Vostack v. Axt
| Decision Date | 27 March 1981 |
| Docket Number | No. C-2-79-828.,C-2-79-828. |
| Citation | 510 F. Supp. 217 |
| Parties | Wilma VOSTACK, Plaintiff, v. Joel AXT, Ph.D. et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
COPYRIGHT MATERIAL OMITTED
Walter J. Wolske, Jr., Wolske & Blue, Columbus, Ohio, for plaintiff.
Bruce G. Lynn, Bricker & Eckler, Columbus, Ohio, for defendants.
Before the Court is defendants' motion for summary judgment in this medical malpractice case involving the administration of radiation overdosages to the plaintiff, Wilma Vostack. Mrs. Vostack filed this action more than three years after the cause of action accrued, but she relies on Ohio's "savings clause," § 2305.15, Ohio Revised Code,1 to toll the running of the statute of limitations. The gravamen of the defendants' motion challenges the constitutionality of Ohio's savings clause. In ruling on defendants' motion, the Court will construe the evidence in the light most favorable to the plaintiff. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962).
Wilma Vostack was suffering from cancer in 1975. She entered Riverside Methodist Hospital and underwent radiation therapy under the supervision of defendant Stephen R. Andresen, M.D. Her radiation treatments began on December 8, 1975 and ended on January 28, 1976. She continued to see and consult with Dr. Andresen on her illness until June 13, 1977.
In April of 1976, it was learned that over four hundred cancer patients at Riverside Hospital had received damaging overdosages of radiation. Wilma Vostack was one of these patients. She initially filed this case in the Franklin County Court of Common Pleas on August 8, 1979 claiming that the overdosages caused severe radiation burns on the inside and outside of her body. The case was removed to this court on September 14, 1979.
The second defendant in this action is Joel Axt, a Ph.D. nuclear physicist who was a member of the Radiation Therapy Department at Riverside Hospital. Mr. Axt was responsible for the calibration and measurement of the cobalt 60 radiation therapy unit which administered the overdosages. The Court notes that in his answer to the complaint, Mr. Axt has admitted his negligence in calibrating the radiation instrument.
In their motion for summary judgment, the defendants argue that plaintiff's action is time-barred by Ohio's statute of limitations pertaining to physicians for malpractice and to non-physicians for ordinary negligence. Underlying the defendants' argument is their constitutional challenge to Ohio's savings clause, § 2305.15, O.R.C., which plaintiff has relied on to toll the limitations statute on her cause of action.
With regard to defendant Dr. Andresen, under § 2305.11, O.R.C., an action for medical malpractice must be brought within one year of the date upon which the cause accrued.2 In determining the date of accrual, the Ohio Supreme Court has repeatedly stated that the statute of limitations does not begin to run until the physician-patient relationship is terminated. Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971); Ishler v. Miller, 56 Ohio St.2d 447, 384 N.E.2d 296 (1978). In this case, the relationship between Dr. Andresen and Mrs. Vostack terminated on June 13, 1977. Therefore, absent the application of Ohio's savings clause, Mrs. Vostack was required to bring her action against Dr. Andresen on or before June 13, 1978.
With regard to defendant Axt, as a non-physician but an employee of the hospital, there is a preliminary question on whether the one-year statute of limitations, § 2305.11 O.R.C., or the two-year bodily injury statute of limitations, § 2305.10 O.R.C., applies.3 As defendants have pointed out, however, the resolution of this question is unnecessary in this case. Even if the two-year bodily injury statute, § 2305.10 O.R.C., applies, the limitations period began upon the administration of the last radiation therapy on January 28, 1976, and, absent the application of Ohio's savings clause, the limitations period expired on January 28, 1978. Thus, the defendants contend that by her filing this suit on August 8, 1979, Mrs. Vostack's cause of action is time-barred.
The defendants do not dispute that if Ohio's savings clause, § 2305.15, O.R.C., is found constitutional, it would apply to effectively toll the running of the statute of limitations on Mrs. Vostack's cause of action.
The relevant portion of Section 2305.15, O.R.C., provides:
After a cause of action accrues if the defendant departs from the state, ... the time of his absence ... shall not be computed as any part of a period within which the action must be brought.
The effect of the statute, therefore, is to toll the running of the applicable limitations statute for a time period in which the defendants were absent from the state. See, Wetzel v. Weyant, 41 Ohio St.2d 135, 323 N.E.2d 711 (1975).
