Wyler, Appellant, v. Tripi et al., Appellees, 25 Ohio St. 2d 164

Herbert, J. R. C. 2305.11 provides, in pertinent part: “An action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued * * * .” This dispute concerns the date upon which the statute of limitations commences to run in a medical malpractice case and necessitates a re-examination of this court’s holdings in Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N. E. 865; Bowers v. Santee (1919), 99 Ohio St. 361, 124 N. E. 238; DeLong v. Campbell (1952), 157 Ohio St. 22, 104 N. E. 2d 177. As stated by Judge Stewart in the syllabus of DeLong v.

Campbell, supra: “As to a cause of action for malpractice by a physician, the statute of limitations begins to run at the latest upon the termination of the physician-patient relationship whether, within the time limited by the statute, the act constituting malpractice is known or unknown by the one upon whom it was committed.” Appellant has urged this court to abandon the rule announced in our previous decisions and to adopt a rule that the statute of limitations for medical malpractice mil not commence to run until the patient actually discovers, or reasonably should have discovered, the negligent act.

In jurisdictions which have considered this question, it has been recognized that in the construction of the statute of limitations pertaining to medical malpractice, the cases represent a conflict between two basic policies of the law, viz., the policy of discouraging the fostering of stale claims, and the policy of allowing meritorious claimants an opportunity to present their claims. E. g., Billings v. Sisters of Mercy (1964), 86 Idaho 485, 489, 389 P. 2d 224.

It is generally stated that a cause of action accrues when the wrongful act complained of is committed, and not as of the date the damage is discovered or reasonably should have been discovered. E. g., 34 Ohio Jurisprudence 2d 536, Limitation of Actions,

Section 58; 34 American Jurisprudence 94, Limitation of Actions,

Section 115. In some jurisdictions, the strict general rule that a cause of action accrues at the date of the alleged wrong is applied to medical malpractice cases. E. g., Silvertooth v. Shallenberger (1934), 49 Ga. App. 133, 174 S. E. 365; Carter v. Harlan Hospital Assn. (1936), 265 Ky. 452, 97 S. W. 2d 9; Tantish v. Szendey (1962), 158 Me. 228, 182 A. 2d 660; Wilder v. St. Joseph Hospital (1955), 225 Miss. 42, 82 So. 2d 651.

However, in the early 1930’s most courts began developing exceptions to the general rule in an attempt to avoid the harsh results which often arose under facts peculiar to medical malpractice cases. 32 Indiana L. J. 528, 529. For example, some courts now allow a plaintiff to sue for breach of contract so as to take advantage of a longer statute of limitations. Sellers v. Noah (1923), 209 Ala. 103, 95 So. 167. See, also, cases collected in 74 A. L. R. 1320, and 144 A. L. R. 215.

Nevertheless, it is still the majority view that injuries sustained as a result of medical malpractice are ex delicto in nature and the statute of limitations for breach of contract is not applicable. See 80 A. L. R. 2d 320, 326. In other jurisdictions, a continuous treatment theory has been used by the courts in situations where a doctor leaves a foreign object in the body of a patient and continues to treat him after the operation. The physician is said to be negligent not only in his initial act, but also in allowing the object to remain in the patient’s body while the patient is still under his care.

According to this analysis, the statute of limitations does not begin to run until the patient leaves the care of the physician. E. g., Hotelling v. Walther (1942), 169 Ore. 559, 130 P. 2d 944. In some jurisdictions, the statute of limitations does not begin to run until discovery of the negligently caused condition, if the physician has fraudulently concealed his negligent conduct. E. g., Crossett Health Center v. Croswell (1953), 221 Ark. 874, 256 S. W. 2d 548: Guy v. Schuldt (1956), 236 Ind. 101, 138 N. E. 2d 891; Lakeman v. La France (1959), 102 N. H. 300, 156 A. 2d 123.

Finally, a few jurisdictions have expanded the fraudulent concealment doctrine by finding constructive fraudulent concealment in the failure of the physician to inform the patient of the negligence, where the physician knew or should have known it occurred. E. g., Morrison v. Acton (1948), 68 Ariz. 27, 198 P. 2d 590; Rosane v. Senger (1944), 112 Colo. 363, 149 P. 2d 372; Perrin v. Rodriguez (La. App. 1934), 153 So. 555. Cf. Seitz v. Jones (Okla. 1961), 370 P. 2d 300.

