Motion to Dismiss or Affirm — Gholston v. Martin

oa pi"

RECEIVED |

: i al AUG 2 6 1982

No. 82-5100 .

Pr OFFICE OF Tie CLERK

guPRue COURT, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

Lois Gholston,

Appellant,

Edward W. Martin, Jr., M.D., et al.,

Appellees.

ON APPEAL FROM THE SUPREME COURT OF OHIO

Motion in the Alternative to Dismiss or Affirm

Le S. Monahan

Counsel of Record

BRICKER & ECKLER

100 East Broad Street

Columbus, Ohio 43215

(614) 227-2300

Counsel for Appellee

Edward W. Martin, Jr., M.D.

OF COUNSEL:

Joseph W. Ryan, Jr.

PORTER, WRIGHT, MORRIS 6 ARTHUR

37 West Broad Street

Columbus, Ohio 43215

(614) 227-2244

Counsel for Appellee

Edward W. Martin, Jr., M.D.

tO Oe eg ee

C

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

Lois Gholston,

Appellant,

Vv.

‘Edward W. Martin, Jr., M.D., et al.,

Appellees.

MOTION IN THE ALTERNATIVE TO DISMISS OR AFFIRM

May it please the Court:

Appellee moves that the appeal herein taken be dismissed on

the ground that said appeal does not present a substantial

federal question.

dike

ae ee ee CT eee FO SR Oe ee a OE ee Ena TL eS ON ON, PEST ee, ee EN ne EEE Ag a We ee ee ee nes ee po

' TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . cece cccsceeseeereeeeeeeeeeeeeerereree iii

QUESTION PRESENTED... -sececcccsesresecneeeeereeeeeeneanene 1

OPINIONS BELOW... .cccccrcceeceeereeeeeeneeeeeeeeeeeeeaeees 1

JURISDICTION. .cccccserecessereereeeeeeeeeeeeeseeeeaeeeeeese 1

CONSTITUTIONAL AND STATUTORY PROVISIONS. ..+eeeeeeeereceees 1

STATEMENT OF THE CASE... ceccccccccterareeeeneseeeseeereeeee 1

ARGUMENT

I. SECTION 2305.11 AND ITS FOREIGN OBJECT

EXCEPTION ARE REASONABLE AND THUS DO NOT

VIOLATE THE EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT ....sseeeeeeererecereeee 2

II. THE ACCRUAL DATE AND ONE YEAR PERIOD FOR

BRINGING MEDICAL MALPRACTICE SUITS, AS

ESTABLISHED IN SECTION 2305.11, IS A

REASONABLE POLICY DECISION, BALANCING

OHIO'S INTEREST IN DISCOURAGING STALE

CLAIMS AND PROMOTIN®. QUALITY HEALTH CARE °

WITH PLAINTIFFS’ INTEREST IN RECOVERING

DAMAGES FOR INJURIES NEGLIGENTLY INFLICTED

UPON THEM, AND THUS DOES NOT VIOLATE THE

DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT... ccccccccccseeesassseeeeeeseeseeeneee 5

