Mominee v. ScherbarthMominee v. Scherbarth
Lead Opinion
The single issue raised in this consolidated cause is whether
Given the important considerations involved in these controversies, a brief history of the various challenges to
Prior to the effective date of the amended statute in issue (July 28,
Subsequent to the General Assembly’s amendment to the instant malpractice statute of limitations, this court has been presented with a number of various challenges to
In Vance v. St. Vincent Hospital (1980),
The first opportunity this court was presented with a challenge to the constitutionality of
In the causes consolidated sub judice, we are asked to review the constitutionality of
Section 1, Article I of the Ohio Constitution provides:
“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”
Section 16, Article I, states in relevant part:
“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.”
In testing the constitutionality of a legislative enactment, we begin with the common ground that all such enactments enjoy a presumption of constitutional validity. Schwan, supra, at 301; Benevolent Assn. v. Parma (1980),
A legislative enactment will be deemed valid on due process grounds “* * * [1] if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public and [2] if it is not unreasonable or arbitrary.” Benjamin v. Columbus (1957),
While we believe that the goals of
In order to monitor the effectiveness of the new legislation, the General Assembly required the Superintendent of Insurance to report annually on whether the 1975 amendments that were designed to reduce insurance premiums were actually having that effect. “
The second inquiry to be reviewed is whether
The usual response to this conclusion is that a minor’s parent or guardian may sue for, and on behalf of, the child. We find such a suggestion to be troublesome for several reasons. First, because of the inability of many children to recognize or articulate physical problems, parents may be unaware that medical malpractice has occurred. Second, the parents themselves may be minors, ignorant, lethargic, or lack the requisite concern to bring a malpractice action within the time provided by statute. See Sax v. Votteler (Tex. 1983),
The Eighth Appellate District asserted in its opinion in Wainstein v. University Hospitals, supra, that the courthouse doors were not unreasonably closed to minors under
First, we find it unrealistic to expect that children would seek legal redress against their parents as willingly as against the parties who are alleged to be medically negligent. Placing young adults in a dilemma in which they must choose between suing their parents or abandoning their claims has the practical effect of chilling their due process rights.
Second, assuming arguendo that an eighteen year old would be inclined to commence a lawsuit against his or her parents for negligent failure to file a timely medical malpractice action, the same evidentiary concerns remain that are concomitant with a malpractice suit. A claim for parental negligence in this context would necessitate proof that there was merit to the underlying claim of medical malpractice. Thus, under such circumstances, litigation of the purportedly stale claims would still be required. As a result,
Finally, if parents are faced with the prospect of a possible lawsuit for failure to file a timely malpractice claim, they may feel obligated to commence an action on behalf of the child in order to preserve a purely speculative claim, regardless of its merit. Even if no lawsuit is filed, since a parent is placed in the position of protector for a child’s possible lawsuit, the physician-parent relationship takes on an adversarial nature ill-suited to optimal health care for the child. As we have noted previously, mutual confidence is essential to the physician-patient relationship. See Oliver v. Kaiser Community Health Found. (1983),
Based on all the foregoing, we hold that
Our holding in this regard is not a novel one. The Texas Supreme Court found a similar statutory scheme to be violative of its state Constitu
Like the court in Strahler, at 10, we are particularly persuaded by the succinct writings of a commentator in the Journal of Legal Medicine:
“State legislatures reacted in the 1970’s to a perceived crisis in medical malpractice insurance by enacting these types of limitations provisions. While such provisions no doubt go some distance in alleviating the problems of malpractice insurers and health care providers, they do so only at a high cost. Their effect is to bar the malpractice suits of minors without regard to the validity of their claims or the fact that the minors are wholly innocent in failing to timely pursue their claims. Such a result seems to unfairly penalize the blameless minor in order to protect the potentially negligent health care provider.” Andrews, Infant Tolling Statutes in Medical Malpractice Cases: State Constitutional Challenges (1984), 5 J. Legal Med. 469.
