Mominee v. Scherbarth

Douglas, J.,

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 *285alleged medical malpractice. The time has come to put this confusion to rest.

The majority decision discusses some of the history of this issue and the trilogy of cases of Vance v. St. Vincent Hospital (1980), 64 Ohio St. 2d 36 [18 O.O.3d 216]; Schwan v. Riverside Methodist Hospital (1983), 6 Ohio St. 3d 300; and Opalko v. Marymount Hospital, Inc. (1984), 9 Ohio St. 3d 63. I agree generally with that discussion with some exceptions and additions which will be set forth infra.

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 Civ. R. 12(B)(6) motions or on summary judgments, such terminology will have meaning to judges and lawyers, but will be of little or no help to readers, such as physicians and patients, who will be affected by the decisions. Likewise, journalists whose responsibility it is to impart our decisions to a needing-to-know public could not be faulted for a less than clear and accurate report if our pronouncements do not contribute to precise reporting.

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, R.C. 2305.11(B). I also give the example in these terms not only to illustrate the point but also to avoid any suggestion that the facts given are from an actual case that might yet remain to be decided.

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 R.C. 2305.11. For our purposes, the pertinent parts of the statute state:

“(A) An action for * * * malpractice, including an action for malpractice against a physician, podiatrist, hospital, or dentist, * * * shall be *286brought within one year after the cause thereof accrued14 * * *. [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 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. [Footnote and emphasis added.]”

Thus, regardless of discovery, pursuant to R.C. 2305.11(B), a patient’s cause of action is time barred upon the expiration of four years from the date of the occurrence of the malpractice. In effect, this clearly permits the extinguishment of a cause of action before it even accrues. The rationale for this statute of repose was to limit physician liability to a reasonable period of time in order to allow insurance companies to reduce their then-*287current medical malpractice insurance premiums since the possibility of future claims was greatly reduced and could then be calculated based upon the physician’s patient load and type of practice. Without saying more on this matter (and there is a multitude of empirical data available), suffice it to say that not only did reductions in premiums not occur, tremendous increases in premiums continued.

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 Civ. R. 17(B), a minor cannot sue in his own name. Thus, if a parent or next friend either neglects or declines, for whatever reason, to bring the action, by the time the minor reaches the age of majority the four-year statutory period may have expired and thus the minor who, by law, was prohibited from suing because of age, now cannot sue because the time has expired. Even worse is the minor who herself has a child. The mother has no standing to sue for alleged malpractice and, of course, neither does her baby. Or take an incompetent who suffers medical malpractice and is not restored to competency until five years later. Such a person would, because of the lapse of time, be barred from suing even though that person would not have had the mental competency or the legal ability to proceed with a cause of action. Worse yet is the case where the medical malpractice is not even discovered during the four-year period. Consider the following fact pattern, impractical perhaps, but nevertheless graphically illustrative of the problems.

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.16 Is this right or fair? Is fair or right even the issue?

*288It has been argued to us at oral hearings on these cases that whether or not such a rule is right or fair is not for us to decide. It is argued that it is the job of the legislature to determine, on behalf of our citizens, what is right and fair and that the only right, prerogative or responsibility of this court is to determine whether what the legislature has enacted is constitutional. I am persuaded by this argument and, therefore, proceed to consideration of the case precedent (stare decisis) and the constitutional questions which the cases now before us present.

II

As indicated in the majority opinion, this court has dealt with this statute, R.C. 2305.11(B), on several occasions. The precise issue before us now is whether this section of the law is constitutional. It is a mystery to me why we have all of these cases before us or, at least why we now have any difficulty in deciding them.

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 R.C. 2305.11(B) failed the ‘rational basis’ test, and was therefore unconstitutional.” (Emphasis added.) In footnote 2 the majority opinion states, in discussing the final clause of R.C. 2305.11(B), that “[w]e held the emphasized language unconstitutional in Schwan v. Riverside Methodist Hospital (1983), 6 Ohio St. 3d 300. * * *” (Emphasis added.) These two statements are not accurate.

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:

“R.C. 2305.11(B) is unconstitutional with respect to malpractice litigants who are minors. (Vance v. St. Vincent Hospital, 64 Ohio St. 2d 36 [18 O.O.3d 216], and all other inconsistent cases, overruled.)”

This syllabus is clear and unequivocal. There is nothing to be found in the syllabus that would suggest that only the last clause of R.C. 2305.11(B) was being found unconstitutional. The entire subsection (B) is found unconstitutional and that includes, of course, all of the language in the subsection, including the four-year bar and the “tolling” language.