CONCLUSION. cc cesses sseseererreeerrreeeereseseseeeeseeeeeerrrnere Qa

PROOF OF SERVICE. ccccceseeese eee eee eee eeeeeeeeeeeeeeeeeee 10

-ii-

TABLE OF AUTHORITIES

Page

Anderson v. Wagner,

73 Til.2d 295, 402 N.E.2d 560 (1979).....eee00+2, 5, 6, 9

Botzet v. Spencer,

F.Supp. 177 (dD. Minn. LET Ta Sede eee aseweeseeedbecoeel

Carmichael v. Silbert,

422 N.E.2d 1330 (Ind. App. RAD ic. nied dik bib ale temas ob 6 On

Chase Securities Corp. v. Donaldson,

1945 TREPUEEEEPELEME REE E ETT Tee eee

Clark v. Gulesian,

400 U.S. 993 CISL ) aden cdine teaeadeadecrtersevesceehs 3, S,...7

Clark v. Gulesian,

429 F.2d 405 (list cir. LOPE i ce cdecseevecesensena . 6, 7

Duffy v. King Chiropractic Clinic,

17 Wash. App. 693, 565 P.2d 435

(Wash. ct. App. SO IN Tike alld ae eal a ghee ake ROL aia ete eso ae

Hamby v. Neurological Associates,

see GO. GEE, 296 Bebe BG S7E 6197) ooccveconesecesedcsccoced

Johnson v. St. Vincent yoapetat

404 N. . 5 I . 8 Coeeeececesnessecceseceeeds 4, 7

Landgraff v. Wagner,

6 Ariz. App. 49, 546 P.2d 26

(Ariz. ct. App. BOTS} Poccccceccoscvcsesccesesescessenvcercds 7

Laughlin v. Forgrave,

4 Be 2 308 (Mo. LOSE) cocoecrenasceccesvesocsesecd, 7

Melinyk v. Cleveland Clinic,

32 Ohio St.2d 198, 290 N.E.2d GIS CASTS) acccccrwaccssh, $

Mishek v. Stanton,

616 P.2d 135 (Colo. ROBO) .0.cc.a.c 0.96 celccnee.c 6 Onde Wives oD, 7

Owen v. Wilson,

2 RG ed OR. eae BO Caer e Pa ctdsecbovnovebebecech”

Roberts v. Durham County Hospital,

N.C. App. » 289 S.E.2d 875

W.c. ro) a App. SOUT s Ra bictacntrccadacd scuseatakeenect. «

Sellers v. Edwards,

a. , 65 So.2d 438 SAFES > amo bbb ae het aeeaaass cen

Stephens v. Snyder Clinic Association,

230 Kan. 55, 63 P.2 22 198 Tryryrerrriey Terr sire tf 7

COC CeCe ee rerereeeeeeseseceeay s, 6, 9

Wyler v. Tripi,

° t.2d 164, 267 N.E.2d 419 (1971). ocvceoeccroestoels 8

(iii)

QUESTION PRESENTED

Whether the Appellant has been denied any federal right of

due process or equal protection, where her medical malpractice

claim against the Appellee was held to be barred because she

neglected to sue within one year after the termination of her

physician-patient relationship with the Appellee, and thus failed

to comply with Ohio's statute of limitations for medical claims

(Ohio Rev. Code Ann. Section 2305.11 (Page 1981), as interpreted

by the Supreme Court of Ohio).

OPINIONS BELOW

The opinions below are adequately referred to in the

Appellant's Jurisdictional Statement, and copies of the opinions

are attached thereto.

JURISDICTION

The grounds upon which this Court's jurisdiction is invoked

are set forth in the Appellant's Jurisdictional Statement.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The pertinent Constitutional and statutory provisions are

set forth in the Appellant's Jurisdictional Statement.

STATEMENT OF THE CASE

Ohio's statute of limitations for medical malpractice claims

requires that a medical malpractice plaintiff bring suit within

one year after accrual of the cause of action. See Ohio Rev.

Code Ann. Section 2305.11(A) (Page 1981). By judicial decision,

a cause of action for medical malpractice accrues, at the latest,

when the physician-patient relationship terminates. See Wyler v.

Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (syllabus) (1971). Also

by judicial decision, in cases where the physician's negligence

involves merely the leaving of a foreign object in the patient's

body, the statute of limitations is tolled until the patient

discovers or reasonably should have discovered the negligent

act. See Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198, 201, 290

N.E.2d 916, 918 (1972).

The precise date on which the physician-patient relationship

terminated here is not settled. But even by Appellant's account,

she failed to bring suit unti) two-and-one-half years had elapsed

-~l-

after the termination of the Appellee's professional relationship

with her -- well beyond the one-year period provided to her by

statute. Appellant's claim arose from an extended simple

mastectomy that occurred on September 28, 1977. After the

Appellee had diagnosed that she was suffering from breast cancer

and discussed with her the laboratory findings that provided the

basis of his diagnosis, he performed the operation. The

post-operative period was uneventful. It is undisputed that

Appellant did have carcinoma of the breast.

Several years later, another doctor allegedly told Appellant

that her entire breast need not have been removed. After another

eleven months, she filed this suit. Her claim has been rejected

on three separate instances by the courts of Ohio, because the

statute of limitations has run with respect to her claim.

ARGUMENT

I. OHIO REVISED CODE SECTION 2305.11 AND ITS FOREIGN OBJECT

EXCEPTION ARE REASONABLE AND THUS DO NOT VIOLATE THE EQUAL

PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.

