Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On April 25, 2012, the Supreme Court of Ohio heard oral argument in the case of Tracy Ruther, Individually and Administrator of the Estate of Timothy Ruther v. George Kaiser, D.O., et al, no. 11-0899. The issue in the case is the constitutionality of the medical malpractice statute of repose codified at R.C. 2305.113(C).

Timothy Ruther had lab work done on three separate occasions, once in each of the years 1995, 1997, and 1998, by the Defendants-Appellants. All three tests showed that Ruther had significantly elevated liver enzymes, but he was never informed of these findings. In December of 2008 he was diagnosed with liver cancer, from which he died in June of 2009.  He and his wife filed a medical malpractice claim in May of 2009.  (a wrongful death claim was added after Ruther’s death; that claim is not before the Court).

Defendants argued at trial that the medical claim was barred by the statute of repose. Both the trial court and the Twelfth District Court of Appeals held the medical malpractice statute of repose was unconstitutional as applied to this case, in violation of the right to a remedy provision of the Ohio Constitution. Both lower courts held that the present statute of repose, as applied in this case, suffered the same constitutional infirmities as an earlier statute of repose struck down by the Supreme Court of Ohio in 1987 in  Hardy v. VerMeulen. .

Read the oral argument preview of this case here.

For the defense, the state of Ohio as amicus shared oral argument time with the doctor. I don’t think this part went at all well. The Solicitor General’s office argued that Hardy v. VerMulen  should be overruled, based on the factors in Galatis v. Westfield Ins. Co., because it is unworkable and was wrongly decided in the first place. The Deputy SG  took an historical and originalist view to support this position.  The doctor’s lawyer argued that the statute of repose has run in this case and the claim is properly barred because it had not vested yet.  A statute of repose can constitutionally bar a claim that has not yet vested.  If a cause of action has not yet accrued, it is not vested. In this case, the plaintiffs’ cause of action had not accrued  (because it was not yet discovered ), until after the statute of repose foreclosed the claim;  thus plaintiffs were never deprived of a vested right.

Plaintiffs’ counsel argued that a statute is unconstitutional as applied if it takes away a vested cause of action, which was the case here.  In this case, the claim vested when the injury occurred—which was during the period of the 1990’s when Ruther was never told of his elevated liver enzymes. A statute of repose in a medical claim is different from a statute of repose in a products liability or construction case. And he sees this as a statute of limitations case, not a statute of repose case—was the case timely filed after discovery for statute of limitations purposes.

Why on earth are you citing us the Magna Carta??

The first full ten minutes of argument was an exchange between the Deputy Solicitor General, and Justice Pfeifer, who didn’t sound like he was having any of it.  The Deputy SG urged the court to take an originalist view  in interpreting the right to a remedy provision.  Justice Pfeifer looked almost stupefied at the argument that Hardy v. VerMuelen was wrongly decided at the time because it was inconsistent with the long history of Article I Section 16—going back to the back to Magna Carta to end the practice of selling writs in the royal courts… The Deputy SG went on from there to the Ohio constitutional conventions, with some major philosophers cited in between. He maintained that section was never understood as a restriction on legislative power, but rather as directed at judicial abuses.

Is this an originialist argument, Pfeifer asked?  What could we learn from that that could have any bearing on the meaning of the Right to a Remedy provision in the Ohio Constitution in 2012?

Favorite Exchange of the day…

Continuing his questioning, Justice Pfeifer asked the Deputy SG,   “are you related to Bill Batchelder? “(long time Republican powerhouse in the General Assembly), undoubtedly leaving the student audience mystified, but I laughed out  loud. “I heard him make an argument based on the Magna Carta when I was in law school,” said Pfeifer, —“isn’t the language of our Constitution pretty plain and straightforward—our predecessors have had no trouble understanding what it meant.

Justice Pfeifer went on to comment that in Arbino v. Johnson & Johnson,  the case upholding most of tort reform, the Court approved some “outer limits on the amount of damages that could be recovered” but has never held the right to a remedy can be extinguished altogether.

Moving Right Along…

Whew!  That first ten minutes seemed awfully long and a bit painful.

