Saultz v. Funk

• Decision Date: 24 May 1979
• Parties: , 18 O.O.3d 19 SAULTZ et al., Appellants, v. FUNK, Appellee.
• Court: Ohio Court of Appeals

Page 29

64 Ohio App.2d 29

410 N.E.2d 1275, 18 O.O.3d 19

SAULTZ et al., Appellants, v. FUNK, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 24, 1979.

Syllabus by the Court

Under R.C. 2305.11(A) a cause of action for medical malpractice accrues upon termination of the physician-patient relationship, and a claim must be filed within one year of termination. In cases involving a foreign object left in a patient's body during surgery, the running of the one year limitation period is tolled following termination until the patient determines, or reasonably should have determined, that the foreign object has been left in his body. However, the termination and tolling rules applied under R.C. 2305.11(A) are subject to the limitation set forth in R.C. 2305.11(B), that in no event shall any medical claim against a physician be brought more than four years after the act or omission constituting the alleged malpractice occurred.

Ellis B. Brannon and William J. Novak, Cleveland, for appellants.

Rhoa, Follen & Coyne Co., L.P.A., and William J. Coyne, Cleveland, for appellee.

KRENZLER, Presiding Judge.

This case involves the question of the timeliness of the filing of an action for medical malpractice.

On July 27, 1976, the plaintiffs-appellants, Catherine and Ralph P. Saultz, husband and wife, filed a complaint in the Cuyahoga County Common Pleas Court against the defendant-appellee Paul O. Funk, M.D., hereinafter referred to as appellee, arising out of a tubal ligation alleged to have been negligently performed by the appellee upon Mrs. Saultz. In their complaint the appellants stated that Mrs. Saultz entered the hospital on November 14, 1973, and that thereafter the operation was performed. It was further alleged that as a proximate result of the appellee's negligence the appellants learned in approximately September, 1974 ^* that Mrs. Saultz was pregnant; that the appellants had five other children, and that the purpose of the operation was to prevent further childbirth; that on May 14, 1976, Mrs. Saultz gave birth to a son; that due to appellee's negligence Mrs. Saultz developed an infection and diabetes; and that various expenses had been, and would continue to be, incurred resulting from appellee's negligence. These expenses included medical expenses due to the birth, infection, and diabetes, and expenses for support and maintenance of the child. The appellants demanded judgment in the sum of $150,000 plus interest and costs.

In his answer to the complaint, the appellee entered a general denial to the allegations of negligence, asserted that the complaint failed to state a claim, and also raised the affirmative defense that the complaint was not timely filed and therefore was barred by the statute of limitations. No motion to dismiss was filed by appellee pursuant to Civ.R. 12(B)(6) based upon failure to state a claim upon which relief could be granted.

Interrogatories were filed by both sides, and the appellant-Mrs. Saultz filed her answers to the interrogatories on December 3, 1976. The record does not indicate that the appellee filed answers to the appellants' interrogatories.

On February 16, 1977, the appellee filed a motion for summary judgment, Civ.R. 56, alleging that the case should be dismissed since it had not been timely filed in accordance with R.C. 2305.11. Accompanying the appellee's motion for summary judgment was an affidavit in which he stated: that he had treated Catherine Saultz for a tubal ligation and that she was discharged from the hospital on November 19, 1973; that at that time arrangements were made for Mrs. Saultz to come to the appellee's office for post-operative treatments on December 3 and 10, 1973; that these appointments were not kept; and that the appellee's last contact with Mrs. Saultz was on November 19, 1973, the day she was discharged from the hospital.

The appellants filed a reply brief to the appellee's motion for summary judgment, accompanied by an affidavit by Mrs. Saultz asserting that: in November, 1973, the appellee purported to perform the tubal ligation; that the purpose thereof was to prevent further conception of children; that on or about August 15, 1975, Mrs. Saultz conceived a child; and that the child was born on May 14, 1976.

In a judgment entry and opinion filed July 22, 1977, the trial court granted the appellee's motion for summary judgment and ordered the case dismissed on the ground that the action was not timely filed.

