Ruther v. Kaiser

Decision Date06 December 2012
Docket NumberNo. 2011–0899.,2011–0899.
PartiesRUTHER, Appellee, v. KAISER et al., Appellants.
CourtOhio Supreme Court
Negative Treatment Reconsidered

R.C. § 2305.113(C)

[Ohio St.3d 408]Syllabus of the Court

The medical-malpractice statute of repose found in R.C. 2305.113(C) does not extinguish a vested right and thus does not violate the Ohio Constitution, Article I, Section 16. ( Hardy v. VerMeulen, 32 Ohio St.3d 45, 512 N.E.2d 626 (1987), overruled.)

Santen & Hughes, John Holschuh, Brian O'Connor, and Sarah Tankersley, Cincinnati, for appellee.

Arnold Todaro & Welch Co., L.P.A., John Welch, Dayton, and Karen Clouse, Columbus, for appellants.

Bricker & Eckler L.L.P., Anne Marie Sferra, and Bridget Purdue Riddell, Columbus, urging reversal for amici curiae American Hospital Association, American Medical Association, American Osteopathic Association, Ohio Alliance for Civil Justice, Ohio Hospital Association, Ohio Osteopathic Association, and Ohio State Medical Association.

Tucker Ellis and Susan Audey, Cleveland, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.

Michael DeWine, Attorney General, Alexandra Schimmer, Solicitor General, and Michael Hendershot, Chief Deputy Solicitor, urging reversal for amicus curiae state of Ohio.

Paul W. Flowers Co., L.P.A., and Paul Flowers, Cleveland, urging affirmance for amicus curiae Ohio Association for Justice.


{¶ 1} This appeal is an as-applied constitutional challenge to R.C. 2305.113(C), the statute of repose for medical claims. The Twelfth District Court of Appeals held that R.C. 2305.113(C), as applied to the facts of this case, violates the right-to-remedy clause of the Ohio Constitution, Article I, Section 16, relying in part upon Hardy v. VerMeulen, 32 Ohio St.3d 45, 47, 512 N.E.2d 626 (1987). For reasons that follow, we overrule Hardy and reverse the judgment of the Twelfth District Court of Appeals.

I. Background

{¶ 2} R.C. 2305.113(C) sets a four-year statute of repose for medical-malpractice claims.1 Except for minors or those of unsound mind, a person must file a [Ohio St.3d 409]medical claim no later than four years after the alleged act of malpractice occurs or the claim will be barred. Limited exceptions also exist for malpractice discovered during the fourth year after treatment and for malpractice that leaves a foreign object in a patient's body. R.C. 2305.113(D)(1) and (2). Those exceptions allow one additional year after discovery of an injury to file suit. Id.

{¶ 3} This case involves a medical-malpractice claim filed well after the statute of repose set forth in R.C. 2305.113(C), and no statutory exception applies. Timothy Ruther developed abdominal pains that led to a diagnosis of a liver lesion and hepatitis C in December 2008.

{¶ 4} Around this time, Timothy Ruther's wife, appellee Tracy Ruther reviewed medical records detailing appellant Dr. George Kaiser's care of her husband. These records showed elevated liver-enzyme levels in July 1995, May 1997, and October 1998. Although the parties contest the length of time Mr. Ruther received treatment at Dr. Kaiser's practice, appellant Warren County Family Practice Physicians, Inc., it is not disputed that Dr. Kaiser stopped treating Mr. Ruther years before he complained of abdominal pain.

{¶ 5} In May 2009, the Ruthers sued Dr. Kaiser and Warren County Family Practice Physicians, Inc., for medical malpractice. The Ruthers claimed that Dr. Kaiser had failed “to properly assess, evaluate and respond to abnormal laboratory results including, but not limited to, very high liver enzymes.” Mr. Ruther died while the case was pending. Mrs. Ruther then amended the complaint to add a claim for wrongful death and sought a declaratory judgment that R.C. 2305.113(C), as applied to her husband, violates the United States and Ohio constitutions.

{¶ 6} Dr. Kaiser and the medical practice moved for summary judgment, asserting that the statute of repose found in R.C. 2305.113(C) barred the amended complaint, having been brought more than ten years after the alleged act of malpractice. The trial court, however, denied the motion, concluding that applying the statute of repose in this case would violate the Ohio Constitution, Article 16, Section 1. The trial court also denied appellants' motion for summary judgment with respect to Mrs. Ruther's wrongful-death claim because it had been [Ohio St.3d 410]filed within the statute of limitations. That ruling was not appealed. Thus, the wrongful-death action is not before us.

