Lombard v. Good Samaritan Medical Center

Holmes, J.,

dissenting. Since I fundamentally disagree with the majority’s analysis of R. C. 2305.11, as amended by Am. Sub. H. B. No. 682, I dissent.

As a starting point of analysis, courts must look to the legislative intent of the statute. In Vancé v. St. Vincent Hospital (1980), 64 Ohio St. 2d 36, 40 , this court discussed the legislative purpose of Am. Sub. H. B. No. 682, and stated that it was:

“ * * * legislation declared to be ‘an emergency measure necessary for the immediate preservation of the public peace, health, and safety’ due to ‘the fact that immediate action is necessary to insure a continuance of health care delivery to the citizens of Ohio.’ Id., at Section 8. The legislation was comprehensive in nature and consisted of a response to what was largely perceived throughout the country to be a medical malpractice ‘crisis’ manifested by sharply increased medical malpractice insurance premiums, cancellation of policies, and physician work slowdowns or stoppages.” (Footnotes omitted.) See, also, Beatty v. Akron City Hospital (1981), 67 Ohio St. 2d 483 .

As a tool to advance this purpose, the General Assembly adopted the concept of “medical claim.” “Medical claim” is defined by R. C. 2305.11(D)(3) as:

“[a]ny claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person.” (Emphasis added.)

Each of the present cases involves a claim in a civil action against a hospital which arose out of “the diagnosis, care, or treatment” of a person. Hence, each is a “medical claim.”

The next question is: does the one-year limitation period contained in R. C. 2305.11(A) apply to all medical claims? Keeping in mind the legislative purpose of Am. Sub. H. B. No. 682, and that its provisions must be read in pari materia (Denicola v. Providence Hospital [1979], 57 Ohio St. 2d 115 ), I feel that this question must be answered affirmatively.

An examination of R. C. 2305.11 leads to the conclusion that the General Assembly used the words “malpractice” and “medical claim” interchangeably. The second paragraph of R. C. 2305.11(A) allows one to serve written notice, prior to *476 expiration of the time in R. C. 2305.11(A), upon a person and extend the time in which a suit may be brought against that person by up to 180 days from the time notice is given. This paragraph does not refer at all to malpractice. Rather, it uses the phrase “medical claim.” This is evidence that the General Assembly considered the words “malpractice” and “medical claim” to be synonymous, for if the legislative intent was to give these words different meanings, it would make little sense to include actions such as the present one in a subsection that did not apply to them.

Likewise, in subsection (B) of R. C. 2305.11, there is an absolute four-year limitation placed upon all medical claims. This four-year period runs from the date “the act or omission constituting the alleged malpractice occurred.” Once again, the General Assembly has used the words interchangeably.

Finally, I feel the majority’s reliance upon Hocking Conservancy Disk v. Dodson-Lindblom Assoc. (1980), 62 Ohio St. 2d 195 , is misplaced. The' precise question before the court in Hocking was whether professional engineers should be included within the definition of malpractice in R. C. 2305.11(A). Consequently, would engineers be afforded the protection of the one-year statute of limitations? Here, the question is what claims asserted against a hospital, which is an area specifically enumerated in R. C. 2305.11(A), are within the coverage of that section. 4

As I would hold that R. C. 2305.11(A) applies to all medical claims, the judgments of the Courts of Appeals should be affirmed.

Sweeney and Krupansky, JJ., concur in the foregoing dissenting opinion.

The hospitals were the defendants in these cases, not their employees.