
    Amer, Appellant, v. Akron City Hospital et al., Appellees.
    [Cite as Amer v. Akron City Hospital (1976), 47 Ohio St. 2d 85.]
    (No. 75-1063
    Decided July 14, 1976.)
    
      
      'Davis'- S Hmdelman Co., L. P. A':, and Mr. D}Arnold Davis, for appellant. . ■ : .
    •; ■■'Messrs. Roetsel i£. Andress and Mr. John M. Ulman, for appellees.
   Stephenson, J.

Although a number of issues were presented to the courts below by appellaut, asserting that his cause of action accrued át a date subsequent to March 1, 1963, all such'issues were-resolved against him. For the purpose of disposition of the narrow issue this appeal presents, we accept as correct, without- deciding the same, the conclusion' of the courts below that, appellant’s cause of action accrued on March 1, 1963, within the meaning of the time limitation in R. C. 2305.09(D).

' The restricted allowance of the motion to certify in this case was for the purpose of permitting this- court to consider appellant’s argument that this court should now judicially recognize an exception'to the time limitation in R. C. 2305.09(D), where, as here, the cause of action is for consequential damages arising from, or having its origin in, alleged acts of malpractice to a plaintiff’s spouse.

The exception appellant urges we adopt is the physician-patient termination exception to R. C. 2305.11, as set forth in Wyler v. Tripi (1971), 25 Ohio St. 2d 164, so that a .spouse’s cause of action for consequential injuries does not accrue under R. 0. 2305.09(D), or if the action accrues, that the time limitation is tolled, until the physician-patient relationship of the spouse directly injured by acts of malpractice is terminated.

Proper disposition of this appeal requires recognition at the outset that although appellant’s cause of action had its origin in, and grew out of, asserted acts of malpractice, his action is not one for malpractice. That issue was presented to this court in Corpman v. Boyer (1960), 171 Ohio St. 233, and was resolved by holding in the syllabus the following:

’[ “1: The right of: action of a husband for damages for medical expenses, loss of consortium and loss of services of his wife injured by the malpractice of a physician is not one for. malpractice, and an action based thereon need not be commenced within the period prescribed by Section 2305.11, Revised Code.

“2. A husband’s action for consequential damages occasioned by malpractice of a physician upon his wife is for an injury to his rights not arising on contract or enumerated in the Revised Code sections set forth in paragraph (D), Section 2305.09, Revised Code, and must be commenced within the period prescribed thereby.”

The holding in Corpmcm was based upon the earlier decision of this court in Kraut v. Cleveland Ry. Co. (1936), 132 Ohio St. 125, wherein it was held, in a non-malpractice tort case, that an action for consequential damages by a husband against a tortfeasor for injury to a spouse was not one for “bodily injury” within the meaning of the two-year Imitation now embodied in R. C. 2305.10, but was within the four-year limitation.now embodied in R. C. 2305.09(D).

The conclusion that appellant’s action is hot one of malpractice, but is simply a common law tort, is critical to appellant’s proposition of law when consideration is given to the rationale upon which the physician-patient termination exception in malpractice actions rests.

In Wyler v. Tripi, supra (25 Ohio St. 2d 164), the syllabus provides: “Under R. C. 2305.11, a cause of action for medical malpractice accrues, at the latest, when the physician-patient relationship finally terminates. (Gillette v. Tucker, 67 Ohio St. 106; Bowers v. Santee, 99 Ohio St. 361; and DeLong v. Campbell, 157 Ohio St. 22, followed.)” It was in Gillette v. Tucker that the termination rule was first formulated. What, we view, in substance, as central to all the above-cited decisions, either expressly or by implication, is recognition therein that the physician-patient relationship is contractual in character, either express or implied, and the obligation thereby imposed upon physicians is to utilize the requisite degree of care, not only in initial medical procedures in treating a patient, but to continue to utilize such requisite degree of care thereafter as the case may require during the continuance of the physician-patient relationship. It is because of such continuing duty after initial treatment, which, if breached, constitutes continuing negligence, that justifies allowing the time limitation in R. C. 2305.11 to commence, at the latest, from the termination of the physician-patient relationship. Wyler v. Tripi, supra.

