Antoon v. Cleveland Clinic Found. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Antoon v. Cleveland Clinic Found., Slip Opinion No. 2016-Ohio-7432.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-7432
ANTOON ET AL., APPELLEES, v. CLEVELAND CLINIC FOUNDATION ET AL.,
APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Antoon v. Cleveland Clinic Found., Slip Opinion No.
2016-Ohio-7432.]
Statutes of repose—R.C. 2305.113(C) is constitutional even when applied to vested
claims—Ruther v. Kaiser clarified—Judgment reversed and cause
remanded.
(No. 2015-0467—Submitted April 5, 2016—Decided October 25, 2016.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 101373, 2015-Ohio-421.
_____________________
O’CONNOR, C.J.
{¶ 1} In this appeal, we consider whether Ohio’s medical-malpractice
statute of repose, R.C. 2305.113(C), applies to a cause of action that had vested for
an act or omission allegedly constituting medical malpractice that took place more
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than four years earlier. We hold that R.C. 2305.113(C) is a true statute of repose
that applies to both vested and nonvested claims. Therefore, any medical-
malpractice action1 must be filed within four years of the occurrence of the act or
omission alleged to have caused a plaintiff’s injury. Appellees, David (“Antoon”)
and Linda Antoon (collectively the “Antoons”), filed their lawsuit after the statute
of repose expired. The complaint was not protected by R.C. 2305.19, Ohio’s saving
statute, or 28 U.S.C. 1367, the tolling statute for state claims over which a federal
court has supplemental jurisdiction because, as the Antoons admit in their merit
brief to this court, the District Court “declined to exercise supplemental
jurisdiction” over the malpractice claims. The District Court’s action resulted in
the Antoons never having the medical malpractice claims pending in the federal
court. Because neither the saving statute nor the tolling statute applies in this case,
we decline to determine whether they extend the time for filing beyond the
expiration of the statute of repose. We reverse the judgment of the Eighth District
Court of Appeals, hold that the trial court appropriately dismissed the case pursuant
to the motion by the appellants, Cleveland Clinic Foundation (doing business as the
Cleveland Clinic), and Drs. Jihad Kaouk, Raj Goel, and Michael Lee (collectively,
the “Clinic”)), and remand the cause to the trial court with instructions to enter
judgment for the Clinic.
RELEVANT BACKGROUND
The Alleged Malpractice
{¶ 2} The facts are not in dispute. On January 8, 2008, David Antoon
underwent a prostatectomy at the Clinic. Drs. Kaouk, Goel, and Lee were involved
in treating Antoon or performing the operation. Antoon did not experience the
1
R.C. 2305.113 contains sections that explicitly extend the statute of repose for a plaintiff bringing
a medical-malpractice claim under certain circumstances--for instance, when the injury involves a
foreign object left in the body. R.C. 2305.113(D)(2). We recognize these important protections for
plaintiffs, but we do not specifically address them, as they are not relevant to this case.
2
January Term, 2016
recovery he hoped for following surgery and spent nearly a year consulting with
Dr. Kaouk and other Clinic practitioners regarding side effects of the surgery.
December 11, 2008, was Antoon’s final appointment with Dr. Kaouk.
The First State Court Complaint
{¶ 3} On December 9, 2009, Antoon timely notified the Clinic, pursuant to
R.C. 2305.113(B), that he would be bringing medical-malpractice claims against
them within 180 days. On June 6, 2010, the Antoons filed a complaint in the
Cuyahoga County Common Pleas Court alleging medical malpractice and
derivative claims against the Clinic and the doctors who provided care to Antoon.
On June 13, 2011, the Antoons dismissed their claims without prejudice.
The Federal Claims
{¶ 4} Both before and after dismissal of their state case, the Antoons, acting
pro se, filed a variety of actions in federal court and with federal agencies relating
to Antoon’s surgery. Relevant here is the qui tam action2 that the Antoons filed
without counsel in federal district court on January 31, 2012. The Antoons allege
that the qui tam case, filed within one year of the dismissal of their common pleas
court action, preserved their state claims pursuant to Ohio’s saving statute, R.C.
2305.19(A). However, the Antoons’ qui tam lawsuit did not allege medical
malpractice and did not seek damages.
{¶ 5} On May 8, 2012, before the complaint was served, the Antoons, still
acting pro se, amended their qui tam action. The amended complaint alleged that
the Cleveland Clinic, its employees, and the manufacturer of equipment used during
the surgery had violated the False Claims Act. On December 21, 2012, the
defendants moved to dismiss the amended action.
2
A qui tam action allows whistleblowing private citizens to file suit under the False Claims Act, 31
U.S.C. 3729, when they allege that a party is perpetrating fraud against the United States. 31 U.S.C.
