Hershberger v. Akron City Hospital

516 N.E.2d 204, 34 Ohio St. 3d 1, 1987 Ohio LEXIS 432
CourtOhio Supreme Court
DecidedDecember 9, 1987
DocketNo. 86-1544
StatusPublished
Cited by129 cases

This text of 516 N.E.2d 204 (Hershberger v. Akron City Hospital) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hershberger v. Akron City Hospital, 516 N.E.2d 204, 34 Ohio St. 3d 1, 1987 Ohio LEXIS 432 (Ohio 1987).

Opinion

Holmes, J.

The narrow question presented upon appeal is whether appellants’ complaint was filed in a timely fashion. We first consider the cause of action alleged by appellant Rickey Hershberger, and whether his claim was timely filed pursuant to R.C. 2305.11(A) and/or 2305.11(B). For the reasons which follow, we reverse the judgments below and remand this cause to the trial court for further proceedings in accordance herewith.

I

Recently this court decided the cases of Hardy v. VerMeulen (1987), 32 Ohio St. 3d 45, 512 N.E. 2d 626, and Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St. 3d 54, 514 N.E. 2d 709. With regard to the question of whether appellant Rickey Hershberger’s claim was timely filed pursuant to R.C. 2305.11(B), we hereby remand this cause to the trial court to decide this question giving consideration to our holdings in Hardy and Gaines.

II

In their presentations before this court, the parties did not brief or argue the R.C. 2305.11(A) issue separate and apart from the R.C. 2305.11(B) question. In the court of appeals, the R.C. 2305.11(A) issue was raised, briefed and argued, but the question was not decided in that court because of the court’s finding that the claim was time-barred by R.C. 2305.11(B). In the trial court, the R.C. 2305.11(A) issue was raised, but the orders of the trial court granting appellees’ motions only indicate that the motions of appellees to dismiss were well-taken. No specific basis for the dismissal was given by the trial court, and neither R.C. 2305.11(A) nor 2305.11(B) was expressly relied upon.

The parties disputed as to the time when plaintiff discovered his cause of action. Since the complaint was filed in June 1985, the date of appellant’s discovery becomes crucial for a determination as to whether appellant’s cause of action is time-barred by R.C. 2305.11(A).

As the trial court considers the application of the one-year statute of limitations found in R.C. 2305.11(A), it must focus upon whether appellant discovered his injury, within one year of filing the complaint. In the case of Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St. 3d 111, 5 OBR 247, 449 N.E. 2d 438, this court adopted the so-called “discovery rule” as it would apply to the accrual date for a cause of action for medical malpractice pursuant to the one-year limitation under R.C. 2305.11(A). In Oliver, the syllabus law stated that: “Under R.C. 2305.11(A), a cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury. * * *” (Emphasis added.)

Although the syllabus refers to that which is to be discovered as “the resulting injury,” the body of the opinion makes reference to that which would be discovered as “the malpractice.” Accordingly, Justice William B. Brown, in the opening statement of the opinion, stated as follows: “The narrow issue raised by this appeal is whether a cause of action for medical malpractice pursuant to R.C. 2305.11(A) accrues upon the termination of the [4]*4medical relationship or upon the time of the discovery of the malpractice. ” (Emphasis added.) Id. at 112, 5 OBR at 248, 449 N.E. 2d at 439.

In cases that followed, the court made varying references to that which would be discovered by using alternatively the words “injury,” “physical injury complained of,” “resulting injury,” or “malpractice.” See Clark v. Hawkes Hospital (1984), 9 Ohio St. 3d 182, 183, 9 OBR 467, 468, 459 N.E. 2d 559, 561 (“ ‘discovered the resulting injury’ ” and “an injury which is the result of malpractice”); Saunders v. Choi (1984), 12 Ohio St. 3d 247, 248, 12 OBR 327, 328, 466 N.E. 2d 889, 890, at fn. 1 (“ ‘discovered’ the alleged malpractice”); Richards v. St. Thomas Hospital (1986), 24 Ohio St. 3d 27, 28, 24 OBR 71, 72, 492 N.E. 2d 821, 823 (discovery of “ ‘the resulting injury’ ”); Deskins v. Young (1986), 26 Ohio St. 3d 8, 11, 26 OBR 7, 9, 496 N.E. 2d 897, 899 (“discovery of the alleged malpractice”); Hoffman v. Davidson (1987), 31 Ohio St. 3d 60, 62, 31 OBR 165, 167, 508 N.E. 2d 958, 961 (“ ‘the physical injury complained of’ ”).

In none of these cases was the term “injury” specifically defined for the purpose of determining the accrual date of any cause of action that might be maintained for malpractice. However, in the later case of Richards, and again referred to in Hoffman, this court suggested what the term “injury” did not mean, at least in the view of the majority. The court, in Richards, stated: “Thus, Oliver does not rely exclusively on the patient’s actual discovery of the malpractice alleged; rather, the cause of action accrues when the physical injury complained of is or should have been discovered by the patient.” Richards, supra, at 28, 28 OBR at 72, 492 N.E. 2d at 823; also quoted in Hoffman, supra, at 62, 31 OBR at 167, 508 N.E. 2d at 961.

There are, of course, a number of possible interpretations for the word “injury” which courts have utilized. A number of courts across the country have specifically held the accrual date for a cause of action for malpractice to begin at the date of the alleged negligent act or omission. See, e.g., Landgraff v. Wagner (1976), 26 Ariz. App. 49, 546 P. 2d 26, appeal dismissed (1976), 429 U.S. 806; Dunn v. St. Francis Hospital, Inc. (Del. 1979), 401 A. 2d 77. Some courts have adhered to the conclusion that the mere awareness of physical manifestations resulting from the act or omission, such as pain, non-function of bodily organ, or observed physical indicia which might include scar tissue, skin rash, etc., would suffice. See, e.g., DeBoer v. Brown (1983), 138 Ariz. 168, 673 P. 2d 912; Gaddis v. Smith (Tex. 1967), 417 S.W. 2d 577; cf. Morrison v. Chan (Tex. 1985), 699 S.W. 2d 205. See, also, Williams v. General Motors Corp. (M.D. N.C. 1975), 393 F. Supp. 387, affirmed (C.A. 4, 1976), 538 F. 2d 327; Kelton v. District of Columbia (D.C. App. 1980), 413 A. 2d 919; 1 Louisell & Williams, Medical Malpractice (1981) 13-22 to 13-23, at fn. 52, Section 13.07.

Other state courts have adopted the basic approach that the date of “injury” may only be ascertained by a factual determination of when the injured party became aware of, or should have become aware of, the extent and seriousness of his condition which would put a reasonable person on notice of the need for further inquiry as to the cause of such condition. See, e.g., Graham v. Hansen (1982), 128 Cal. App. 3d 965, 180 Cal. Rptr. 604; Christ v. Lipsitz (1979), 99 Cal. App. 3d 894, 898, 160 Cal. Rptr. 498, 501; see, also, Dawson v. Eli Lilly & Co. (D.D.C. 1982), 543 F. Supp. 1330, 1333; Grigsby v. Sterling Drug, Inc. (D.D.C. 1975), 428 F. Supp. 242, affirmed (C.A.D.C. 1976), 543 F. 2d 417, [5]*5certiorari denied (1977), 431 U.S. 967; United States v. Kubrick (1979), 444 U.S. 111.

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516 N.E.2d 204, 34 Ohio St. 3d 1, 1987 Ohio LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hershberger-v-akron-city-hospital-ohio-1987.