It is well-established that the syllabus of an opinion issued by this court *289states the law of the case. Smith v. Klem (1983), 6 Ohio St. 3d 16, 18; Cassidy v. Glossip (1967), 12 Ohio St. 2d 17 [41 O.O.2d 153], paragraph six of the syllabus. As such, all lower courts of this state are bound to adhere to the principles set forth therein. “A syllabus is the law of the case establishing principle and doctrine, binding alike on citizens and courts, both inferior and of equal rank.” Merrick v. Ditzler (1915), 91 Ohio St. 256, 264.

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 R.C. 2305.11(B) should be declared unconstitutional in its entirety. It really makes little difference if this is done on equal protection, due process or access-to-the-courts grounds. See discussion infra, at Part III.

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), 9 Ohio St. 3d 63. Lawyers and litigants all over this state depended on the syllabus of Schwan to have said what it meant. Many cases were not filed within the parameters of R.C. 2305.11(B) because it was no longer in existence. To now penalize those persons so relying would not only be unfair — -it would be just plain wrong. Why should lawyers be subjected to claims of legal malpractice when their actions have been dictated by reliance on a pronouncement of this court.

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), 118 U.S. 425, 442, that “[a]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Any attempt through Opalko to breathe life back into R.C. 2305.11(B) is ill-*290conceived and unlawful. The language in Opalko, in interpreting the Schwan case, made the same errors as does today’s majority opinion. The syllabus in Schwan said that R.C. 2305.11(B) was unconstitutional — all of the section, not just part. Therefore, whatever Opalko decided (and I have never been sure what was meant or decided) was wrong and, as such, provides no precedential authority.

Accordingly, based on Schwan, this court must reaffirm our holding that R.C. 2305.11(B) is unconstitutional thereby deciding the cases now before us. But there is, for so holding, even a better reason, than just previous case authority and stare decisis. The reason is that R.C. 2305.11(B) is, in fact, unconstitutional!

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), 38 Ohio St. 46, 48, this court said “[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 due course of law,’ is ordained in the constitution (art. 1, § 16); and it is not within the power of the legislature to abridge the period within which an existing right may be so asserted as that there shall not remain a reasonable time within which an action may be commenced.* * * ” (Emphasis added.)

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 R.C. 2305.11(B) as it relates to minors in light of due process considerations.” (Emphasis added.) Review in this light could very well lead to the result that the statute in question does meet constitutional muster. The reason for this is clear. The effect of a statute of repose,17 at least in the medical malpractice area, is to reduce the doctor’s exposure to liability by granting to him immunity from suit after the limitations period has run. Such protection may be justified on strong claims of public policy and, therefore, not constitutionally infirm *291under either the equal protection or due process clauses. See, generally, Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications (1977), 55 Tex. L. Rev. 759. The same would not hold true, however, when measured against the “access-to-the-courts” provision of Section 16, Article I of the Ohio Constitution.

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,18 that right is constitutionally protected, by the *292access-to-the-courts provision, from subsequent legislative action which abrogates or impairs that right without affording a reasonable substitute. See, generally, Gentile v. Altermatt (1975), 169 Conn. 267, 363 A. 2d 1. Cf. Haskins v. Bias (1981), 2 Ohio App. 3d 297. Thus, through the theory of “constitutional incorporation,” one of construction, legislation which serves to abolish or severely impair common-law remedies existing at the time the Constitution was adopted is invalid unless a reasonable substitute is provided for the remedy which is lost. Conversely, where a party would not have had a right to bring an action at common law, either because no cause of action existed or because some bar prevented its assertion, the cause of action is not constitutionally incorporated by the adoption of the access-to-the-courts provision. If a party received a subsequent right of action, not recognized at common law, either through legislative enactment or judicial pronouncement, that right could properly be abrogated by the legislature even without affording a reasonable substitute. Any right of action created subsequent to the access-to-the-courts provision exists only as a matter of judicial or legislativé grace and may be withdrawn at any time.

It is within this context that we must consider the statute of repose set forth in R.C. 2305.11(B). We have already seen that the statute provides for an absolute bar of a cause of action for medical malpractice after a four-year period of time has elapsed from the date of the occurrence — that is, the date on which the alleged malpractice took place. It can readily be seen that where the injury is not discovered within the prescriptive period, the effect of the repose is to abolish the party’s right of action altogether. A person so situated is literally given no opportunity to bring his action because the right to proceed is obliterated before it even accrues. In actual effect, this abolition grants the negligent doctor an area of absolute immunity from suit at the expense of the patient’s constitutionally guaranteed right to access to the courts. This is especially true of those suffering from some disability such as we have in the cases before us, to wit: not having reached the statutory age of an adult.

