
    Woodgeard et al. v. The Miami Valley Hospital Society of Dayton.
    
    (No. 74-2206
    Decided January 29, 1975.)
    Common Pleas Court of Montgomery County.
    
      Mr. Daniel A. Nagle, for plaintiffs.
    
      Mr. Thomas E. Jenhs, for defendant hospital.
    
      Mr. David C. Greer, for defendant doctor.
    
      
      Judgment affirmed by the Court of Appeals, July 1;1975.
    
   Rice,, J-

The plaintiffs seek damages from a physician for malpractice, it being alleged that the physician in closing a wound, and in removing shattered glass from a wound suffered by the plaintiff when she stumbled into a glass storm door,- failed to discover another piece of glass in her body in the area of the wound. This piece of gláss was discovered by x-ray examination some five years, after the original surgery and forms the basis of the instant lawsuit along with allegations that the piece of glass -in question has caused considerable pain and necessitated, further surgery and a---long period of recovery.

The motion of the defendant, The Miami Valley Hospital Sociéty of Dayton, Ohio, seeking an order of the court, pursuant to Civ. E. 12(B)(6), dismissing the plaintiffs’ complaint for the reason that same fails to state a claim upon which relief may be granted is, in the court’s opinion, well taken and the court does, therefore, sustain same in its entirety, based upon the reasoning and citations of authority contained in the defendant’s two memor-anda in support of its motion.

: In so ruling, the court makes the following, nonexclusive,, observations:

1. E. C- 2305.11, setting forth the statute of limitations in malpractice actions, states, in pertinent part, as follows: ,

4' An action for * * * malpractice * * * shall be brought within- one year after the cause thereof accrued * * V’

2. Ohio has long followed the general rule to the effect that the latest time at which the statute of limitations commences running is the time at which the physician-patient relationship finally terminates. Gillette v. Tucker (1902), 67 Ohio St. 106; Bowers v. Santee (1919), 99 Ohio St. 361; and DeLong v. Campbell (1952), 157 Ohio St. 22.

3. The Supreme Court of Ohio, in a four-to-three decision, -in the case of Wyler v. Tripi (1971), 25 Ohio St. 2d 164, at page 171, specifically rejected the appellant’s urging that it adopt the “discovery rule” which holds that the statute of limitations in actions for medical malpractice should not begin to run until the patient discovers or, in the exercise of reasonable care, should have discovered, the malpractice.

4. The Wyler case discussed the discovery rule, then in existence in 21 states, and divided said rule into two categories :

a. Ten jurisdictions, having adopted the discovery rule, that specifically limit same to cases where a foreign object (surgical sponge, gauze, forceps, etc.) has been negligently left in the patient’s body; and.

b. Eleven states, having, adopted the discovery rule, that extend ¿ame for all malpractice cases regardless of whether a foreign object is involved. . .

5. In the case of Melnyk v. Cleveland Clinic (1972), 32 Ohio St. 2d 198, the Supreme Court had occasion, to reexamine its holding in Wyler, The Wyler holding was affirmed and distinguished from the facts of Melnyh, which involved a claim that the defendant hospital had'negligently left certain foreign objects inside a patient's .body during surgery. The Melnyh ease held as follows: ,

“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. ”

The Melnyh case reviews, at pages 201 and 202; the Wyler court’s discussion as to the various rationale adopted by those states which have adopted the discovery rule in instances' where same has been specifically limited, to cases where a foreign object (surgical sponge, gauze, forceps, ete.) has been negligently left in the patient’s body.

6. It is, therefore, this court’s opinion that the Mdnyk case, supra, clearly and specifically intended to adopt the discovery rule only for that limited class of cases .in which a foreign object has been negligently left in the .patient’s, body. The Melnyh case clearly evinces no intention, to adopt the discovery rule for all malpractice cases regardless of whether a foreign object is left in the patient’s body by the operating surgeons and attendants or whether said foreign object-has entered the patient’s body ..prior to surgery and was not discovered by the operating physicians or staff personnel. Were the Melnyh case to adopt such a broad “discovery rule,” there would have been no emphasis, in its discussion, upon the rationale adopted by those states which have adopted the “discovery rule” only in the hunted instances in which foreign objects such as forceps or other instruments and implements have been carelessly left in surgical openings.

7. The plaintiffs’ contention that the defendant’s mem-oranda indicates a practice of distinguishing cases on their facts, leading up to factual distinctions without a difference is, in the court’s opinion, not well taken. Barely is a case found which is “on all fours” with a ease at issue. One of the prime functions of the law is to take legal principles and apply them, by process of analogy, to differing factual situations. However, in the issue at bar, this court concludes that the Supreme Court in the Melnyh case, supra, very carefully and specifically, in adopting the modified discovery rule, as an exception to the general rule as to when the statute of limitations begins to run, limited same to factual situations in which foreign objects, such as forceps or other instruments and implements, have been negligently left inside a patient’s body during surgery by the operating physician and his attending staff.

Wherefore, for the reasons as aforesaid, this court sustains the motion of the defendant seeking an order of the court dismissing the captioned complaint for failure to state a claim upon which relief can be granted. The motion under discussion in the captioned cause was filed by only the defendant hospital. However, the court’s decision as it applies to the defendant hospital would, of necessity, operate to dismiss the captioned complaint against the remaining defendant, Doctor Laughlin. Therefore, the captioned cause is dismissed, with prejudice, with costs to be paid by the plaintiff.

Case dismissed.  