Koler v. St. Joseph Hospital

• Decision Date: 26 February 1982
• Docket Number: 81-454,Nos. 81-404,s. 81-404
• Citation: 432 N.E.2d 821,69 Ohio St.2d 477
• Parties: , 23 O.O.3d 413 KOLER, Admr., Appellee, v. ST. JOSEPH HOSPITAL; Bartek et al., Appellants. DELIMAN et al., Appellees, v. READ et al., Appellants.
• Court: Ohio Supreme Court

Page 477

69 Ohio St.2d 477

432 N.E.2d 821, 23 O.O.3d 413

KOLER, Admr., Appellee, v. ST. JOSEPH HOSPITAL; Bartek et al., Appellants.

DELIMAN et al., Appellees, v. READ et al., Appellants.

Nos. 81-404, 81-454.

Supreme Court of Ohio.

Feb. 26, 1982.

Stewart & DeChant Co., L.P.A., and Lawrence E. Stewart, Cleveland, for appellee in case No. 81-404.

Reminger & Reminger Co., L.P.A., Gary H. Goldwasser and Douglas K. Fifner, Cleveland, for appellants in case No. 81-404.

Dennis M. Pfizenmayer, Avon Lake, for appellee in case No. 81-454.

Miraldi & Barrett Co., L.P.A., Ray L. Miraldi and David P. Miraldi, Amherst, for appellant Read in case No. 81-454.

Kitchen, Messner & Deery, Charles W. Kitchen and Steven W. Albert, Cleveland, for appellant St. Joseph Hospital in case No. 81-454.

PER CURIAM.

Appellants contend that the statute of limitations for malpractice by a physician or hospital, in R.C. 2305.11(A), bars appellees' actions alleging wrongful death. We disagree.

In Klema v. St. Elizabeth's Hospital (1960), 170 Ohio St. 519, 166 N.E.2d 765, this court held, in paragraph one of the syllabus: "Where an alleged negligent act was such as would have, if death had not ensued, entitled a person to maintain an action therefor, a cause of action for wrongful death exists in such decedent's personal representative, and such cause of action for wrongful death can not be defeated merely by reason of the bar of limitation which would have been applicable to decedent's action." At the time, R.C. 2305.11 provided, in pertinent part: " 'An action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued * * *.' " Klema, at 521, 166 N.E.2d 765. The Klema court recognized, however, that wrongful death is a statutory cause of action which is authorized by R.C. Chapter 2125 and different from malpractice which is a common-law action. " * * * That such action is completely distinct from that which accrued to the party directly injured is well established in this state. Mahoning Valley Ry. Co. v. Van Alstine, Admr., 77 Ohio St. 395, 83 N.E. 601, 14 L.R.A. (N.S.) 893; May Coal Co. v. Robinette, Admr., 120 Ohio St. 110, 165 N.E. 576, 64 A.L.R. 441; Karr, Admr. v. Sixt, 146 Ohio St. 527, 67 N.E.2d 331.

"The distinction between the actions was well stated by Mr. Justice Van Devanter in St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160, where he said, citing as an authority therefor the Van Alstine case:

" 'Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong.' " Klema, at 521, 166 N.E.2d 765. Today, we reaffirm this analysis.

Under the current statutory scheme, this distinction endures. R.C. Chapter 2125 deals with actions for wrongful death. At the time the instant cases arose, the operative language of R.C. 2125.02 was the same as that quoted by the Klema court: " 'Except as otherwise provided by law, every such (wrongful death) action must be commenced within two years after the death of such deceased person * * *.' " Klema, at 522, 166 N.E.2d 765. ⁴ The Klema court construed this provision as controlling, and we reach the same conclusion.

Appellants contend, however, that later amendments to R.C. 2305.11 supersede the holding in Klema. We disagree.

In 1975, ⁵ the General Assembly passed Am.Sub.H.B.No. 682 and amended the operative language of R.C. 2305.11 to read: "(A) An action for * * * malpractice, including an action for malpractice against a physician or a hospital * * * shall be brought within one year after the cause thereof accrued * * *." 136 Ohio Laws 2810. Appellants argue that, in particular, two other additions to R.C. 2305.11, which are contained in Am.Sub.H.B.No. 682, demonstrate a legislative intent to include wrongful death within the meaning of malpractice.

First, appellants observe that R.C. 2305.11(D)(3) defines the term "medical claim" as " * * * any claim asserted in any civil action against a physician or hospital arising out of the diagnosis, care or treatment of any person." 136 Ohio Laws 2811. Appellants reason that a wrongful death claim against a physician or hospital seeking damages because of the death of the patient is a "medical claim." Furthermore, appellants allude to the following portion of Am.Sub.H.B.No. 682: "(B) In no event shall any medical claim against a physician or hospital be brought more than four years after the act or omission constituting the alleged malpractice occurred." 136 Ohio Laws 2810. Appellants urge that we construe this provision as evidencing a legislative intent that "malpractice" and "medical claims" are interchangeable terms under R.C. 2305.11 as amended. Therefore, appellants conclude that all "medical claims," including those for wrongful death, fall within the one-year statute of limitations.

