Wyler v. Tripi, No. 69-611

CourtUnited States State Supreme Court of Ohio
Writing for the CourtHERBERT; C. WILLIAM O'NEILL; CORRIGAN
Citation267 N.E.2d 419,25 Ohio St.2d 164
Decision Date24 February 1971
Docket NumberNo. 69-611
Parties, 54 O.O.2d 283 WYLER, Appellant, v. TRIPI et al., Apellees.

Page 164

25 Ohio St.2d 164
267 N.E.2d 419, 54 O.O.2d 283
WYLER, Appellant,
v.
TRIPI et al., Apellees.
No. 69-611.
Supreme Court of Ohio.
Feb. 24, 1971.

Syllabus by the Court

Under R.C. 2305.11, a cause of action for medical malpractice accrues, at the latest, when the physician-patient relationship finally terminates. (Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865; Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238, and DeLong v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177, followed.)

Page 165

On April 15, 1968, appellant filed a petition in the Court of Common Pleas of Summit County, charging appellees with medical malpractice during their attendance upon her from October 1, 1965, to January 17, 1966. Appellant alleges that the appellees negligently interpreted X-rays and negligently performed surgery upon her. Appellant alleges further that on April 30, 1967, the improper treatment resulted in the manifestation of asceptic necrosis, necessitating the replacement of her right hip with an Austin Moore Prosthesis [267 N.E.2d 420] and the subsequent removal of her right leg. Appellee's demurrer to the petition, on the ground that the action was barred by the statute of limitations, was sustained by the trial court.

The judgment was affirmed by the Court of Appeals for Summit County, which certified the case to this court for review and final determination by reason of a conflict between its judgment and the judgment of the Court of Appeals for Seneca County in Cook v. Yager (1968), 13 Ohio App.2d 1, 233 N.E.2d 326.

Amer, Cunningham, Cunningham, Brennan & Miller and Richard T. Cunningham, Akron, for appellant.

Chastang & Carroll, Charles J. Chastang, Columbus, and Miller, Morris & Reece, Akron, for appellees.

HERBERT, Justice.

R.C. 2305.11 provides, in pertinent part:

'An action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued * * *.'

This dispute concerns the date upon which the statute of limitations commences to run in a medical malpractice case and necessitates a re-examination of this court's holdings in Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 865; Bowers v. Santee (1919), 99 Ohio St. 361, 124 N.E. 238; DeLong v. Campbell (1952), 157 Ohio St. 22, 104 N.E.2d 177.

As stated by Judge Stewart in the syllabus of DeLong v. Campbell, supra:

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'As 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.'

Appellant has urged this court to abandon the rule announced in our previous decisions and to adopt a rule that the statute of limitations for medical malpractice will not commence to run until the patient actually discovers, or reasonably should have discovered, the negligent act.

In jurisdictions which have considered this question, it has been recognized that in the construction of the statute of limitations pertaining to medical malpractice, the cases represent 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. E. g., Billings v. Sisters of Mercy (1964), 86 Idaho 485, 489, 389 P.2d 224.

It is generally stated that a cause of action accrues when the wrongful act complained of is committed, and not as of the date the damage is discovered or reasonably should have been discovered. E. g., 34 Ohio Jurisprudence 2d 536, Limitation of Actions, Section 58; 34 American Jurisprudence 94, Limitation of Actions, Section 115.

In some jurisdictions, the strict general rule that a cause of action accrues at the date of the alleged wrong is applied to medical malpractice cases. E. g., Silvertooth v. Shallenberger (1934), 49 Ga.App. 133, 174 S.E. 365; Carter v. Harlan Hospital Ass'n (1936), 265 Ky. 452, 97 S.W.2d 9; Tantish v. Szendey (1962), 158 Me. 228, 182 A.2d 660; Wilder v. St. Joseph Hospital (1955), 225 Miss. 42, 82 So.2d 651. However, in the early 1930's most courts began developing exceptions to the general rule in an attempt to avoid the harsh results which often arose under facts peculiar to medical malpractice cases. 32 Indiana L.J. 528, 529. For example, some courts now allow a plaintiff to sue for breach of contract so as to take advantage of a longer

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statute of limitations. Sellers v. Noah (1923), 209 Ala. 103, 95 So. 167. See, also, cases collected in 74 A.L.R. 1320, and 144 A.L.R. 215. Nevertheless, it is still the majority view that injuries sustained as a result of medical malpractice are ex delicto in nature and the statute of [267 N.E.2d 421] limitations for breach of contract is not applicable. See 80 A.L.R.2d 320, 326. In other jurisdictions, a continuous treatment theory has been used by the courts in situations where a doctor leaves a foreign object in the body of a patient and continues to treat him after the operation. The physician is said to be negligent not only in his initial act, but also in allowing the object to remain in the patient's body while the patient is still under his care. According to this analysis, the statute of limitations does not begin to run until the patient leaves the care of the physician. E. g., Hotelling v. Walther (1942), 169 Or. 559, 130 P.2d 944. In some jurisdictions, the statute of limitations does not begin to run until discovery of the negligently caused condition, if the physician has fraudulently concealed his negligent conduct. E. g., Crossett Health Center v. Croswell (1953), 221 Ark. 874, 256 S.W.2d 548; Guy v. Schuldt (1956), 236 Ind. 101, 138 N.E.2d 891; Lakeman v. La France (1959), 102 N.H. 300, 156 A.2d 123. Finally, a few jurisdictions have expanded the fraudulent concealment doctrine by finding constructive fraudulent concealment in the failure of the physician to inform the patient of the negligence, where the physician knew or should have known it occurred. E. g., Morrison v. Acton (1948), 68 Ariz. 27, 198 P.2d 590; Rosane v. Senger (1944), 112 Colo. 363, 149 P.2d 372; Perrin v. Rodriguez (La.App.1934), 153 So. 555. Cf. Seitz v. Jones (Okl. 1961), 370 P.2d 300.