While the General Assembly is empowered to respond to circumstances or perceived crises that demand legislative initiative, legislation must comport -with the rights and guarantees established in the Ohio Constitution. We believe that
In light of our holding today, we must reexamine our decision in Baird v. Loeffler (1982),
Accordingly, the judgment of the Court of Appeals for Lucas County is affirmed, and the judgment of the Court of Appeals for Cuyahoga County is reversed. Each of the consolidated cases is remanded to its respective trial court for further proceedings in accordance with this opinion.
Judgment affirmed in case No. 85-688.
Judgment reversed in case No. 85-1039.
Notes
One of the dissenting opinions herein cites several journal articles and sets of statistics which seemingly purport to underscore the wisdom of the instant malpractice statute as a vehicle to eliminate problems of stale claims and long-tail liability. However, as this same dissenting opinion observes, the wisdom of a particular legislative enactment should and must have no bearing on issues concerning the constitutionality of that statute.
Our research indicates that two other jurisdictions have also held their respective state medical malpractice limitations statute unconstitutional as applied to minors: Carson v. Maurer (1980),
We express no opinion as to the constitutionality of
Section 28, Article II of the Ohio Constitution provides:
“The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions,'defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.”
Concurrence Opinion
concurring. The legal analysis of the constitutionality of
I write separately to address the contention of the medical profession that the striking of
The four-year time limitation on malpractice actions involving minors was one part of a legislative design to reduce malpractice insurance premiums and thus assure the continued availability of health care. Yet, as the majority opinion clearly points out, this restriction on minors has apparently had no consequential effect on premiums.
Although the medical profession and its insurers insist that a new crisis in the affordability of malpractice insurance is upon us, a more dispassionate analyst of this assertion has recently observed that “whether insurance is in fact unaffordable remains to be demonstrated. It is noteworthy that despite the continued increase in premium costs, the ratio of such costs to average provider income has not changed substantially. The AMA’s [American Medical Association’s] own surveys show that average premium costs as a percentage of physician’s gross income were about 3.7% in 1983, down from 4.4% in 1976 and about the same as in 1979.” Robinson, The Medical Malpractice Crisis of the 1970's: A Retrospective (Spring 1986), 49 Law and Contemp. Probs. 5, 31.
Health care providers also claim that judicial erosion of the legislated malpractice reforms has hurt consumers by forcing physicians to practice costly defensive medicine. Although this contention may have some factual basis, noted authorities have found it to be overstated.
“* * * In 1985 the American Medical Association estimated that the annual cost of defensive medicine now exceeds $15 billion. Even in the context of an annual health care budget that exceeds $375 billion, a cost of $15 billion for unproductive medical practices would be reason for grave concern. It would be, that is, if there were good reason to believe that costs of such magnitude are being incurred.
“In fact, evidence of defensive medicine is notoriously unreliable. The AMA’s estimate was based on the most casual empirical technique-soliciting physicians’ subjective opinions through an AMA survey. The basis for those opinions in this particular survey is not revealed; however, if earlier reports of defensive medicine by health care providers are representative of the rationale underlying those opinions, one must be deeply skeptical.” Robinson, Rethinking the Allocation of Medical Malpractice Risks Between Patients and Providers (Spring 1986), 49 Law and Contemp. Probs. 173, 177. See, also, Empirical Research, supra, at 108-109.
Finally, the medical profession decries the “long-tail” liability which may result from striking the statute of repose as to minors, and claims that this will increase the cost of malpractice insurance. Yet the cyclical nature of the insurance industry itself also contributes to the increase in
“The insurance industry’s natural behavior contributes to the continuing cycles of ‘crisis’ and ‘remission.’ The high investment yields of the early 1980’s and the influx of new carriers led to continued price cutting (below aetuarially appropriate levels) through 1983. In 1984, the strong dollar reduced the amount of insurance and reinsurance capacity available from sources outside the United States (notably London), and emerging losses in the United States finally forced companies to raise premiums.” Posner, Trends in Medical Malpractice Insurance 1970-1985 (Spring 1986), 49 Law and Contemp. Probs. 37, 48.
