Mominee v. Scherbarth , 28 Ohio St. 3d 270 ( 1986 )

Sweeney, J.

The single issue raised in this consolidated cause is whether R.C. 2305.11(B), as applied to minors, violates the due process or due course of law provisions of the Ohio Constitution.

Given the important considerations involved in these controversies, a brief history of the various challenges to R.C. 2305.11 is essential to the resolution of the cause sub judice.

Prior to the effective date of the amended statute in issue (July 28, 1975), R.C. 2305.11 provided that a person had one year from the date the cause of action accrued to file suit for medical malpractice. However, this limitations period was tolled pursuant to R.C. 2305.16, the “disabilities” statute, for minors until they attained the age of majority. Thus, injured minors whose causes of action accrued before they reached the age of majority had until their nineteenth birthday to commence a malpractice action.

R.C. 2305.11 was amended in 1975 by Am. Sub. H.B. No. 682 (136 Ohio Laws, Part II, 2809, 2810-2811). Under the amended statute there exists in addition to the one-year limitations period, an absolute limit of four years in which an individual can bring an action alleging medical malpractice. Thus, under the 1975 statutory amendment, an individual with a claim for medical malpractice is required to commence suit within one year from the date the cause of action accrued, or four years from the date the alleged malpractice occurred, whichever comes first. In addition, and of particular importance to the instant cause, the amendment specifically excepted R.C. 2305.11 from the “disabilities” tolling statute provided in R.C. 2305.16. Under the amended version of R.C. 2305.11(B), only minors under the age of ten had their limitations period tolled, but only until they reached their fourteenth birthday, by which time they had to file their claim.

Subsequent to the General Assembly’s amendment to the instant malpractice statute of limitations, this court has been presented with a number of various challenges to R.C. 2305.11(B) as it applies to minors.

In Vance v. St. Vincent Hospital (1980), 64 Ohio St. 2d 36 [18 O.O.3d 216], we were first asked to interpret the new statutory language. The question presented in Vance was whether the abrogation of the tolling provision, division (B) of R.C. 2305.11, applied only to the absolute four-year limitation, or whether it also applied to the one-year limitations period set forth in division (A). After examining the language of Am. Sub. H.B. No. 682, in light of the circumstances surrounding its passage, this court concluded that the challenged language applied to the entire statute, and not merely to division (B). However, in Vance, we specifically refrained from determining the constitutionality of the provision abrogating the “disabilities” tolling statute, since the same was not raised as an issue therein.

The first opportunity this court was presented with a challenge to the constitutionality of R.C. 2305.11(B) occurred in Schwan v. Riverside Methodist Hospital (1983), 6 Ohio St. 3d 300. In Schwan, the statutory distinction between children ten years of age and older, who had no tolling period, and those under ten, who did have a grace period, was questioned on equal protection grounds pursuant to Section 2, Article I of the Ohio Constitution. In applying the pertinent test for equal protection, we determined that the final clause of R.C. 2305.11(B) failed the “rational basis” test, and was therefore unconstitutional.

Our holding in Schwan, together with our decision in Opalko v. Marymount Hospital, Inc. (1984), 9 Ohio St. 3d 63, abrogated any and all irrational and unconstitutional classifications of minors within their own class. Hence, in light of equal protection analysis, the effect of our decisions in both Schwan and Opalko was that minors and adults are subject to the same time limitations set forth in divisions (A) and (B) of R.C. 2305.11. Nevertheless, neither Schwan nor Opalko raised or determined the constitutionality of R.C. 2305.11(B) in the context of due process or due course of law.

In the causes consolidated sub judice, we are asked to review the constitutionality of R.C. 2305.11(B) as it relates to minors in light of due process considerations.

Section 1, Article I of the Ohio Constitution provides:

“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

Section 16, Article I, states in relevant part:

“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”

In testing the constitutionality of a legislative enactment, we begin with the common ground that all such enactments enjoy a presumption of constitutional validity. Schwan, supra, at 301; Benevolent Assn. v. Parma (1980), 61 Ohio St. 2d 375, 377 [15 O.O.3d 450]; State, ex rel. Taft, v. Campanella (1977), 50 Ohio St. 2d 242, 246 [4 O.O.3d 423]; State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142 [57 O.O.134], paragraph one of the syllabus.

A legislative enactment will be deemed valid on due process grounds “* * * [1] if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public and [2] if it is not unreasonable or arbitrary.” Benjamin v. Columbus (1957), 167 Ohio St. 103 [4 O.O.2d 113], paragraph five of the syllabus. See, also, Downing v. Cook (1982), 69 Ohio St. 2d 149 [23 O.O.3d 186]; and DeMoise v. Dowell (1984), 10 Ohio St. 3d 92.