3729(a)(1). Whistleblowers may obtain a reward for bringing the fraud to the government’s
attention. 31 U.S.C. 3730(d).
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{¶ 6} On February 13, 2013, with the motion to dismiss pending, the
Antoons, now having retained counsel, moved for leave to file a second amended
complaint, which was attached to the filing. The offered second amended
complaint named the Cleveland Clinic, manufacturing, and government
defendants. It included the claims asserted in the two previous complaints but
added state law medical-malpractice claims. On October 16, 2013, the district court
denied leave and granted the defendants’ motion to dismiss the first amended
complaint. That holding was affirmed on appeal. U.S. ex rel. Antoon v. Cleveland
Clinic Found., 788 F.3d 605, 620 (6th Cir.2015).
The Second State Court Complaint
{¶ 7} Following dismissal of their complaint by the federal court, on
November 14, 2013, the Antoons, through counsel, filed a complaint in the
Cuyahoga County Court of Common Pleas alleging state malpractice claims. The
Antoons argue that their complaint was timely pursuant to 28 U.S.C. 1367(d),
which tolls the period of limitations for any state claim over which a federal court
has supplementary jurisdiction if the claimant asserted the claim in a federal court
case. The period of limitations “shall be tolled while the claim is pending and for
a period of 30 days after it is dismissed unless State law provides for a longer tolling
period.” 28 U.S.C. 1367(d).
{¶ 8} The Clinic moved to dismiss pursuant to Civ.R. 12(B)(6), asserting
that the Antoons failed to state a claim upon which relief could be granted because
both the statute of limitations and statute of repose applicable to their claims had
expired. The trial court granted the motion, finding that “the case was filed outside
the applicable statute of limitations and outside the one year allowed by the Ohio
saving statutes. Further, this filing is also outside the statute of repose, R.C.
2305.113(C) which requires that a medical claim be filed no more than four years
after the alleged malpractice.” The trial court determined the federal tolling statute,
28 U.S.C. 1367(d), applies only “to protect claims while pending in federal court.”
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According to the trial court, because the Antoons’ motion to amend the complaint
to add the malpractice claims was denied, the state claims were never pending and
were not protected.
{¶ 9} The Antoons appealed, and the Eighth District Court of Appeals
reversed the trial court’s judgment. The appellate court relied on this court’s
decision in Ruther v. Kaiser, 134 Ohio St. 3d 408, 2012-Ohio-5686, 983 N.E.2d
291, syllabus, and concluded that once a claim has vested, the statute of repose can
no longer operate to bar litigation. The appellate court’s opinion acknowledges that
vesting had occurred by the time the Antoons filed their first lawsuit on the matter
in 2010.
The Discretionary Appeal
{¶ 10} We granted the Clinic’s request for discretionary review to address
a single proposition of law:
Ohio’s medical malpractice statute of repose applies whenever the
occurrence of the act or omission constituting the alleged medical
malpractice takes place more than four years prior to when the
lawsuit is filed. This statute of repose applies regardless of whether
a cause of action has vested prior to the filing of a lawsuit.
See Antoon v. Cleveland Clinic Found., 143 Ohio St. 3d 1463, 2015-Ohio-
3733, 37 N.E.3d 1249.
ANALYSIS
Statutes of Limitations and Statutes of Repose
{¶ 11} Statutes of repose and statutes of limitation have distinct
applications, though they are occasionally used interchangeably. Both share a
common goal of limiting the time for which a putative wrongdoer must be prepared
to defend a claim. See CTS Corp. v. Waldburger, __ U.S. __, 134 S. Ct. 2175, 2182,
5
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189 L. Ed. 2d 62 (2014). The differences between statutes of repose and statutes of
limitation have been recognized for nearly 40 years. Id. at 2186. A statute of
limitations establishes “a time limit for suing in a civil case, based on the date when
the claim accrued (as when the injury occurred or was discovered).” Black’s Law
Dictionary 1636 (10th Ed.2014). A statute of repose bars “any suit that is brought
after a specified time since the defendant acted * * * even if this period ends before
the plaintiff has suffered a resulting injury.” Id. at 1637.
{¶ 12} Our decision today is also informed by the robust heritage of
decisions from courts and legislatures sharing the common beliefs that plaintiffs
should litigate their claims as swiftly as possible and that defendants should not
face potential liability indefinitely. We begin with a brief discussion of statutes of
repose and limitation to provide context.
{¶ 13} Statutes of repose have a long history in Western legal tradition. One
of the first statutes of repose in England, the country from which our legal system
descended, appeared in the Limitation Act (1623), 21 James I, Chapter 16.
Parliament enacted the statute for the purposes of “quieting * * * men’s estates and
avoiding * * * suits.” Id.
