Concurrence Opinion
I
Our analysis begins with an examination of what R.C. 2305.11(B) is and what it is not. It is not a traditional statute of limitations, since the ap
R.C. 2305.11, if applied to those who suffer bodily injury from medical malpractice but do not discover that injury until four years after the act of malpractice, accomplishes one purpose — to deny a remedy for the wrong. In other words, the courts of Ohio are closed to those who are not reasonably able, within four years, to know of the bodily injury they have suffered.
Section 16, Article I of the Ohio Constitution provides:
“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.” (Emphasis added.)
The appellant has no remedy for an injury to his body when his claim is extinguished before he knew of the injury or could have reasonably discovered it.
Thus, as applied to the facts in the case sub judice, R.C. 2305.11 is in violation of Section 16, Article I of the . Ohio Constitution. The language in the Constitution is clear and leaves little room for maneuvering. Our courts are to be open to those seeking remedy for injury to person, property, or reputation.
As this court said in Kintz v. Har-riger (1919),
“Manifestly, when the constitution of the state declares and defines certain public policies, such public policies must be paramount, though a score of statutes conflict and a multitude of judicial decisions be to the contrary.
“No general assembly is above the plain, potential provisions of the constitution, and no court, however sacred or powerful, has the right to declare any public policy that clearly contravenes or nullifies the rights declared in the constitution. ” (Emphasis added.)
The holding in Kintz reads as follows:
“1. The Constitution of Ohio, Bill of Rights, Section 16, provides, among other things, ‘Every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.’
“2. It is the primary duty of courts to sustain this declaration of right and remedy, wherever the same has been wrongfully invaded.” Id. at paragraphs one and two of the syllabus.
See, also, Byers v. Meridian Printing Co. (1911),
In Lafferty v. Shinn (1882),
We agree with the reasoning of the Supreme Court of South Dakota in Daugaard v. Baltic Co-op. Bldg. Supply Assn. (S.D. 1984),
Accordingly we hold that R.C. 2305.11(B), as applied to bar the claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries, violates the right-to-a-remedy provision of Section 16, Article I of the Ohio Constitution.
II
The result we reach follows logically from our decision of December 22, 1986 in Mominee v. Scherbarth (1986),
In Mominee, we expressed no opinion as to the constitutionality of R.C. 2305.11(B) as applied to adults (id. at
Little distinction can be made between an adult plaintiff who did not know of his or her injury and a minor. It may be argued that the adult who was unaware of the injury is under a greater disability than the minor who knew of the injury but did not assert a claim within the four-year period.
Ill
We are mindful that acts of the General Assembly are presumed valid. See State v. Dorso (1983),
The right-to-a-remedy provision of Section 16, Article I does not require the analysis of rational-basis that is used to decide due process or equal protection arguments against the constitutionality of legislation. The fault in R.C. 2305.11(B) is that it denies legal remedy to one who has suffered bodily injury. This the legislature may not do even if it acted with a rational basis.
Further, the legislature when it adopted R.C. 2305.11(B) did not specifically address the situation of one who did not know of his or her injury. The statute was adopted prior to our decision in Oliver v. Kaiser Community Health Found. (1983),
Our determination rests upon denial of remedy. We do not suggest that causes of action as they existed at common law or the rules that govern such causes are immune from legislative attention. As this court said in Fassig v. State, ex rel. Turner (1917),
“No one has a vested right in rules of the common law. Rights of property vested under the common law cannot be taken away without due process, but the law itself as a rule of conduct may be changed at the will of the legislature unless prevented by constitutional limitations. The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to new circumstances. Mondou v. N.Y., N. H. & H. Rd. Co.,
“Our constitutions were made in the contemplation that new necessities would arise with changing conditions of society.” (Emphasis added.) See, also, Schenkolewski v. Metroparks System (1981),
As noted, the legislature, in enacting R.C. 2305.11(B), has made no effort to alter the substantive law of malpractice. Rather, the legislature has sought to limit the time in which malpractice actions may be brought and it has done so in a manner which denies to some people (including the appellant herein) a remedy for injury to their person.
Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings in accordance with our opinion herein.
Judgment reversed and cause remanded.
I have previously expressed my firm belief that R.C. 2305.11(B) is unconstitutional as applied to both minors and adults, on the basis that it offends the access-to-the-courts provision of Section 16, Article I of the Ohio Constitution. See Mominee v. Scher-barth (1986),
In addition, I write separately to reiterate a concern I recently expressed in my dissent to Hoffman v. Davidson (1987),
A cause of action in medical malpractice does not arise from mere injury alone. The injury must be the result of malpractice. Thus, the cause of action cannot accrue until the patient discovers that malpractice has occurred, and the statute of limitations does not commence to run until such a discovery transpires, or reasonably should have transpired.
Notes
For our determination herein, we take the allegations in appellant’s complaint as true since judgment was entered by the trial court, against appellant, on the pleadings.
Statutes which have the effect of denying a remedy to one before it accrues have sometimes been described as statutes of repose and they differ from traditional statutes of limitations which impose a period of time for bringing suit after one’s cause of action accrues.
