[Cite as Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686.]




               RUTHER, APPELLEE, v. KAISER ET AL., APPELLANTS.
        [Cite as Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686.]
Medical-malpractice actions—Statutes of repose—The medical-malpractice
        statute of repose found in R.C. 2305.113(C) does not extinguish a vested
        right and thus does not violate the Ohio Constitution, Article I, Section
        16—Judgment reversed.
    (No. 2011-0899—Submitted April 25, 2012—Decided December 6, 2012.)
               APPEAL from the Court of Appeals for Warren County,
                        No. CA2010-07-066, 2011-Ohio-1723.
                                  __________________
                               SYLLABUS OF THE COURT
The medical-malpractice statute of repose found in R.C. 2305.113(C) does not
       extinguish a vested right and thus does not violate the Ohio Constitution,
       Article I, Section 16. (Hardy v. VerMeulen, 32 Ohio St.3d 45, 512 N.E.2d
       626 (1987), overruled.)
                                  __________________
        LANZINGER, J.
        {¶ 1} This appeal is an as-applied constitutional challenge to R.C.
2305.113(C), the statute of repose for medical claims. The Twelfth District Court
of Appeals held that R.C. 2305.113(C), as applied to the facts of this case,
violates the right-to-remedy clause of the Ohio Constitution, Article I, Section 16,
relying in part upon Hardy v. VerMeulen, 32 Ohio St.3d 45, 47, 512 N.E.2d 626
(1987). For reasons that follow, we overrule Hardy and reverse the judgment of
the Twelfth District Court of Appeals.
                                SUPREME COURT OF OHIO




                                      I. Background
        {¶ 2} R.C. 2305.113(C) sets a four-year statute of repose for medical-
malpractice claims.1 Except for minors or those of unsound mind, a person must
file a medical claim no later than four years after the alleged act of malpractice
occurs or the claim will be barred. Limited exceptions also exist for malpractice
discovered during the fourth year after treatment and for malpractice that leaves a
foreign object in a patient’s body.             R.C. 2305.113(D)(1) and (2).               Those
exceptions allow one additional year after discovery of an injury to file suit. Id.
        {¶ 3} This case involves a medical-malpractice claim filed well after the
statute of repose set forth in R.C. 2305.113(C), and no statutory exception applies.
Timothy Ruther developed abdominal pains that led to a diagnosis of a liver
lesion and hepatitis C in December 2008.
        {¶ 4} Around this time, Timothy Ruther’s wife, appellee Tracy Ruther,
reviewed medical records detailing appellant Dr. George Kaiser’s care of her
husband. These records showed elevated liver-enzyme levels in July 1995, May
1997, and October 1998. Although the parties contest the length of time Mr.
Ruther received treatment at Dr. Kaiser’s practice, appellant Warren County
Family Practice Physicians, Inc., it is not disputed that Dr. Kaiser stopped treating
Mr. Ruther years before he complained of abdominal pain.




1. R.C. 2305.113(C) provides:

                 Except as to persons within the age of minority or of unsound mind as
        provided by section 2305.16 of the Revised Code, and except as provided in
        division (D) of this section, both of the following apply:

                 (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.
                                                2
                                 January Term, 2012