*293Since the bottom-line effect of this statute of repose, R.C. 2305.11(B), is to abolish a common-law right or action which existed at the time the Constitution was adopted, and since the legislature provided no reasonable alternative remedy or substitute for the one which it has abrogated, this court must hold that R.C. 2305.11(B) is violative of Section 16, Article I of the Ohio Constitution and is, therefore, unconstitutional. “These rights the legislature did not give * * * and the legislature can not take them away.* * *” Byers v. Meridian Printing Co. (1911), 84 Ohio St. 408, 422.

IV

I am disappointed that the majority opinion, by way of footnote 6, leaves to another day the question of the constitutionality of R.C. 2305.11(B) as it applies to adults. Whether on due process grounds, as the majority opinion has found, or on the access-to-the-courts provision of Section 16, Article I, as I have indicated, the statute in question is unconstitutional. I would concede that all of the cases before us involve claims by minors but it would seem to logically follow that where due process rights of minors are found to be violated, the same situtation must exist for one who has reached the age of majority.

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), 47 Ohio St. 2d 85, 93 [1 O.O.3d 51] (Celebrezze, J., dissenting).

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 R.C. 2305.11(B). Where accurate this decision will not, of course, affect those parties or issues. This will likewise apply to the many other cases that will be decided by this court on the authority of today’s decision and reversed or affirmed, and announced, by journal entry. Upon remand, these matters will be considered by the respective trial courts to which the cases have been remanded.

*294Accordingly, I would affirm the judgment of the Court of Appeals for Lucas County in case No. 85-688 and I would reverse the Court of Appeals for Cuyahoga County in case No. 85-1039.

It is of critical importance to make the distinction between the word “accrued” in R.C. 2305.11(A) and the word “occurred” in R.C. 2305.11(B). In Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St. 3d 111, this court held that a cause of action for medical malpractice accrues at the time when a patient discovers or should have discovered the injury. Thus, the statute of limitations does not begin to run until a patient knows or should have known that malpractice had taken place. That patient then has one year from the date “of discovery” to bring an action, regardless of when the malpractice took place or occurred. Occurred is a more precise word not usually needing interpretation. Webster’s Ninth New Collegiate Dictionary (1983) 817, defines occur as “appear”; “to come into existence.” Thus, under amended R.C. 2305.11(B), if the malpractice had come into existence — occurred — and was discovered subsequent to four years after the happening, any patient so suffering was barred from bringing any action against the physician. This is true, pursuant to R.C. 2305.11(B), for all patients whether they be adults or minors and even if, during the four-year period, the patient is of unsound mind or is imprisoned. This provision must be contrasted with R.C. 2305.16 which provides that in any other type of case, except medical malpractice (with a few exceptions not pertinent here), the time for bringing suit is “tolled” While the alleged aggrieved party is under some disability such as being a minor, being of unsound mind or being imprisoned. Under R.C. 2305.16, such a person has the full period of limitation to bring his or her suit after the disability has been removed.

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), 5 Ohio St. 3d 210, and R.C. 2305.11(A). Thus, it is only physicians who are placed in this special category of being privileged or exempt, after a limited period, from liability for injury caused by their negligence.

See fn. 14, supra.

Contrast this situation even further with R.C. 2305.10 which reads, in part, that “[a]n *288action for bodily injury * * * shall be brought within two years after the cause thereof arose. * * *” In this section there is no provision “tolling” the statute of limitations. Thus, R.C. 2305.16 permits Mary, if she had suffered the injuries in a car accident in which her doctor was at fault, to bring her cause of action for the injuries received within two years after she reached her eighteenth birthday — and, of course, Mary would have known of the occurrence of the accident and would have known, within a reasonable period of time, if any injury had taken place. It seems strange that in provable medical malpractice cases, where the doctor has almost absolute control, he is better protected time-wise than where he negligently injures a minor in a traffic accident.

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. R.C. 2305.11(B) is a statute of repose.

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 (Chase 1833) 67. Article II of the ordinance provided, in part, that “[t]he inhabitants of the said territory shall always be entitled to the benefit of the writ of habeas corpus * * *, and of judicial proceedings according to the course of the common law; * * (Emphasis added.) Id. at 68.

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. *292In fact Section 28, Article VIII of the 1802 Constitution provided that, “[t]o guard against the transgression of the high powers, which we had delegated, we declare, that all powers not hereby delegated, remain with the people.” There was no, nor could there be, delegation to the legislature to repeal any part or all of the Constitution. Yet that, in effect, is what the statute of repose, R.C. 2305.11(B), does as it potentially eliminates the bringing of a cause of action before it even is known to exist. The legislative enactment states, in effect, that such claims are not injuries or that the injury never existed. If the legislature would be permitted to so decree, then the constitutional provision becomes meaningless.

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.