The difficulty appellant faces, in asserting the adoption of the termination exception to a cause of action for consequential damages, is that, not being a party to the contract between his spouse and her physician, as to him no contractual duty of continuing care is imposed upon the physician which is the base upon which the termination rule is structured. We deem it not unimportant that in the 40 years that have elapsed since Kraut v. Cleveland Ry. Co. supra (132 Ohio St. 125), followed by Corpman v. Boyer, supra (171 Ohio St. 233), and Dean v. Angelas (1970), 24 Ohio St. 2d 99, where, by these holdings, actions for consequential damages are limited by E. C. 2305.09(D)', the General Assembly has not seen fit to alter these holdings.

Coneeiveably, it may be:.that the General Assembly has considered the incongruity, that appellant here asserts exists, as to the time when an action for malpractice must be commenced as opposed to the time when a cause of action for- consequential damages by a spouse, arising from the same facts, must be commenced, and- resolved such incongruity, not by creating exceptions which would increase the time Iimitátion for the spouse’s suit, but by decreasing the timé within which the malpractice action must be instituted.

Whether intentionally, or coincidentally to the four-year limitation in R. C. 2305.09(D), Am. Sub. H. B. No. 682, effective July 28,1975, enacted a new section designated (B) in R. C. 2305.11, which provides: “In no event shall. any medical claim against a physician or a hospital be brought more than four years after the ant or omission constituting the alleged malpractice occurred. .The limitations in this section for filing such a malpractice action against a-physician or hospital apply to all persons regardless of legal disability ánd 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 inr whiéh' to file an action for malpractice against a physician orí'hospital.’’ Whether the; amendatory legislation was prompted in part by the holdings of this court with respect to time limitations for bringing actions for consequential damages having their origin in asserted malpractice, such legislation'nevertheless represents a1 recent reappraisal by the-General Assembly of the policy of this state as'to-time limitations for commencing malpractice actions.

The absence of any provision in such legislation creating exceptions which extend or otherwise alter the holdings of this1 court-that actions for consequential damages for injury to á spouse must be commenced within the timé limitation set-forth in R.! C.'2305.09(D), is- persuasive that such holdings are in accord with the intention of the General Assembly in such regard. • . . '

In light of this conclusion, coupled with the non-appli¿ability of the5 legal theory upon which the termination rule is based in mapractice fictions, we are persuaded-the exception appellant urges should not be adopted by this court. It follows, therefore, that the judgment of the Court of Appeals, insofar as it overruled the assignment of error upon which appellant’s' proposition, of law is here-based-;-, is affirmed. . •

Judgment affirmed.

. .Corrigan, W. Brown .and P. Brown, JJ., concur. '.

Herbert and-Celebrezze, JJ., dissent. ...

O’Neill, C. J., not-participating. '

' ’•= Stebhenson, J., óf the Fourth Appellate District, sitting for Stern, J.- ■

Herbert, J.,

dissenting. In iny judgment,? the statute of limitations governing this appellant’s cause - of action commenced running when the physician-patient relationship between his wife and her physician terminated.} The judgnient' appealed from should be reversed-.. .' '

Celebrezze, J.,

dissenting. This court construed R. C. 2305.11, the statute of limitations in medical malpractice cases, in Wyler v. Tripi (1971), 25 Ohio St. 2d 164, to commence running, at the latest, when the physician-patient relationship finally terminates.

This court, subsequently, in Melnyk v. Cleveland Clinic (1972), 32 Ohio St. 2d 198, distinguished its ruling in Wyler by stating in the syllabus:

“Where a metallic forceps and a nonabsorbent sponge are negligently left inside a patient’s body during surgery; the running of the statute of limitation governing a claim therefor is tolled until the patient discovers, or by the exercise of reasonable diligence should have discovered, the negligent act. ”

In Corpman v. Boyer (1960), 171 Ohio St. 233, this court determined that “ [t]he right of action of a husband for damages for medical expenses, loss of consortium and loss of services of his wife injured by the malpractice of a physician is not one for malpractice * *

The second paragraph of the syllabus in Corpman stated:

“A husband’s action for consequential damages occasioned by malpractice of a physician upon his wife is for an injury to his rights not arising on contract or enumerated in the Revised Code sections set forth in paragraph (D), Section 2305.09, Revised Code, and must be commenced within the period prescribed thereby.”

The majority concludes that the Corpman rationale still applies, however, with the distinction that the time limitation “is not tolled until termination of the physician-patient relationship.” The majority does acknowledge, and it is undisputed, that the treatment administered to the appellant’s spouse “proximately resulted in the development of radiation necrosis and which condition manifested itself in 1972.” (Emphasis added.)

It is rather incongruous to assert that a cause of action arising out of the same incident may accrue at one, two or three different times depending upon the terminology applicable to the parties. The wrong from which the appellant’s claim springs is the same wrong which gives rise to any malpractice action which his wife may have.