           {¶ 5} In May 2009, the Ruthers sued Dr. Kaiser and Warren County
Family Practice Physicians, Inc., for medical malpractice. The Ruthers claimed
that Dr. Kaiser had failed “to properly assess, evaluate and respond to abnormal
laboratory results including, but not limited to, very high liver enzymes.” Mr.
Ruther died while the case was pending.          Mrs. Ruther then amended the
complaint to add a claim for wrongful death and sought a declaratory judgment
that R.C. 2305.113(C), as applied to her husband, violates the United States and
Ohio constitutions.
           {¶ 6} Dr. Kaiser and the medical practice moved for summary judgment,
asserting that the statute of repose found in R.C. 2305.113(C) barred the amended
complaint, having been brought more than ten years after the alleged act of
malpractice.      The trial court, however, denied the motion, concluding that
applying the statute of repose in this case would violate the Ohio Constitution,
Article 16, Section 1. The trial court also denied appellants’ motion for summary
judgment with respect to Mrs. Ruther’s wrongful-death claim because it had been
filed within the statute of limitations. That ruling was not appealed. Thus, the
wrongful-death action is not before us.
           {¶ 7} The Twelfth District Court of Appeals affirmed the trial court’s
denial of summary judgment. Ruther v. Kaiser, 12th Dist. No. CA2010-07-066,
2011-Ohio-1723. Like the trial court, the appellate court concluded that the
statute, as applied to Mrs. Ruther’s medical-malpractice claim, “bars her claim
after it had already vested, but before she or the decedent knew or reasonably
could have known about the claim[,] [thereby constituting] a violation of the
right-to-a-remedy provision of Section 16, Article I of the Ohio Constitution.” Id.
at ¶ 38.
           {¶ 8} We granted Dr. Kaiser’s request for discretionary review. Ruther
v. Kaiser, 129 Ohio St.3d 1474, 2011-Ohio-4751, 953 N.E.2d 841. The sole
proposition of law reads: “The medical malpractice statute contained in O.R.C.



                                          3
                             SUPREME COURT OF OHIO




§2305.113(C) does not violate the open courts provision (Section 16, Article I)
and is therefore constitutional.”
                                      II. Analysis
                A. The Statute Is Presumed to Be Constitutional
       {¶ 9} R.C. 2305.113(C) has a strong presumption of constitutionality.
Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948, 880 N.E.2d
420, ¶ 25. An as-applied constitutional challenge, such as Mrs. Ruther raises,
alleges that


       the application of the statute in the particular context would be
       unconstitutional.     “The practical effect of holding a statute
       unconstitutional ‘as applied’ is to prevent its future application in a
       similar context, but not to render it utterly inoperative.”


Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357,
802 N.E.2d 632, ¶ 14, quoting Ada v. Guam Soc. of Obstetricians &
Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J.,
dissenting). The standard for such a challenge is clear and convincing evidence.
State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio
St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 21. “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).
       1. Right to Remedy
       {¶ 10} The constitutional provision at issue in this case, Ohio
Constitution, Article I, Section 16, guarantees that “[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, and shall have justice administered
without denial or delay.”           This one provision contains many important

                                           4
                                January Term, 2012




constitutional principles—“open courts,” “right to remedy,” and “due course of
law.”
        {¶ 11} In this case, we are concerned with the right to remedy, which has
been a part of our constitution since Ohio was admitted to the union. Little is
known about the intent behind its inclusion, as the records of the 1802 convention
indicate that the original right-to-remedy provision, Ohio Constitution of 1802,
Article VIII, Section 7, was enacted without amendment or recorded discussion.
See E.W. Scripps Co. v. Fulton, 100 Ohio App. 157, 171-172, 125 N.E.2d 896
(8th Dist.1955) (Hurd, J., concurring). Although it was almost deleted at the
1850-1851 convention, this section was ultimately carried unchanged into the
current Bill of Rights. Id. at 172. The 1873-1874 constitutional convention made
no changes in this section, and the 1912 convention also left the words of the
1802 drafters unaltered, though it added a sentence not at issue in the instant case.
Id.
        {¶ 12} A plain reading of Article I, Section 16 reveals that it does not
provide for remedies without limitation or for any perceived injury. Rather, the
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.
        {¶ 13} We have previously stated that the right-to-remedy provision
applies only to existing, vested rights and that the legislature determines what
injuries are recognized and what remedies are available. Groch v. Gen. Motors
Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 150, quoting Sedar
v. Knowlton Constr. Co., 49 Ohio St.3d 193, 202, 551 N.E.2d 938 (1990). “No
one has a vested right in rules of the common law. * * * The great office of
statutes is to remedy defects in the common law as they are developed, and to
adapt it to new circumstances.” Fassig v. State ex rel. Turner, 95 Ohio St. 232,
248, 116 N.E. 104 (1917), overruled on other grounds by Griffin v. Hydra-Matic
Div., Gen. Motors Corp., 39 Ohio St.3d 79, 529 N.E.2d 436 (1988), syllabus.

