Melnyk v. Cleveland Clinic
| Decision Date | 15 December 1972 |
| Docket Number | No. 72-292,72-292 |
| Citation | 61 O.O.2d 430,32 Ohio St.2d 198,290 N.E.2d 916 |
| Parties | , 70 A.L.R.3d 1, 61 O.O.2d 430 MELNYK, Appellant, v. The CLEVELAND CLINIC et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Where a metallic forceps and a nonabsorbent sponge are negligently left inside a patient's body during surgery, the running of the statute of limitation governing a claim therefor is tolled until the patient discovers, or by the exercise of reasonable diligence should have discovered, the negligent act. (Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419, distinguished.)
On January 29, 1958, plaintiff-appellant underwent abdominal surgery at appellee-hospital, the surgeon being one of appellee's salaried employees. Appellant paid his bill to appellee and no part thereof was directly received by the surgeon. Appellant was last seen by appellee as an outpatient on May 7, 1958.
On February 7, 1969, appellant caused the instant action to be filed, alleging that appellee's employee-surgeon had left a metallic forceps (approximately 19 cm. in length) and a nonabsorbent sponge inside his abdomen, and that he had been required to undergo additional surgery on October 9, 1968, for removal of the foreign objects. He alleged that he did not discover the presence of these items until February 13, 1968.
Appellee's motion for summary judgment was sustained upon the basis of appellant's alleged failure to file his action within the time permitted by the applicable statute of limitation. That judgment was affirmed by the Court of Appeals. We allowed appellant's motion to certify the record, and the cause is now before us for review and final determination.
Snyder, Neff & Chamberlin and Owen C. Neff, Cleveland, for appellant.
Baker, Hostetler & Patterson and Parker M. Orr, Cleveland, for appellees.
When a metallic forceps and a nonabsorbent sponge are negligently left in a surgical patient's body, does that act toll the running of the statute of limitation governing a resultant action for damages? 1
The summary judgment appealed from was entered and affirmed upon the authority of Wyler v. Tripi (1971), 25 Ohio St.2d 164, 267 N.E.2d 419, which held that a cause of action for medical malpractice accrues, at the latest, when the physician-patient relationship finally terminates. Wyler, supra, discussed prior cases of this court, the various national theories regarding cases of this type, and cited a firm Ohio legislative history of opposition to the adoption of a 'discovery rule' which would operate upon all types of medical malpractice and do so in an unlimited fashion. Wyler, which was not a 'foreign-object' case, also spoke candidly of the deficiencies in the existing limited discovery rule, which it upheld as the law of Ohio and issued a thinly veiled suggestion that the General Assembly reassess its historic position in this area. 2
The Wyler case involved the problems faced in the defense of a 'stale' claim for medical malpractice. As in other fields of highly technical and inexact science, evidence in defense of such claims is unusually difficult to acquire and present. Balancing this against the potential injustice of extinguishing a legitimate, but unknown, claim, the General Assembly exercised its prerogative in this field and enacted a statute of limitation of comparatively brief duration. 3 Wyler recognized the legislative authority to so act, but, as heretofore noted, did so with an unmistakable lack of enthusiasm.
Under the record presented here, we are not now faced with facts akin to those in Wyler. In the instant case, it is difficult, if not impossible, to imagine a defense to the act charged. To carelessly leave a large and obvious metallic forceps and a nonabsorbent sponge in a surgical patient's body is negligence as a matter of law, and the proof thereof is generally unsusceptible to speculation or error. 4 The relationship between the utterly helpless surgical patient and his surgeon, during surgery, is such that the latter must be held to have assumed the responsibility for the removal of such articles, excepting only those which are intentionally left there for sound medical reasons. Furthermore, as problems of proof and defense dwindle, so does the persuasiveness of the 'stale claims' reasoning. 5
We need not disturb the holding in Wyler, nor interfere in the affairs of our sister branch government, in order to accord this rule of law the viability we have determined it must have. The Wyler syllabus speaks only of the time of accrual of an action for medical malpractice, and avoids the all-inclusive language of the syllabus in DeLong v. Campbell (1952), 157 Ohio St. 22, 104 N.E.2d 177, and Gilette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 856. 6 Thus, while a cause of action for medical malpractice accrues, at the latest, when the physician-patient relationship finally terminates, the negligent leaving of a metallic forceps and a nonabsorbent sponge inside a patient's body during surgery will toll the running of the statute of limitation upon that cause of action until such time as the patient discovers, or by the exercise of reasonable diligence should have discovered, the negligent act.
As stated in Wyler, many states have adopted varying rationales for supporting a tolling theory in cases where forceps or other instruments and implements have been carelessly left in surgical openings. These include fraudulent concealment, 'unknown and inherently unknowable' conditions, 'constructive' fraudulent concealment, and 'continuing negligence' approaches. Whichever choice other states have made, it is our opinion that pressures associated with modern surgeon-patient relationships supply an even sounder and broader basis for announcing an exception to the general rule in cases such as the one at bar. Hence, we base our reasoning not only upon an absence of the vexatious inequities usually associated with the entertaining of 'stale' medical claims, but also upon matters of sound public policy, 7 springing from the absolute and irrevocable dependence of patient upon surgeon during surgery and from the huge increase in societal or public medicine with its lamentable but concomitant lessening of the fiercely private surgeon-patient relationship of years past. 8 The facts at bar bear witness to the hypostasis of our determination in that regard.
The judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of...
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