Richards v. St. Thomas Hospital

492 N.E.2d 821, 24 Ohio St. 3d 27, 24 Ohio B. 71, 1986 Ohio LEXIS 642

• Court: Ohio Supreme Court
• Decided: May 21, 1986
• Docket: No. 85-1087
• Status: Published

Opinions

Per Curiam.

The very narrow issue presented by this appeal is whether appellants’ claims were timely filed. Because we find that Richards’ claim for medical malpractice was barred by R.C. 2305.11(A), we affirm the decision of the court of appeals.

R.C. 2305.11(A) provides in pertinent part that:

“An action for * * * malpractice, including an action for malpractice against a physician, * * * [or] hospital, * * * shall be brought within one year after the cause thereof accrued * * *.”

Thus, the determinative question on this appeal is the date Richards’ cause for medical malpractice accrued.

In Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St. 3d 111, we held in the syllabus that “[u]nder 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.” In Oliver, the plaintiff underwent an operation in which a nodule was excised from her breast. The tissue was submitted to a pathologist for evaluation, and was determined to be nonmalignant. There, the resulting malpractice action was founded upon an allegation that the true nature of the plaintiff’s condition was not discovered to have been improperly diagnosed, nor could it have been, until nearly four years later. In Oliver, we observed that one purpose of the “discovery rule” was to afford “ ‘relief in cases where the injury is one which requires a long developmental period before becoming dangerous and discoverable.’ ” (Emphasis added.) Id. at 113. 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.

In the case at bar, Richards’ injury was not one which required “ ‘a long developmental period before becoming dangerous and discoverable.’ ” Id. Rather, Richards admits that he has been aware of the paralysis which constitutes his injury at least since the day after his surgery. His failure to seek independent medical advice to determine whether his injury could have been avoided or lessened was not the result of any inability to do so on his part. In addition, Richards was, obviously, aware of the one-day period between his hospital admission and surgery. Thus, since he was immediately aware of both the physical injury and the events he now alleges to have caused his injury, Richards has alleged nothing which reasonably suggests that he should not have discovered the alleged malpractice within the one year prescribed by R.C. 2305.11(A), had he been diligent.¹

Because Richards’ spouse’s claim for loss of consortium was also filed more than four years after Richards’ cause of action accrued, that claim was also untimely brought pursuant to R.C. 2305.09(D).² See Holzwart v. Wehman (1982), 1 Ohio St. 3d 26.

Similarly, on the facts of this case, Richards’ claim that the various defendants “fraudulently concealed” the cause of his injury was untimely. Where, as here, the “fraud” complained of is integral to the malpractice alleged, the concealment of that cause of action does not independently extend the statute of limitations for malpractice.³

Accordingly, this court affirms the judgment of the court of appeals, albeit on different grounds.

Judgment affirmed.

Locher and C. Brown, JJ., concur. Holmes and Wright, JJ., concur in judgment. Celebrezze, C.J., Sweeney and Douglas, JJ., concur in part and dissent in part.

Holmes, J.,

concurring in judgment. I concur in the result as pronounced by the majority, but feel it necessary to express my reasons for such conclusion. I agree that the facts of the case sub judice permit the determination of the matter to be controlled by subsection (A) of R.C. 2305.11. As concluded by the majority, the injury of the plaintiff and the surrounding circumstances of his hospitalization, surgery and incapacities were such that the true nature of his condition should have, with reasonable diligence, been discovered within the one year provided for by R.C. 2305.11(A).

Additionally, as I stated in dissent to Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St. 3d 111, 118-119, as the facts were shown in that case, subsection (B) of R.C. 2305.11 would also prohibit the filing and recovery even had the cause of action not been discoverable until subsequent to the maximum four-year period. This is the period of repose as expressly provided by the General Assembly after which one may not bring a malpractice action in Ohio.

The only exception, or non-application, of the four-year statute of repose, in my view, is that instance where it is shown by clear and convincing evidence that there has been a fraudulent concealment of the cause of the alleged malpractice. In such instance I would hold that the statute is tolled during any period within which it can be shown that the fraudulent concealment prevented the filing of any such action. Howk v. Minnick (1869), 19 Ohio St. 462, should, if necessary to accomplish this result, be overruled.

Wright, J., concurs in the foregoing opinion.

1 Because we conclude that this cause was barred by R.C. 2305.11(A), we have no need to address the court of appeals’ conclusion that R.C. 2305.11(B) is constitutional, and express no opinion as to the merits of the parties’ debate, nor the court of appeals’ holding, as to that issue.

2 In so concluding, we have no need to deal with the parties’ contentions as to whether Richards’ spouse could maintain a cause of action for loss of consortium at all, given the fact that Richards’ spouse married him after his physical injury had occurred, and with knowledge of that injury.

3 In Howk v. Minnick (1869), 19 Ohio St. 462, this court held at 465-466 that in the absence of statute, “fraudulent concealment” does not provide an independent cause of action. “The statute governing this case provides that an action for taking, detaining, or injuring personal property can only be brought within four years after the cause of action shall have accrued. The statute contains the further provision, that in an action for relief on the ground of fraud, the cause of action shall not be deemed to have accrued until the discovery of the fraud.

“In many of the States the statute contains a provision, that the fraudulent concealment by the defendant to a cause of action, from the knowledge of any person entitled thereto extends the time of bringing the action for the period of limitation after the discovery. [Citations omitted.]

“But the statute of this State contains no such provision. Its operation is made to depend upon the nature of the cause of action * * Id.