{¶ 14} The Limitation Act set forth deadlines for bringing a variety of
actions. The English Parliament fixed the time periods either to the end of the
parliamentary session or the occurrence of the cause of action. Id. For instance, a
plaintiff had to bring an “action upon the case for words,” a suit similar to a present-
day slander claim, “within one year after the end of this present session of
Parliament, or within two years next after the words spoken, and not after.” Id.
{¶ 15} Similarly, statutes of repose and limitations have long played a role
in the legal systems of this country. In 1828, the United States Supreme Court
acknowledged the benefits of statutes of repose and limitations, stating that it
wished a statute of limitations, “instead of being viewed in an unfavourable light,
as an unjust and discreditable defence, * * * had received such support, as would
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have made it, what it was intended to be, emphatically, a statute of repose.” Bell v.
Morrison, 26 U.S. 351, 360, 7 L. Ed. 174 (1828). In Bell, the court referred to a
statute of limitations but, by modern standards, the law at issue was a statute of
repose. The court recognized the statute as “a wise and beneficial law” that
“afford[ed] security against stale demands, after the true state of the transaction
may have been forgotten, or be incapable of explanation, by reason of the death or
removal of witnesses.” Id. The high court observed: “It has a manifest tendency to
produce speedy settlements of accounts, and to suppress those prejudices which
may rise up at a distance of time, and baffle every honest effort to counteract or
overcome them.” Id.
{¶ 16} Almost a hundred years ago, the United States Supreme Court held
that a defendant may have a property interest in the protection offered by a statute
of limitations that cannot be “deprive[d] * * * without due process of law.” William
Danzer & Co., Inc. v. Gulf & Ship Island RR. Co., 268 U.S. 633, 637, 45 S. Ct. 612,
69 L. Ed. 1126 (1925). In a more recent case, the court recognized that a statute
of repose is a legislative judgment that defendants should be free from liability after
a determined amount of time, measured from the date of the defendant’s last
culpable act. CTS Corp., __ U.S. __, 134 S.Ct. at 2182-2183, 189 L. Ed. 2d 62.
{¶ 17} This court has also undertaken a review of statutes of repose and
limitations on numerous occasions. In one early examination, we held, “Our statute
of limitations fixes a period in which every action, according to its class, must be
commenced. It is a statute of repose, and not of presumption; and, unless the suit
is commenced in the time limited, cannot be maintained. It is said to be barred.”
Kerper v. Wood, 48 Ohio St. 613, 620, 29 N.E. 501 (1891). Shortly thereafter, this
court explained its role in enforcing such laws:
It is not the province of the courts to make exceptions to meet cases
not provided for by the legislature. It is no longer the habit of courts
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to view with disfavor the plea of the statutes of limitations. Being
statutes of repose, designed to secure the peace of society, and
protect the individual from being prosecuted upon stale claims, they
are to be construed in the spirit of their enactment.
Townsend v. Eichelberger, 51 Ohio St. 213, 216, 38 N.E. 207 (1894).
{¶ 18} More recently, this court has continued to uphold the
constitutionality of statutes of repose in some circumstances. See Ruther, 134 Ohio
St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, syllabus; Groch v. Gen. Motors
Corp., 117 Ohio St. 3d 192, 2008-Ohio-546, 883 N.E.2d 377, paragraph two of the
syllabus; Opalko v. Marymount Hosp., Inc., 9 Ohio St. 3d 63, 65, 458 N.E.2d 847
(1984). Specifically, we have recognized that statutes of repose do not
automatically violate the Ohio Constitution’s right-to-remedy provision, Article I,
Section 16, because that right “ ‘applies only to existing, vested rights, and it is state
law which determines what injuries are recognized and what remedies are
available.’ ” Groch at ¶ 150, quoting Sedar v. Knowlton Constr. Co., 49 Ohio St. 3d
193, 202, 551 N.E.2d 938 (1990). And we, like the United States Supreme Court,
have respected the public-policy choices embodied in statutes of repose:
Many policy reasons support this legislation. Just as a
plaintiff is entitled to a meaningful time and opportunity to pursue a
claim, a defendant is entitled to a reasonable time after which he or
she can be assured that a defense will not have to be mounted for
actions occurring years before. The statute of repose exists to give
medical providers certainty with respect to the time within which a
claim can be brought and a time after which they may be free from
the fear of litigation.
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Forcing medical providers to defend against medical claims
that occurred 10, 20, or 50 years before presents a host of litigation
concerns, including the risk that evidence is unavailable through the
death or unknown whereabouts of witnesses, the possibility that
pertinent documents were not retained, the likelihood that evidence
would be untrustworthy due to faded memories, the potential that
technology may have changed to create a different and more
stringent standard of care not applicable to the earlier time, the risk
that the medical providers’ financial circumstances may have
changed—i.e., that practitioners have retired and no longer carry
liability insurance, the possibility that a practitioner’s insurer has
become insolvent, and the risk that the institutional medical provider
may have closed.