Defendant Axt moved his residence from Ohio to Massachusetts in June or July of 1976. Likewise, in June of 1977, defendant Dr. Andresen moved his residence to Illinois. Consequently, under the savings clause, Mrs. Vostack's action was not time-barred since both defendants departed from the state before the statute of limitations expired.
The defendants argue that by moving their residences out of Ohio, the effect of the savings clause against them as nonresidents is too harsh. In effect, an Ohio resident has ad infinitem to bring suit against a nonresident even though under Ohio's liberal rules allowing substituted service, an Ohio resident can obtain service over a nonresident any time after a cause of action arises.
While the Court recognizes this harsh effect of Ohio's savings clause in some instances, it is precisely the interpretation the Ohio Supreme Court has chosen to give it. See Seely v. Expert, Inc., 26 Ohio St.2d 61, 65-68, 269 N.E.2d 121 (1971); Wetzel v. Weyant, supra at 137-38, 323 N.E.2d 711; Mead Corporation v. Allendale Mutual Insurance Co., 465 F.Supp. 355, 361 (N.D.Ohio 1979). In a diversity action in which Ohio law controls, the Court must follow the Ohio Supreme Court's interpretation of the savings clause. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967).
Apart from the interpretation and application of the savings clause, the gravamen of defendants' motion challenges its constitutionality under the Fourteenth Amendment to the United States Constitution. The defendants argue:
Upon full consideration, the Court is unpersuaded by the defendants' argument.
The Fourteenth Amendment prohibits a state from denying individuals equal protection of the laws. A challenge to Ohio's savings clause under the Fourteenth Amendment must be analyzed in a two-step approach. First, the Court must determine what the appropriate standard of review is or, in other words, what burden of justification the statute's classification must meet. Secondly, the Court must review the statute's classification under this standard and determine whether it passes constitutional muster.
In determining the appropriate standard of review, the Court must view the nature of the classification and the individual interests affected. Memorial Hospital v. Maricopa County, 415 U.S. 250, 253, 94 S.Ct. 1076, 1079, 39 L.Ed.2d 306 (1974). When a statute does not implicate any fundamental interest or suspect classification then the rational basis test applies and the challenged statute should fall only if the classification is without any reasonable basis. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). If, however, the classification touches on a fundamental right, then the statute's constitutionality must be judged by the stricter test of whether it promotes a compelling state interest. Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 1333, 22 L.Ed.2d 600 (1969).
The classification and differential treatment created by Ohio's savings clause is between those defendants who are present in the state and those defendants who are absent from the state. The in-state defendants are accorded statute of limitations protection against the possibility of a cause of action pending indefinitely, while the out-of-state defendants are not. Stated another way, only plaintiffs with a cause of action against out-of-state defendants have the benefit of Ohio's savings clause, to toll the running of an applicable limitations statute.
The defendants contend that this classification and differential treatment impairs their fundamental right to travel interstate and "to migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson, supra at 629, 89 S.Ct. at 1328. The Court disagrees and finds that defendants' reliance on the right-to-travel cases such as Shapiro and Associated Adjusters v. Dept. of Insurance, 50 Ohio...
To continue reading
Request your trial
-
Pack v. City of Cleveland, 81-1109
...is reasonable enough to meet the low level of judicial review traditionally afforded non-suspect classifications. See Vostack v. Axt (S.D. Ohio E.D. 1981), 510 F.Supp. 217 ; Holloway v. Brown (1980), 62 Ohio St.2d 65, 403 N.E.2d 191 ; Massachusetts Bd. of Retirement v. Murgia (1976), 427 U.......
-
Tesar v. Hallas
...challenge to New Jersey's savings clause for out-of-state corporate defendants) (cited in Bendix, 108 S.Ct. at 2222); Vostack v. Axt, 510 F.Supp. 217 (S.D.Ohio 1981) (rejecting equal protection challenge to application of savings clause to individual out-of-state ...
-
John E. Wise v. Lee Ann J. Morrison
...the state after committing a tortious act, including when an Ohio resident leaves the state on vacation, as is the case here. Cf. Vostack v. Axt, supra. When one is out of the on vacation, it would be more difficult and costly to locate and serve that person. The statute, as applied to appe......
-
Jatco, Inc. v. Charter Air Center, Inc.
...and placing them at a disadvantage vis-a-vis residents. However, this Court finds that rationale of the Court in Vostack v. Axt, 510 F.Supp. 217 (S.D.Ohio 1981) to be persuasive. That Court also dealt with a challenge to the constitutionality of Ohio's "tolling" statute, Ohio Rev.Code § 230......