This court, in the Gillette, Bowers and DeLong cases, has adopted the continuing negligence theory by stating that in all medical malpractice cases, the latest time at which the statute of limitations commences running is the time at which the physician-patient relationship finally terminates. The justification given for the termination rule is that it strengthens the physician-patient relationship.

The patient may rely upon the doctor’s ability until the relationship is tenninated and the physician has the opportunity to give full treatment, including the immediate correction of any errors in judgment on his part. In short, it was thought that the termination rule is conducive to that mutual confidence which is essential to the physician-patient relationship. Bowers v. Santee, supra.

In situations such as the case at bar, where no injury or damage becomes apparent contemporaneously with the negligent act, the application of the general rule that a cause of action exists from the time the negligent act was committed would lead to the unconscionable result that the injured party’s right to recovery can be barred by the statute of limitations before he is even aware of its existence.

Although the termination rule is a marked departure from the general rule, and is designed to avoid the harsh results of that rule, it affords little relief in cases where the injury is one which requires a long developmental period before becoming dangerous and discoverable. In those situations, the termination rule extends the period of time at which the statute of limitations commences to run, but does so by a factor which bears no logical relationship to the injury incurred. See 30 Ohio State L. J. 425, 430.

The termination rule is further fallible in that it requires the patient to determine, at the time the relationship is terminated, that malpractice has taken place, when in fact he may have relied upon the very advice which constitutes malpractice. Johnson v. Caldwell (1963), 371 Mich. 368, 123 N. W. 2d 785; Ayers v. Morgan (1959), 397 Pa. 282, 154 A. 2d 788.

Because the termination rule only relieves the peculiarly harsh results of the application of the medical malpractice statute of limitations in some instances, appellant suggests that this court should follow those jurisdictions which have adopted the discovery rule. There is a sharp conflict of authority on that issue in this country. The courts in 21 states presently do not apply the dis-eovery rule, applying instead either the strict general rule or the exceptions to the general rule noted above.

Ten jurisdictions have adopted the discovery rule, but have specifically limited it to cases where a foreign object (surgical sponge, gauze, forceps, etc.) has been negligently left in the patient’s body. Eleven states have adopted the discovery rule for all malpractice cases regardless of whether a foreign object is involved. Two states have adopted the discovery rule by statute.

Those jurisdictions which have adopted the discovery rule do not interpret its applicaton as nullifying one of the purposes of the statute of limitations. (It is difficult to maintain that the claimant has been “sleeping on his rights ’ ’ when in fact he is unaware that he had such rights. See Ayers v. Morgan [1959], 397 Pa. 282, 154 A. 2d 788; Morgan v. Grace Hospital [1965], 149 W. Va. 783, 144 S.

E. 2d 156.) Those courts view the discovery doctrine as being entirely consistent with the policy of the statute of limitations to prevent “stale claims.” Although an examination of the cases reveals that there is much to recommend the adoption of the discovery rule, we reluctantly conclude that courts of Ohio should not decree such an adoption. We are convinced that to do so would place us in the obvious and untenable position of having not only legislated, but of having done so directly in the face of a clear and opposite legislative intent. Cf. Pasquale v. Chandler (1966), 350 Mass. 450, 215 N. E. 2d 319.

Statutes of limitation are designed to assure an end to litigation and to establish a state of stability and repose. It must be assumed that when the General Assembly enacts a statute of limitations it is aware that, although a stale claim may be meritorious, the statute will operate without reference to merit and will cut off the claim. Moreover, the General Assembly has often considered and left standing our

interpretation of R. C. 2305.11, as announced in Gillette, Bowers and DeLong. In the 106th General Assembly (1965-66), House Bill No. 30 was introduced. In the 105th General Assembly (1963-64), House Bill No. 959 was introduced. Both bills would have amended R. O. 2305.-11, by increasing the limitation period for malpractice to two years. Neither bill survived the scrutiny of the committee to which it was referred. A similar fate befell House Bill No. 907, which was introduced in the 103rd General Assembly (1959-60), and was designed to eliminate the statute of limitations for malpractice.