Responding to these concerns, the General Assembly made
a policy decision to grant Ohio medical providers the right to be free
from litigation based on alleged acts of medical negligence
occurring outside a specified time period.
Ruther, 134 Ohio St. 3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 19-21.
{¶ 19} Therefore, this court and the United States Supreme Court agree that
statutes of repose are to be read as enacted and not with an intent to circumvent
legislatively imposed time limitations. While mindful of Ohioans’ constitutional
right to a remedy, we undertake our review cognizant that a statute of repose is not
an unjust and discreditable defense but rather, a law designed to secure fairness to
all parties.
Ohio’s Medical-Malpractice Statute of Repose
{¶ 20} The Clinic asks us to apply Ohio’s medical-malpractice statute of
repose to the Antoons’ claim, which accrued and vested within the four-year
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statute-of-repose period. “The paramount goal in the interpretation or construction
of a statute is to ascertain and give effect to the legislature’s intent in enacting the
statute.” Brooks v. Ohio State Univ., 111 Ohio App. 3d 342, 349, 676 N.E.2d 162
(10th Dist.1996). To determine legislative intent, we must first examine the plain
language of the statute. State ex rel. Burrows v. Indus. Comm., 78 Ohio St. 3d 78,
81, 676 N.E.2d 519 (1997). “[W]e must apply a statute as it is written when its
meaning is unambiguous and definite.” Portage Cty. Bd. of Commrs. v. Akron, 109
Ohio St. 3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese
v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St. 3d 543, 545, 660 N.E.2d 463
(1996). “An unambiguous statute must be applied in a manner consistent with the
plain meaning of the statutory language * * *.” State ex rel. Burrows, 78 Ohio
St.3d at 81.
{¶ 21} R.C. 2305.113(C) provides that the time for bringing a medical-
malpractice complaint has an absolute limit:
(1) No action upon a medical, dental, optometric, or chiropractic
claim shall be commenced more than four years after the occurrence
of the act or omission constituting the alleged basis of the medical,
dental, optometric, or chiropractic claim.
(2) If an action upon a medical, dental, optometric, or chiropractic
claim is not commenced within four years after the occurrence of
the act or omission constituting the alleged basis of the medical,
dental, optometric, or chiropractic claim, then, any action upon that
claim is barred.
{¶ 22} In Ruther, we held that R.C. 2305.113(C) is “a true statute of
repose.” 134 Ohio St. 3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 18. We
explained that “[t]he statute of repose exists to give medical providers certainty
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with respect to the time within which a claim can be brought and a time after which
they may be free from the fear of litigation,” id. at ¶ 19, and emphasized that “if
the General Assembly cannot legislate a statute of repose, medical providers are
left with the possibility of unlimited liability indefinitely,” id. at ¶ 29.
{¶ 23} Today, we affirm that R.C. 2305.113(C) is a statute of repose
because the time for bringing a suit under the section begins running from the
occurrence of the act or omission constituting the alleged basis of the claim. And
we find that the plain language of the statute is clear, unambiguous, and means what
it says. If a lawsuit bringing a medical, dental, optometric, or chiropractic claim is
not commenced within four years after the occurrence of the act or omission
constituting the basis for the claim, then any action on that claim is barred.
{¶ 24} We reject the Antoons’ assertion that filing then dismissing a claim
will indefinitely suspend the statute of repose by “commencing” the suit on the date
of the first filing. The law is clear that once a complaint has been dismissed without
prejudice, legally, that action is deemed to never have existed. DeVille
Photography, Inc. v. Bowers, 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959).
Accordingly, in this case, no action on the medical-malpractice claims
“commenced” until the second state court complaint was filed in November 2013.
By that time, more than four years had passed since the act or omission constituting
the alleged basis of the medical claim. Because the action was plainly commenced
outside the four-year statute-of-repose period, the trial court correctly granted the
Clinic’s motion to dismiss.
Distinguishing Ruther
{¶ 25} The appellate court cited Ruther in holding that because the
Antoons’ malpractice claim had vested, the timeliness of either complaint depends
on “the statute of limitations and any tolling provisions.” 2015-Ohio-421, ¶ 10. The
Antoons similarly quoted Ruther’s holding that the “medical-malpractice statute of
repose found in R.C. 2305.113(C) does not extinguish a vested right and thus does
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not violate the Ohio Constitution, Article I, Section 16,” to support their argument
that this court must necessarily overturn that case in order to find that the statute
can extinguish a vested right. Not so.
