Morley v. E.B. Jones, D.D.S., Inc.

• Decision Date: 21 May 1985
• Docket Number: No. 84AP-711,84AP-711
• Citation: 24 Ohio App.3d 112,493 N.E.2d 312
• Parties: , 24 O.B.R. 182 MORLEY, Appellant, v. E.B. JONES, D.D.S., INC. et al., Appellees. *
• Court: Ohio Court of Appeals

Page 112

24 Ohio App.3d 112

493 N.E.2d 312, 24 O.B.R. 182

MORLEY, Appellant, v. E.B. JONES, D.D.S., INC. et al., Appellees. ^*

No. 84AP-711.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 21, 1985.

Syllabus by the Court

1. An amendment to the statute of limitations governing malpractice claims, R.C. 2305.11(A), may have retroactive application and, thus, bar a claim which accrued prior to the effective date of the amendment, provided the new limitation period still leaves the claimant a reasonable time within which to enforce his right after the effective date of the amendment.

2. The failure of R.C. 2305.11(A) to provide a dental claimant with a one-hundred-eighty-day extension in which to file his dental malpractice action, while at the same time providing potential medical malpractice claimants with the opportunity to obtain such an extension, is not violative of the Equal Protection and Due Process Clauses of the Ohio and United States Constitutions.

Gilbert L. Krone and John H. Lewis, Columbus, for appellant.

Lane, Alton & Horst, Jeffrey W. Hutson and Robert E. Hanson, Columbus, for appellees.

STRAUSBAUGH, Judge.

This is an appeal by plaintiff from a summary judgment in favor of defendants and against plaintiff in the common pleas court.

The record indicates that plaintiff filed her complaint for injuries resulting from alleged improper dental treatment on December 14, 1982 sounding in dental malpractice alleging inter alia:

"33. The negligence of defendants consisted of the following:

"(a) Removing healthy teeth without just cause;

"(b) Extracting teeth without proper anesthetic;

"(c) Failing to detect an infection and failing to provide medical or dental relief from the infection;

"(d) Causing bone damage to plaintiff's gums and failing to provide medical or dental treatment for the removal of the bones;

"(e) Failing to have a specialist remove an impacted wisdom tooth;

"(f) Failing to discover and remove a suture which was placed in plaintiff's mouth by defendants;

"(g) Failing to make proper impressions for the dentures;

"(h) Failing to complete the work in the period of time agreed to;

"(i) Failing to properly prepare a set of dentures which fit correctly; and

"(j) Requiring plaintiff to wear improperly fitted dentures, thereby causing injuries to the inside of her mouth, gum infection and bone damage.

"34. As a result of defendant's negligence, as specified herein:

"(a) Plaintiff was required to employ another dentist to prepare a proper set of dentures.

"(b) Plaintiff has lost the use of her natural teeth and was required to wear ill-fitted dentures which caused extreme pain.

"(c) During the one-year and four-month period plaintiff was never able to use the temporary or permanent dentures for eating and, as a result, was required to follow a thoroughly liquid diet or a soft diet.

"(d) Plaintiff has suffered pain, anguish and humiliation because of her appearance while wearing the defective dentures.

"(e) Plaintiff has suffered mental anguish over the loss of her natural healthy teeth.

"(f) Plaintiff has been seriously and permanently injured; plaintiff has suffered great pain and mental anguish and will, in the future, continue to suffer great pain and mental anguish."

The trial court in its decision sustaining defendants' motion for summary judgment found that plaintiff's claims are barred by the applicable statute of limitations, R.C. 2305.11(A), which provided (see 139 Ohio Laws, Part I, 2153):

"An action for libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice, including an action for malpractice against a physician, podiatrist, hospital, or dentist, or upon a statute for a penalty or forfeiture, shall be brought within one year after the cause thereof accrued, * * *." (Emphasis added.)

Prior to the amendment of the above statute effective March 15, 1982 (see 139 Ohio Laws, Part I, 2153), the statute of limitations for dental malpractice was two years. Therefore, had the old statute of limitations been in effect, the filing by plaintiff of her complaint on December 14, 1982 would have been well within the two-year statute of limitations.

Plaintiff sets forth the following five assignments of error:

"1. The trial court erred by finding, as a matter of law, that appellant was required to file her claim within ninety (90) days after the effective date of amended R.C. § 2305.11.

"2. The trial court erred in finding, as a matter of law, that appellant discovered her injuries on September 24, 1981.

"3. R.C. Section 2305.11(A) is unconstitutional because it does not provide dental malpractice claimants the same 180-day extension period privilege as it provides to medical malpractice claimants.

"4. The trial court erred by finding, as a matter of law, that the limitation period was not tolled or suspended during the period of time appellant delayed filing her complaint while awaiting the completion of the appellees' insurer's investigation.

"5. The trial court erred by failing or refusing to consider appellees' judicial admission as evidence in favor of appellant."

With respect to the first assignment of error, "[s]tatutes of limitation are remedial in nature and may be generally classified as procedural legislation." Gregory v. Flowers (1972), 32 Ohio St.2d 48 , paragraph one of the syllabus. The purposes served by the rationale underlying statutes of limitations are to ensure fairness to the defendant, to encourage prompt prosecution of causes of action, to suppress stale and fraudulent claims, and to avoid the inconvenience engendered by delay, specifically the difficulties of proof present in older cases. O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 88. The discovery rule, as recently articulated by the Supreme Court in O'Stricker, supra, is a two-pronged rule. First, a plaintiff must know or reasonably should have known that he has been injured; and second, a plaintiff must know or reasonably should have known that his injury was proximately caused by conduct of the defendant.

The Supreme Court in Baird v. Loeffler (1982), 69 Ohio St.2d 533, 535 , held that an amendment to the statute of limitations governing malpractice claims may have retroactive application and, thus, bar a claim which accrued prior to the effective date of the amendment, " * * * ' "provided such limitation still leaves the claimant a reasonable time within which to enforce the right" ' * * * " (emphasis and citations omitted) after the effective date of the amendment. The court cites with approval Smith v. New York Central RR. Co. (1930), 122 Ohio St. 45, wherein the Supreme Court held that it could not be claimed that an unreasonable limitation had been effected by a change which allowed the parties to the controversy ninety days within which to begin their respective actions.

In Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, the Supreme Court held that "[u]nder R.C. 2305.11(A), a cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury. * * * " In the case herein, plaintiff's deposition, which was attached to defendants' motion for summary judgment, clearly establishes that on September 24, 1981, the last time that she was treated by Dr. Jones, she had discovered and was aware of all of the alleged negligent acts set forth in her complaint and all of the alleged injuries resulting from those acts. Pursuant to the holding of the Supreme Court in Oliver, supra, plaintiff's cause of action for dental malpractice accrued, at the latest, on September 24, 1981. Pursuant to the one-year statute of limitations set forth in R.C. 2305.11(A), plaintiff had until September 24, 1982 to file her action for malpractice. However, she did not file her complaint until December 14, 1982, nearly three months after the statute of limitations had run. Accordingly, plaintiff had a reasonable time from the effective date of the statute, March 15, 1982, in which to file her claim; but she did not file her complaint within that reasonable time. Plaintiff's first assignment of error is overruled.

With respect to the second assignment of error, as we have previously stated, the deposition of the plaintiff is clear that the...