# Amer v. Akron City Hospital

> Ohio Supreme Court · July 14, 1976 · 47 Ohio St. 2d 85

URL: https://www.frixlaw.com/law-library/cases/6755845

## Case

- **Full name:** Amer v. Akron City Hospital
- **Court:** Ohio Supreme Court
- **Decided:** July 14, 1976
- **Citations:** 47 Ohio St. 2d 85; 1 Ohio Op. 3d 51; 351 N.E.2d 479; 1976 Ohio LEXIS 676
- **Precedential status:** Published
- **Opinion:** Dissent by Celebrezze
- **Judges:** Brown, Celebrezze, Corrigan, Fourth, Herbert, Neill, Stebhenson, Stephenson, Stern
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6755845

## Opinion text

Celebrezze, J.,
dissenting. This court construed R. C. 2305.11, the statute of limitations in medical malpractice cases, in Wyler v. Tripi (1971), 25 Ohio St. 2d 164 , to commence running, at the latest, when the physician-patient relationship finally terminates.
This court, subsequently, in Melnyk v. Cleveland Clinic (1972), 32 Ohio St. 2d 198 , distinguished its ruling in Wyler by stating in the syllabus:
“Where a metallic forceps and a nonabsorbent sponge are negligently left inside a patient’s body during surgery; the running of the statute of limitation governing a claim therefor is tolled until the patient discovers, or by the exercise of reasonable diligence should have discovered, the negligent act. ”
In Corpman v. Boyer (1960), 171 Ohio St. 233 , this court determined that “ [t]he right of action of a husband for damages for medical expenses, loss of consortium and loss of services of his wife injured by the malpractice of a physician is not one for malpractice * *
The second paragraph of the syllabus in Corpman stated:
“A husband’s action for consequential damages occasioned by malpractice of a physician upon his wife is for an injury to his rights not arising on contract or enumerated in the Revised Code sections set forth in paragraph (D), Section 2305.09, Revised Code, and must be commenced within the period prescribed thereby.”
The majority concludes that the Corpman rationale still applies, however, with the distinction that the time limitation “is not tolled until termination of the physician-patient relationship.” The majority does acknowledge, and it is undisputed, that the treatment administered to the appellant’s spouse “proximately resulted in the development of radiation necrosis and which condition manifested itself in 1972.” (Emphasis added.)
It is rather incongruous to assert that a cause of action arising out of the same incident may accrue at one, two or three different times depending upon the terminology *93 applicable to the parties. The wrong from which the appellant’s claim springs is the same wrong which gives rise to any malpractice action which his wife may have.
Prior to the current crises created by burgeoning medical malpractice insurance premiums, there was a maturing school of thought whose reasoning is contained in the treatise, Prosser on Torts (4 Ed.), 144, which reads:
“* * * The older approach to such cases was a literal application of the statute to bar the action, regarding it as intended to protect the defendant not only against fictitious claims, but also against the difficulty of obtaining evidence after lapse of time even when he is confronted with a genuine one; and considering the hardship upon the plaintiff as merely part of the price to be paid for such protection. The obvious and flagrant injustice of such cases has led. to the adoption of a series of transparent devices to get around the rule. Thus the negligent treatment, or at least the defendant’s duty, is held to continue until the relation of physician and patient has ended; or the court finds fraudulent concealment of the damage, which tolls the running of the statute; or it finds ‘constructive’ fraud' in silence with probable knowledge; or the failure to discover and remove the sponge or other foreign object left in the plaintiff’s body is held to be ‘continuing’ negligence. Quite recently there have been a wave of decisions meeting the issue head-on, and holding that the statute will no longer be construed as intended to run until the plaintiff has in fact discovered that he has suffered injury, or by the exercise of reasonable diligence should have discovered it. * * *”
Justice in this case cries out for a remedy. How can anyone be precluded from asserting a claim by a statute of limitations 'which expires before the discovery of the injury? How can anyone charged with the responsibility of administering justice allow such an absurdity?
The judgment of the lower court should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6755845. Public record. Not legal advice.