concurring in part and dissenting in part. I write separately to:
(1) concur in paragraph two of the syllabus;
(2) concur in that portion of the separate concurrence of Justice Brown in which he observes that “[njeither the Due Process Clause [n]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, ” and his observation that R.C. 2305.11(B) “may pass constitutional muster” as a limitation on certain malpractice actions;
(3) concur in that portion of Justice Holmes’ separate concurrence which applies the result in Hardy v. VerMeulen (1987), 32 Ohio St. 3d 45, 512 N.E. 2d 626, to recognize plaintiff’s equal protection rights; and
(4) dissent from the majority holding that plaintiff stated a separate cause of action for actual fraud. In her amended complaint, Gaines alleged medical malpractice and misrepresentation. Although fraud is to be pleaded with particularity, not until Gaines’ memo contra the defendant’s motion *63for summary judgment does she characterize her claim as sounding in both malpractice and constructive fraud. Actual fraud was never pleaded and the reversal of summary judgment in favor of the defendant because genuine issues of material fact exist with respect to a cause of action in actual fraud is therefore unfounded.
This case presents the question of whether an alleged misrepresentation to a patient as to her condition in the course of medical treatment may give rise to a cause of action for constructive fraud. “Constructive fraud does not require proof of fraudulent intent; the law indulges in an assumption of fraud for the protection of valuable social interests based upon an enforced concept of confidence both public and private. * * *” Perlberg v. Perlberg (1969), 18 Ohio St. 2d 55, 58, 47 O.O. 2d 167, 169, 247 N.E. 2d 306, 308. The law with respect to medical malpractice already promotes necessary care and diligence by physicians in disclosing information to their patients. Furthermore, in view of Hardy’s impact upon the filing of claims for malpractice, there is no reason to strain to recognize a fraud action in this case. Thus, I am unable to conclude that the law should indulge in an assumption of fraud to establish an action for constructive fraud to protect the social interests in maintaining the trust and confidence reposed in the physician-patient relationship.
Therefore, rather than convert plaintiffs constructive fraud case into an actual fraud case, as the majority has done, I would decide this issue by applying the “essence of the claim” test to the causes of action pleaded by plaintiff. Courts must look to the actual nature or subject matter of a case in examining a pleading to determine which statute of limitations applies. The form in which the action is pleaded as a matter of remedial procedure does not control that decision because it is the basis or grounds for bringing the action that determines the actual nature of the cause of action. Kunz v. Buckeye Union Ins. Co. (1982), 1 Ohio St. 3d 79, 1 OBR 117, 437 N.E. 2d 1194; Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, 63 O.O. 2d 262, 297 N. E. 2d 113; Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47, 44 O. O. 72, 97 N.E. 2d 549; State, ex rel. Lien, v. House (1944), 144 Ohio St. 238, 29 O.O. 399, 58 N.E. 2d 675.
Because I believe it is very difficult, at best, to draw or establish a bright-line test under which an action is either an action for constructive fraud or the negligent dispersal of information to a patient, I would hold that the gist of plaintiffs allegations constitutes an action for medical malpractice. Although I agree that paragraph one of the syllabus is a desirable statement of the law, it does not apply to, and therefore should not be stated as the law of, this case. For the foregoing reasons, I concur in the majority judgment only on the basis of the second paragraph of the syllabus.
Wright, J., concurs in the foregoing opinion.