Indeed, the cyclical nature of the cost of malpractice insurance was recently confirmed in the public remarks of an official of the largest hospital insurer in Ohio. Richard P. Fogo, president of the Ohio Hospital Insurance Company, commented that the General Assembly may not be able to prevent “periodic crises” in the affordability or availability of liability insurance. Fogo is quoted by the press as saying, “[y]es, we’re probably going to go through this every 10 (ten) years.”
In summary,
During this 1986 term of the Supreme Court of Ohio, members of the court have repeatedly demonstrated their propensity for substituting their views of what this state’s laws should be for those of the General Assembly. This capricious rewriting of Ohio’s statutes and dilution of this state’s constitutional guarantees has been ill-advised and often dangerous. By way of example only, consider the changes wrought to our state tax laws by OAMCO v. Lindley [II] (1986),
Some may suggest that the decision in the instant case again involves an unwarranted exercise in judicial legislation. Such an assertion reflects a basic misunderstanding of this court’s task when confronted with a direct challenge to the constitutionality of legislation. Our role in these cases is not to rewrite statutes to our liking — it is to determine whether the legislation conforms to the mandates of our Constitution:
“It is a fundamental principle that the determination of the propriety, wisdom, policy or expediency of legislation is not within the judicial function and laws may not be declared invalid by the courts because deemed inexpedient or unwise, nor may laws be thus nullified upon the ground that their enactment was prompted by improper motives.
“The duty of courts in such regard is to determine whether the action of the General Assembly is within its constitutional authority, and the court intervenes only when the legislative act is clearly incompatible with some express provision of the Constitution. ” (Emphasis added). State v. Parker (1948),150 Ohio St. 22 , 24 [37 O.O. 318 ].
As is our duty, in the instant case we have objectively examined
Columbus Dispatch (May 13, 1986), at 5B, col. 4.
Concurrence Opinion
concurring. I concur in the sound analysis and just result reached by the majority opinion as far as it goes. However, I believe the majority opinion does not go far enough because it should also declare
Part II of the concurring opinion of Justice Douglas presents the same accurate reading of Schwan v. Riverside Methodist Hospital (1983),
I feel compelled to add, however, that I believe that the due course of law provision of the Ohio Constitution
Finally, I add that although declaring
Section 1 of the Fourteenth Amendment to the United States Constitution reads in pertinent part:
“* * * No state shall * * * deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
There is no question that the legislature may legislate. While carrying out this function, however, the legislature cannot contravene the Constitution. This court should not be a party to the closing of the courtroom door before a plaintiff is even able to discover that he has good cause for judicial redress. The United States Supreme Court has said of statutes of limitations that “[i]t may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. * * *” Wilson v. Iseminger (1902),
The equal protection provision of the United States Constitution requires that, absent the existence of a suspect classification, a statutory classification may be set aside only if that classification rests on grounds not rationally related to the achievement of the state’s objective. San Antonio Indep. School Dish v. Rodriguez (1973),
If
The basis of the statute is the assumption that since it prevents injured patients from recovering for the negligent acts of the health-care providers which caused those injuries, insurance companies will not pay as much to injured victims. Medical malpractice insurance rates will then either decrease or at least not unreasonably increase. Thus, there will be no incentive for health-care providers to relocate to lower insurance-rate areas or to seek work elsewhere.
I hasten to add that this analysis in no way involves weighing the wisdom of the legislative enactment — although the lack of wisdom of a statute which shifts the risk of practicing medicine from a health-care provider to the health-care recipient who is required to subsidize the provider’s costs in spite of the fact that he is the party least able to bear such costs is self-evident.
In light of the foregoing, I believe that
Section 16, Article I of the Ohio Constitution referred to as the “open court” provision reads in pertinent part:
“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.”