R.C. 2305.11(B) was enacted in a legislative “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.) Vance, supra, at 40. The General Assembly declared R.C. 2305.11(B) “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. (quoting Am. Sub. H.B. No. 682, at Section 8). Thus, the ultimate goal of the legislature was to insure the provision of health care to Ohio citizens. The means to that goal was comprehensive legislation designed to reduce medical malpractice insurance premiums. See Am. Sub. H.B. No. 682, at Section 5. In addition, defendants urge that a second goal of the statute is to prevent stale claims. This aim is naturally the purpose of any statute of limitations.

While we believe that the goals of R.C. 2305.11(B) are proper, the first question we must consider is whether there is a real and substantial relationship between those goals and R.C. 2305.11(B) as applied to minors.

In order to monitor the effectiveness of the new legislation, the General Assembly required the Superintendent of Insurance to report annually on whether the 1975 amendments that were designed to reduce insurance premiums were actually having that effect. “R.C. 2305.11(B), however, was not of sufficient consequence to be included among those provisions for annual review.” Schwan, supra, at 302-303; see Am. Sub. H.B. No. 682, at Section 5. Moreover, defendants have failed to proffer any evidence that R.C. 2305.11(B) as applied to minors has had any effect on insurance premiums; nor have they provided us with evidence that minors with malpractice claims even constitute a significant portion of all medical malpractice claimants. How important, therefore, can this section be to the immediate goal of reducing insurance premiums? Certainly, in our view, the relationship between the statute and the goal is not substantial.

The second inquiry to be reviewed is whether R.C. 2305.11(B) is unreasonable or arbitrary as applied to minors. The Ohio due process or due course of law provisions require that all courts be open to every person who is injured. Section 16, Article I, Ohio Constitution. Yet, we believe that upholding R.C. 2305.11(B) against minors effectively closes the courthouse doors to them. It is beyond dispute that a minor has no standing to sue before he or she reaches the age of majority. Civ. R. 17(B). However, given the abrogation of the “disabilities” tolling statute in R.C. 2305.11(B), minors may, as in the cause sub judice, lose their rights to redress before they reach eighteen years of age. Thus, the sum and substance of R.C. 2305.11(B) is that a minor shall have no standing to sue before attaining the age of majority, and no right to bring suit thereafter. Such, in our view, is totally unreasonable and patently arbitrary.

The usual response to this conclusion is that a minor’s parent or guardian may sue for, and on behalf of, the child. We find such a suggestion to be troublesome for several reasons. First, because of the inability of many children to recognize or articulate physical problems, parents may be unaware that medical malpractice has occurred. Second, the parents themselves may be minors, ignorant, lethargic, or lack the requisite concern to bring a malpractice action within the time provided by statute. See Sax v. Votteler (Tex. 1983), 648 S. W. 2d 661, 667. Third, there may effectively be no parent or guardian, concerned or otherwise, in the minor’s life. For example, children in institutions, foster homes, and wards of court or others are provided no safeguards, nor do such minors have the requisite ability to seek redress or to protect personal interests.

The Eighth Appellate District asserted in its opinion in Wainstein v. University Hospitals, supra, that the courthouse doors were not unreasonably closed to minors under R.C. 2305.11(B). The appellate court reasoned that, because parental immunity has been abolished, see Kirchner v. Crystal (1984), 15 Ohio St. 3d 326, children may bring an action against their parents for failing to file a malpractice claim for them. We reject this conclusion for several reasons.

First, we find it unrealistic to expect that children would seek legal redress against their parents as willingly as against the parties who are alleged to be medically negligent. Placing young adults in a dilemma in which they must choose between suing their parents or abandoning their claims has the practical effect of chilling their due process rights.

Second, assuming arguendo that an eighteen year old would be inclined to commence a lawsuit against his or her parents for negligent failure to file a timely medical malpractice action, the same evidentiary concerns remain that are concomitant with a malpractice suit. A claim for parental negligence in this context would necessitate proof that there was merit to the underlying claim of medical malpractice. Thus, under such circumstances, litigation of the purportedly stale claims would still be required. As a result, R.C. 2305.11(B) would not advance its ostensible goal of preventing stale claims.

Finally, if parents are faced with the prospect of a possible lawsuit for failure to file a timely malpractice claim, they may feel obligated to commence an action on behalf of the child in order to preserve a purely speculative claim, regardless of its merit. Even if no lawsuit is filed, since a parent is placed in the position of protector for a child’s possible lawsuit, the physician-parent relationship takes on an adversarial nature ill-suited to optimal health care for the child. As we have noted previously, mutual confidence is essential to the physician-patient relationship. See Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St. 3d 111, 112-113. Thus, the ultimate goal of R.C. 2305.11(B), the advancement of health care to Ohioans, would be frustrated.

