Oliver v. Kaiser Community Health Foundation

• Decision Date: 08 June 1983
• Docket Number: No. 82-833,82-833
• Citation: 449 N.E.2d 438,5 Ohio St.3d 111,5 OBR 247
• Parties: , 5 O.B.R. 247 OLIVER, Exr., Appellant, v. KAISER COMMUNITY HEALTH FOUNDATION et al., Appellees.
• Court: Ohio Supreme Court

Page 111

5 Ohio St.3d 111

449 N.E.2d 438, 5 O.B.R. 247

OLIVER, Exr., Appellant, v. KAISER COMMUNITY HEALTH FOUNDATION et al., Appellees.

No. 82-833.

Supreme Court of Ohio.

June 8, 1983.

Syllabus by the Court

Under 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. (Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865; Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238; Amstutz v. King, 103 Ohio St. 674, 135 N.E. 973; DeLong v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177 ; Lundberg v. Bay View Hospital, 175 Ohio St. 133, 191 N.E.2d 821 ; Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 , and all other inconsistent cases, overruled.)

On November 21, 1980, appellees jointly filed a motion for summary judgment pursuant to Civ.R. 56(B), claiming that the complaint was time barred pursuant to the one-year statute of limitations in R.C. 2305.11(A). Appellant filed a motion in opposition thereto.

Appellees' motion for summary judgment was granted by the trial court on May 18, 1981, and the cause was dismissed. The court of appeals affirmed.

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

Louise Federici, appellant's decedent, entered a hospital operated by appellee Kaiser Community Health Foundation, and underwent an operative procedure on September 16, 1975, described as "excision lymph node right axilla" in which a nodule was excised from her right breast and submitted to the pathology department for evaluation. Appellee Dr. Howard Zirkin, a pathologist employed by Kaiser Community Health Foundation, examined the tissue specimen and found it to be nonmalignant.

On September 17, 1979, Federici filed a medical malpractice action, alleging that the pathological evaluation of the tissue was performed in a negligent and unskillful manner in that the tissue should have been diagnosed and evaluated as malignant carcinoma. Federici also alleged that the true nature of her condition was not discovered and properly diagnosed until on or about July 27, 1979.

Appellees filed separate answers, denying the pertinent allegations.

Federici died on December 8, 1979, and the executor of her estate, James P. Oliver, appellant herein, was substituted as a party pursuant to motion.

Leonard Glazer, Weisman, Goldberg & Weisman Co., L.P.A., James Goldberg and Fred Weisman, Cleveland, for appellant.

Weston, Hurd, Fallon, Paisley & Howley and Donald H. Switzer, Cleveland, for appellees.

WILLIAM B. BROWN, Justice.

The narrow issue raised by this appeal is whether a cause of action for medical malpractice pursuant to R.C. 2305.11(A) accrues upon the termination of the medical relationship or upon the time of the discovery of the malpractice.

This case presents this court with the opportunity to reexamine, in light of contemporary standards of justice, the holdings of this court, of our appellate courts, and of the courts of last resort in other jurisdictions on this important issue. After considered examination and reflection, this court recedes from prior cases in order to establish the "discovery rule" in medical malpractice actions arising under R.C. 2305.11(A), a rule which this court is convinced will be productive of results more nearly consonant with the demands of justice and the dictates of ethics.

The statute of limitations applicable to medical malpractice, R.C. 2305.11, provides, in pertinent part, that:

"(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 * * *."

In applying the statute, or analogous statutes, in the past, this court has held that "[a]s 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." DeLong v. Campbell (1952), 157 Ohio St. 22, 104 N.E.2d 177 .

The rationale underlying the adoption of the termination rule was set forth by this court in Bowers v. Santee (1919), 99 Ohio St. 361, 368, 124 N.E. 238, as follows:

" * * * The surgeon should have all reasonable time and opportunity to correct the evils which made the operation or treatment necessary, and even reasonable time and opportunity to correct the ordinary and usual mistakes incident to even skilled surgery. The doctrine announced here is conducive to that mutual confidence that is highly essential in the relation between surgeon and patient."