                                         5
                            SUPREME COURT OF OHIO




        {¶ 14} Thus, the General Assembly has the right to determine what causes
of action the law will recognize and to alter the common law by abolishing the
action, by defining the action, or by placing a time limit after which an injury is
no longer a legal injury. For example, the General Assembly abolished the torts
of breach of a promise to marry, alienation of affections, and criminal
conversation. R.C. 2305.29; Strock v. Pressnell, 38 Ohio St.3d 207, 214, 527
N.E.2d 1235 (1988), and paragraph one of the syllabus (upholding the statute that
abolished “amatory actions” as constitutional). The legislature has also redefined
the common-law definition of employer intentional torts. R.C. 2745.01; Kaminski
v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d
1066.   It has also limited the ability to pursue negligence actions that are
discovered six months after a decedent’s death. R.C. 2117.06(C).
        {¶ 15} The question remains whether R.C. 2305.113(C) is a valid exercise
of the General Assembly’s authority to define or limit a cause of action.
        2. No Extinguishment of Vested Right
        {¶ 16} The Twelfth District Court of Appeals declared R.C. 2305.11(C)
unconstitutional as applied, reasoning that the statute extinguishes the right to
remedy for a vested claim, relying in a large part on Hardy, 32 Ohio St.3d at 47,
512 N.E.2d 626. Ruther, 12th Dist. No. CA2010-07-066, 2011-Ohio-1723, ¶ 38.
The error in Hardy, repeated by the appellate court, is that there is no actual
examination of when a medical-malpractice claim vests.          Hardy mistakenly
appears to conclude that a medical-malpractice claim arises (becomes
“actionable”) immediately upon the breach of the standard of care—i.e., the
negligent act or omission. And yet a cause of action for negligence does not arise
until there is “the existence of a duty, a breach of that duty and injury resulting
proximately therefrom.”     Mussivand v. David, 45 Ohio St.3d 314, 318, 544
N.E.2d 265 (1989).
        {¶ 17} To be actionable, then, the claim for medical negligence requires
an injury. We have clearly stated that it is when a patient discovers or in the

                                         6
                                 January Term, 2012




exercise of reasonable care and diligence should have discovered the resulting
injury that a cause of action for medical malpractice accrues, or, in other words,
vests. Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111, 449 N.E.2d
438 (1983); Hershberger v. Akron City Hosp., 34 Ohio St.3d 1, 516 N.E.2d 204
(1987), syllabus. If indeed an action immediately accrues upon a negligent act or
omission, then the one-year statute of limitations for filing all medical-
malpractice claims would begin to run immediately.
        {¶ 18} But the General Assembly recognized in R.C. 2305.113 that in
some cases, an injury may not manifest itself within one year of a breach of a duty
of care and so has provided the general discovery period of four years. Within
that boundary, when the patient discovers or should have discovered the injury, or
when the relationship with the doctor terminates, whichever is later, the one-year
statute of limitations begins to run. R.C. 2305.113(C) does not bar a vested cause
of action, but prevents a cause of action from vesting more than four years after
the breach of the duty of care. Therefore, it is a true statute of repose.
        3. Rational Basis for R.C. 2305.113(C)
        {¶ 19} 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.
        {¶ 20} 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