{¶ 7} The Twelfth District Court of Appeals affirmed the trial court's denial of summary judgment. Ruther v. Kaiser, 12th Dist. No. CA2010–07–066, 2011-Ohio-1723, 2011 WL 1346836. Like the trial court, the appellate court concluded that the statute, as applied to Mrs. Ruther's medical-malpractice claim, “bars her claim after it had already vested, but before she or the decedent knew or reasonably could have known about the claim[,] [thereby constituting] a violation of the right-to-a-remedy provision of Section 16, Article I of the Ohio Constitution.” Id. at ¶ 38.

{¶ 8} We granted Dr. Kaiser's request for discretionary review. Ruther v. Kaiser, 129 Ohio St.3d 1474, 2011-Ohio-4751, 953 N.E.2d 841. The sole proposition of law reads: “The medical malpractice statute contained in O.R.C. § 2305.113(C) does not violate the open courts provision (Section 16, Article I) and is therefore constitutional.”

II. Analysis
A. The Statute Is Presumed to Be Constitutional

{¶ 9} R.C. 2305.113(C) has a strong presumption of constitutionality. Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25. An as-applied constitutional challenge, such as Mrs. Ruther raises, alleges that

the application of the statute in the particular context would be unconstitutional. “The practical effect of holding a statute unconstitutional ‘as applied’ is to prevent its future application in a similar context, but not to render it utterly inoperative.”

Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 14, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting). The standard for such a challenge is clear and convincing evidence. State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 21. “The only judicial inquiry into the constitutionality of a statute involves the question of legislative power, not legislative wisdom.” State ex rel. Bowman v. Allen Cty. Bd. of Commrs., 124 Ohio St. 174, 196, 177 N.E. 271 (1931).

1. Right to Remedy

{¶ 10} The constitutional provision at issue in this case, Ohio Constitution, Article I, Section 16, guarantees that [a]ll courts shall be open, and every [Ohio St.3d 411]person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.” This one provision contains many important constitutional principles—“open courts,” “right to remedy,” and “due course of law.”

{¶ 11} In this case, we are concerned with the right to remedy, which has been a part of our constitution since Ohio was admitted to the union. Little is known about the intent behind its inclusion, as the records of the 1802 convention indicate that the original right-to-remedy provision, Ohio Constitution of 1802, Article VIII, Section 7, was enacted without amendment or recorded discussion. See E.W. Scripps Co. v. Fulton, 100 Ohio App. 157, 171–172, 125 N.E.2d 896 (8th Dist.1955) (Hurd, J., concurring). Although it was almost deleted at the 18501851 convention, this section was ultimately carried unchanged into the current Bill of Rights. Id. at 172, 125 N.E.2d 896. The 18731874 constitutional convention made no changes in this section, and the 1912 convention also left the words of the 1802 drafters unaltered, though it added a sentence not at issue in the instant case. Id.

{¶ 12} A plain reading of Article I, Section 16 reveals that it does not provide for remedies without limitation or for any perceived injury. Rather, the right-to-remedy clause provides that the court shall be open for those to seek remedy “by due course of law.” (Emphasis added.) Article I, Section 16 does not prevent the General Assembly from defining a cause of action.

{¶ 13} We have previously stated that the right-to-remedy provision applies only to existing, vested rights and that the legislature determines what injuries are recognized and what remedies are available. Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 150, quoting Sedar v. Knowlton Constr. Co., 49 Ohio St.3d 193, 202, 551 N.E.2d 938 (1990). “No one has a vested right in rules of the common law. * * * The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to new circumstances.” Fassig v. State ex rel. Turner, 95 Ohio St. 232, 248, 116 N.E. 104 (1917), overruled on other grounds by Griffin v. Hydra–Matic Div., Gen. Motors Corp., 39 Ohio St.3d 79, 529 N.E.2d 436 (1988), syllabus.

{¶ 14} Thus, the General Assembly has the right to determine what causes of action the law will recognize and to alter the common law by abolishing the action, by defining the action, or by placing a time limit after which an injury is no longer a legal injury. For example, the General Assembly abolished the torts of breach of a promise to marry, alienation of affections, and criminal conversation. R.C. 2305.29; Strock v. Pressnell, 38 Ohio St.3d 207, 214, 527 N.E.2d 1235 (1988), and paragraph one of the syllabus (upholding the statute that abolished “amatory actions” as constitutional). The legislature has also redefined the common-law definition of employer intentional torts. R.C. 2745.01; [Ohio St.3d 412]Kaminski v. Metal...

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