Musick v. Dutta

{¶ 18} I agree with the principal opinion that Hershberger does not require us to reverse the trial court's judgment. The complaint in Hershberger did not indicate when the underlying malpractice "began to deprive her of her husband's `society, comfort and companionship.'" 34 Ohio St.3d at 6, 516 N.E.2d 204. (It doesn't appear that the court looked to other parts of the record to learn when her loss occurred.) Rather than presuming that her loss of consortium immediately arose on the date of malpractice, the court fashioned a rule based upon the logical approach that the clock must begin to run on the same date that her spouse's medical-malpractice claim accrued.

{¶ 19} Here, the record clearly indicates that Mrs. Musick both suffered her own loss and knew the cause of that injury prior to the accrual date of her husband's medical-malpractice claim. Thus, Hershberger is distinguishable, notwithstanding the broad language of paragraph two of its syllabus. As the principal opinion indicates, the syllabus of a Supreme Court case should not be construed as being broader than the facts of that specific case demand. State v. McDermott (1995),72 Ohio St. 3d 570, 574, 651 N.E.2d 985. See, also, former S.Ct.R.Rep.Op. 1(B) (effective until May 1, 2002), which provided that the syllabus "states the controlling point * * * of law decided in andnecessarily arising from the facts of the specific case before the Court for adjudication." (Emphasis added.)

{¶ 20} In a set of events that is the reciprocal of ours, the appellate court in Viock, supra, 13 Ohio App. 3d 7,13 OBR 8, 467 N.E.2d 1378, recognized that it would be unfair to start the statute of limitations running on a spouse's loss-of-consortium claim before the spouse had suffered his or her own injury. Thus, in the situation where the malpractice plaintiff's action had already accrued before the loss of consortium occurred, the Hershberger court's concern for a "more consistent and logical approach," 34 Ohio St.3d at 6,516 N.E.2d 204 would require delaying the consortium plaintiff's statute of limitations until he or she had actually suffered his or her own injury. This is true regardless of whether the consortium plaintiff knew of the accrual of the malpractice plaintiff's claim. For until consortium has been lost, how can an action for that injury accrue within the meaning of the statute of limitations? Viock, 13 Ohio App.3d at 16, 13 OBR 8,467 N.E.2d 1378.

{¶ 21} Likewise, in our situation there is no consistency or logic in a rule that would allow Mrs. Musick to have both an injury in fact (loss of consortium) and knowledge of its proximate cause (medical malpractice) and yet delay the running of the statute of limitations until a separate and distinct cause of action in another plaintiff has accrued. Consistency can be promoted by adopting the simple rule that a plaintiff's cause of action for loss of consortium accrues when the plaintiff has both suffered a loss of consortium and knows or objectively should know that the malpractice is the proximate cause of that injury. This is the same rule that applies to the malpractice plaintiff's claim. And it is consistent with the rationales underlying statutes of limitation: to ensure fairness to the defendant, to encourage prompt prosecution of causes of action, to suppress stale and fraudulent claims, and to avoid the difficulties of proof and inconvenience engendered by delay. See O'Stricker v.Jim Walter Corp. (1983), 4 Ohio St. 3d 84, 88, 4 OBR 335,447 N.E.2d 727. The fact that the two clocks may start ticking at different times is not an impediment to fairness. Consider the situation where the potential malpractice plaintiff has learned of both his injury and the doctor's culpability yet decides against informing his spouse in an effort to spare or delay his wife's mental anguish. The wife loses her husband's consortium but does not know the underlying cause. Would a logical rule start the running of the statute before she knows or should know of the proximate cause of her loss? Tying her claim to her husband's would cause that result. The better rule is that accrual of the action and the accompanying running of the statute begin when the plaintiff both suffered a loss and knows or reasonably should know its proximate cause.

{¶ 22} Applying that rule here requires us to affirm the trial court's judgment.