Other jurisdictions have construed their relevant “open court” provisions to forbid a similar type of absolute bar as is found in
Jurisdictions have also held statutes of repose in other tort areas to be unconstitutional under the relevant state constitutional open courts provisions. See, e.g., Berry v. Beach Aircraft Corp. (Utah 1985),
The due course of law provision is found at Section 1, Article I of the Ohio Constitution and reads “[a]ll men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”
Several jurisdictions have analyzed the problem of the overlap of statutes of repose and the accrual of a cause of action upon the discovery of the injury with respect to the equal protection provisions of state and United States Constitutions both in the area of medical malpractice and in other tort areas, most notably negligent improvements to real property. Numerous jurisdictions have held that the statutes of repose violate the equal protection and other provisions of the relevant Constitutions. See, e.g., Austin v. Litvak (Colo. 1984),
Concurrence Opinion
concurring. I concur in the syllabus and the judgment of the majority decision, but I find it necessary to write separately to make several points. I do so because it is my judgment that the magnitude of the decision each of us makes today cannot, even now, be imagined. Today’s decision determines at least nineteen other cases now pending before this court. Of course, we have no way of knowing how many other cases pending around the state will be affected by our decision, but they must be legion. Further, the inevitability of fact patterns developing in the future that will be governed by our decision should be considered by each of us as we proceed to make what is, in my judgment, one of the most important decisions of our judicial careers. Therefore, more than ever, it is important that we be clear, precise, unequivocal and most importantly — fair—in our pronouncement so that the appropriateness of, and necessity for, our decision is understood. This area of the law has been a mass of confusion far too long — confused for judges, lawyers, doctors and citizens of Ohio who have found themselves involved in a legal matter concerning actual or
The majority decision discusses some of the history of this issue and the trilogy of cases of Vance v. St. Vincent Hospital (1980),
It will also be noted that there is no statement of facts in the majority opinion from any of the four cases we decide today. This is unfortunate but easily explainable. These cases were all decided in the courts below on points of procedure and law and thus factual matter in each of the records is, at best, sparse. When this court indicates that the cases before us were previously decided on
It is for these reasons that I write separately and also to make clear what I think the law is and what it should be on the questions before us. In addition, because we have no actual facts before us to which readers might apply our decision, I will present a hypothetical set of facts. I do so conceding at the outset that the example may be criticized as being fanciful or even outrageous, but I would argue that it fairly depicts the issues that have, do and could arise under the statute in question,
It is with these preliminary thoughts that I proceed.
I
Ohio and many other states were influenced by the so-called malpractice crisis of the 1970s. Whether there was or was not a crisis has been extensively debated and there is credible evidence on both sides of the question. Nevertheless, such discussions are unimportant to our decision today as the questions before us are purely ones of law. We do no service to anyone to merely rehash what has gone on before except where it is of precedential value.
In response to the “crisis,” Ohio’s General Assembly enacted, in 1975, amended
“(A) An action for * * * malpractice, including an action for malpractice against a physician, podiatrist, hospital, or dentist, * * * shall bebrought within one year after the cause thereof accrued 14 * * *. [Footnote and emphasis added.]
“(B) In no event shall any medical claim against a physician * * * be brought more than four years after the act or omission constituting the alleged malpractice occurred.15 The limitations in this section for filing such a malpractice action against a physician * * * apply to all persons regardless of legal disability and notwithstandingsection 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. [Footnote and emphasis added.]”
Thus, regardless of discovery, pursuant to
Thus, the legislature acceded to the demands of insurance companies and physicians to restrict the rights of persons, suffering from alleged medical malpractice, from bringing an action later than four years from the date of the occurrence. The legislation has had the effect in some cases, and the possibility in all cases involving minors and incompetents, of closing the doors of the courthouse. A minor who has suffered malpractice may not bring an action in Ohio’s courts in his own right because, pursuant to
Mary, a young lady sixteen years of age, suffers discomfort in her abdominal area. Her parents seek medical attention for her and she is diagnosed as having appendicitis. Upon hospitalization, an “appendectomy” is performed. Three years later our subject gets married and, after a time lapse of two years when she still has not conceived, she and her husband seek medical advice. Upon examination, the doctor asks Mary when she had been surgically sterilized. Mary says that never happened and the doctor assures her that it did. Upon checking, it is found that, sure enough, Mary had been accidentally but negligently sterilized during the appendectomy. Malpractice is admitted but no recovery for damages is permitted Mary because more than four years had elapsed since the date of the occurrence. Therefore, Mary’s claim has been effectively extinguished before the claim has ever accrued. Stated another way, before Mary even gets a turn at bat, the game is declared over and she is declared the loser.
