Gaines v. Preterm-Cleveland, Inc.

Herbert R. Brown, J.,

concurring. I join in the judgment, syllabus and well-reasoned opinion of Justice Douglas with respect to the misrepresentation issue. I further agree that, as applied to the facts of this case, R.C. 2305.11(B) violates the Equal Protection Clause of the Ohio Constitution. However, I cannot see that either the Due Process Clause or the right-to-a-remedy provision of the Ohio Constitution presents a constitutional obstacle to R.C. 2305.11(B) on the facts of the cause sub judice.

I make this observation because I believe that R.C. 2305.11(B) may pass constitutional muster as a limitation on those malpractice actions where a plaintiff has one year in which to file (or send a letter of notice) after an injury has been, or in the exercise of reasonable diligence should have been, discovered.