A cause of action for medical malpractice does not accrue until the patient discovers or in the exercise of reasonable care and diligence should have discovered the resulting injury. Oliver v. Kaiser Community Health Found. (1983),
Our attention has been drawn to R.C. 2305.29, in which the legislature abolished the common-law actions of criminal conversation and alienation of affections. -That statutory abolition did not violate Section 16, Article I because the denial of remedy did not reach injury to person, property, or reputation. See Haskins v. Bias (1981),
See, also, Schwan v. Riverside Methodist Hospital (1983),
In Schwan, supra, we overruled Vance v. St. Vincent Hospital (1980),
Whether R.C. 2305.11(B) violates the Equal Protection or Due Process Clauses of the Fourteenth Amendment involves a determination of whether the legislature acted with a rational basis. In other jurisdictions, statutes of repose, having features similar to ours, have been analyzed on due process and equal protection grounds. The courts are divided on the question of whether due process and equal protection arguments render a statute of repose unconstitutional. See Comment, Due Process Challenges to Statutes of Repose (1986), 40 Sw. L. J. 997; Note, The Constitutionality of Statutes of Repose: Federalism Reigns (1985), 38 Vand. L. Rev. 627. An extended analysis of the fair-and-substantial-relation test as applied to a malpractice statute of repose is contained in Carson v. Maurer (N.H. 1980),
Common-law remedies were extinguished by the adoption of state workers’ compensation statutes. In Ohio the first of such statutes was upheld against attack under Section 16, Article I on the ground that the worker consented to operate under this law and received substantial protections and privileges from the State Insurance Fund in return for relinquishment of his right of action for negligence. State, ex rel. Yaple, v. Creamer (1912),
The Ohio Marketable Title Act, R.C. 5301.47 through 5301.56, destroys certain ancient property interests and removes remedies used to enforce those ancient interests. It has been noted that such would not have been tolerated if no method of preserving a remedy had been provided. Smith, The New Marketable Title Act (1961), 22 Ohio St. L. J. 712, 717. As to the constitutionality of marketable title Acts generally, see Simes & Taylor, Improvement of Conveyancing by Legislation (1960) 253-273.
Concurrence Opinion
concurring in judgment only and dissenting in part. Today, a majority of this court attributes a meaning to Section 16, Article I of the Ohio Constitution not heretofore recognized in the one hundred thirty-six year history of the provision.
R.C. 2305.11 provides, in pertinent part:
.“(A) An action for * * * malpractice, including an action for malpractice against a physician, podiatrist, [or a] hospital * * *, shall be brought within one year after the cause thereof accrued * * *.
“(B) 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. * * *”
This clearcut statement was and is supported by sound public policy considerations developed by the Ohio General Assembly.
Appellant’s constitutional attack on R.C. 2305.11(B) is predicated upon due process considerations -under Section 16, Article I. Nowhere does appellant mention in his brief that R.C. 2305.11(B) somehow violates the “open court” provision. It will indeed come as a surprise to the litigants in the case at bar that this court, without prompting from either party, has gratuitously and sua sponte raised and decided this case on the “open court” theory.
We must remain cognizant that “[a] regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality. * * * [We have consistently] held enactments of the General Assembly to be constitutional unless such enactments are clearly unconstitutional beyond a reasonable doubt.” State, ex rel. Dickman, v. Defenbacher (1955),
Despite this wealth of authority, the majority refuses to acknowledge that Deskins v. Young (1986),
“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”
Today, the majority ex cathedra revises this provision to read that “[a]ll courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy.” The obvious flaw contained within the majority’s reasoning is that this section of our Constitution only affords access to the courts to seek remedies by due course of law, not access to seek any and all remedies for perceived injuries. Stated otherwise, even appellant concedes that the “due course of law” provision of Section 16, Article I, is functionally equivalent with “due process of law” under the federal Constitution, and nothing more. In view of the fact that at least three members of today’s majority have previously agreed that the four-year statute of repose within R.C. 2305.11(B) affords plaintiffs a reasonable time in which to seek redress for alleged malpractice, and hence the statute does not violate due process of law (see, e.g., Opalko v. Marymount Hospital, Inc. [1984],
In my view, the majority’s initial error lies in its misreading of Lafferty v. Shinn (1882),
Not every injury sustained necessarily enjoys redress in the courts. Insofar as this principle is applicable in Ohio, Judge Kennedy recently observed in Hartford Fire Ins. Co. v. Lawrence, Dykes, Goodenberger, Bower & Clancy (C.A. 6, 1984),
“The Ohio courts have never held that the ‘open court’ provision in its constitution prevents the legislature from abolishing a cause of action. In Lafferty v. Shinn,
“The Ohio Supreme Court has long held that causes of action may be abolished:
“[‘]No one has a vested right in rules of the common law. Rights of property vested under the common law cannot be taken away without due process, but the law itself as a rule of conduct may be changed at the will of the legislature unless prevented by constitutional limitations. The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to new circumstances.[’]
“Fassig v. State ex rel. Turner,
The majority fails to discuss any abolition of a vested right, so it proceeds to find under Section 16, Article I, a right of access to the courts for virtually any claim. However, it is clear to me that unless the right is vested, or the claim involves a fundamental right, access to the courts may be limited and/or regulated by the General Assembly if a rational basis exists for the limitation. Accord Bounds v. Smith (1977),
I would stress that the question presented this day is not novel, since an examination of decisions from this and other jurisdictions demonstrates that various statutes of repose have come under attack under the precise theory advanced by the majority. Although a few jurisdictions have found similar statutes violative of constitutional provisions,
Without question, today’s holding creates a constitutional dilemma of severe proportions. This court has informed the General Assembly it has no power to meet what it perceives as an epidemic crisis with responsive legislation. Who would have imagined that when Oliver v. Kaiser Community Health Found. (1983),
Is an undiscovered claim for damages a constitutional right inviolate against legislative limitation as to time constraints? Does Section 16, Article I forever provide a remedy to an as yet undiscovered claim? To suggest, as does the majority, that every common-law right is indelibly embedded in the Ohio Constitution and that subjective awareness of a potential claim is required prior to the abolishment of a cause of action is sheer legal fiction. Nevertheless, because the majority disagrees with the time constraints under R.C. 2305.11(B), it has, under the guise of judicial interpretation, abrogated the function of the General Assembly and the electorate by amending the Constitution of Ohio by judicial fiat.