II
As indicated in the majority opinion, this court has dealt with this statute,
The majority opinion herein, in discussing Schwan, supra, states that “* * * [i]n applying the pertinent test for equal protection, we determined that the final clause of
While I concede that the issue before the Schwan court was whether it was a rational classification to treat minors between the ages of ten and fourteen differently than other minors, the fact is that the syllabus in Schwan reads as follows:
“
This syllabus is clear and unequivocal. There is nothing to be found in the syllabus that would suggest that only the last clause of
It is well-established that the syllabus of an opinion issued by this court
I recognize it will be argued that the syllabus of the case is not the law if the syllabus, in whole or in part, is obiter dictum. There are some cases that have discussed variations of this question but this court laid all of that to rest in Klem, supra, where we said, at 18, “[i]n the past, this court has examined the syllabi of several of its cases and concluded that when obiter dictum appears therein it must be so recognized and considered. * * * However, that determination is a function reserved exclusively for this court. Until such a determination is made, the syllabus is presumed to be the law of the case and all lower courts are bound to adhere to the principles set forth therein. ” (Emphasis added.) Five of the present members of this court concurred in Klem, which, incidentally, was decided just forty-two days before Schwan. I am painfully aware of the case because the decision of this court reversed the decision of the Sixth District Court of Appeals and I authored the decision as a sitting member of that court.
Having now established the foregoing, it should be clear that if on no other basis than stare decisis, the syllabus in Schwan should be followed and
It is also too late to now argue that the syllabus in Schwan was broader than this court intended as was attempted in the per curiam opinion of Opalko v. Marymount Hospital, Inc. (1984),
Opalko is an aberration and it should be recognized as such and overruled. How could Opalko, or any other case, make constitutional what had already been declared unconstitutional? To permit such activity would be to remove all stability from the law. As long ago as 1886, the United States Supreme Court said in Norton v. Shelby Cty. (1886),
Accordingly, based on Schwan, this court must reaffirm our holding that
III
I begin, of course, with the presumption that the challenged statute is valid. Its wisdom is not the concern of the courts. If a challenged law does not violate the Constitution, it must be sustained.
Section 16, Article I of the Ohio Constitution states: “[a]ll 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 * * *.”
Having roots in the Magna Carta, “access to the courts” provisions, found in many state constitutions, were designed to place some limitation on governmental power. As early as 1882 in Lafferty v. Shinn (1882),
It is here that I differ with the opinion of my brethren in the majority, although the result is the same. The majority opinion says, “* * * we are asked to review the constitutionality of
It will be argued that in striking down this statute of repose, we will be usurping the prerogatives of the legislature and that no statute of limitations will be safe from our review. Nothing could be further from the truth. The establishment of time limitations on various causes of action is a policy matter within the particular purview and competence of the legislature, but any such legislation must fall if it interferes with a person’s constitutionally guaranteed right of access to the courts when that person is asserting a right of action arising at common law.
The action for negligence, upon which today’s medical malpractice actions are founded, was well-established in the common law (trespass of the case). Where a right or action existed at common law at the time the Constitution was adopted,
It is within this context that we must consider the statute of repose set forth in
IV
I am disappointed that the majority opinion, by way of footnote 6, leaves to another day the question of the constitutionality of
It is true that most adults do not suffer the same disabilities as do minors with regard to having capacity, ability and standing to sue, but adults have, nevertheless, and will find themselves in the same position as minors of having their rights foreclosed even before they accrue. Like minors, adults need relief from this unconstitutional statute which deprives them of their rights. “Justice in this case cries out for a remedy. How can anyone be precluded from asserting a claim by a statute of limitations which expires before the discovery of the injury? How can anyone charged with the responsibility of administering justice allow such an absurdity?” (Emphasis added.) Amer v. Akron City Hospital (1976),
Accordingly, it would be better if the syllabus in today’s decision would not have included the words “as applied to minors.”