{¶ 26} Both the Antoons in their argument and the Eighth District Court of
Appeals in its analysis rely on an impermissibly narrow reading of Ruther. The
circumstance in Ruther, involving an unvested cause of action, was central to our
holding in that case. The appellant in Ruther had made an as-applied constitutional
challenge to R.C. 2305.113(C) regarding a claim that had not vested before the
expiration of the statute of repose. In that circumstance, it was reasonable for the
court to refer to the statute as “not extinguish[ing] a vested right.” Ruther, 134
Ohio St. 3d 408, 2012-Ohio-5686, 983 N.E.2d 291, syllabus. The facts in the
Antoons’ case are materially divergent from those presented in Ruther, and while
today we clarify Ruther, our holding in this case is consistent with our holdings
therein, finding that the statute of repose does not violate the Ohio Constitution:
“A plain reading of Article I, Section 16 reveals that it does not provide for remedies
without limitation * * *. [T]he right-to-remedy clause provides that the court shall
be open for those to seek remedy ‘by due course of law.’ (Emphasis added.) Article
I, Section 16 does not prevent the General Assembly from defining a cause of
action.” Id. at ¶ 12. We observed, “[T]he General Assembly has the right to * * *
plac[e] a time limit after which an injury is no longer a legal injury.” Id. at ¶ 14.
These findings support the constitutionality of the medical-malpractice statute of
repose and our determination that our holding today does not conflict with Ruther.
Because consideration of a vested claim was not before us in Ruther, our discussion
of vested causes of action was made solely in the context of addressing a claim that
accrued after the statute of repose had expired. That is not the situation here.
The Antoons’ Constitutional Challenge
{¶ 27} Relying on Ruther’s syllabus, the Antoons assert that if R.C.
2305.113(C) extinguishes a vested right, then it violates the Ohio Constitution’s
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right to remedy. The right-to-remedy clause provides, “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 * * *.” Article 1, Section 16, Ohio
Constitution. It is well settled that “there is no property or vested right in any of
the rules of the common law,” so a vested right to a remedy devolves only from the
legislature. Leis v. Cleveland Ry. Co., 101 Ohio St. 162, 128 N.E. 73 (1920),
syllabus. Consequently, the right to a remedy protects only those causes of action
that the General Assembly identifies and for the period of time it determines.
Ruther, 134 Ohio St. 3d 408, 2012-Ohio-5686, 983 N.E.2d 291, at ¶ 12.
{¶ 28} A medical-malpractice claim vests “when a patient discovers or in
the exercise of reasonable care and diligence should have discovered the resulting
injury.” Ruther at ¶ 17. This court has defined a vested right as one that is “fixed,
settled, absolute, and not contingent upon anything.” Rehor v. Case W. Res. Univ.,
43 Ohio St. 2d 224, 229, 331 N.E.2d 416 (1975). But this court has, in multiple
cases, recognized that a party need not be granted an unlimited amount of time to
bring a vested cause of action, but must receive only a “reasonable” amount of time
in order for a law to pass constitutional muster. Taylor v. First Resolution Invest.
Corp., __ Ohio St.3d __, 2016-Ohio-3444, __ N.E.2d __, ¶ 57; Oaktree
Condominium Assn., Inc. v. Hallmark Bldg. Co., 139 Ohio St. 3d 264, 2014-Ohio-
1937, 11 N.E.3d 266, ¶ 1; Cook v. Matvejs, 56 Ohio St. 2d 234, 237, 383 N.E.2d
601 (1978). See also Gregory v. Flowers, 32 Ohio St. 2d 48, 54, 290 N.E.2d 181
(1972) (“On the theory that a right to sue once existing becomes a vested right, and
cannot be taken away altogether, it does not conclusively follow that the time within
which the right may be asserted and maintained may not be limited to a shorter
period than that which prevailed at the time the right arose, provided such limitation
still leaves the claimant a reasonable time within which to enforce the right”).
{¶ 29} For the statute to be constitutional, the General Assembly must have
a rational basis for determining the period of time during which a party may bring
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suit based on a vested cause of action. Ruther at ¶ 21. The presumption in favor
of constitutionality is strong. “[E]nactments of the General Assembly [are]
constitutional unless such enactments are clearly unconstitutional beyond a
reasonable doubt.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 147,
128 N.E.2d 59 (1955). The statute here, in compliance with the right-to-remedy
clause, does not “completely foreclose a cause of action for injured plaintiffs or
otherwise eliminate their ability to receive a meaningful remedy.” Flagstar Bank,
F.S.B. v. Airline Union’s Mtge. Co., 128 Ohio St. 3d 529, 2011-Ohio-1961, 947
N.E.2d 672, ¶ 29. Accordingly, R.C. 2305.113(C) is constitutional both when it
extinguishes a vested and a nonvested cause of action.