The empathy that all of us have for one suffering illness or injury has fostered a sense of irresponsibility born of sympathy, since the majority tacitly concedes that there are sound public policy considerations for a statute of repose of reasonable duration. The present predicament that the medical profession and health care facilities have in obtaining malpractice insurance • at a reasonable cost will rapidly spread to other professions. Whether one is attracted to the concept or not, modern-day tort liability is premised upon spreading the cost of monetary losses through the medium of insurance. Insurance companies are not in business to sustain losses and thus they will not accept a risk where their exposure is incalculable on the basis of actuarial analysis. Today we have simply taken the insurance industry “out of play” in many areas of professional malpractice. Suffice it to say, I am deeply disappointed with the acumen and foresight of my brethren in the majority.
Thus I vigorously dissent from the rationale espoused by the majority.
As to the syllabus law in the present case and the body of the majority opinion, I adopt in the main what has been stated in dissent by Justice Wright. I wish to additionally point out that I have previously written on my sentiments as to the constitutionality of the four-year statute of repose as contained in R.C. 2305.11(B). As early as my commentary in Oliver v. Kaiser Community Health Found. (1983),
Section 16, Article I was made a part of the Ohio Constitution as adopted in March 1851. However, the identical guarantee existed in the version of the state Constitution adopted in 1802, under Section 7, Article VIII.
See Mominee v.Scherbarth (1986),
See, also, Anderson v. Jacobs (1981),
In Deskins, supra, the plaintiff underwent surgery on or about June 22, 1971. According to this court’s statement of the case, approximately twelve years later, in June 1983, the plaintiff underwent a second surgery, at which time it was discovered that the initial surgery had not been fully completed. Until this time the plaintiff could not have been aware that the surgery may have been negligently performed. When the plaintiff filed his complaint in November 1984 against the defendant-surgeon who performed the surgery in 1971, the defendant sought summary judgment arguing, inter alia, that the claim was time-barred pursuant to R.C. 2305.11(B), which became effective July 28, 1975. Although the lower courts agreed that the complaint was time-barred, this court reversed, stating: “* * * [T]he retroactive application of R.C. 2305.11(B)
As was stated by the court in
“* * * [N]o one has a vested interest in any rule of the common law. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, within constitutional limits, may be changed at the will of the legislature. The great office of statutes is to remedy defects in the common law as they develop, and to adapt it to the change of time and circumstance. * * * Negligence is merely the disregard of some duty imposed by law; and the nature and extent of the duty may be modified by legislation, with a corresponding change in the test of negligence, * * * and, as said by the * * * [United States Supreme Court] with respect to the Fourteenth Amendment, in Silver v. Silver, supra, when that case was before it (280 U.S. 117, [122] * * *).
“ We need not * * * elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.’ ” See, also, Fassig v. State, ex rel. Turner (1917),
Cf. Rosenberg v. North Bergen (1972),
“* * * [The statute] does not bar a cause of action [based upon a vested right]; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising. Thus injury occurring more than ten years after the negligent act allegedly responsible for the harm, forms no basis for recovery. The injured party literally has no cause of action. The harm that has been done is damnum, absque injuria — a wrong for which the law affords no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. The Legislature is entirely at liberty to create new rights or abolish old ones as long as no vested right is disturbed.”
In an attempt to rationalize today’s holding with the enactment of R.C. 2305.29, wherein the General Assembly abolished the common-law causes of action for criminal conversation and alienation of affections, the majority reasons that the enactment of R.C. 2305.29 is not a violation of Section 16, Article I, “because the denial of remedy did not reach injury to person, property, or reputation.” (Emphasis sic.) It reaches this innovative result, purportedly on the basis of Haskins v. Bias (1981),
See, e.g., Overland Constr. Co. v. Sirmons (Fla. 1979),
See, e.g., Twin Falls Clinic & Hospital Building Corp. v. Hamill (1982),