For many years, the courts of Ohio demonstrated a commitment to the rule that the termination of the medical relationship is the event which commences the running of the one-year statute of limitations in medical malpractice actions now contained in R.C. 2305.11. See, e.g., Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 865; Bowers v. Santee, supra; DeLong v. Campbell, supra; Amstutz v. King (1921), 103 Ohio St. 674, 135 N.E. 973; Lundberg v. Bay View Hospital (1963), 175 Ohio St. 133, 191 N.E.2d 821 ; and Wyler v. Tripi (1971), 25 Ohio St.2d 164, 267 N.E.2d 419 .

In 1971, however, this court in Wyler v. Tripi, supra, expressed its grave concern over the inequities and harshness which result from the application of the termination rule in medical malpractice actions. After noting at page 166 that the " * * * construction of the statute of limitations pertaining to medical malpractice * * * [represents] a conflict between two basic policies of the law, viz., the policy of discouraging the fostering of stale claims, and the policy of allowing meritorious claimants an opportunity to present their claims," ¹ the majority in Wyler discussed the development and propriety of the termination rule, stating at page 168, 267 N.E.2d 419 as follows:

"In situations such as the case at bar, where no injury or damage becomes apparent contemporaneously with the negligent act, the application of the general rule that a cause of action exists from the time the negligent act was committed would lead to the unconscionable result that the injured party's right to recovery can be barred by the statute of limitations before he is even aware of its existence. Although the termination rule is a marked departure from the general rule, and is designed to avoid the harsh results of that rule, it affords little relief in cases where the injury is one which requires a long developmental period before becoming dangerous and discoverable. In those situations, the termination rule extends the period of time at which the statute of limitations commences to run, but does so by a factor which bears no logical relationship to the injury incurred. See 30 Ohio St.L.J. 425, 430. The termination rule is further fallible in that it requires the patient to determine, at the time the relationship is terminated, that malpractice has taken place, when in fact he may have relied upon the very advice which constitutes malpractice. Johnson v. Caldwell (1963), 371 Mich. 368, 123 N.W.2d 785; Ayers v. Morgan (1959), 397 Pa. 282, 154 A.2d 788."

Troubled by this result, ² the Wyler court examined the laws of various jurisdictions and the growing trend away from the termination rule and toward the discovery rule, and noted as follows at page 170, 267 N.E.2d 419:

"Those jurisdictions which have adopted the discovery rule do not interpret its application as nullifying one of the purposes of the statute of limitations. (It is difficult to maintain that the claimant has been 'sleeping on his rights' when in fact he is unaware that he had such rights. See Ayers v. Morgan [1959], 397 Pa. 282, 154 A.2d 788; Morgan v. Grace Hospital [1965], 149 W.Va. 783, 144 S.E.2d 156.) Those courts view the discovery doctrine as being entirely consistent with the policy of the statute of limitations to prevent 'stale claims.' "

Although stating that " * * * an examination of the cases [from other jurisdictions] [footnote omitted] reveals that there is much to recommend the adoption of the discovery rule," the Wyler court, in a four to three decision, nonetheless " * * * reluctantly conclude[d] that the courts of Ohio should not decree such an adoption" because to do so would place the court " * * * in the obvious and untenable position of having not only legislated, but of having done so directly in the face of a clear and opposite legislative intent." Id. at 170-171, 267 N.E.2d 419.

This court concurs with the Wyler majority's assessment that the adoption of the discovery rule is well recommended. Use of the discovery rule eases the unconscionable result to innocent victims who by exercising even the highest degree of care could not have discovered the cited wrong. By focusing on discovery as the element which triggers the statute of limitations, the discovery rule gives those injured adequate time to seek relief on the merits without undue prejudice to medical defendants. Miraldi, Ohio's Statute of Limitations for Medical Malpractice (1977), 38 Ohio St.L.J. 125. This court feels, that in balancing the equities between doctor and patient, the burden placed on the doctor is much less than the greater injustice the patient would suffer. ³

Contrary to the holding of the Wyler majority, however, it is the opinion of the present court that the Wyler majority put undue emphasis on legislative history as constituting legislative disapproval of the discovery rule and that judicial adoption of the discovery rule is proper.

The Wyler majority declined to adopt the discovery rule in large part due to the failure of the General Assembly to enact a proposed discovery rule. ⁴ This court finds the following analysis employed by the Supreme Court of Oregon, in...