Deskins v. Young

Per Curiam. The question presented is whether R.C. 2305.11(B) bars a medical claim in which the cause of action arose prior to the effective date of that statute, but discovery of the alleged negligent act occurred more than four years after the act or omission constituting the alleged malpractice occurred. In Adams v. Sherk (1983), 4 Ohio St. 3d 37, a case involving a similar question, this court held that retroactive application of R.C. 2305.11(B) was violative of Section 28, Article II of the Ohio Constitution. R.C. 2305.11(B) provides that in no event shall a medical claim be brought more than four years after the act or omission constituting the alleged malpractice occurred. This amendment to R.C. 2305.11 became effective July 28, 1975. (136 Ohio Laws, Part II, 2809, 2810.) In Sherk, supra, appellant’s cause of action arose prior to the effective date of R.C. 2305.11(B), but the negligent act itself was not discovered until well after that statute became effective. Appellant had undergone surgery in 1967. Thirteen years later, in 1980, she discovered that a foreign object had been left in her body during the original surgery. Likewise, in the instant case, appellant underwent surgery for the removal of her gallbladder in 1971. Twelve years later, in 1983, she [10] discovered that a portion of her gallbladder had been left behind during the surgery to remove that organ. Just as the negligent act could not have been discovered within four years in Sherk, the alleged malpractice and injury in the instant case reasonably remained undiscovered more than four years after the act or omission constituting the alleged malpractice occurred. We observed in Sherk, supra, at 39, that there is a “* * * distinction * * * between the operation of an amended statute of limitations which totally obliterates an existing substantive right and one which merely shortens the period of time in which the remedy can be realized. * * * The latter application of an amended statute is not unlawful as long as the claimant is still afforded a reasonable time in which to enforce his right. The concept of reasonableness must accord a reasonable time after the effective date of the amendment.” Appellant herein could not have had a reasonable time in which to file her claim had she been required to file within one year of the effective date of R.C. 2305.11(B) or within four years of the alleged act of malpractice, for the negligent act, which occurred prior to division (B)’s enactment, reasonably remained undiscovered until 1983. As in Sherk, the retroactive application of R.C. 2305.11(B) to a cause of action arising from an act of malpractice occurring prior to its effective date, where the malpractice could not reasonably have been discovered within four years, would totally eliminate appellant’s substantive right in her cause of action without affording her a reasonable time within which to enforce that right. Such an application contravenes the proscription against retroactive laws contained in Section 28, Article II of the Ohio Constitution. Therefore, R.C. 2305.11(B) will not operate to bar appellant’s claim. Appellee contends, however, that even if R.C. 2305.11(B) cannot retroactively be applied, appellant’s claim cannot proceed pursuant to the discovery rule contained in R.C. 2305.11(A). Appellee asserts that appellant’s claim was extinguished in 1972 pursuant to the termination rule then governing R.C. 2305.11 (now R.C. 2305.11[A]) when her cause of action arose, even though the alleged malpractice had not yet been discovered. We disagree. In Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St. 3d 111, this court repudiated the termination rule adopted in our prior decisions. The discovery rule announced in Oliver was judicially incorporated in R.C. 2305.11(A) precisely to ameliorate the “unconscionable result to innocent victims who by exercising even the highest degree of care could not have discovered the cited wrong.” Id. at 114. The effect of decisions of this court overruling our past pronouncements is well-settled. In Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 210 [57 O.O. 411], we stated: “* * * The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, [11] and the effect is not that the former was bad law, but that it never was the law.” (Emphasis added.) In legal effect, then, the termination rule was rendered a nullity by our decision in Oliver and thus cannot operate to extinguish appellant’s claim. Rather, the Oliver discovery rule governs appellant’s claim, thereby affording her a reasonable time within which to bring her claim, that is, one year after the discovery of the alleged malpractice.1 Appellant’s claim was thus timely filed in accordance with R.C. 2305.11(A). For the foregoing reasons, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings. Judgment reversed and cause remanded. Celebrezze, C.J., Sweeney and C. Brown, JJ., concur. Douglas, J., concurs in judgment only. Locher and Holmes, JJ., dissent, with opinion. Wright, J., dissents. Footnotes [1] Because we find that R.C. 2305.11(B) is not applicable to appellant’s cause of action arising prior to the effective date of that statute, we will not pass on appellant’s claim that R.C. 2305.11(B) is unconstitutional. Cuyahoga Falls v. Bowers (1984), 9 Ohio St. 3d 148, 151; State v. Weissman (1982), 69 Ohio St. 2d 564, 566 [23 O.O.3d 477]; Greenhills Home Owners Corp. v. Greenhills (1966), 5 Ohio St. 2d 207 [34 O.O.2d 420], paragraph one of the syllabus; Strongsville v. McPhee (1944), 142 Ohio St. 534 [27 O.O. 466], paragraph three of the syllabus; Rucker v. State (1928), 119 Ohio St. 189, paragraph one of the syllabus.