                                           7
                             SUPREME COURT OF OHIO




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.
       {¶ 21} 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. This decision is embodied in Ohio’s four-year statute of repose for
medical negligence, set forth in R.C. 2305.113(C). The statute establishes a
period beyond which medical claims may not be brought even if the injury giving
rise to the claim does not accrue because it is undiscovered until after the period
has ended.
                         B. Hardy Should Be Overruled
       {¶ 22} Ruther urges that Hardy is binding precedent and that there is no
justification for departing from that precedent. However, a newly enacted statute
warrants a fresh review on its individual merits. Arbino, 116 Ohio St.3d 468,
2007-Ohio-6948, 880 N.E.2d 420, at ¶ 24. We are also persuaded that Hardy
should be overruled when we examine it under the stringent standard set forth in
Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d
1256, paragraph one of the syllabus:


               A prior decision of the Supreme Court may be overruled
       where (1) the decision was wrongly decided at that time, or
       changes in circumstances no longer justify adherence to the
       decision, (2) the decision defies practical workability, and (3)
       abandoning the precedent would not create an undue hardship
       for those who have relied upon it.



                                         8
                                 January Term, 2012




        1.   Considering whether Hardy was wrongly decided and whether
circumstances have changed
        {¶ 23} Hardy rests on a flawed foundation—it ignored the cases that
establish when a medical claim vests. The Hardy court concluded that an earlier
version of the statute of repose violated the open-courts provision of the Ohio
Constitution by denying “legal remedy to one who has suffered bodily injury.” 32
Ohio St.3d at 48, 512 N.E.2d 626. Without any analysis, the court assumed that
the right to a remedy attached to an unaccrued claim, holding that because a
plaintiff did not become aware of an injury until after the four-year statute of
repose period had expired, “his cause of action was extinguished before he could
act upon it.” Id. at 45-46. There was no detailed discussion of when a medical
claim arises, accrues, vests, or is actionable.
        {¶ 24} We have acknowledged that “it is state law which determines what
injuries are recognized and what remedies are available.” Groch, 117 Ohio St.3d
192, 2008-Ohio-546, 883 N.E.2d 377, at ¶ 150. Although Groch repeated without
any analysis Hardy’s statement of when a medical claim accrues, Groch departed
from precedent by holding that it is not unconstitutional for a statute of repose to
bar a claim that does not vest until after the period provided by the statute of
repose has expired. If a statute takes away a claim before it accrues, the claim
never vests, and the statute of repose does not violate the open-courts provision of
Article I, Section 16. “ ‘The right-to-a-remedy provision of Section 16, Article I
applies only to existing, vested rights, and it is state law which determines what
injuries are recognized and what remedies are available.’ ” (Emphasis added.)
Id., quoting Sedar, 49 Ohio St.3d at 202, 551 N.E.2d 938.
        {¶ 25} For purposes of the statute of limitations, this court has recognized
that a medical claim accrues upon the later of the termination of the doctor-patient
relationship or the discovery of the injury. Frysinger v. Leech, 32 Ohio St.3d 38,
512 N.E.2d 337 (1987), paragraph one of the syllabus. If there is no discovery of
any injury, the claim has not accrued. Nor has it vested.

                                           9
                               SUPREME COURT OF OHIO




          {¶ 26} Justice Wright and two other dissenters understood this point when
examining the General Assembly’s ability to define time periods for causes of
action:


                  Is an undiscovered claim for damages a constitutional right
          inviolate against legislative limitation as to time constraints? Does
          Section 16, Article I forever provide a remedy to an as yet
          undiscovered claim? To suggest, as does the majority, that every
          commonlaw [sic] right is indelibly embedded in the Ohio
          Constitution and that subjective awareness of a potential legal
          claim is required prior to the abolishment of a cause of action is
          sheer legal fiction. Nevertheless, because the majority disagrees
          with the time constraints under [the statute], it has, under the guise
          of judicial interpretation, abrogated the function of the General
          Assembly and the electorate by amending the Constitution of Ohio
          by judicial fiat.


