357 N.E.2d 392 | Ohio Ct. App. | 1975
This is an appeal from a judgment of the Court of Common Pleas dismissing the complaint and striking the amended complaint of the plaintiffs for damages for alleged negligence causing the stillbirth of their child and for negligence with regard to the mother. The court also granted summary judgment to Dr. Sophia Coen. The court found the action was not commenced within the time provided by law, and was not brought by a personal representative of the decedent. We affirm the summary judgment as to Dr. Coen upon the amended complaint but reverse the trial court in its dismissal of the *326 amended complaint as to the remaining defendants.
This action was filed on July 29, 1974, by Wilda and Malachi Bell as plaintiffs against two doctors, two nurses, an intern, and Barberton Citizens Hospital. The complaint alleged that Wilda Bell entered the hospital on August 12, 1972, under the care of Dr. Sophia Coen, M. D. and Richard Yoder, M. D. "to be delivered of child." Plaintiffs allege their child, Malcolm Alphonzo Bell, was stillborn as a result of the defendants' negligence. They also claim that (1) there was a lack of "informed consent" as to the delivery with a resulting unlawful use of force upon the mother's body; (2) they have incurred medical and funeral expenses; and (3) Wilda has suffered pain, shock, fright, mental anguish, fear and outrage for which they seek compensatory and punitive damages.
All defendants filed motions to dismiss the complaint. The court ruled that the one year statute of limitations had run on the malpractice claims against the doctors. As to the remaining defendants, the court held the complaint was for wrongful death but failed since it was not brought by a personal representative of the decedent.
Following these written findings, without leave of court, and before the court's findings were "formalized" into a judgment entry, the plaintiffs filed their amended complaint on November 19, 1974, showing the appointment of Malachi Bell as the administrator of the estate of the stillborn infant. To the amended complaint, the defendants, except Dr. Coen, again filed motions to dismiss. She moved for summary judgment, supported by an affidavit claiming she had not seen the plaintiff, Wilda Bell, from July 27, 1972, until August 16, 1972, which was after the stillbirth and that the physician-patient relationship ended on September 28, 1972. The plaintiffs' counter-affidavit did not contest the fact that Dr. Coen was not present during the operation but asserts that the physician-patient relationship continued until August 18, 1973.
Plaintiffs urge ten assignments of error. Those raise the following issues:
A. Did the plaintiffs have a right to amend their complaint without leave of court under Civ. R. 15(A)? *327
B. If they could amend, could they also add the personal representative as a party without leave of court?
C. If they could add the party, does the "relation-back" doctrine under Civ. R. 15(C) apply?
D. Did the court err in granting summary judgment in favor of Sophia Coen?
"These rules shall be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice."
Justice abhors the loss of causes of action by pure technicalities. Since the finding was not a final order dismissing the case, we hold that the complaint may be amended anytime before the actual judgment entry. *328
Accordingly, we determine that the "relation-back" of the amended complaint to July 29, 1974, permits causes of action to be maintained against the Hospital, Bubner, Dollinger, and Pacheco for wrongful death as to Malcolm Alphonzo Bell and negligence as to Wilda Bell. The two year statutes of limitation of R. C.
As to Dr. Yoder, R. C.
Accordingly, we affirm the court's judgment as to Dr. Sophia Coen and reverse the judgment as to the remaining defendants. We remand this cause for further proceedings as to those remaining defendants on the cause of action for the wrongful death of Malcolm Alphonzo Bell. We further remand the case for further proceedings on Wilda Bell's negligence claim for bodily injury against the Hospital, Bubner, Dollinger, and Pacheco, but not as to Dr. Yoder.
Judgment accordingly.
BRENNEMAN and HUNSICKER, JJ., concur. *330