Within the past twelve years, this Court has twice declined

to hear equal protection challenges to medical malpractice

statutes of limitations. See Woodward v. Burnham City Hospital,

449 U.S. 807 (1980), dismissing appeal from Anderson v. Wagner,

79 I11.2d 295, 402 N.E.2d 560 (1979); Clark v. Gulesian, 400 U.S.

993 (1971), denying cert. to 429 F.2d 405 (1st Cir. 1970). The

challenged distinction in both cases was that between medical

malpractice plaintiffs as a group and all other tort plaintiffs,

to whom longer limitations periods were available.’ Appellant

here, however, attacks the distinction in Ohio law between

foreign object plaintiffs and other medical malpractice

plaintiffs for purposes of determining when the cause of action

accrues.

1, number of other recent cases have involved equal protection

challenges, after the plaintiff's claim has been held to be

time-barred, to medical malpractice statutes of limitations.

No courts have struck down the statutes, however. See Botzet v.

Spencer. 362 F.Supp. 177 (D. Minn. 1973) (claim based on ——

contract and arising out of an operation for plaintiff's

As noted in the Statement of the Case, the cause of action

in a medical malpractice claim in Ohio accrues for a foreign

object plaintiff at the time of discovery (or when the foreign

object reasonably should have been discovered). For all other

medical malpractice plaintiffs, however, the cause of action

accrues at the termination of the physician-patient

relationship. In either situation, suit must be filed within

four years after the date of the negligent act or omission giving

rise to the claim. See Ohio Rev. Code Ann. §2305.11(B) (Page

1981). Appellant does not challenge this four-year limit.

varicose veins; court rejected equal protection challenge to

distinction between medical contract cases and other contract

cases with respect to limitations period); Stephens v. Snyder

Clinic Association, 230 Kan. 115, . 631 P.2d 222, 234 (1981)

(claim based on negligent insertion of IUD; court rejected equal

protection challenge to distinction between medical malpractice

and other tort claims, with respect to limitations period);

Mishek v. Stanton, 616 P.2d 135, 139 (Colo. 1980) (claim based

on negligent administration of medication during childbirth;

court rejected equal protection challenge to distinction between

malpracticing medical professionals and other tortfeasors, with

respect to limitations period); Johnson v. St. Vincent Hospital,

404 N.E.2d 585, 603 (Ind. 1980) (consolidated cases involving

Claims arising out of tonsillectomy, hysterectomy, eye

treatment, and general hospital treatment; court rejected equal

protection challenge to distinction between medical malpractice

and other tort plaintiffs, with respect to accrual date and

tolling provisions) ; Lamy v. Neurological Associates, 243 Ga.

698, 256 S.E.2d 378 (1979 medical malpractice claim for loss

of consortium; court rejected equal protection challenge to

distinction between medical malpractice and other tort claims,

with respect to limitations period); Sellers v. Edwards, 289

Ala. 2, 6, 265 So.2d 438, 440-41 (1972) (claim based on a

bulldog-clamp left in plaintiff's body; court rejected equal

protection challenge to distinction between malpracticing

medical professionals and other tortfeasors, with respect to

limitations period); Laughlin v. Forgrave, 432 S.W.2d 308,

314-15 (Mo. 1968) (claim based on rubber dam left in back;

court rejected equal protection challenge to distinction between

medical malpractice and other tort plaintiffs, with respect to

limitations period); Roberts v. Durham County Hospital,

N.C. App. ° , 289 S.E.2d 875, 878-79 (N.C. Ct. App.

1982) (claim based on intravenous catheter pieces left in

plaintiff's arm; court rejected equal protection challenge to

distinction between malpracticing medical professionals and

other tortfeasors, with respect to limitations period); Duffy v.

Ki Chiropractic Clinic, 17 Wash. App. 693, 696-97, 565 er

235, 437 (Wash. Ct. App. 1977) (undetailed medical malpractice

claim; court rejected equal protection challenge to distinction

between malpracticing health-care providers and other

tortfeasors) ; Landgraft v. Wagner, 26 Ariz. App. 49, 55, 546

P.2da 26, 31-32 Ar zZ-. . App. 1 76), a dismissed, 429 U.S.

806 (1976), (claim based on surgical clamp tere in plaintiff's

abdomen; court rejected equal protection challenge to

distinction between health-care providers and other tortfeasors,

with respect to limitations period) (appeal dismissed for want

of jurisdiction).