Hardy, 32 Ohio St.3d at 55, 512 N.E.2d 626 (Wright, J., concurring in judgment
only and dissenting in part). We agree with Justice Wright’s analysis in Hardy
and hold that the case was wrongly decided. The General Assembly has the right
to define the contours of a cause of action.
          {¶ 27} Circumstances have also changed since Hardy, for the General
Assembly addressed certain constitutional concerns when enacting R.C.
2305.113(C) in 2003. 149 Ohio Laws, Part II, 3791, 3799-3804. Just as in 1987,
when Hardy was decided under former R.C. 2305.11(A), 141 Ohio Laws, Part II,
3223, 3228, “an action upon a medical claim * * * shall be commenced within
one year after the cause of action accrued.”               (Emphasis added.)       R.C.
2305.113(A).        And in addition, no action upon a medical claim shall be
commenced “more than four years after the occurrence of the act or omission

                                           10
                               January Term, 2012




constituting the alleged basis” of the medical claim. (Emphasis added.) R.C.
2305.113(C). But now, unlike under the statute addressed in Hardy, the statute of
repose will not apply to persons within the age of minority or to those of unsound
mind. Id. See 141 Ohio Laws, Part II, at 3229. Those who discover the injury in
the fourth year after the alleged negligent act or omission have an additional year
to file suit, R.C. 2305.113(D)(1), and those with a foreign object left in their
bodies have one year to sue from the time that a person exercising reasonable care
and diligence should have discovered it. R.C. 2305.113(D)(2).
        {¶ 28} Thus, a prospective plaintiff in an action for medical negligence is
typically granted one year to pursue a claim from the time it accrues, provided
that the accrual itself happens within four years. The statute of repose grants a
prospective plaintiff to whom it applies four years to discover a claim and one
year to commence that action, or it is barred before it arises. Although in some
cases, discovery of an injury will not occur within the time frame chosen, the
General Assembly has struck a rational balance between the rights of prospective
claimants to pursue their allegations and the rights of prospective defendants to
have protection from stale litigation. This court should not substitute its judgment
for that legislative choice.
        2. Considering practical workability
        {¶ 29} For the reasons expressed earlier, if the General Assembly cannot
legislate a statute of repose, medical providers are left with the possibility of
unlimited liability indefinitely. We explained in Groch that statutes of repose are
not constitutionally infirm. We have also held that only accrued causes of action
are vested, substantive rights. Gregory v. Flowers, 32 Ohio St.2d 48, 58, 290
N.E.2d 181 (1972). To hold that a party has a property right in unaccrued claims
means that the General Assembly may never make a change in common-law
causes of action such as medical negligence.




                                        11
                             SUPREME COURT OF OHIO




       3. Considering reliance interests
       {¶ 30} The final test in Galatis is whether undue hardship would be
visited upon those who have relied on Hardy. We must ask “ ‘whether the
previous decision has become so embedded, so accepted, so fundamental, to
everyone’s expectations that to change it would produce not just readjustments,
but practical real-world dislocations.’ ” Galatis, 100 Ohio St.3d 216, 2003-Ohio-
5849, 797 N.E.2d 1256, at ¶ 58, quoting Robinson v. Detroit, 462 Mich. 439, 613
N.W.2d 307 (2000). To the contrary, readjustment and dislocation will occur in
upholding Hardy, and no reliance interest will be jeopardized by overruling it.
The current statute of repose has been in effect since 2003, and it is less likely that
people who are injured due to a medical provider’s breach of duty will not
discover injury proximately caused by that act or omission before the statute of
repose bars the claim from vesting. The General Assembly has chosen up to four
years for the cause of action to arise (to be discovered). If one is not aware of a
cause of action, one cannot rely on a case that stated it would never be barred
after passage of time. Thus, there would be no undue hardship created if Hardy
were overruled.
       {¶ 31} As noted above, Hardy did not properly analyze when the vesting
of a medical cause of action occurs. It ignored cases stating that this type of claim
accrues upon discovery of an injury and thus that an undiscovered claim does not
vest. The interplay between the statute of limitations and the statute of repose is
important. Otherwise, the plaintiff would be required to file suit within one year
of the occurrence of the breach of the medical standard of care.
  C. Upholding the Statute of Repose Is Consistent with the Majority View
       {¶ 32} The Supreme Court of Wisconsin faced a similar right-to-remedy
challenge to its statute of repose. The medical claim involved a child whose
congenital condition that later caused blindness was discovered sometime after
her tenth birthday. A lawsuit on her behalf was filed three years later against the
doctor who had treated her as a newborn. The Wisconsin statutes of limitations