Precedent

Justice O’Donnell asked if the Court found the SG’s Galatis  argument unpersuasive, did the defendants lose?

Justice Lanzinger asked if the present statute is really any different from the one struck down in Hardy?

Justice Pfeifer asked if the Court would have to overturn a rash of cases (Hardy, Burgess v. Eli Lilly, and Groch)  in order for the defendants to prevail here?

When did the cause of action accrue in this case? Is the Accrual Date the Same for the Statute of Limitations and the Statute of Repose?

Several justices asked these two key questions in a variety of ways. Justice O’Donnell asked whether the cause of action vested when it accrued, and whether the Court should use the same accrual date for both? While they would seem to be the same in cases in other fields (like construction), to him he said, here they appear to be different. Exactly when did the plaintiff learn he had a cause of action in this case? He asked the doctor’s lawyer point blank when in her view the statute of repose started to run in this case, and she answered after the last set of lab tests in 1998, so it had run out in 2002.  But because the plaintiff hadn’t discovered it yet, the claim had not vested during that time, and it was perfectly permissible for the statute of repose to bar it.

But, said Chief Justice O’Connor, if the plaintiff had discovered the alleged malpractice at the time of the last set of lab results, the statute of limitations would have been the limiting factor in this case (yes, said defense counsel.)

The Chief later commented that knowledge triggers vesting (for statute of repose purposes), but if the plaintiff has no knowledge of an injury due to malpractice, there is no vesting, and the statute of repose cannot divest the plaintiff of a remedy (yes, said plaintiffs’ counsel)

Justice Pfeifer asked plaintiffs’ counsel if the only issue for him was whether the claim was timely filed after discovery? (answer: yes—and this is a statute of limitations issue)

Justice Lanzinger asked one of the key questions of the day--does the discovery rule start the statute of limitations running (yes, said plaintiffs’ counsel)—so is it plaintiffs’ position that the discovery rule has no application to the statute of repose. Why not use the same discovery standard for both statutes, she asked, commenting that the discovery rule in the statute of repose area was a “hurdle” for her. (answer—the Court created this distinction in the Groch case)

The other key question of the day came from Justice Stratton, who asked plaintiffs’ counsel if he could envision any scenario in a medical malpractice setting where a statute of repose would work (he really couldn’t—he gamely tried one, unconvincingly).

Can a claim be extinguished before a plaintiff knew it existed?

Justice O’Donnell asked.

Justice Lanzinger asked whether a statute of repose protects against liability if the patient doesn’t become aware of the act of malpractice during that time.

Is the Statute of Repose in a Medical claim Different from a Products case?

Chief Justice O’Connor said she could see a difference between buying a machine and knowing she’d be responsible for any injury for a period of ten years, and a doctor patient relationship where all the knowledge is on the doctors’ side.

How Could a Person Survive Untreated Liver Cancer for a Decade?

Justice Stratton was very incredulous on this point, saying, if true, this is a complete outlier of a case, noting that in her view the plaintiff has huge proof problems in this case. (that’s for the merits, replied plaintiffs’ counsel.)

How it Looks from the Bleachers

Under existing precedent from the Groch case, a statute of repose can be constitutionally applied to a claim that has not yet vested. A majority of the justices appear to be ready to find that statute of repose rules are different in medical claims than they are in products liability or construction claims, and are troubled about taking away a remedy before the plaintiff is aware of an injury.  But key to this case is whether it is fair to use different standards for the statute of limitations and the statute of repose in a medical claim.  In the former, the discovery rule is settled law—the statute of limitations doesn’t start to run until the plaintiff discovers or should have discovered his injury.  Is it fair, then, to turn around and say that the statute of repose rules are different—the claim vests at the time of the injury, not the time of discovery of the injury?  Justices Pfeifer, McGee Brown, and  O’Donnell appear ready to find the statute in this case unconstitutional as applied; Justices Lanzinger and Stratton less so.  As Justice Stratton astutely observed, under plaintiffs’ theory, a statute of repose would probably never work in a medical claim.  That could be a big problem for the others.