dissenting.
{¶ 30} I respectfully dissent from the opinion of the majority.
{¶ 31} As stated by the majority, the legislature did not expressly provide for the retroactive application of the statute and, therefore, R.C. 2317.43 is to be applied prospectively. The question remains, however, whether the statute, which was not enacted at the time of Dr. Smith’s conduct but was in effect at the time the complaint was filed, is applicable to the instant case. The majority focuses on when the statements of Smith were made. Thus, the majority concludes that since the conduct occurred in 2001, the statements could not be properly excluded under the statute. However, this interpretation does not give effect to the plain meaning of the statute. I find R.C. 2317.43 applicable to this case, as the Johnsons’ civil action was not “brought” until 2007, after the effective date of the statute.
{¶ 32} As enacted, the language used by the legislature concerning the effective date for application of R.C. 2317.43 is “In any civil action brought by an alleged victim * * The statute’s language is clear and unambiguous and, therefore, we apply the statute as written, giving effect to its plain meaning. “An ‘action’ is defined as ‘a civil or criminal judicial proceeding.’ ” McNeil v. Kingsley, 178 Ohio App.3d 674, 2008-Ohio-5536, 899 N.E.2d 1054, at ¶ 49, quoting Black’s Law Dictionary (8th Ed.Rev.2004) 31, 235. A “ ‘cause of action’ is defined as ‘a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.’ ” Id. Further, case law has treated the word “brought” synonymously with the word “commenced.” Cover v. Hildebran (1957), 103 Ohio App. 413, 415, 145 N.E.2d 850. (Under the Ohio Civil Rules, “a civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant.” Civ.R. 3(A).)
*730{¶ 33} Here, Smith performed surgery on Mrs. Johnson and subsequently made the statement at issue in 2001, giving rise to the Johnsons’ cause of action. Although the Johnsons originally filed suit before the effective date of the statute, they voluntarily dismissed the complaint on September 11, 2006, after the effective date of the statute. The Johnsons refiled the complaint in 2007, within the time proscribed by the savings statute, R.C. 2305.19. Therefore, the John-sons did not have an action, i.e., a civil judicial proceeding, until the complaint was filed in 2007. In 2007, R.C. 2317.13 was in effect and, consequently, applicable to this case.
{¶ 34} Although this case was originally “brought” in 2002, before the enactment of the statute, it was dismissed in 2006, after its effective date. R.C. 2317.43 applies to all “civil actions” “brought” or filed after the effective date in September 2004. This interpretation gives effect to the plain meaning of the statute. Applying the statute at issue to this case is further consistent with case law. “If there is no clear indication of retroactive application, then the statute may only apply to cases which arise subsequent to its enactment.” (Emphasis added.) Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262, 503 N.E.2d 753.
{¶ 35} The word “case” is defined as “a civil or criminal proceeding, action, suit or controversy at law or equity.” Black’s Law Dictionary (8th Ed.Rev.2004) 228. To conclude the majority’s position under the facts of this case, the law would provide that the statute may be applied only to “causes of action” arising subsequent to its enactment. “Cases” and “causes of action” are two distinct concepts. Though the majority concludes that the “statute could not be retroactively applied to any cases predating its enactment,” I believe this does not address the appropriate distinction between “cases” and “causes of action.”
{¶ 36} Moreover, the comment made by Smith that he takes “full responsibility” is, under these circumstances, a statement to be excluded under the statute. As Mrs. Johnson’s surgeon, Smith had no choice but to take responsibility. However, a bad result does not equate to medical negligence. Being responsible is not the same as admitting to legal liability.
{¶ 37} The instant case is inapposite to the case cited by the Johnsons in their notice of supplemental authority. In Davis v. Wooster, 193 Ohio App.3d 581, 2011-Ohio-3199, 952 N.E.2d 1216, the physician noted that the bad result was his “fault,” which is not excluded under R.C. 2317.43.
{¶ 38} Although the trial court excluded the statement of Smith, it employed a different analysis. The trial court found that the statute could be applied retroactively, employing a substantive-versus-remedial analysis. The trial court determined that the “statements and gestures and actions” of Smith were covered under R.C. 2317.43.
*731{¶ 39} While I believe the statement of Smith was properly excluded, the application of the statute to this case was simply a prospective application based upon the clear direction stated therein.