Prior to the current crises created by burgeoning medical malpractice insurance premiums, there was a maturing school of thought whose reasoning is contained in the treatise, Prosser on Torts (4 Ed.), 144, which reads:

“* * * The older approach to such cases was a literal application of the statute to bar the action, regarding it as intended to protect the defendant not only against fictitious claims, but also against the difficulty of obtaining evidence after lapse of time even when he is confronted with a genuine one; and considering the hardship upon the plaintiff as merely part of the price to be paid for such protection. The obvious and flagrant injustice of such cases has led. to the adoption of a series of transparent devices to get around the rule. Thus the negligent treatment, or at least the defendant’s duty, is held to continue until the relation of physician and patient has ended; or the court finds fraudulent concealment of the damage, which tolls the running of the statute; or it finds ‘constructive’ fraud' in silence with probable knowledge; or the failure to discover and remove the sponge or other foreign object left in the plaintiff’s body is held to be ‘continuing’ negligence. Quite recently there have been a wave of decisions meeting the issue head-on, and holding that the statute will no longer be construed as intended to run until the plaintiff has in fact discovered that he has suffered injury, or by the exercise of reasonable diligence should have discovered it. * * *”

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?

The judgment of the lower court should be reversed. 
      
      Although it is inconsequential, under the factual pattern of this case, whether the time limitation in R. G. 2305.11 or 2305.10 applied to the Akron City Hospital! it is to be noted that this court has not judicially determined whether a hospital, liable under the doctrine of respondeat superior by reason of acts of a physician-employee, has the benefit of the one-year limitation in R. C. 2305.11, as does the physician-employee. Richardson v. Doe (1954), 176 Ohio St. 370, decided only that the. liability of a hospital based upon respondeat superior as to acts of a nurse-employée is subject to R. C. 2305.10, the two-year limitation pertaining to bodily injury. In Lundberg v. Bay View Hospital (1963), 175 Ohio St. 133, although the lower .'courts gave the'hospital the'benefit of R. C. 2305.11, this court specifically left open such question. However, in Am. Sub. H. B. .No. 682, effective July 28, 1975, wherein substantial amendment was made to R. C.- 2305.11, malpractice actions against hospitals are expressly included within such section.
     
      
      Although not incorporated into the proposition of law here considered, appellant urges also in his brief the' adoption, of the discovery exception set forth in Melnyk v. Cleveland Clinic (1972), 32 Ohio St. 2d 198. Inasmuch’as certification was restricted only as to. the sole issue embodied, in. .the..proposition of law.herein .set forth, such’ claim is not further considered'. ' ' ' • • • - • •• - • *t
     
      
      Insofar as here pertinent, the full text of Am. H. B. No. 682 provided :
      “Sec. 2305.11. (A) An action for libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice, including an action for malpractice ágainst a physician or a hospital, or upon a statute for a penalty or forfeiture, shall be brought within one year after the cause thereof accrued,- provided that an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation, or liquidated damages by reason of tbe nonpayment of minimum wages or overtime compensation, shall be brought within two years after the cause thereof accrued.
      “If a written notice, prior to the expiration of time contained in this division, is given1 to any person in a medical malpractice case that an individual is presently considering bringing an action against that person. relating to professional services provided: to that individual, then an action by that individual against that person may be commenced at any time within one Hundred eighty days after that notice is' given.
      “(B) In no event shall any medical claim against a physician 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 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.
      “(C) A civil action for nonconsensual abortion pursuant to Section 2919.12 of the Revised Code must be commenced within one year after the abortion.
      “ (D ) " As- used in this section: ■
      (1) ‘Hospital’ includes'any person, corporation, association, board, or. authority, responsible for the operation of any hospital licensed or registered in the state, including without limitation those which are' owned or operated by the state, political subdivisions, any person, corporation, or any combination thereof. It does not include any hospital operated by the government of the United States or any branch thereof.
      “(2) .‘Physician’ means all persons who are licensed to practice medicine and surgery or osteopathic medicine and surgery .by the state medical board.
      “(3) ‘Medical claim’ means any claim asserted in any civil action against a physician or hospital arising out of the diagnosis, care, or treatment of any person.”
     
      
      It is.-assumed the.creation of.-.such-..limitations is., still-ithe prerogative of the General Assembly. See fn. 3, Melnyk v. Cleveland Clinic, supra (32 Ohio St. 2d 198.)
     