Oral Argument Preview: Constitutional Challenge to the Medical Malpractice Statute of Repose. When Does an Undiscovered Claim Vest? Tracy Ruther, Individually and Administrator of the Estate of Timothy Ruther v. George Kaiser, D.O., et al.

Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On April 25, 2012, the Supreme Court of Ohio will hear oral argument in the case of Tracy Ruther, Individually and Administrator of the Estate of Timothy Ruther v. George Kaiser, D.O., et al, no. 11-0899.  The case is before the Court to determine the constitutionality of R.C. 2305.113(C), the medical malpractice statute of repose. That statute bars a medical claim if it is not brought within four years of its occurrence. In Ohio, medical claims are governed both by a one year statute of limitations set forth in R.C. 2305.113(A) and by a four year statute of repose set forth in R.C. 2305.113(C) . Only the latter is involved in this case.

This case stems from a medical malpractice action. Timothy Ruther had lab work performed on three separate occasions, once in each of the years 1995, 1997, and 1998, by the Defendants-Appellants. All three tests showed that Mr. Ruther had significantly elevated liver enzymes, but he was never informed of this problem. Mr. Ruther’s disease progressed and his condition deteriorated as he remained unaware of these test results. In 2008, Mr. Ruther first complained about abdominal pain. In December of that year, he learned that he had liver cancer. At that time, Mr. Ruther and his family found out about the results of the tests that showed elevated liver enzymes. With that knowledge, a medical malpractice  claim was filed in May of 2009. Mr. Ruther died in June 2009 and a wrongful death claim was added. The wrongful death claim is not before the Court.

Defendants filed a motion for summary judgment in the trial court, arguing that the medical claim was barred by R.C. 2305.113(C), the medical malpractice statute of repose. The court denied the motion and found the statute unconstitutional as applied to the Plaintiffs because it barred Mr. Ruther’s claim after it had vested, in violation of Article I, Section 16 of the Ohio Constitution, the right-to-a-remedy section of the Open Courts provision. The Twelfth District Court of Appeals affirmed the trial court’s ruling. The lower courts both held that the present statute of repose, as applied in this case, suffered the same constitutional infirmities as an earlier statute of repose struck down by the Supreme Court of Ohio in 1987 in  Hardy v. VerMeulen.

Defendants (Appellants in the case) ask the Supreme Court of Ohio to uphold the medical malpractice statute of repose. They argue that the latest event that would trigger a medical malpractice claim was the 1998 lab test, and that the statute of repose bars any action commenced after 2002.  The defendants rely on Groch v. General Motors Corp., a 2008 case in which the Supreme Court held that it is not unconstitutional for a statute of repose to bar a claim that has not yet vested. If a cause of action has not yet accrued, it is not vested. The defendants argue that in this case plaintiffs’ cause of action did not accrue  (because it was not yet discovered ), until after the statute of repose had barred the claim;  thus they were never deprived of a vested right.  They also argue that it is unfair for plaintiffs to use the discovery rule to toll the running of the statute of limitations, and also to use it to claim a vested right to be protected from  the running of the statute of repose.

Defendants next argue that the statute of repose strikes a proper balance between the rights of plaintiffs and the rights of defendants. The statute provides a meaningful time and opportunity for plaintiffs to bring a medical claim. Defendants need to know with certainty when they are free from liability from incidents in the past. This implicates concerns with the maintenance of records, availability of evidence, availability of witnesses, and changing standards of care.  By adopting the statute of repose, the legislature properly balanced the interests of both sides and attempted to eliminate uncertainty and subjectivity.

Finally, defendants argue that the Ohio statute of repose is in line with other states that have upheld similar statutes. Thirty-two states have enacted medical malpractice statutes of repose and nineteen of those states have upheld these statutes against constitutional challenges.

Plaintiffs (Appellees here) first respond by saying that the current statute of repose is almost identical to the one found unconstitutional by the Court in Hardy v. VerMeulen. Plaintiffs claim that the Hardy Court explicitly held that the old statute was unconstitutional as applied to plaintiffs who could not reasonably have discovered their injuries within the time limit of the statute of repose. The changes made to the present statute are insufficient to overcome this deficiency.

The plaintiffs don’t disagree that a claim must be vested to be protected from the expiration of the statute of repose.  But they argue that Mr. Ruther’s claim was vested at the time of the first medical malpractice event, when the 1995 lab results were not revealed, even though he did not know it then.  They argue the discovery rules that apply to the statute of limitations in no way affect the statute of repose rules.  The discovery of the malpractice does not vest the right to bring a claim. The malpractice itself does.

The plaintiffs third argument is that the legislative intent given by the General Assembly for the statute of repose is pretextual and fails even a deferential, rational-basis review. Plainitffs argue that concerns over evidence being unavailable over time, maintaining records indefinitely, and changing standards of care are not legitimate reasons for barring a cause of action. Those concerns go instead to a plaintiff’s burden of proof and are already dealt with in the statute of limitations. In addition, the legislature cannot decide if it has made an unconstitutional statute constitutional. Only the judiciary can do that.

The plaintiffs claim that statute of repose cases cited by the defendants in other areas of law are not dispositive of the current issue. Different concerns and interests are balanced in deciding the constitutionality of those statutes of repose. Comparing those with medical malpractice is like comparing apples to oranges. Nor should the Court look to other jurisdictions to decide the constitutionality of the Ohio medical malpractice statute of repose. Ohio law and precedent should control in this case.

A number of organizations have filed amicus briefs in this case.  The Ohio Association of Civil Trial Attorneys submitted a brief in support of Defendants-Appellants. It claims that Hardy cannot be reconciled with Groch, and should either be overruled or limited to the then-existing medical malpractice statute of repose, not the current one. A number of hospital associations, led by the Ohio Hospital Association also filed a brief in support of Defendants-Appellants. This brief asserts the same essential arguments presented by Defendants-Appellants.  The State of Ohio also filed a brief in support of Defendants-Appellants, arguing that Article I Section 16 of the Ohio Constitution only binds the judiciary, not the legislature, and that Hardy needs to be overruled because it is not practical.

For the Plaintiffs-Appellees, the Ohio Association for Justice submitted a brief and asks the Court to adopt the holdings of the lower courts.

This case will be argued  at the Marion  County Court House, as part of the Court’s off-site  Court program.

Student Contributor: Jason Persinger

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