On December 6, 2012, the Supreme Court of Ohio handed down a merit decision in Ruther v. Kaiser, 2012-Ohio-5686 . In a 6-1 opinion written by Justice Lanzinger, the Court upheld the constitutionality of the medical malpractice statute of repose. Justice McGee Brown wrote a short separate concurrence. Justice Pfeifer dissented. (No, this isn’t my computer default setting.) The case was argued April 25, 2012.
Timothy Ruther had lab work done on three separate occasions, once in each of the years 1995, 1997, and 1998, when he was being treated by Dr. Kaiser and the Warren County Family Practice Physicians, Inc. All three tests showed that Ruther had significantly elevated liver enzymes, but he was never informed of these findings. In December of 2008 he was diagnosed with liver cancer, from which he died in June of 2009. He and his wife filed a medical malpractice claim in May of 2009. (a wrongful death claim was added after Ruther’s death; that claim is not before the Court).
Mrs. Ruther brought a declaratory judgment action arguing that R.C. 2305.113(C), the medical malpractice statute of repose, was unconstitutional as applied to her husband’s case. Dr. Kaiser and his practice sought summary judgment on the ground that the medical claim was barred by the statue of repose. The trial court denied the motion and found that the statute of repose, as applied in this case, violated the right to remedy provision of the Ohio Constitution. The Twelfth District Court of Appeals affirmed.
The issue in this case is the constitutionality of the medical malpractice statute of repose. The Court upholds it in this case, and reverses the court of appeals. I once practiced in this field, so this is a long post.
Useful Precedent in Understanding this Decision
This is the medical malpractice statute of repose. With certain exceptions not relevant to this case, it provides that a medical claim must be brought within four years of the occurrence of the alleged malpractice or it will be barred.
Hardy v. VerMeulen, 32 Ohio St. 3d 45 (1987)
R.C. 2305.11(B), as applied to bar the claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries, violates the right-to-a-remedy provision of Section 16, Article I of the Ohio Constitution.
This case is overruled in Ruther v. Kaiser.
¶1. Under R.C. 2305.11(A), a cause of action for medical malpractice accrues and the one-year statute of limitations commences to run (a) when the patient discovers or, in the exercise of reasonable care and diligence should have discovered, the resulting injury, or (b) when the physician-patient relationship for that condition terminates, whichever occurs later
Galatis v. Westfield Ins. Co., 2003-Ohio-5849.
Syllabus Paragraph One
A prior decision of the Supreme Court may be overruled where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.
The right to a remedy provision applies only to existing, vested rights. The constitutional right to remedy provision does not bar the application of statutes of repose to undiscovered negligence.
Article I Section 16-Right to a Remedy Provision
Justice Lanzinger gives us a history lesson about this Ohio constitutional provision. The short version is that the right to remedy provision has been in the constitution with little or no change since Ohio became a state. BUT the key point she made was that this constitutional provision does not prevent the General Assembly from defining (or limiting) a cause of action.
Here’s a key quote, which probably drives Justice Pfeifer bananas:
“No one has a vested right in rules of the common law. * * * The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to new circumstances.” (citations omitted). So, according to this part of the majority opinion, the General Assembly clearly has the right to set a time limit after which an injury is no longer a legal injury. And in this case, that is four years after the malpractice occurred. The legislature deemed that a reasonable amount of time to discover any malpractice.
There is no Extinguishment of a Vested Right Here
The heart of this decision is the majority’s perception that the plaintiff is trying to have it both ways. If a medical claim accrues (and vests) when the negligent act occurs, then the one-year statute of limitations starts to run immediately, and this and many other claims would be barred on that basis. It was this unfairness that caused the Court to adopt the discovery rule for the statute of limitations in medical negligence claims. The claim isn’t vested until it accrues, which is when it is discovered. And the legislature made an appropriate policy choice that the patient has four years, and no more, to discover the injury.
“The statute establishes a period beyond which medical claims may not be brought even if the injury giving rise to the claim does not accrue because it is undiscovered until after the period has ended,” Lanzinger wrote. “Only accrued causes of action are vested, substantive rights.”
Interplay Between the Statute of Limitations and the Statute of Repose
The statute of repose provides a general discovery period of four years. “Within that boundary, (emphasis added) when the patient discovers or should have discovered the injury, or when the relationship with the doctor terminates, whichever is later, the one-year statute of limitations begins to run,” Lanzinger wrote. “Otherwise, the plaintiff would be required to file suit within one year of the occurrence of breach of the medical standard of care.”
Hardy Must Be Overruled
In coming to this conclusion, the Court applied the Galatis factors. The Assistant Solicitor General made this argument before the Court very ineffectively, but the Court bought it. Justice Lanzinger has been very critical of the Court for just distinguishing away cases that should be overruled. That was her position in Groch.