V
It should be noted that a number of cases were reversed by the Lucas County Court of Appeals on the authority of Mominee v. Scherbarth, our case No. 85-688. Several of these cases were consolidated by this court for oral argument. During argument, the point was made, by at least two appellants, that included in their cases were other issues and parties not specifically involved with the constitutionality of
It is of critical importance to make the distinction between the word “accrued” in
A good contrasting example is legal malpractice. If a person suffers malpractice by a lawyer, and that person is a minor (below the numerical age of eighteen) or is of unsound mind, that person has, if the legal malpractice has been discovered during the period of disability, a period of one year after the disability is removed to bring an action. Thus, in the case of a minor, the minor would have, at the least, until his or her nineteenth birthday to bring an action. If the legal malpractice had not been “discovered,” then the time for bringing suit would be even longer. The action would not be time-barred until one year had elapsed from the date of discovery. See Skidmore & Hall v. Rottman (1983),
See fn. 14, supra.
Contrast this situation even further with
Some confusion arises as to terminology between a statute of limitations and one of repose. This confusion necessarily affects the ultimate result herein. A true statute of limitations works on the remedy rather than the right and governs the time within which a legal proceeding must be instituted after a cause of action accrues (is discovered). A statute of repose is not a true statute of limitations, but rather is an absolute bar to a cause of action ever arising.
There has been a recurring question of whether actions existing at common law were preserved as part of the law of this state after Ohio, having been part of the Northwest Territory, was granted statehood.
On July 13,1787, the Congress of the United States passed an ordinance for the government of the territory of the United States, northwest of the river Ohio. In part, the ordaining clauses of the ordinance provided that “[t]here shall also be appointed a court to consist of three judges * * * who shall have a common law jurisdiction * * *.” (Emphasis added.) 1 Stat. of Ohio (
Pursuant to the ordinance, a Governor and judges were appointed. These persons had the authority to make laws for the territory and in 1788 they adopted, among other laws, a statute of limitations for all of the common-law actions including trespass on the case. Id. at 102. In 1795, “[a] law declaring what laws shall be in force” for the territory was adopted. It read, “[t]he common law of England, all statutes or acts of the British parliament made in aid of the common law * * * and also the several laws in force in this territory, shall be the rule of decision * * Id at 190-191. Thus, the law of the territory, part of which was to become the state of Ohio, in this pre-statehood period was the “common law” as described.
We have seen that an action for injury caused by negligence (case) was a common-law right. Subsequently, the state of Ohio was formed and the Constitution of Ohio, 1802, was adopted. Section 7, Article VIII of that Constitution provided “[t]hat all courts shall be open; and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by the due course of law, and right and justice administered, without denial or delay.” This provision became Section 16, Article I of the Constitution of Ohio, 1851.
Thus, the common-law right of action for trespass on the case was now accorded constitutional status by the language that the courts shall be open to citizens for injury done them to their person. Additionally, the transition schedule in the 1802 Constitution, as if to emphasize the point, provided in Section 4 that “[a]ll laws * * * now in force in this territory, not inconsistent with this constitution, shall continue and remain in full effect, until repealed by the legislature * * Obviously, as the Constitution was a compact with the people of the state, the legislature had no authority to repeal that which was now contained in the Constitution.
The Constitution is either a superior law, unchangeable except by extraordinary means, or it is on a level with ordinary legislative acts and, like other acts, is alterable at the pleasure of the legislature. If the Constitution is a superior law, then a legislative act that is contrary to the Constitution is not the law. If the Constitution is on the level of ordinary legislative acts, then written constitutions are absurd attempts, on the part of the people, to limit a power which is, by its own nature, illimitable.
