Meros v. University Hospitals

435 N.E.2d 1117, 70 Ohio St. 2d 143, 24 Ohio Op. 3d 244, 1982 Ohio LEXIS 657

Opinions

Per Curiam.

As part of the prescription to cure the medical malpractice crisis, the General Assembly, in 1975 (136 Ohio Laws 2809, 2810), amended the medical malpractice statute of limitations, R. C. 2305.11.¹ As amended, R. C. 2305.11 precludes the use of the tolling provision, for persons under disabilities, in R. C. 2305.16.²

The present appeal raises questions which relate to the propriety of applying the amended version of R. C. 2305.11 to someone whose cause of action has accrued prior to its effective date.

In the most recent case of Baird v. Loeffter (1982), 69 Ohio St. 2d 533, this court resolved a similar question. In Baird, we held that R. C. 2305.11 could be applied so as to bar the claim of a minor whose cause of action accrued prior to the effective date of the amendment. The court concluded that the one year after the effective date of the statute provided a reasonable time in which to bring a suit, notwithstanding the continuation of a disability.

Here, we are faced with a similar circumstance. Appellant’s cause of action accrued, at the latest, on October 4, 1974, when she was discharged from the hospital. See Wyler v. Tripi (1971), 25 Ohio St. 2d 164. It may be assumed that appellant was under a disability when discharged and remained so when the amendment to R. C. 2305.11 became effective on July 28, 1975. Nevertheless, under our holding in Baird, supra, appellant had until July 28, 1976, to file her cause of action. The complaint was not filed until April 3,1979. Accordingly, appellant’s cause of action was barred by the statute of limitations.³

Based upon the foregoing, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

W. Brown, Acting C. J., Reilly, Sweeney, Holmes and Krupansky, JJ., concur. Locher and C. Brown, JJ., dissent. Reilly, J., of the Tenth Appellate District, sitting for Celebrezze, C. J.

Footnotes

1

The pertinent language of R. C. 2305.11 is in subsection (B) which provides:

“In no event shall any medical claim against a physician, podiatrist, or a hospital be brought more than four years after the act or omission constituting the alleged malpractice occurred. The limitations in this section for filing such a malpractice action against a physician, podiatrist, or hospital apply to all persons regardless of legal disability and notwithstanding section 2305.16 of the Revised Code, provided that a minor who has not attained his tenth birthday shall have until his fourteenth birthday in which to file an action for malpractice against a physician or hospital.”

2

Relevant portions of R. C. 2305.16 read:

“Unless otherwise specially provided in sections 2305.04 to 2305.14, inclusive, and sections 1302.98 and 1304.29 of the Revised Code, if a person entitled to bring any action mentioned in such sections, unless for penalty or forfeiture, is, at the time the cause of action accrues, within the age of minority, of unsound mind, or imprisoned, such person may bring it within the respective times limited by such sections, after such disability is removed. When the interests of two or more parties are joint and inseparable, the disability of one shall inure to the benefit of all.”

3

Appellant also asserts that the appellee fraudulently concealed the facts which constituted its negligence. This, appellant argues, tolls the statute of limitations.

Notwithstanding the merits of this premise, appellant’s claim is barred by the absolute four-year limitation placed upon medical claims by R. C. 2305.11 (B). This period begins to run on the date the negligent acts occur rather than when the cause of action accrues. Here, the asserted negligent acts took place sometime prior to October 4, 1974, the date appellant was discharged from the hospital. This action was filed in April 1979, more than four years subsequent.