( (

The proper test for determining the validity of distinctions

drawn by statutes of limitations, when challenged on equal

protection grounds, is whether the distinctions are reasonable.

See, @-g-» Johnson v. St. Vincent Hospital, 404 N.E.2¢ 585, 600

(Ind. 1980); Ross v. Kansas City General Hospital, 608 S.W.2d

397, 399 (Mo. 1980); Roberts v. Durham County Hospital, N.C.

App. 9 » 389 S.E.2d 875, 878-79 (rejecting strict

scrutiny).

The Ohio Supreme Court has ably enumerated several reasons

for applying the discovery rule in foreign-object cases: the

absence of the typical “stale claims" problems of proof that

accompany other medical malpractice claims, see Melnyk v.

Cleveland Clinic, Inc., supra, at 200 n.5, 290 N.E.2d at 917 n.5;

and the "pressures associated with modern surgeon-patient

relationships,” Melnyk, supra, at 202, 290 N.E.2d at 918. After

balancing the policy considerations involved, the Ohio Supreme

Court announced in Melnyk that the cause of action in foreign

object cases accrues from the date of discovery, rather than the

date of termination of the physician-patient relationship t' t

applies to other medical malpractice claims. Melnyk, supra,

201, 290 N.E.2d at 918.

Recent case law uniformly upholds foreign object exceptions

such as that challenged here against equal protection attacks.

The decisions also uphold statutes of limitations that treat

medical malpractice plaintiffs in general differently from other

tort plaintiffs.

In 1980, for example, the Missouri Supreme Court sustained,

against a federal equal protection challenge, distinctions

identical to those that Appellant complains about here. Ross v-

Kansas City General Hospital, supra, at 399. The plaintiff in

Ross suffered an allegedly negligently performed tubal ligation,

which negligence resulted in her subsequent pregnancy. The

Missouri courts held that her claim was barred by Missouri's

statute of limitations for medical malpractice ciaims. The

plaintiff attacked the Missouri statute on the ground that, inter

alia, the distinctions that the statute drew between different

-4-

types of medical malpractice claimants violated the federal equal

protection clause. She contended that it was unreasonable for

the accrual date for foreign object claims to be the date of

discovery, while for other medical malpractice claims such as the

plaintiff's, the claim accrued from the date of the negligent act

or omission. See Ross, supra, at 398.

The Missouri Supreme Court applied the rational basis test

to her argument. It then imputed two reasons behind the

distinction to the Missouri legislature: first, a special

unfairness in barring foreign object plaintiffs; and second,

fewer problems with stale evidence in foreign object cases. See

Ross, supra, at 399. The court then unanimously held that the

distinction did not violate Fourteenth Amendment equal protection

’

guarantees.

The reasoning in Ross is sound. It leads directly to the

appropriate conclusion here: Ohio's foreign object exception is

reasonable, and thus withstands Appellant's equal protection

objections.

II. THE ACCRUAL DATE AND ONE-YEAR PERIOD FOR BRINGING MEDICAL

MALPRACTICE SUITS, AS ESTABLISHED IN SECTION 2305.11,

IS A REASONABLE POLICY DECISION, BALANCING OHIO'S INTEREST

IN DISCOURAGING STALE CLAIMS AND PROMOTING QUALITY HEALTH

CPRE WITH PLAINTIFFS' INTEREST IN RECOVERING DAMAGES FOR

INJURIES NEGLIGENTLY INFLICTED UPON THEM, AND THUS DOES NOT

VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

This Court has twice declined over the past twelve years to

hear due process challenges to medical malpractice statutes of

limit. “ions. See Woodward, supra p.2; Clark, supra p.2. In

Woodward, the challenged provision of the statute placed a limit

of four years from the date of the negligent act or omission on

medical malpractice claims. See Anderson v. Wagner, 79 1I11.2d

295, 312, 402 N.E.2d 560,568 (1980), appeal dismissed sub nom.

Woodward v. Burnham City Hospital, 449 U.S. 807 (1980). In

Clark, the period was even shorter: two years from the date of

the negligent act or omission. See Clark v. Gulesian, 429 F.2d

405, 406 (1st Cir. 1970), cert. denied, 400 U.S. 993 (1971).

