
    Lundberg, Appellee, v. Bay View Hospital, Appellant.
    (No. 37651 —
    Decided July 3, 1963.)
    
      
      Messrs. Spangenberg, Hasenflue & Shibley, for appellee.
    
      Messrs. Chastang & Carroll and Messrs. Metsenbaum, Gaines, Schwarts, Krupanshy & Stern, for appellant.
   Zimmerman, J.

Plaintiff, a patient of Turowsld, was hospitalized by him in Bay View Hospital in April 1955, where a biopsy was performed. The biopsy material was submitted to a Dr. Haws, a pathologist, who had a salary contract with the hospital to do pathological work but who was ostensibly connected and associated with the hospital. The bills covering Haws’ services to hospital patients were rendered by the hospital, and his pathological reports were made under the name of the hospital. In answer to an interrogatory, the jury found Haws to be an agent by estoppel of the hospital. See Klema, Admx., v. St. Elisabeth’s Hospital of Youngstown, 170 Ohio St., 519, 166 N. E. (2d), 765.

Haws diagnosed plaintiff’s condition as carcinoma of the cervix. Upon such diagnosis and upon the recommendation of Turowsld and Sheppard, plaintiff underwent a hysterectomy on April 29, 1955, Sheppard being the surgeon. Plaintiff left the hospital on May 6, 1955, but returned periodically for observation and checkups, which was the customary and usual procedure in cancer cases. Her relationship in these respects with the hospital ended on February 18, 1956. Thereafter, it was definitely and conclusively determined by other physicians that plaintiff had never been afflicted with a cancerous condition and that Haws had grossly misinterpreted the biopsy material.

Plaintiff commenced the present action on February 16, 1957, which was within one year from the date she finally severed connections with the hospital and within two years of the erroneous diagnosis. In a special charge, the trial court instructed the jury as follows:

“Bay View Hospital asserts the defense of the statute of limitations. In a case of this character, where the plaintiff’s claim against the hospital is based upon medical acts or services performed, the applicable statute of limitations is one year from the time the plaintiff’s cause of action accrued. The plaintiff’s cause of action is not deemed to accrue until such time as the hospital-patient relationship is terminated with respect to the medical services undertaken by the hospital for the particular medical or surgical condition of the patient.

“In this case the plaintiff’s action against Bay Yiew Hospital was not commenced until February 16, 1957.

“If you find, from a consideration of all the evidence, that Bay Yiew Hospital and Betty Lundberg terminated the hospital-patient relationship in May of 1955 or before February 16,1956, then her cause of action would be barred by the statute of limitations. On the other hand, if you find that Betty Lundberg entered into a hospital-patient relationship for hospital care which came to include medical services of the hospital relating to the condition of a diagnosed and operated cancer; and if you further find that the hospital-patient relationship continued and was intended by both parties to continue for a course of regular cancer checkups in the hospital following her surgery and using the medical services of the hospital; and if you further find that such relationship was still in existence and had not been terminated before February 16, 1956, then the plaintiff’s cause of action against said hospital is not barred by the statute of limitations.”

It is the established law of Ohio that the one-year statute of limitations as now contained in Section 2305.11, Revised Code, does not begin to run until a medical relationship has finally terminated. Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639; Bowers v. Santee, 99 Ohio St., 361, 124 N. E., 238; and DeLong v. Campbell, Exxx., 157 Ohio St., 22, 104 N. E. (2d), 177.

It appears to a majority of this court that the issues herein are largely factual, and that the jury by its answers to special interrogatories and by its general verdict resolved those issues in favor of the plaintiff and against the hospital.

There can be no doubt that the jury found that plaintiff had a continuing relationship with the defendant hospital until February 18,-1956, that her physical impairment stemmed directly from the negligent misinterpretation by Haws of the biopsy material taken from her, and that the hospital by its conduct represented and induced the belief that Haws was in its employ as a part of its regular establishment, whereby it was estopped to successfully claim otherwise.

Since this action has proceeded through the courts on the theory of malpractice and the statute of limitations relating thereto, our discussion has followed that line. Let it be understood that no determination is here being made that a hospital, as such, may engage in the practice of medicine. Malpractice is embraced in the law of negligence. The present action is essentially one for the recovery of damages for bodily injury due to negligence, and Section 2305.10, Revised Code, places a limitation of two years on the bringing of such an action. Thus, whether the action is treated as one for malpractice or as one for ordinary negligence, it was timely brought in either instance.

We find no reversible error in the judgments below, and the judgment of the Court of Appeals is, therefore, affirmed.

Judgment affirmed.

Matthias, Griffith and Herbert, JJ., concur.

Gibson, J.,

concurring. I concur in the judgment on the basis that the hospital, a corporation, may not lawfully engage in the practice of medicine or osteopathy. Chapter 4731, Revised Code, concerning the State Medical Board and its authority over physicians and limited practitioners, plainly provides that individuals only may be licensed to engage in the practice of medicine or osteopathy. I am informed that this state has never licensed a hospital corporation to practice medicine or osteopathy. It is to be presumed, in the absence of a claim and evidence to the contrary, that this hospital was not unlawfully practicing medicine or osteopathy. Hence, notwithstanding the fact that the cause has been treated by the parties and the lower courts as one in malpractice, the action, having been commenced on February 16, 1957, a date within two years after the negligent reading of the biopsy slide in April 1955, is not barred by Section 2305.10, Revised Code.

In my opinion it is unnecessary for the court to discuss the statute of limitations respecting malpractice. After having read the prior decisions of this court, which are referred to in the majority opinion, in my view, there is no justification for extending the doctrine of DeLong v. Campbell, Exxx. (1952), 157 Ohio St., 22, beyond the relationship of physician to patient to the relationship of hospital to patient.

Since the majority opinion in this case does discuss the rule for computing the period of limitation for the commencement of a malpractice action, I believe it is pertinent to note that had I been a member of this court when the DeLong case was decided I would have agreed with dissenting opinion of Middleton, J. Apparently, California, Florida, Louisiana, Pennsylvania, Texas and New Jersey courts, under statutes substantially like ours, have ruled that the statute of limitations does not begin running until the patient discovers or, in the exercise of reasonable diligence, should have discovered the injury. The same result has been reached in Alabama, Connecticut and Missouri by legislative action. Lillich, The Malpractice Statute of Limitations in New York and other Jurisdictions (1962), 47 Cornell Law Quarterly, 339, 358. See, also, The Forgotten Sponge and the Statute of Limitations (1961), 1 Washburn Law Review, 257, 265; Malpractice and the Statute of Limitations (1957), 32 Indiana Law Journal, 528; and annotation, 80 A. L. R. (2d), 368.

In this and similar situations, the patient does not know and in most cases the physician does not know that the patient has any basis for a cause of action until, for instance, the error in diagnosis or the surgical operative procedure or treatment is discovered by another doctor. In most cases the second doctor discovers the malpractice through X-ray or another operation. To say that the patient had a cause of action all the while, although no one knew about it or suspected it, may meet the tests of some legal theory, but the result hardly meets the standards of justice or logic.

The practical effect of a holding that the statute of limitations (Section 2305.11, Revised Code) begins to run in case of malpractice at any time before the patient discovers or, in the exercise of reasonable diligence, should have discovered the injury requires the legally prudent patient to consult another physician promptly after any medical treatment or surgery for a check on the procedures followed and judgments made by the physician upon whom he relied initially. Even if it were always possible to secure the services of a physician to check the work of another, such a practice would undermine the professional relationship between the physician and his patient, which in many cases is as important to the health of the patient as the medical or surgical treatment administered.  