Based on all the foregoing, we hold that R.C. 2305.11(B) is unconstitutional as applied to minors under the due course of law provisions of the Ohio Constitution.⁴

Our holding in this regard is not a novel one. The Texas Supreme Court found a similar statutory scheme to be violative of its state Constitution in Sax, supra. Recently, the Missouri Supreme Court struck down, on due process grounds, its state’s malpractice statute of limitations as applied to minors in Strahler v. St. Luke’s Hospital (Mo. en banc 1986), 706 S. W. 2d 7.⁵

Like the court in Strahler, at 10, we are particularly persuaded by the succinct writings of a commentator in the Journal of Legal Medicine:

“State legislatures reacted in the 1970’s to a perceived crisis in medical malpractice insurance by enacting these types of limitations provisions. While such provisions no doubt go some distance in alleviating the problems of malpractice insurers and health care providers, they do so only at a high cost. Their effect is to bar the malpractice suits of minors without regard to the validity of their claims or the fact that the minors are wholly innocent in failing to timely pursue their claims. Such a result seems to unfairly penalize the blameless minor in order to protect the potentially negligent health care provider.” Andrews, Infant Tolling Statutes in Medical Malpractice Cases: State Constitutional Challenges (1984), 5 J. Legal Med. 469.

While the General Assembly is empowered to respond to circumstances or perceived crises that demand legislative initiative, legislation must comport -with the rights and guarantees established in the Ohio Constitution. We believe that R.C. 2305.11(B) as applied to minors does not withstand constitutional scrutiny, and must therefore be held constitutionally infirm.⁶ The practical effect of our holding will restore the “disabilities” tolling statute, R.C. 2305.16, for minors with malpractice claims. Minors whose causes of action accrued before their majority have until their nineteenth birthday to commence suit. Minors who have not discovered the alleged malpractice by their eighteenth birthday have one year from the date of discovery of the malpractice or their twenty-second birthday, whichever comes first, to commence an action. See Oliver, supra.

In light of our holding today, we must reexamine our decision in Baird v. Loeffler (1982), 69 Ohio St. 2d 533 [23 O.O.3d 458]. In Baird, we were asked to determine whether R.C. 2305.11(B) could be applied retroactively. The resolution of that inquiry hinged on our interpretation of Section 28, Article II of the Ohio Constitution,⁷ which governs retroactive legislation. The problem with a new, shorter statute of limitations is that, if applied retroactively, it may destroy a cause of action that has already accrued. To prevent constitutional infirmity under Section 28, Article II, we have developed the rule that “* * * application of an amended statute [of limitations] is not unlawful as long as a prospective claimant is still afforded a reasonable time in which to enforce his right.” Id. at 535. Such a rule is still good law. However, to the extent that our decision in Baird holds that it is reasonable to require minors to sue for medical malpractice before they have reached their majority, it is overruled. While one year from the effective date of a new statute of limitations may be a reasonable time in which to require a claimant to bring suit for the purposes of Section 28, Article II, we believe that such a limitation cannot be applied to minors without violating Sections 1 and 16 of Article I of the Ohio Constitution.

Accordingly, the judgment of the Court of Appeals for Lucas County is affirmed, and the judgment of the Court of Appeals for Cuyahoga County is reversed. Each of the consolidated cases is remanded to its respective trial court for further proceedings in accordance with this opinion.

Judgment affirmed in case No. 85-688.

Judgment reversed in case No. 85-1039.

Celebrezze, C.J., and Locher, J., concur. C. Brown and Douglas, JJ., concur in the syllabus and judgment. Holmes and Wright, JJ., dissent.

4 One of the dissenting opinions herein cites several journal articles and sets of statistics which seemingly purport to underscore the wisdom of the instant malpractice statute as a vehicle to eliminate problems of stale claims and long-tail liability. However, as this same dissenting opinion observes, the wisdom of a particular legislative enactment should and must have no bearing on issues concerning the constitutionality of that statute.

5 Our research indicates that two other jurisdictions have also held their respective state medical malpractice limitations statute unconstitutional as applied to minors: Carson v. Maurer (1980), 120 N.H. 925, 424 A. 2d 825 (statute held to be violative of equal protection); Barrio v. San Manuel Division Hosp. (1984), 143 Ariz. 101, 692 P. 2d 280 (statute held to be unconstitutional under Arizona’s state constitutional guarantee against abolition of the fundamental right to recover damages by way of a common-law action).

6 We express no opinion as to the constitutionality of R.C. 2305.11(B) in the due process context as applied to adults, since such issue was not raised in the cause sub judice.

7 Section 28, Article II of the Ohio Constitution provides:

“The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions,'defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.”