Dissenting Opinion
dissenting. This court has previously set forth the legislative purpose of Am. Sub. H.B. No. 682 (136 Ohio Laws, Part II, 2809, 2843-2844), when considering a number of the sections of law included therein. In Denicola v. Providence Hospital (1979),
“Specifically, the General Assembly was legitimately concerned with the competency of medical malpractice experts testifying in medical malpractice ' claims, and the profound impact of such cases on the availability of medical malpractice insurance and resulting availability of health care in Ohio.” Id. at 120.
In Vance v. St. Vincent Hospital (1980),
Beatty v. Akron City Hospital (1981),
In Baird v. Loeffler (1982),
I dissented in Schwan v. Riverside Methodist Hospital (1983),
It should also be noted that in both Schwan and Opalko we had, in the main, the very issue before us which is presented in the case sub judice. In Schwan, the court of appeals held
This majority opinion merely retraces the steps in the review of the legislative enactment, and concludes differently than had other reviewing panels of this court. My position remains the same as I previously enunciated, and I find that the legislative pronouncement of public policy was, and remains, clear, that the four-year statute of limitations or repose should apply to all actions brought sounding in medical malpractice either by minors or adults.
Accordingly, I dissent from the opinion of the majority.
Wright, J., dissenting. The majority holds that the application of the four-year bar to minors is unconstitutional in that it violates the due course of law provision, Section 16, Article I, of the Ohio Constitution. I am surprised at how easily the majority reaches this conclusion, substituting its convictions for those of the General Assembly.
At the outset, it must be kept in mind that it is not the function of this court to pass judgment upon the wisdom of a legislative enactment. A statute can be unwise, but nevertheless constitutional. State v. Dorso (1983),
“* * * [Attention is directed to the universally recognized principle that a court has nothing to do with the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government. Whenthe validity of a statute is challenged on constitutional grounds, the sole function of the court is to determine whether it transcends the limits of legislative power.”
The principle articulated by Judge Zimmerman acts as a significant limitation on the power of this court in the interpretation of the Constitution and the determination of whether or not the legislative enactment violates its provisions. A court may intervene only when convinced that the statute violates a provision of the Constitution. Woodbridge, A History of Separation of Powers in Ohio: A Study in Administrative Law (1939), 13 U. Cin. L. Rev. 191.
While the public policy considerations are dissimilar, the clash over this court’s role as a maker of law vis-a-vis the legislative prerogative is strikingly similar to the conflict which developed fifty years ago between the United States Supreme Court and the Congress. As the reader may recall, the court’s “conservative” majority struck down a series of legislative acts designed to ameliorate the effects of the Great Depression. The “liberal” minority on the court deplored this form of judicial activism. Time and human frailty cured the conflict.
The often repeated theme contained in the majority opinions is disagreement with the legislative classification contained in
As previously recognized by this court, the 1975 amendment to
The public policy considerations that prompted the legislature to take action to amend Ohio’s malpractice laws appear to be valid, reasonable and necessary. Prior to July 28, 1975, the statutory and judicial exceptions to the one-year statute of limitations for medical malpractice gave rise to long-term liability exposure for potential defendants which made it difficult for medical malpractice insurers to make accurate predictions regarding their future liability. Destabilization of the medical malpractice insurance market followed, resulting in dramatically increased premiums and unavailability of coverage at any cost to certain high-risk specialties and institutions. See Comment, Medical Malpractice and the Statute of Limitations in Ohio (1981), 10 Cap. U. L. Rev. 771.