Statutes such as that upheld in Clark may operate more

harshly upon medical malpractice plaintiffs than Ohio's

( (

limitation scheme, even though the period in Clark was two years

while the period in Ohio is one year. This potential for greater

harshness is due to the difference in accrual dates: under

statutes such as that in Clark, the cause of action accrues from

the date of the negligent act or omission, whereas in Ohio the

cause of action may accrue -- as it did in Appellant's situation

-- as late as the termination of the physician-patient relation-

ship. So long as the relationship terminates more than one year

after the negligent act, the plaintiff under Ohio law will have

had a total of more than two years from the date of the negligent

act during which to discover the malpractice, versus only two

years under statutes such as that in Clark. Thus, in Clark this

Court declined to hear a challenge to a medical malpractice

statute of limitations that often operates more harshly than the

Ohio statute. The Court should likewise decline to hear

Appellant's challenge here.

Although Ohio's statute of limitations may in some cases

operate harshly by precluding the claims of plaintiffs who did

not discover -- and reasonably could not have discovered -- their

injury before the statute has run, it does not therefore deny due

process. For example, in Anderson v. Wagner, Supra p.5, one of

the plaintiffs underwent amputation on both legs and also

developed cataracts, due to massive steroid treatments that he

received after an erroneous tissue diagnosis. See Anderson, at

300, 402 N.E.2d at 562. After the statute had run, a new

diagnosis performed on tissue preserved from the first test

showed that the earlier diagnosis was incorrect. The court

recognized that:

Although such a result - a cause of action

barred before its discovery - seems harsh

and unfair, the reasonableness of the

statute must be judged in light of the

circumstances confronting the legislature

and the end which it sought to accomplish,

Id. at 312, 402 N.E.2d at 568.

The court went on to find no violation of plaintiff's right to

due process.

The facts were equally compelling in Clark, supra p.2.

The plaintiff had suffered intestinal problems and general ill

( C"

‘ health for eighteen years, due to a towel left in his abdominal

cavity. The towel had been left there during an operation that

the defendant had performed. A unanimous First Circuit panel,

speaking through then-Chief Judge Aldrich, observed that:

Unfortunate as the present result may be for

the plaintiff, the state may reasonably

recognize that a defendant has an interest

in repose, and in the avoidance of stale

claims, however free from fauit the

Claimant's delay may be. Clark, supra, at

406 .

The court proceeded to uphold the statute.

A number of other courts have likewise held that, while a

medical malpractice statute of limitations may preclude some

plaintiffs from recovering damages before they reasonably can

discover that they have a claim, the statute does not therefore

violate federal due process guarantees.” Indeed, there is no

good case law holding medical malpractice statutes of limitations

unconstitutional on due process grounds.”

2See, e.g., Stephens, supra n.1, at , 631 P.2d at 236

our-year statute, accruing from date of negligent

act/omission, barred claim based on an IUD becoming buried in

plaintiff's uterine wall; the IUD was not discovered until a

hysterectomy was required after the statute had run); Owen v.

Wilson, 260 Ark. 21, 25, 537 S.W.2d 543, 545 (1976) (two-year

Statute, accruing from date of negligent act/omission, barred

claim based on surgical instrument left in plaintiff's body;

the instrument was not discovered until after the statute had

run); Laughlin, supra n.1, at 314 (two-year statute, accruing

from date of negligent act/omission, barred claim based on

rubber dam left in plaintiff's back; the rubber dam was not

discovered until after tne statute had run, even though the

plaintiff had seen seven different doctors to treat her back

pains); Carmichael v. Silbert, 422 N.E.2d 1330, 1333 (Ind. App.

1981) (two year statute, accruing from date of negligent

act/omission, barred malpractice claim; plaintiff discovered

the negligence within the period, but the court analyzed the

due process challenge recognizing that the statute could bar

some claims before plaintiffs knew about the negligence causing

their injury); Landgraff v. Wagner, 26 Ariz. App. 49, 54-55,

546 P.2d 26, 31-32 tiriz. Ct. App. 1976), a al dismissed, 429

U.S. 806 (1976) (six-year statute, accruing fron date of

negligent act/omission, barred claim based on a six-inch

surgical clemp left in plaintiff's body; the clamp was not

discovered until after the statute had run) (appeal dismissed

for lack of jurisdiction).

w

In addition to the two cases discussed in the text and the five

cases cited in note 2, courts in several other cases have

addressed federal due process challenges to medical malpractice

statutes of limitation; in every case, the court rejected the

challenge. See Mishek, supra n.1, at 138; Johnson, supra n.1,

at 603-04; Ross, supra p.4, at 400.