Ohio’s Saving Statute and 28 U.S.C. 1367
{¶ 30} We do not decide today whether Ohio’s saving statute, R.C. 2305.19,
or the federal tolling statute, 28 U.S.C. 1367, properly invoked, may allow actions
to survive beyond expiration of the statute of repose.
{¶ 31} The Ohio saving statute applies only if a party files a substantially
similar action within one year of the dismissal without prejudice. Children’s Hosp.
v. Ohio Dept. of Pub. Welfare, 69 Ohio St. 2d 523, 525, 433 N.E.2d 187 (1982)
(“The savings statute applies when the original suit and the new action are
substantially the same”); R.C. 2305.19(A). In this case, although the federal qui
tam action was filed approximately seven months after the state claim was
dismissed, it was pleaded solely as a qui tam action and included more than a dozen
additional parties. Moreover, as the Antoons acknowledge, the complaints filed in
federal court did not expressly assert malpractice claims. Therefore, they were not
“substantially the same” as the state court action, and the saving statute is
inapplicable.
{¶ 32} The federal tolling statute that the Antoons seek to invoke applies
only to state-law claims over which a federal court has exercised supplemental
jurisdiction. 28 U.S.C. 1367. In the Antoons’ case, the federal court declined to
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exercise supplemental jurisdiction over the malpractice claims asserted in the
proposed second amended complaint. Therefore, the medical-malpractice claims
were never “pending” in federal court, so the tolling statute is also inapplicable.3
28 U.S.C. 1367.
CONCLUSION
{¶ 33} Our role in reviewing a statute is not to express agreement or
disagreement with the public policy that led to its enactment. “The only judicial
inquiry into the constitutionality of a statute involves the question of legislative
power, not legislative wisdom.” State ex rel. Bowman v. Allen Cty. Bd. of Commrs.,
124 Ohio St. 174, 196, 177 N.E. 271 (1931).
{¶ 34} We hold that Ohio’s medical-malpractice statute of repose, R.C.
2305.113(C), is constitutional even to the extent that it prohibits bringing suit on a
cause of action that has vested. Significant public-policy considerations support
granting repose to defendants, and the General Assembly has determined that four
years is a reasonable length of time to bring a medical-malpractice claim.
{¶ 35} Accordingly, R.C. 2305.113(C) is a true statute of repose that applies
to both vested and nonvested claims. The Antoons brought their accrued claims
more than four years after the alleged malpractice; the claims were therefore barred
by the statute of repose. We reverse the judgment of the court of appeals and
remand the cause to the trial court to enter judgment for the Clinic.
Judgment reversed,
and cause remanded.
O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur.
3
The Antoons’ reference to Singleton v. Pittsburgh Bd. of Edn., W.D.Pa. No. 2:11-cv-1431, 2012
WL 4068381 (Aug. 24, 2012), is unavailing. In that case, the federal magistrate recommended
dismissal of all claims against a certain defendant, including state claims, but those claims were
actually pending before the court prior to dismissal. Id. at *12-14. Here, because the district court
denied the Antoons leave to amend their complaint a second time and the medical-malpractice
claims were not raised in the original or first amended complaints, the federal court never had
supplemental jurisdiction over those claims.
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PFEIFER, J., concurs in judgment only, with an opinion.
O’NEILL, J., not participating.
_________________
PFEIFER, J., concurring in judgment only.
{¶ 36} All the glories of statutes of repose as described by the majority
opinion point in one direction: toward protecting people who harm the despised
proletariat, who are daring to remedy the wrong done them. Our original
Constitution took a different stance. Even before Ohio’s statehood, the
Constitutional Convention of 1802 guaranteed the right to a remedy for the portion
of the Northwest Territory that would become Ohio. Article VIII, Section 7,
Constitution of 1802. Phillips, The Constitutional Right to a Remedy, 78
N.Y.U.L.Rev. 1309, 1316 (2003), fn. 30. See also E.W. Scripps Co. v. Fulton, 100
Ohio App.157, 171, 125 N.E.2d 896 (1955) (Hurd, J. concurring). Today, Article
I, Section 16 of the Ohio Constitution still guarantees that “every person, for an
injury done him * * * shall have remedy by due course of law.” What once was a
mighty constitutional oak is left to wither and die at the whim of the General
Assembly.
{¶ 37} This case is quite simple. The complaint was filed too late by pro se
plaintiffs. They attempted to avail themselves of Ohio’s saving statute, R.C.
2305.19(A), but that attempt was ill considered because the federal action relied
upon did not allege medical malpractice or seek damages. We should have reversed
the judgment of the court of appeals summarily and the story should have ended.
Alas, this court saw an opportunity to further assault the fundamental constitutional
right to a remedy.
{¶ 38} The majority opinion lauds statutes of repose for having “a long
history in Western legal tradition.” Majority opinion at ¶ 13. Fair enough—so did
slavery.