                                          12
                                   January Term, 2012




and repose granted one year from discovery to file suit, as long as five years had
not passed since the act or omission that was the basis of the claim, or until the
minor’s tenth birthday.         The court recognized that some claims would be
foreclosed before a plaintiff had an opportunity to know that an injury occurred,
stating:


           [T]he legislature may sever a person’s claim by a statute of
           limitations or a statute of repose when the person has had no
           possibility of discovering the injury—when the person has been
           blameless in every respect.     These decisions represent judicial
           deference to the stated policy of the legislature. Protecting the
           interests of those who must defend claims based on old acts or
           omissions is a policy concern that legislative bodies have weighed
           for centuries.


Aicher v. Wisconsin Patients Comp. Fund, 237 Wis.2d 99, 2000 WI 98, 613
N.W.2d 849, ¶ 50. The court concluded:


                  We find [the statutes of limitations and repose]
           constitutional, despite the harsh results they yield in this case. We
           hold that [the statutes] do not violate the right-to-remedy clause
           because a prospective claimant does not have a legislative right to
           pursue a medical malpractice action if the injury is discovered after
           the statutory time limitation period elapses.


Id. at ¶ 85.
           {¶ 33} Aicher is not the only opinion analyzing a statute of repose for
medical claims in this way. Thirty-two states have such statutes in existence. See
Robin Miller, Validity of Medical Malpractice Statutes of Repose, 5 A.L.R.6th

                                            13
                                  SUPREME COURT OF OHIO




133 (2011). And of that number, at least 16 statutes of repose have been upheld
as constitutional against challenges similar to that of the open-courts or right-to-
remedy provisions. Id. at 9-11.2 To the contrary, Mrs. Ruther cites three cases,
only one of which directly addresses the right to remedy. McCollum v. Sisters of
Charity of Nazareth Health Corp., 799 S.W.2d 15, 19 (Ky.1990). The statutes
from Arizona and Colorado were struck down on equal-protection provisions of
those state constitutions. Kenyon v. Hammer, 142 Ariz. 69, 87, 688 P.2d 961
(1984); Austin v. Litvak, 682 P.2d 41, 52 (Colo.1984). Interestingly, one of the
cases that Hardy relied upon was overruled by the Supreme Court of South
Dakota. See Cleveland v. Lead, 2003 SD 54, 663 N.W.2d 212, ¶ 45, overruling
Daugaard v. Baltic Co-op. Bldg. Supply Assn., 349 N.W.2d 419 (S.D.1984). That
supreme court stated, “[I]f ten years is violative of ‘open courts’ constitutional
protection, what about 20 years, 50 years or 100 years or ‘any longer length of
time into perpetuity’?” Id. at ¶ 44, quoting Green v. Siegel, Barnett & Schutz,
1996 SD 146, 557 N.W.2d 396, ¶ 28.
        {¶ 34} Continuing to follow Hardy would place Ohio in a distinct
minority position.
                                       III. Conclusion
        {¶ 35} A plaintiff like Mrs. Ruther, whose cause of action for medical
malpractice does not accrue until after the statute of repose has expired pursuant
to R.C. 2305.113(C), is not deprived of a vested right. Because R.C. 2305.113(C)
is a valid exercise of the General Assembly’s authority to limit a cause of action,
Mrs. Ruther failed to present clear and convincing evidence that the statute is