As we noted in Lombard v. Good Samaritan Medical Center (1982), 69 Ohio St.2d 471, --- N.E.2d ----, this provision in R.C. 2305.11(B) is confusing. Yet, the operative language of R.C. 2305.11(A) remains clear: "An action for * * * malpractice * * * shall be brought within one year * * *." (Emphasis added.) We must construe statutes of limitations narrowly within the statutory language. Chisnell v. Ozier Co. (1942), 140 Ohio St. 355, 44 N.E.2d 464, paragraph eight of the syllabus. "The statute of limitations contained in R.C. 2305.11(A) is limited to the areas specifically enumerated therein and to the common-law definition of 'malpractice.' " (Emphasis added.) Hocking Conservancy Dist. v. Dodson-Lindblom Assoc. (1980), 62 Ohio St.2d 195, 404 N.E.2d 164. Whatever confusion there may be regarding the relative meanings of the terms "medical claim" and "malpractice" within the rest of R.C. 2305.11, for statute of limitations purposes, Am.Sub.H.B.No. 682 has not changed the meaning of "malpractice." "We do not believe the purpose of the General Assembly in adopting R.C. 2305.11(B) while leaving R.C. 2305.11(A) virtually unchanged was to alter this court's prior interpretations of the medical malpractice statute of limitations * * *." Vance v. St. Vincent Hospital (1980), 64 Ohio St.2d 36, 41, 414 N.E.2d 406. Therefore, absent clear legislation to the contrary, this court's holding in Klema controls.

Accordingly, we affirm the judgments of the Court of Appeals.

Judgments affirmed.

FRANK D. CELEBREZZE, C. J., and WILLIAM B. BROWN, LOCHER and CLIFFORD F. BROWN, JJ., concur.

SWEENEY, HOLMES and KRUPANSKY, JJ., dissent.

FRANK D. CELEBREZZE, Chief Justice, concurring.

I concur in the majority's conclusion that wrongful death is a separate cause of action, distinct from malpractice. I write separately only to set forth additional reasons for endorsing this judgment.

R.C. 2305.11 specifically supersedes R.C. 2305.16. However, it does not mention wrongful death or R.C. 2125.02, which allows a cause of action for wrongful death to be brought within two years after the person's death.

Although the General Assembly has amended R.C. 2305.11 twice since 1974, it has not included wrongful death actions. If the General Assembly intended to include wrongful death, it could have easily inserted the appropriate language in R.C. 2305.11. The omission is evidence of an intent not to include it. In light of this, I conclude that wrongful death is not included in the malpractice statute and remains a separate cause of action governed by the statute of limitations in R.C. 2125.02.

This conclusion is supported by decisions of this court construing the malpractice statute. We have held that a husband's cause of action for consequential damages, arising out of a medical malpractice claim, is not covered by R.C. 2305.11. The syllabus of Amer v. Akron City Hospital (1976), 47 Ohio St.2d 85, 351 N.E.2d 479, states that:

"An action by a husband for loss of consortium, loss of services, and medical expenses, arising from an alleged medical malpractice upon his wife, is governed by the time limitation set forth in R.C. 2305.09(D) and must be commenced within the period prescribed thereby, which period is not tolled until termination of the physician-patient relationship."

This position was reaffirmed more recently in Whitt v. Columbus Cooperative (1980), 64 Ohio St.2d 355, 357, 415 N.E.2d 985.

It is important to note that R.C. 2305.11 does not mention consequential damages at issue in Amer, supra, nor wrongful death of concern in the case sub judice. Thus, wrongful death and consequential damages should be treated similarly. A consistent construction of the statute requires a conclusion that wrongful death not be in the malpractice statute, similar to our interpretation of consequential damages.

Finally, including wrongful death in the malpractice statute would lead to hardship and injustice. The effects of some acts of malpractice, such as excessive radiation, might not be apparent immediately. An afflicted person may not have even discovered the problem, within the time limits required for filing a malpractice action under R.C. 2305.11, even if the discovery, Melnyk v. Cleveland Clinic (1972), 32 Ohio St.2d 198, 290 N.E.2d 916, or the termination of the physician-patient relationship, Wyler v. Tripi (1971), 25 Ohio St.2d 164, 267 N.E.2d 419, exceptions are applied.

How can anyone be precluded from asserting a claim by a statute of limitations which expires before the right to a cause of action accrues? Justice requires that wrongful death remain a separate cause of action governed by the statute of limitations set forth in R.C. 2125.02....