Statutes of limitations are by nature arbitrary and thus

eccasionally harsh. But as this Court noted in Chase Securities

Corp. v. Donaldson, 325 U.S. 304 (1945), establishing statutes of

limitations is a valid exercise of legislative prerogative, based

on public policy considerations:

Statutes of limitation find their justifica-

tion in necessity and convenience rather

than in logic.... They have come into the

law not through the jvdicial process but

th: ough legislation. They represent a

public policy decision about the privilege

to litigate. Chase Securities Corp. v.

Donaldson, supra, at 314.

Ohio's one-year statute and its accrual upon the termination

of the physician-patient relationship represents a legislative

decision resolving competing policy considerations. On the one

hand is the policy of giving patients who are negligently injured

by health-care providers a fair opportunity to recover their

damages; on the other hand is the policy of discouraging stale

Claims, with their attendant problems of absence of witnesses,

failure of memory, and so forth. See Wyler v. Tripi, 25 Ohio

St.2d 160, 166, 267 N.E.2d 419, 420 (1971). The Ohio Supreme

Court, in refusing to adopt a discovery rule for the accrual of

medical malpractice causes of action, recognized that the Ohio

legislature has manifested its preference for the termination

rule -- and the policy decisions it embodies -- over the

discovery rule. Wyler v. Tripi, supra, at 170-72, 267 N.E.2d at

423-24. The court thus properly deferred to the legislative

judgment in this pragmatic, policy-laden area.

The Ohio legislature itself has more recently articulated

another important policy consideration behind the state's statute

of limitations for medical malpractice claims: assuring an

adequate supply of good health care to Ohio's citizens. In

leaving the termination rule for accrue] undisturbed and imposing

upon all medical malpractice claims a four-year limit from the

date of the negligent act or omission, the Legislature declared

that “immediate action is necessary to ensure a continuance of

health care delivery to the citizens of Ohio.” Am. Sub. H.B. No.

682, 1975-76 Ohio Laws 2609, 2843-44. Assuring good health care

% ‘ip

to the public has been explicitly recognized as a basis for

special medical malpractice statutes of limitations by a number

of courts around the nation as well as by the Ohio Legislature.

See, e.g., Anderson, supra p.5, at 301-09, 402 N.E.2d at 562-66

(extended discussion of the “malpractice crisis" and legislative

responses to it).

Thus, Ohio's statute of limitations for medical malpractice

Claims represents a reasonable legislative decision resolving a

variety of competing policy considerations. One year from the

termination of the physician-patient relationship offers medical

malpractice plaintiffs as a group a fair opportunity to litigate,

at the same time that it discourages stale claims and promotes

the quality of health care for the people of Ohio.

CONCLUSION

As demonstated in the foregoing argument, Ohio's medical

malpractice statute of limitations, Ohio Rev. Code Ann. §2305.11,

does not violate either the equal protection or the due process

Clause of the Fourteenth Amendment of the United States

Constitution. Appellant's position has been frequently

propounded and uniformly held to be without merit. Appellant's

contentions present no substantial federal question, and

Appellee's motion to dismiss the appeal should therefore be

sustained.

Respectfully submitted,

_ snsee i thavtahte/

s S. ‘Monahan

ounsel of Record

Bricker 6 Eckler

100 East Broad Street

Columbus, Ohio 43215

(614) 227-2300

Counsel for Appellee

Edward W. Martin, Jr., M.D.

OF COUNSEL:

Joseph W. Ryan, Jr.

PORTER, WRIGHT, MORRIS & ARTHUR

37 West Broad Street

Columbus, Ohio 43215

(614) 227-2244

j : : OF ~

’ .

PROOF OF SERVICE

This is to certify that a copy of the foregoing Motion in

the Alternative to Dismiss or Affirm was served upon John E.

Duda, Attorney for Appellant, at 800 Bond Court Building,

Cleveland, Ohio 44114; and to Thomas P. Michael, at 17 South

High Street, Columbus, Ohio 43215, by regular U.S. Mail, postage

prepaid, this 24th day of August, 1982.

Deed: Jrevcahtr/

s S. Monahan

-10-