Application of the Galatis factors to Hardy
1. Was Hardy wrongly decided and have circumstances changed?
Hardy was wrongly decided because it assumed that the right to a remedy attached to an unaccrued claim and ignored cases that established when a medical claim vests, which is when it is (or should have been) discovered. “ If there is no discovery of any injury, the claim has not accrued. Nor has it vested,”Lanzinger wrote. The General Assembly “has the right to define the contours of a cause of action.”
And circumstances have changed. This new version of the statute of repose addressed a number of unfairnesses by giving plaintiffs extra time to bring claims in a number of circumstances. Even though in some cases a plaintiff won’t discover an injury in four years, “the General Assembly has struck a rational balance between the rights of prospective claimants to pursue their allegations and the rights of prospective defendants to have protection from stale litigation,” Lanzinger wrote.
2. Practical Workability
The legislature can change the common law. If the General Assembly can’t legislate a statute of repose, doctors would face unlimited liability indefinitely.
3. Reliance Interests
Here the Court states rather peremptorily that no reliance interests will be jeopardized by overruling Hardy. “If one is not aware of a cause of action, one cannot rely on a case that stated it would never be barred after passage of time. Thus, there would be no undue hardship created if Hardy were overruled,” Lanzinger wrote. To me, this section was not especially persuasive. But the fact is (and the short version is) that the majority simply thinks Hardy did not properly analyze when a medical claim vests.
Staying in Step With Others
The Court cited a number of decisions from other states to show that upholding the statute of repose is consistent with the majority position nationally.
The Court upheld the constitutionality of the medical malpractice statute of repose and reversed the court of appeals.
Justice McGee Brown’s Separate Concurrence
Justice McGee Brown wrote separately to underscore the point that this statute of repose is an appropriate policy choice of the General Assembly (thus philosophically disagreeing with Justice Pfeifer.)
“To the extent that the four-year time limit in Ohio’s statute of repose is seen as harsh, the remedy is in the legislature, not the courts. The people are responsible for their political choices,” she wrote. “The Ohio Constitution permits the General Assembly to ensure some degree of finality for prospective negligence claims. It is not for this court to determine where the legislature should draw that line.”
Justice Pfeifer’s Dissent
This one is a civics lesson separation of powers lament. Best read it for yourself. Here’ s the flavor:
“The sweeping language employed by the majority in this case is the crescendo in our court’s decade-long deference to, and acceptance of, the General Assembly’s assault on our citizens’ right to remedy set forth, without alteration, for over two centuries in the Ohio Constitution.
“ Under Ruther, we now fully abdicate our solemn duty to enforce and protect constitutional rights afforded citizens since the beginning of statehood. If the General Assembly abolishes a remedy, including those recognized at common law when the constitution was written, it is now clearly within its power. We will afford “great deference” in presuming constitutionality of any act of the General Assembly limiting or abolishing a cause of action.
“Continued erosion of the venerable right of every citizen to a remedy in open court for injury done will inevitably flow from the General Assembly. It may come in small drips or in tidal waves, but it will come. The economic interests pushing limitations on causes of action are just too powerful and too seductive for the General Assembly to resist. We have now removed the Assembly’s only dam against the onslaught, this courts previous vigorous enforcement of the “right to remedy” constitutional protections.”
The medical-malpractice statute of repose found in R.C. 2305.113(C) does not extinguish a vested right and thus does not violate the Ohio Constitution, Article I, Section 16. (Hardy v. VerMeulen, 32 Ohio St.3d 45, 512 N.E.2d 626 (1987), overruled.)
I was very wrong in thinking a majority of justices saw a medical claim statute of repose differently from a products liaiblity one. But I also did write this:
“But key to this case is whether it is fair to use different standards for the statute of limitations and the statute of repose in a medical claim. In the former, the discovery rule is settled law—the statute of limitations doesn’t start to run until the plaintiff discovers or should have discovered his injury. Is it fair, then, to turn around and say that the statute of repose rules are different—the claim vests at the time of the injury, not the time of discovery of the injury?”
Several of the justices, and Justice Lanzinger in particular, were very troubled by this at oral argument, commenting that the discovery rule for the statute of repose was a “hurdle” for her. The other key question at oral argument came from Justice Stratton, who asked plaintiffs’ counsel if he could envision any scenario in a medical malpractice setting where a statute of repose would work, and although he tried gamely, he really couldn’t.
I think this case, like the Court’s jurisprudence on the employer intentional tort, demonstrates just how far The Court has come from the glory days of Justice Andy Douglas and the liberal majority he then controlled.