Fronce v. Nichols

12 Ohio Cir. Dec. 472

• Court: Ohio Circuit Courts
• Decided: July 1, 1901
• Status: Published

Opinion

Douglass, J.

Marie Fronce brought her action in the court below against John H. Nichols, M. D., alleging a state of facts which makes her action against him one for malpractice.

The petition is in due form, containing all the usual averments. To this petition a demurrer was interposed in the court of' common pleas and sustained by said court. Error is prosecuted to this court to reverse that judgment in so sustaining said demurrer. This is the sole question.

The petition alleges that the surgical operation, or malopération, was performed on September 28,1898. The said petition was filed March 18, 1901, so that the alleged breach of duty occurred one year and five months before the day of the filing of the petition.

Section 4983, Rev. Stat., provides that actions for libel, slander, malpractice, etc., shall be brought within one year after the cause of action accrues.

It follows, then, if the breach of duty is the criterion which gives rise1 to the action, and sets the limitation running, that by the plain terms of the statute this action is barred and that the demurrer was properly sustained.

But the claim of plaintiff in error is, that it is not the breach of duty, but knowledge of that fact, evidenced by resulting injury, that causes the action to accrue under the statute; and that this being the proper legal interpretation of the statute, that such knowledge of said resulting injury did not come to plaintiff until less than one year prior to the bringing of this action; all of which is averred in the petition. Hence, the claim that said cause is not barred by the statute of one year limitation and that thereiore the judgment of the court was erroneous.

The statute itself refutes this claim. The action counts upon malpractice, the malopération, the breach of duty, and not knowledge of resulting injury, or damages resulting from malpractice. The statute construes itself; it is plain and unambiguous. Judicial construction that reads anything into, or out of, such a statute, is judicial legislation.

The legislature with good reason could have said: “ And actions resulting from malpractice after the discovery of the same,” but the legislature has not done so, and this court should not.

It could not well be claimed that a slander spoken now, knowledge of which would be obtained ten years hence, would then cause the action to accrue and would be freed of the statutory bar.

Under Sec. 4983, Rev. Stat., the breach of duty (malpractice) causes the action to accrue; this sets in motion the limitation of one year, beyond which no action can be brought. This statute should be amended or another one enacted in order that knowledge of the resulting injury arising from malpractice would cause an action to accrue. Whatever may be said in reference to the wisdom of this later view, it is not the law as our statute now stands. Kerns v. Schoonmaker, 4 Ohio 381 [22 Am. Dec. 757]; Shuman v. Drayton, 8 Circ. Dec. 12 [14 R. 328].

We are of opinion that the judgment of the common pleas court was right, and the same is affirmed.