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{¶ 39} Access to courts and the opportunity to redress a wrong have long
been sacrosanct in Ohio. See Article VIII, Section 7, 1802 Constitution and Article
I, Section 16, 1851 Ohio Constitution. These constitutional rights have been under
assault for decades—since at least the 1970s, when the General Assembly enacted
former R.C. 2305.11, 1975 Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, 2809,
2810-2811. This statute prohibited minors from bringing medical-malpractice
claims more than four years after the negligent act occurred, even if they had not
yet reached the age at which the law allowed them to bring suit. Mominee v.
Scherbarth, 28 Ohio St. 3d 270, 273, 503 N.E.2d 717 (1986).
{¶ 40} Mominee involved a statute of repose, like today’s case. In that case,
this court rightly concluded that the Ohio Constitution as ratified by the people of
Ohio trumped a contrary statute. Id. at syllabus. The court today allows the statute
of repose to swallow the right-to-a-remedy clause. This should not surprise anyone
who has been paying attention. The previously inviolate right to a jury trial of
Article VIII, Section 8 of the1802 Constitution, now part of Article I, Section 5 of
the Ohio Constitution, has likewise been eviscerated. See Arbino v. Johnson &
Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 163-174
(Pfeifer, J., dissenting).
{¶ 41} Mominee was seminal and rightly repudiated a statute of repose.
Brennaman v. R.M.I. Co., 70 Ohio St. 3d 460, 639 N.E.2d 425 (1994), paragraph
two of the syllabus, also repudiated a statute of repose. So did State ex rel. Ohio
Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 475-476, 715 N.E.2d
1062 (1999). These cases remain good law or, in any event, they have not been
overruled. Nevertheless, the court today rebukes the holdings and reasoning of
these cases without so much as a passing reference.
{¶ 42} I have written extensively about statutes of repose and how they
undermine constitutional protections. Groch v. Gen. Motors Corp., 117 Ohio St. 3d
192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 227-246 (Pfeifer, J., concurring in part and
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dissenting part). Instead of restating the obvious, I have decided to quote
extensively from Mominee. That case is so relevant in substance and significance
that despite having been written 30 years ago, the concurring opinion still resonates:
Section 16, Article I of the Ohio Constitution states: “[a]ll
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 * * *.”
Having roots in the Magna Carta, “access to the courts”
provisions, found in many state constitutions, were designed to
place some limitation on governmental power. As early as 1882
in Lafferty v. Shinn (1882), 38 Ohio St. 46, 48, this court said “[t]hat
‘all courts shall be open, and every person for an injury done him in
his lands, goods, person or reputation, shall have remedy by due
course of law,’ is ordained in the constitution (art. 1, § 16); and it is
not within the power of the legislature to abridge the period within
which an existing right may be so asserted as that there shall not
remain a reasonable time within which an action may be
commenced. * * * ” (Emphasis added.)
***
The effect of a statute of repose, at least in the medical
malpractice area, is to reduce the doctor’s exposure to liability by
granting to him immunity from suit after the limitations period has
run. Such protection may be justified on strong claims of public
policy, and, therefore, not constitutionally infirm under either the
equal protection or due process clauses. See, generally, Redish,
Legislative Response to the Medical Malpractice Insurance Crisis:
Constitutional Implications (1977), 55 Tex.L.Rev. 759. The same
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January Term, 2016
would not hold true, however, when measured against the “access-
to-the-courts” provision of Section 16, Article I of the Ohio
Constitution.
It will be argued that in striking down this statute of repose,
we will be usurping the prerogatives of the legislature and that no
statute of limitations will be safe from our review. Nothing could
be further from the truth. The establishment of time limitations on
various causes of action is a policy matter within the particular
purview and competence of the legislature, but any such legislation
must fall if it interferes with a person’s constitutionally guaranteed
right of access to the courts when that person is asserting a right of
action arising at common law.
The action for negligence, upon which today’s medical
malpractice actions are founded, was well-established in the
common law (trespass of the case). Where a right or action existed
at common law at the time the Constitution was adopted, that right
is constitutionally protected, by the access-to-the-courts provision,
from subsequent legislative action which abrogates or impairs that
right without affording a reasonable substitute. See,
generally, Gentile v. Altermatt (1975), 169 Conn. 267, 363 A.2d
1. Cf. Haskins v. Bias (1981), 2 Ohio App. 3d 297, 441 N.E.2d
842. Thus, through the theory of “constitutional incorporation,” one
of construction, legislation which serves to abolish or severely
impair common-law remedies existing at the time the Constitution
was adopted is invalid unless a reasonable substitute is provided for
the remedy which is lost. Conversely, where a party would not have
had a right to bring an action at common law, either because no
cause of action existed or because some bar prevented its assertion,
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the cause of action is not constitutionally incorporated by the
adoption of the access-to-the-courts provision. If a party received a
subsequent right of action, not recognized at common law, either
through legislative enactment or judicial pronouncement, that right
could properly be abrogated by the legislature even without
affording a reasonable substitute. Any right of action created
subsequent to the access-to-the-courts provision exists only as a
matter of judicial or legislative grace and may be withdrawn at any
time.