This court, in the Gillette, Bowers and DeLong cases, has adopted the continuing negligence theory by stating that in all medical malpractice cases, the latest time at which the statute of limitations commences running is the time at which the physician-patient relationship finally terminates.

The justification given for the termination rule is that

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it strengthens the physician-patient relationship. 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. In short, it was thought that the termination rule is conducive to that mutual confidence which is essential to the physician-patient relationship. Bowers v. Santee, supra.

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 State 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.

Because the termination rule only relieves the peculiarly harsh results of the application of the medical malpractice statute of limitations in some instances, appellant suggests that this court should follow those jurisdictions which have adopted the discovery rule. There is a sharp conflict of authority on that issue in this country.

The courts in 21 states presently do not apply the discovery

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rule, applying instead [267 N.E.2d 422] either the strict general rule or the exceptions to the general rule noted above. 1 Ten jurisdictions have adopted the discovery rule, but have specifically limited it to case where a foreign object (surgical sponge, gauze, forceps, etc.) has been negligently left in the patient's body. 2 Eleven states have adopted the discovery rule for all malpractice cases regardless of whether a foreign

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object is involved. 3 Two states have adopted the discovery rule by statute. 4

Those jurisdictions which have adopted the discovery rule do not interpret its applications 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[267 N.E.2d 423] v. Morgan (1959), 397 Pa. 282, 154 A.2d 788; Morgan v. Grace Hospital, Inc. (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 an examination of the cases 5 reveals that there is much...

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130 practice notes
  • McKenna v. Ortho Pharmaceutical Corp., No. 78-2567
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 1980
    ...Page 668 construction would effectively abrogate that court's well-established principle, expressly reaffirmed in Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971), that a cause of action for medical malpractice arises, at the latest, when the physician-patient relationship terminate......
  • In re Mushroom Transp. Co., Inc., Bankruptcy No. 85-02575.
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • May 3, 2007
    ...could not have known that he had such rights." Raymond v. Eli Lilly & Co., supra at 170, 371 A.2d at 174; quoting Wyler v. Tripi, 25 Ohio St.2d 164, 178, 267 N.E.2d 419, 427 (1971).... In such cases application of the statute of limitation to bar the action would no doubt promote repose, an......
  • Shover v. Cordis Corp., No. 90-332
    • United States
    • United States State Supreme Court of Ohio
    • July 31, 1991
    ...Ohio St. 22, 47 O.O. 27, 104 N.E.2d 177. Conceding the unfairness of even the termination rule, the court, in Wyler v. Tripi (1971), 25 Ohio St.2d 164, 54 O.O.2d 283, 267 N.E.2d 419, by a sharply divided four to three vote, refused to adopt the "discovery rule." The majority said that they ......
  • Anthony v. Koppers Co., Inc.
    • United States
    • Superior Court of Pennsylvania
    • February 13, 1981
    ...not Page 442 have known that he had such rights." Raymond v. Eli Lilly & Co., supra at 170, 371 A.2d at 174, quoting Wyler v. Tripi, 25 Ohio St.2d 164, 178, 267 N.E.2d 419, 427 (1971); Gaston v. Hartzell, 89 N.M. 217, 549 P.2d 632 (N.M.App.1976). In such cases application of the statute of ......
  • Request a trial to view additional results
130 cases
  • McKenna v. Ortho Pharmaceutical Corp., No. 78-2567
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 1980
    ...Page 668 construction would effectively abrogate that court's well-established principle, expressly reaffirmed in Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971), that a cause of action for medical malpractice arises, at the latest, when the physician-patient relationship terminate......
  • In re Mushroom Transp. Co., Inc., Bankruptcy No. 85-02575.
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • May 3, 2007
    ...could not have known that he had such rights." Raymond v. Eli Lilly & Co., supra at 170, 371 A.2d at 174; quoting Wyler v. Tripi, 25 Ohio St.2d 164, 178, 267 N.E.2d 419, 427 (1971).... In such cases application of the statute of limitation to bar the action would no doubt promote repose, an......
  • Shover v. Cordis Corp., No. 90-332
    • United States
    • United States State Supreme Court of Ohio
    • July 31, 1991
    ...Ohio St. 22, 47 O.O. 27, 104 N.E.2d 177. Conceding the unfairness of even the termination rule, the court, in Wyler v. Tripi (1971), 25 Ohio St.2d 164, 54 O.O.2d 283, 267 N.E.2d 419, by a sharply divided four to three vote, refused to adopt the "discovery rule." The majority said that they ......
  • Anthony v. Koppers Co., Inc.
    • United States
    • Superior Court of Pennsylvania
    • February 13, 1981
    ...not Page 442 have known that he had such rights." Raymond v. Eli Lilly & Co., supra at 170, 371 A.2d at 174, quoting Wyler v. Tripi, 25 Ohio St.2d 164, 178, 267 N.E.2d 419, 427 (1971); Gaston v. Hartzell, 89 N.M. 217, 549 P.2d 632 (N.M.App.1976). In such cases application of the statute of ......
  • Request a trial to view additional results

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