De Long v. Campbell

• Decision Date: 27 February 1952
• Docket Number: No. 32661,32661
• Citation: 104 N.E.2d 177,157 Ohio St. 22
• Parties: , 47 O.O. 27 DE LONG v. CAMPBELL.
• Court: Ohio Supreme Court

Page 22

157 Ohio St. 22

104 N.E.2d 177, 47 O.O. 27

DE LONG v. CAMPBELL.

No. 32661.

Supreme Court of Ohio.

Feb. 27, 1952.

Syllabus by the Court.

As to a cause of action for malpractice by a physician, the statute of limitations begins to run at the latest upon the termination of the physician-patient relationship whether, within the time limited by the statute, the act constituting malpractice is known or unknown by the one upon whom it was committed.

Geraldine E. DeLong, appellant herein, filed an amended petition in the Court of Common Pleas of Licking County against Grace B. Campbell, executrix of the estate of Harold A. Campbell, deceased, appellee herein.

In her amended petition plaintiff alleged that she engaged Harold A. Campbell, a physician, hereinafter designated Campbell, to treat her on December 1, 1942, and that on December 8, 1942, Campbell performed an operation which was negligently done in that he failed to remove all surgical sponges from plaintiff's wound, which sponges he had placed there during the course of the operation. There was no further allegation as to any subsequent treatment by Campbell.

The amended petition further alleged that on December 28, 1948, plaintiff again underwent an operation, at which time a sponge was discovered at the site of the previous operation performed by Campbell. There was no allegation that plaintiff had been treated by Campbell after the operation on December 8, 1942, and the present action was not commenced until October 28, 1949.

Defendant demurred to plaintiff's amended petition, which demurrer was sustained by the trial court upon the ground that the action was barred by the statute of limitations, and judgment was entered for defendant.

The Court of Appeals affirmed the judgment of the Court of Common Pleas and the cause is before this court upon the allowance of a motion to certify the record.

Albert E. Savoy, Columbus, for appellant.

Porter, Stanley, Treffinger & Platt, Bruce G. Lynn, all of Columbus, and Kreider & Kreider, Newark, for appellee.

STEWART, Judge.

The sole question before this court is whether, as to a cause of action for malpractice by a physician, the statute of limitations begins to run at the termination of the physician-patient relationship or whether the statute begins to run from the time the patient discovers the malpractice.

Section 11225, General Code, reads: 'An action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued.'

In the present case plaintiff in her argument relies upon an alleged constitutional question, but this court, by dismissing her appeal as of right, 156 Ohio St. 190, 101 N.E.2d 501, disposed of that claim, and, therefore, we confine ourselves to the single question which we have stated.

When the statute begins to run depends upon the meaning of the word, 'accrued.'

In 1 Bouv.Law Dict., Third Division, p. 111, it is stated: 'A cause of action accrues when suit may be commenced for a breach of contract * * *.' Citing Amy v. Dubuque, 98 U.S. 470, 25 L.Ed. 228.

In Black's Law Dictionary (2 Ed.), it is stated: 'The term [accrue] is also used of independent or original demands, and then means to arise, to happen, to come into force or existence.'

Plaintiff's right of action accrued at the time she could bring an action against Campbell. When such an action can be brought has been the subject of considerable litigation before this court.

The question arose in the case of Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am.St.Rep. 639.

In that case a physician operated upon a patient and it was alleged that he neglected or carelessly forgot to remove from the abdominal cavity a sponge which he had placed therein, that the sponge remained in the cavity after the incision had been closed, and that such condition continued during the physician's entire professional relation to the case and was present when he abandoned or otherwise retired therefrom.

In the Court of Common Pleas it was determined that plaintiff's cause of action for malpractice in that case accrued at the time the sponge was negligently left in the abdominal cavity as he then had a right to bring an action for the breach of contract for the exercise of diligence on the part of the physician.

The Circuit Court, to which the Gillette case was appealed, reversed the judgment of the lower court and held that the statute of limitations did not commence to run against a cause of action for malpractice until the case had been abandoned by the physician or the professional relation had been otherwise terminated.

This court, then consisting of six judges and with three of the judges dissenting, affirmed the judgment of the Circuit Court.

The third paragraph of the syllabus in the Gillette case reads 'WHERE THE PHYSICIAN AND SURGEON SO ENGAGED opErates upon the patient for what (as in this case) he pronounces to be appendicitis, and neglects or carelessly forgets to remove from the abdominal cavity a sponge which he had placed therein, and closes the incision, with the sponge remaining therein, and this condition continues during his entire professional relation to the case, and is present when he abandons or otherwise retires therefrom, the statute of limitations does not commence to run against a right to sue and recover on account of such want of skill, care, and attention, until the case has been so abandoned, or the professional relation otherwise terminated.'

The theory of the decision in the Gillette case was that so long as the relationship of surgeon and patient continued the surgeon was guilty of malpractice during that entire relationship for not repairing the damage he had done and, therefore, the cause of action against him arose at the conclusion of his contractual relationship.

In the vigorous dissent it was maintained that, since the patient had a right of action at the very time the malpractice happened, the right of action accrued or came into existence at that time and the statute of limitations thereupon commenced to run, without any regard as to the termination of the physician-patient relationship.

This court again considered the question of the statute of limitations in a malpractice action in the case of McArthur v. Bowers, 72 Ohio St. 656, 76 N.E. 1128, in which case this court, in a four to two decision, followed the dissenting opinion in the Gillette case.

The question again came before this court in the case of Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238, the syllabus of which reads:

'1. The relation of surgeon and patient is one arising out of contract, express or implied. The surgeon is not an insurer or guarantor, but does agree to exercise the average degree of skill, care, and diligence exercised by members of the same profession in the given situation.

'2. In an action for a breach of the contract in such case, the statute of limitations does not begin to run until the contract relation is terminated. Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, approved and followed; McArthur v. Bowers, 72 Ohio St. 656, 76 N.E. 1128, disapproved.'

In the case of Amstutz v. King, 103 Ohio St. 674, 135 N.E. 973, this court simply stated: 'Judgments affirmed, on authority of Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, and Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238.'

The record in the Amstutz case shows that it was a malpractice action practically on all fours with the present case. In other words, the action for malpractice had been brought more than a year after the termination of the relationship of physician and patient but within a year of the discovery by the patient of the malpractice.

Although there were three dissents this court adhered to the doctrine that the latest time at which a malpractice cause of action can accrue is the termination of the physician-patient relationship.

In the presentation of the present case plaintiff strongly and insistently urges that the statute of limitations should begin to run at the time of the discovery by the patient of the malpractice and expatiates upon what is claimed to be the gross injustice of allowing a statute of limitations to bar an action when the injured patient did not and could not by the exercise of reasonable diligence know that he had a cause of action for the injury done him.

There is much persuasive force in this argument and claim, so far as justice is concerned, but the legislative branch of the government has determined the policy of the state and fixed the time when the statute of limitations shall bar an action for malpractice, and the argument addressed to us as to the time when the statute should begin to run properly should be made to the General Assembly. Our sole function is to interpret and enforce the legislative enactment and it is not our function, as we have said so many times, to eisregard, by legislating, a legislative enactment.

The statute provides that an action for malpractice shall be brought within one year after the cause thereof accrues. The cause accrues when the negligently-caused injury is inflicted. In other words, plaintiff had a right to bring an action when Campbell negligently left the sponge within her wound and negligently allowed it to...