The most significant expression of legislative position occurred in the 101st General Assembly (1955-56), less than three years after this court’s decision in the DeLong case. In that session, House Bill No. 177 was introduced to add the following language to R. C. 2305.11: “If the action is for malpractice the cause thereof shall not accrue until the malpractice is discovered.” House Bill No. 177, was rejected by the committee to which it was referred.

It should also be noted that although the General Assembly has refused to adopt the discovery rule for medical malpractice cases, it has nevertheless created certain exceptions to the general operation of various other statutes of limitation. (Cf. Mosby v. Michael Reese Hospital [1964], 49 Ill. App. 2d 336, 199 N. E. 2d 633.) In R. C. 2305.15 and 2305.16, the General Assembly has provided that the statute of limitations is tolled if the person entitled to bring the action is under a legal disability, or if the person liable to an action departs or absconds from the state. Moreover, in R.

C. 2305.09 the General Assembly specifically enacted a discovery rule “if the action is for trespassing under ground or injury to mines, or for the wrongful taking of personal property.” Finally, under R. C. 2305.04, if a person is entitled to recover the title or possession of real property, but is under legal disability, the statute of limitations is tolled. Significantly and intentionally absent is any statutory provision to the effect that the lack of knowledge on the part of an injured party in a mediaal malpractice action operates to delay the commencement of the running of the statute of limitations.

See Townsend v. Eichelberger (1894), 51 Ohio St. 213, 38 N. E. 207. Where the discovery rule for medical malpractice cases has been adopted by statute, the legislatures placed an outside limit on the period of time within which the action may be brought. Alabama Code, Title 7, Section 25(1); Connecticut General Statutes,

Section 52-584. Such legislative action reminds us that statutes of limitation are a legislative prerogative and are based upon important legislative policy. Cf. LaBarbera v. Batsch (1967), 10 Ohio St. 2d 106, 114, 227 N. E. 2d 55. In consideration of the obvious and repeated disinclination of the General Assembly to amend its malpractice statute of limitations, we are compelled to adhere to our former decisions on the question and refrain from judicially adopting that which has so clearly been legislatively rejected. The judgment of the Court of Appeals is affirmed. Judgment affirmed. O’Neill, C.

J., Steen and Leach, JJ., concur. Schneideb, Duncan and Coebigan, JJ., dissent. Acton v. Morrison (1945), 62 Ariz. 139, 155 P. 2d 782; Crossett Health Center Croswell (1953), 221 Ark. 874, 256 S. W. 2d 548; Saffold v. Scarborough (1955), 91 Ga. App. 628, 86 S. E. 2d 649; Mosby v. Michael Reese Hospital (1964), 49 Ill App. 2d 336, 199 N. E. 2d 633; Guy v. Schuldt (1956), 236 Ind. 101, 138 N. E. 2d 891; Ogg v. Robb (1917), 181 Iowa 145, 162 N. W. 217; Waddell v. Woods (1945), 160 Kan. 481, 163 P. 2d 348; Carter v. Harlan Hospital Assn. (1936), 265 Ky. 452, 97 S. W. 2d 9; Tantish V.

Szendey (1962), 158 Me. 228, 182 A. 2d 660; Pasquale v. Chandler (1966), 350 Mass. 450, 215 N. E. 2d 319; Wilder v. St. Joseph Hospital (1955), 225 Miss. 42, 82 So. 2d 651; Thatcher v. De Tar (1943), 351 Mo. 603, 173 S. W. 2d 760 (see, also, Missouri Statutes,

Section 516.40 [actions for malpractice must be brought within two years from the date of the act]); Cloutier v. Kasheta (1964), 105 N. H. 262, 197 A. 2d 627; Shearin v. Lloyd (1957), 246 N. C. 363, 98 S. E. 2d 508; DeLong v. Campbell (1952), 157 Ohio St. 22, 104 N. E. 2d 177; Hinkle v. Hargens (1957), 76 S. D. 520, 81 N. W. 2d 888; Bodne v. Austin (1928), 156 Tenn. 366, 2 S. W. 2d 104 (see, also, Albert v. Sherman [1934], 167 Tenn. 133, 67 S. W. 2d 140); Murray v. Allen (1931), 103 Vt. 373, 154 A. 678; Hawks v. DeHart (1966), 206 Va. 810, 146 S. E. 2d 187; Lindquist v.

