the surgery performed by the doctor on September 21, 1970, was unnecessary at that time.

This court rejects the proposition that the malpractice claim in the instant cause constituted battery.

In Lundberg v. Bay View Hospital (1963), 175 Ohio St. 133, 191 N.E.2d 821, a patient filed a complaint alleging malpractice against a hospital, which, through its agents, had negligently diagnosed the patient's ailment and had performed unnecessary surgery. Significantly, this court applied the one-year statute of limitations as it would in other medical malpractice cases, by holding:

"It is the established law in Ohio that the one-year statute of limitations as now contained in Section 2305.11, Revised Code, does not begin to run until a medical relationship has finally terminated."

This court, rather than viewing the complaint alleging unnecessary surgery as essentially one of a technical battery and thus holding that the one-year statute of limitations commenced to run on the date of the occurrence of the surgery, in effect regarded the diagnosis and subsequent surgery as part of the overall medical treatment provided by the hospital to relieve the patient's malady. The court therefore applied the termination rule in determining when the statute of limitations commenced to run. The surgeon owes a duty to his patient to exercise that degree of skill, care, and attention as exercised by members of his profession in deciding that surgery is necessary. See Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 865, paragraphs one and two of the syllabus. It is the violation of this duty which constitutes the gravamen of the complaint based on medical malpractice, and not any unpermitted contact. See White v. Hirschfield (1925), 108 Okl. 263, 236 P. 406; Maercklein v. Smith (1954), 129 Colo. 72, 266 P.2d 1095; Mayor v. Dowsett (1965), 240 Or. 196, 400 P.2d 234, 251.

In support of his second proposition of law, appellant cites the case of Murray v. Fox (1974), 300 Minn. 373, 220 N.W.2d 356, wherein the Supreme Court of Minnesota held that where the gist of a complaint in malpractice is the performance of unnecessary surgery, the statute of limitations begins to run on the date of the surgery, and...