2. See, e.g., Christiansen v. Providence Health Sys. of Or. Corp., 344 Or. 445, 449-456, 184 P.3d
1121 (2008) (statute of ultimate repose in medical-negligence action against hospital and
obstetrician did not violate constitutional right-to-a-remedy clause); Choroszy v. Tso, 647 A.2d
803, 807 (Me.1994) (upholding three-year medical-malpractice statute of repose against open-
courts challenge, finding that “although we recognize that the three-year period of repose may
cause some hardship for the [plaintiffs], that hardship was contemplated by the Legislature when it
made its policy choice”); Stein v. Katz, 213 Conn. 282, 286, 567 A.2d 1183 (1989) (application of
the three-year medical-malpractice statute of repose did not violate the “open courts” provision of
the Connecticut constitution); Mega v. Holy Cross Hosp., 111 Ill.2d 416, 422-423, 95 Ill.Dec. 812,
490 N.E.2d 665 (1986) (the repose provision may, in a particular instance, bar an action before it
is discovered).
                                                  14
                                  January Term, 2012




unconstitutional as applied to her claim. We therefore hold that the medical-
malpractice statute of repose found in R.C. 2305.113(C) does not extinguish a
vested right and thus does not violate the Ohio Constitution, Article I, Section 16.
Hardy v. VerMeulen, 32 Ohio St.3d 45, 512 N.E.2d 626, is overruled.
                                                                Judgment reversed.
       O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, CUPP, and
MCGEE BROWN, JJ., concur.
       PFEIFER, J., dissents.
                                _____________________
       MCGEE BROWN, J., concurring.
       {¶ 36} I concur. This is an as-applied constitutional challenge to Ohio’s
statute of repose. The facts of this case are tragic, and our decision today leaves
an alleged injured party with no opportunity to pursue her claim of medical
negligence. However, it is unquestionably the province of the legislature to define
claims and remedies under Ohio law. In this case, the General Assembly has
determined that four years from the date of the alleged negligence is the
appropriate timeframe in which to file a medical-malpractice claim.            R.C.
2305.113(C). We cannot substitute our judgment for that of the legislature.
       {¶ 37} More importantly, this court has firmly established that the right-
to-remedy clause found in Article I, Section 16 of the Ohio Constitution does not
bar the application of statutes of repose to undiscovered negligence. Groch v.
Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 149.
The plain language of R.C. 2305.113(C) eliminates a claim for medical
malpractice after four years, except in limited circumstances. As the majority
points out, Article I, Section 16 of the Ohio Constitution protects remedies, not
claims. Therefore, the right-to-remedy clause simply does not apply.
       {¶ 38} Belated discovery of medical negligence is a frightening
proposition for anyone who has been injured by a medical professional.
However, the legislature is required to balance the needs of medical professionals,

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who need some finality to potential litigation, with the unusual circumstance of
belatedly discovered negligence. 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. The people are responsible for their political choices. See Natl. Fedn. of
Indep. Business v. Sebelius, __ U.S. __, 132 S. Ct. 2566, 2579, 183 L. Ed. 2d 450
(2012) (“policy judgments * * * are entrusted to our Nation’s elected leaders, who
can be thrown out of office if the people disagree with them. It is not our job to
protect the people from the consequences of their political choices”).
       {¶ 39} The Ohio Constitution permits the General Assembly to ensure
some degree of finality for prospective negligence claims. It is not for this court
to determine where the legislature should draw that line. Accordingly, I concur.
                              __________________
       PFEIFER, J., dissenting.
       {¶ 40} Early in law school, every student is introduced to the rich
historical tradition and critical importance of the common law in our nation’s
development. Today, American judges and attorneys are invited to assist both
developed and developing countries in applying our common-law traditions,
which date back centuries in England, to their efforts in empowering their courts
to protect basic and constitutional human rights without interference from
political leaders and legislative bodies or their military establishment. The power
of every citizen in the United States to seek redress in our open courts for injury
done, be it by our government, another citizen, or a large corporation, is a source
of some amazement and great envy in many parts of the world. That the resulting
decisions by judges and juries are respected and enforced without police or
military intervention is incomprehensible in some quarters.         Protecting our
citizens’ individual fundamental constitutional rights from attack by the
government is the proud duty of the American judiciary and a part of our oath.
       {¶ 41} The case of Ruther v. Kaiser, rolled out amidst a blizzard of
announcements by this court, will be of little immediate notice, except to the