Mullen (1954), 45 Wash. 2d 675, 277 P. 2d 724; Lotten v. O’Brien (1911), 146 Wis. 258, 131 N. W. 361. Davis v. Bonebrake (1957), 135 Colo. 506, 313 P. 2d 982 (compare, Rosane v. Senger [1944], 112 Colo. 363, 149 P. 2d 372); Layton v. Allen (Del. 1968), 246 A. 2d 794; Billings v. Sisters of Mercy (1964), 86 Idaho 485, 389 P. 2d 224 (see Owens v. White [C. A. 9, 1967], 380 F. 2d 310, applying Idaho law); Spath v. Morrow (1962), 174 Neb. 38, 115 N. W. 2d 581; Fernandi v. Strully (1961), 35 N. J. 434, 173 A. 2d 277 (see, also, Rothman v. Silber [1966], 90 N. J. Sup. 22, 216 A. 2d 18); Flanagan v. Mt.

Eden General Hospital (1969), 24 N. Y. 2d 427, 248 N. E. 2d 871; Seitz v. Jones (Okla. 1961), 370 P. 2d 300 (see Lewis v. Owen [C. A. 10, 1968], 395 F. 2d 537, applying Oklahoma law); Gaddis v. Smith (Tex. 1967), 417 S. W. 2d 577; Christiansen v. Rees (1968), 20 Utah 2d 199, 436 P. 2d 435, disapproving Peteler v. Robinson (1932), 81 Utah 535, 17 P. 2d 244; Morgan v. Grace Hospital (1965), 149 W. Va. 783, 144 S. E. 2d 156. Stafford v. Shultz (1954), 42 Cal. 2d 767, 270 P. 2d 1 (for a detailed explanation of the California rule and cases, see Louisell and Williams, Medical Malpractice, 388, footnote 78; 80 A. L.

R. 2d 390-396, and 32 Indiana L. J. 528, 533, footnote 29); Yoshizaki v. Hilo Hospital (Haw. 1967), 433 P. 2d 220; Springer v. Aetna Cas. & Surety Co. (La. App. 1964), 169 So. 2d 171 (see Phelps v. Donaldson [1963], 243 La. 1118, 150 So. 2d 35; Perrin v. Rodriguez [La. App. 1934], 153 So. 555); Waldman v. Rohrbaugh (1966), 241 Md. 137, 215 A. 2d 825 (see Hahn v. Claybrook [1917], 130 Md. 179, 100 A. 83); Johnson v. Caldwell (1963), 371 Mich. 368, 123 N. W. 2d 785; Grey v. Silver Bow County (1967), 149 Mont. 213, 425 P. 2d 819, citing Johnson v. St.

Patrick’s Hospital (1966), 148 Mont. 125, 417 P. 2d 469; Iverson v. Lancaster (N. D. 1968), 158 N. W. 2d 507; Berry v. Branner (1966), 245 Ore. 307, 421 P. 2d 996, overruling Vaughn v. Langmack (1964), 236 Ore. 542, 390 P. 2d 142; Ayers v. Morgan (1959), 397 Pa. 282, 154 A. 2d 788; Wilkinson v. Harrington (R. I. 1968), 243 A. 2d 745. Cf. Chrischilles v. Griswold (1967), 260 Iowa 453, 150 N. W. 2d 94; Urie v. Thompson (1949), 337 U. S. 163, 93 L. Ed. 1282; United States v. Reid (C. A. 5, 1958), 251 F. 2d 691; Brush Beryllium Co. v. Meckley (C. A. 6, 1960), 284 F. 2d 797.

Alabama Code, Title 7, Section 25(1); Connecticut General Statutes,

Section 52-684. See cases cited in footnotes 2 and 3, supra. See, also, Louisell and Williams, Medical Malpractice,

Chapter 13; 25 Washington and Lee L. Rev. 78; 29 U. of Pittsburgh L. Rev. 341; 30 Ohio State L. J. 425; 18 Western Reserve L. Rev. 1002; 17 Vanderbilt L. Rev. 1577; 47 Cornell L. Q. 339; 32 Indiana L. J. 528; 12 Wyoming L. J. 30; and 63 Harvard L. Rev. 1177.