12/07/2012

High court's ruling upholding medical statute of repose bodes well for engineers

Construction statute yet to be tested

Professional engineers and others in the construction industry can take comfort in the decision handed down Thursday by the Ohio Supreme Court that upholds the state's four-year statute of repose for filing medical malpractice lawsuits.

The high court, in a 6-1 decision in the case of Ruther v. Kaiser, strongly asserted the right of the Ohio General Assembly to limit the amount of time plaintiffs have to file malpractice lawsuits, as it did when it enacted a 10-year statute of repose for professional engineers and others in the construction industry in 2004.

In Ruther v. Kaiser, Timothy Ruther and his wife sued his doctor, George Kaiser, after Mr. Ruther was diagnosed in 2008 with a liver lesion and hepatitis C. The suit alleged that the doctor found Mr. Ruther had elevated liver enzyme levels during tests in 1995, 1997, and 1998 but failed to properly assess and respond to those results. Mr. Ruther died while the case was pending.

The trial court and the Twelfth District Court of Appeals denied the doctor's motion for summary judgment, concluding that Ohio’s statute of repose for medical malpractice suits violated the state constitution’s open courts provision, which provides that, "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 . . . ."

But in her majority opinion, Justice Judith Ann Lanzinger said the General Assembly has a right to impose limits on when medical malpractice claims can be filed.

The four-year statute of repose, she asserted, “is a valid exercise of the General Assembly’s authority to limit a cause of action.” Therefore, she concluded, “Mrs. Ruther failed to present clear and convincing evidence that the statute is unconstitutional as applied to her claim.”

Forcing medical providers to defend against medical claims that occurred decades before, she wrote, “presents a host of litigation concerns,” from the possibility that witnesses have died or can’t be found to the risk that the medical provider may have closed.

Justice Yvette McGee Brown, in a concurring decision, wrote that while “the facts of this case are tragic,” it is “unquestionably the province of the legislature to define claims and remedies under Ohio law.”

“To the extent that the four-year time limit in Ohio’s statute of repose is seen as harsh, the remedy is in the legislature, not the courts,” she wrote. “The people are responsible for their political choices.”

Ohio's first statute of repose protecting professional engineers and architects from stale lawsuits was enacted in 1963 and stood for 30 years, until justices favorable to the trial bar took control of the Ohio Supreme Court in 1992.

In 1994, that court struck down the statute of repose, claiming it "barred the doors to the courthouse" to injured persons.  The General Assembly enacted another statute of repose in 1996, only to see it struck down almost instantaneously by the high court.

The balance of the court shifted to conservatives in 2002 and in 2004, ACEC Ohio worked with other business groups to pass wide-ranging tort reform legislation that included a statute of repose that bars the filing of lawsuits against engineers and others in the construction industry more than 10 years after substantial project completion.

So far, the construction statute of repose has not been tested in the courts.

A member of the Supreme Court who voted to strike down the previous statutes of repose was a minority of one in yesterdays ruling.

In a strongly worded dissent, Justice Paul Pfeifer – a former trial attorney – asserted that “the sweeping language employed by the majority in this case is the crescendo in our court’s decade-long deference to, and acceptance of, the General Assembly’s assault on our citizens’ right to remedy set forth, without alteration, for over two centuries in the Ohio Constitution.”