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parties, the medical community, and a small, specialized element of the bar. Over
time, however, Ruther will come to be known for the profound damage done to
every Ohio citizen’s constitutional right to remedy in open court for an injury
done him in his land, goods, person, or reputation. Ohio Constitution, Article I,
Section 16.
        {¶ 42} 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.
        {¶ 43} When is a fundamental right, contained in the Ohio Constitution
and Bill of Rights since 1802, no longer the individual right of an Ohio citizen?
According to this court, whenever the Ohio General Assembly chooses to
extinguish the right, it will no longer exist, period. The majority writes:


               A plain reading of Article I Section 16 reveals that it does
        not provide for remedies without limitation or for any perceived
        injury. Rather, the 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.


Majority opinion, ¶ 12. In case the reader did not understand the breadth of the
majority’s devastating proclamation, it continues: “Thus, the General Assembly
has the right to determine what causes of action the law will recognize and to alter
the common law by abolishing the action, by defining the action, or by placing a
time limit after which an injury is no longer a legal injury.” Majority opinion,
¶ 14.
        {¶ 44} Under Ruther, we now fully abdicate our solemn duty to enforce
and protect constitutional rights afforded citizens since the beginning of

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statehood.      If the General Assembly abolishes a remedy, including those
recognized at common law when the constitution was written, it is now clearly
within its power. We will afford “great deference” in presuming constitutionality
of any act of the General Assembly limiting or abolishing a cause of action.
       {¶ 45} Continued erosion of the venerable right of every citizen to a
remedy in open court for injury done will inevitably flow from the General
Assembly. It may come in small drips or in tidal waves, but it will come. The
economic interests pushing limitations on causes of action are just too powerful
and too seductive for the General Assembly to resist. We have now removed the
Assembly’s only dam against the onslaught: this court’s previous vigorous
enforcement of the “right to remedy” constitutional protections.
       {¶ 46} When Timothy and Tracy Ruther sought a remedy in open court
for injuries suffered because of a doctor’s failure to properly respond to three
elevated liver-enzyme tests taken more than a decade before Timothy developed a
fatal liver lesion and hepatitis C, they could never have envisioned the damage
their case would ultimately cause for generations of Ohioans yet to be injured.
Their personal tragedy has evolved into a undiscovered nightmare for legions of
Ohioans who will find the courthouse doors barred for the presentation of their
future legitimate injury claims.
       {¶ 47} I dissent.
                               __________________
       Santen & Hughes, John Holschuh, Brian O’Connor, and Sarah Tankersley,
for appellee.
       Arnold Todaro & Welch Co., L.P.A., John Welch, and Karen Clouse, for
appellants.
       Bricker & Eckler L.L.P., Anne Marie Sferra, and Bridget Purdue Riddell,
urging reversal for amici curiae American Hospital Association, American
Medical Association, American Osteopathic Association, Ohio Alliance for Civil



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                               January Term, 2012




Justice, Ohio Hospital Association, Ohio Osteopathic Association, and Ohio State
Medical Association.
       Tucker Ellis and Susan Audey, urging reversal for amicus curiae Ohio
Association of Civil Trial Attorneys.
       Michael DeWine, Attorney General, Alexandra Schimmer, Solicitor
General, and Michael Hendershot, Chief Deputy Solicitor, urging reversal for
amicus curiae state of Ohio.
       Paul W. Flowers Co., L.P.A., and Paul Flowers, urging affirmance for
amicus curiae Ohio Association for Justice.
                        ___________________________




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