The appellants filed a timely appeal from the judgment entered below and have presented the following assignments of error for our consideration:

"I. Under the principles of Melnyk v. Cleveland Clinic, a physician whose conduct constituted negligence as a matter of law cannot raise the statute of limitations defense against a patient who sued the physician within one year of discovering the physician's negligence.

"II. In enacting Section 2305.11(B) of the Ohio Revised Code, the legislature adopted a limited discovery rule for determining when a medical malpractice action accrues.

"III. The United States and Ohio Constitutions require the use of a discovery rule to determine the accrual of a cause of action for medical negligence.

"A. Fundamental fairness demands that a patient's right to sue should not be cut off before her cause of action matures.

"B. Equal Protection forbids limiting the discovery rule to foreign object claimants only."

The statute of limitations applicable to medical malpractice claims is set forth in R.C. 2305.11 which provides in pertinent part as follows:

"(A) An action for * * * malpractice, including an action for malpractice against a physician * * * shall be brought within one year after the cause thereof accrued * * *.

" * * *

"(B) In no event shall any medical claim against a physician * * * be brought more than four years after the act or omission constituting the alleged malpractice occurred. * * * "

The rule set forth in subsection (A) that a malpractice action must be brought within one year after it accrues is one of long standing which has been in effect since 1894. See 91 Ohio Laws 299. Much litigation involving this rule has centered around the question of when such an action accrues and when the one year period commences to run. Subsection (B) is a recent amendment to the statute which became effective in 1975. See Am.Sub. House Bill 682, 136 Ohio Laws 2809. Appellants' first assignment of error raises the issue of when the one year limitation period contained in subsection (A) began to run on their malpractice claim. Their second assignment of error requires us to determine the correct meaning of subsection (B) and its proper interrelationship with, and effect upon, the rule set forth in subsection (A).

In order to place appellants' assignments of error in proper perspective, we shall first summarize the present Ohio law governing the time within which an action for malpractice must be filed.

For purposes of interpreting subsection (A), there are three principal points in time when a cause of action for malpractice might be said to accrue: (1) on the date when the relationship between the plaintiff-patient and the defendant-physician terminates (the "termination" rule), see, e. g., Wyler v. Tripi (1971), 25 Ohio St.2d 164, 267 N.E.2d 419; (2) on the date when the act or omission constituting the alleged malpractice is discovered or in the exercise of reasonable diligence should be discovered (the "discovery" rule), see, e. g., Whitfield v. Roth (1974), 10 Cal.3d 874, 519 P.2d 588, 112 Cal.Rptr. 540; Ala.Code § 6-5-482; (3) on the date when the act or omission actually occurred. The latter rule, while perhaps the most definite and easiest to administer, is also the most strict. Most courts have developed exceptions to that rule in order to avoid the harsh results often arising in malpractice cases. See Wyler v. Tripi, supra, 25 Ohio St.2d at 166, 267 N.E.2d 419.

The termination and discovery rules each have strengths and weaknesses in terms of serving public policy interests in forestalling stale claims, protecting mutual trust in the physician-patient relationship, and preventing a patient from being deprived of a bona fide but as yet undiscovered claim.

Taken alone, neither rule serves to prevent stale claims which may be difficult to defend against long after the occurrence of the act or omission at issue. A patient may either continue his relationship with the doctor for a number of years, during which time the termination rule would postpone commencement of the statutory limitation period, or he may fail to discover his injury for a similarly long period during which the discovery rule would have the same effect.

The termination rule is justified by the rationale that it strengthens the physician-patient relationship. See Wyler v. Tripi, supra. "The patient may rely upon the doctor's ability until the relationship is terminated and the physician has the opportunity to give full treatment, including the immediate correction of any errors in judgment on his part." Id. at 168, 267 N.E.2d at 421. In short, the termination rule is designed to avoid forcing a patient to sue his doctor. This rule suffers from the weakness that a patient may be forced to forfeit a valid claim where the physician-patient relationship terminates, and the statutory period expires, before the injury is or reasonably should be discovered. "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." Id. at 168, 267 N.E.2d at 421.

Generally, the discovery rule favors the patient by extending commencement of the statutory period until he discovers or should discover the malpractice, thus reducing the possibility that a valid claim will be lost. Where the injury is discovered...