It is within this context that we must consider the statute of
repose set forth in R.C. 2305.11(B). We have already seen that the
statute provides for an absolute bar of a cause of action for medical
malpractice after a four-year period of time has elapsed from the
date of the occurrence—that is, the date on which the alleged
malpractice took place. It can readily be seen that where the injury
is not discovered within the prescriptive period, the effect of the
repose is to abolish the party’s right of action altogether. A person
so situated is literally given no opportunity to bring his action
because the right to proceed is obliterated before it even accrues. In
actual effect, this abolition grants the negligent doctor an area of
absolute immunity from suit at the expense of the patient’s
constitutionally guaranteed right to access to the courts. This is
especially true of those suffering from some disability such as we
have in the cases before us, to wit: not having reached the statutory
age of an adult.
Since the bottom-line effect of this statute of repose, R.C.
2305.11(B), is to abolish a common-law right or action which
existed at the time the Constitution was adopted, and since the
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legislature provided no reasonable alternative remedy or substitute
for the one which it has abrogated, this court must hold that R.C.
2305.11(B) is violative of Section 16, Article I of the Ohio
Constitution and is, therefore, unconstitutional. “These rights the
legislature did not give * * * and the legislature can not take them
away. * * * ” Byers v. Meridian Printing Co. (1911), 84 Ohio St.
408, 422, 95 N.E. 917.
(Emphasis sic and footnotes omitted.) Mominee, 28 Ohio St. 3d at 290-293, 503
N.E.2d 717 (Douglas, J., concurring).
{¶ 43} Article I, Section 16 is not some trivial add-on to the Constitution of
this great state. It is part of the Bill of Rights and has been since the first
Constitution was ratified in 1802. It currently states, “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 * * *.” Today the majority opinion modifies this
fundamental constitutional provision. Unfortunately, by implication, Article 1,
Section 16 now reads thus: All courts shall be open, and every person, for an injury
done him in his lands, goods, person, or reputation, shall have remedy by due course
of law unless the General Assembly decides that the courts are not open.
{¶ 44} The import of the majority opinion is that negligent medical
providers are more important than the people they injure. Any person suffering an
injury due to medical negligence must now discover the injury within four years or
be foreclosed from recovery, even if the injury is not reasonably discoverable. In
the short term, this is not a particularly important case. Not many Ohioans are
unable to determine that they have been negligently injured by a medical provider
within four years. But the long-term impact of this case is incalculably bad: some
toxins are long acting, with unforeseeable consequences.
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{¶ 45} The Toomer’s Corner oak trees in Auburn, Georgia, were
intentionally poisoned, but the damage wasn’t immediately noticeable. The impact
was irredeemable, however, and the trees were eventually removed.
http://www.al.com/news/index.ssf/2015/11/harvey_updyke_poisoned_toomers.ht
ml. This court’s acceptance of the position that the General Assembly can
undermine constitutional provisions is poisonous, though not yet irreparable. This
case moves us one step closer to the time when the common law will be completely
obliterated in Ohio. Today, this court countenances the intolerable concept that
Ohioans’ right to a remedy exists only through the good graces of the General
Assembly. This court is wrong. The right to a remedy is a power reserved to the
people by the people in Ohio’s Constitution, and it cannot be diminished by statute.
I trust that this court will eventually realize its mistake and find the will to protect
Ohioans from future encroachments on their constitutional rights.
{¶ 46} I concur in judgment only, which is a minor point indeed. I dissent
to everything else in the majority opinion.
_________________
Brannon & Associates, Dwight D. Brannon, Kevin A. Bowman, and
Matthew A. Schultz, for appellees.
Reminger Co., L.P.A., Martin T. Galvin, William A. Meadows, and Brian
T. Gannon, for appellants.
Bonezzi Switzer Polito & Hupp Co., L.P.A., Bret C. Perry, and Jason A.
Paskan, urging reversal for amicus curiae Academy of Medicine of Cleveland &
Northern Ohio.
Squire Patton Boggs (US) L.L.P., Heather L. Stutz, Christopher F. Haas,
and Larry J. Obhof; and Sean McGlone, urging reversal for amici curiae Ohio
Hospital Association, Ohio State Medical Association, and Ohio Osteopathic
Association.
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January Term, 2016
Giorgianni Law L.L.C. and Paul Giorgianni, urging affirmance for amicus
curiae Ohio Association for Justice.
_________________
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