The 1975 amendment to the statute of limitations was specifically designed to curtail one of the primary causes of the malpractice crisis — the long-tail liability factor
The 1975 amendment eased the malpractice crisis by placing a reasonable cutoff on malpractice actions, which minimized problems of proof of stale claims, while still providing the potential plaintiff a reasonable time to file suit. As the amicus curiae, Ohio Hospital Association, has stated, under the pre-1975 version of the malpractice statute of limitations, claims arising from acts occurring at childbirth could be delayed as long as nineteen years. With today’s rapidly changing modern medical science, not only do memories fade, records become lost, and facts become stale over
The majority finds that four years is an inadequate time period for a minor to bring a malpractice action and erroneously concludes that the four-year bar was not reasonably related to a proper legislative purpose. In this determination, the majority improperly substitutes its judgment for that of the legislature. The clear legislative purpose in enacting
The majority decision returns the malpractice situation regarding minors to a status similar to that existing prior to the 1975 amendment. It emasculates the legislature’s method of dealing with the malpractice crisis and ignores the public policy articulated by the General Assembly through the adoption of Am. Sub. H.B. No. 682 in 1975 and the amendments to
The number of malpractice claims brought against physicians and the amount of damage awards have clearly been on the rise in recent years. Malpractice Claims Tripled in Last Decade, AMA Study Reveals (1985), 7 Hosp. Risk Mgmt. 24; Professional Negligence Awards Increase 450%, Research Shows (1982), 4 Hosp. Risk Mgmt. 95. This increase in claims and awards is affecting the affordability of malpractice insurance. While most providers can still obtain coverage in some form, malpractice insurance carriers are discontinuing occurrence-type policies and are only offering claims-made policies
The majority also holds that four years is an inadequate time period for a minor to bring a malpractice action even though such a suit may be brought by the minor’s parents or guardian for, and on behalf of, the child. In making this determination, the majority is again substituting its judgment for that of the General Assembly. Our society relies on parents to provide all of a child’s basic needs such as food, clothing and shelter. Therefore, the legislature can certainly make a determination that parents will bring an action on behalf of their injured child, especially since, in addition to parental concern, parents have the additional incentive of financial relief or financial benefit for the family in bringing a malpractice action.
I am satisfied that
What is truly remarkable about my brethren in the majority is their absolute refusal to consider the rational basis for the enactment of the 1975 amendment. In the words of the Psalmist, “* * * eyes have they, but they see not. They have ears, but they hear not.”
Accordingly, I would reverse the judgment of the court of appeals in Mominee v. Scherbarth and affirm the judgment of the court of appeals in Wainstein v. University Hospitals.
Cf. Carter v. Carter Coal Co. (1936),
At no time does the majority identify a fundamental property or liability interest upon which the statute can be said to impinge. Thus, the proper test to be invoked in considering whether
In Section 8 of Am. Sub. H. B. No. 682, the General Assembly set forth the legislative purpose of the amendments: “This act is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety. The reason for such necessity lies in the fact that immediate action is necessary to insure a continuance of health care delivery to the citizens of Ohio. * * *” (136 Ohio Laws, Part II, 2809, 2843-2844.) The emergency to which the legislature refers in Am. Sub. H. B. No. 682 is one which has been documented by various commentators both pre- and post-1975. See, e.g., United States Department of Health, Education and Welfare, Report of the Secretary’s Commission on Medical Malpractice (1973); Sheehan, The Medical Malpractice Crisis in Insurance: How It Happened and Some Proposed Solutions (1975), 11 Forum 80; Gouldin & Gouldin, The
“Long-tail liability factor” is the term used to describe the effect of exceptions to the statute of limitations that leaves potential defendants exposed to lawsuits for many years after an alleged negligent act took place.
The states and territories which had enacted an absolute bar by 1978 were Alabama, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Missouri, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Oregon, Puer-to Rico, South Carolina, Tennessee, Utah, and Washington. These absolute bars range from two years to ten years, but most are three or four years. In addition to these twenty-four, in a significant number of states, the statute begins to run from the “occurrence” of the act with no provision for tolling until the injury is discovered, and a tolling period for minors which is substantially shorter than the age of eighteen. See IB Hosp. Law Manual, Negligence (1978), Section 1:30(1).
An occurrence-type policy provides coverage for any claim which is based upon an occurrence during the policy period regardless of when the claim is made. Claims-made policies only cover claims made during the policy period.
Psalms 115.