HERBERT R. BROWN, J.
In this case, the four-year period specified by R.C. 2305.11(B) would, if applied, bar the appellant's claim before he knew of the injury he suffered.
Our analysis begins with an examination of what R.C. 2305.11(B) is and what it is not. It is not a traditional statute of limitations, since the appellant
R.C. 2305.11, if applied to those who suffer bodily injury from medical malpractice but do not discover that injury until four years after the act of malpractice, accomplishes one purpose —to deny a remedy for the wrong. In other words, the courts of Ohio are closed to those who are not reasonably able, within four years, to know of the bodily injury they have suffered.
Section 16, Article I of the Ohio Constitution provides:
"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, and shall have justice administered without denial or delay." (Emphasis added.)
The appellant has no remedy for an injury to his body when his claim is extinguished before he knew of the injury or could have reasonably discovered it.
Thus, as applied to the facts in the case sub judice, R.C. 2305.11 is in violation of Section 16, Article I of the Ohio Constitution. The language in the Constitution is clear and leaves little room for maneuvering. Our courts are to be open to those seeking remedy for injury to person, property, or reputation.
As this court said in Kintz v. Harriger (1919), 99 Ohio St. 240, 247, 124 N.E. 168, 170:
"Manifestly, when the constitution of the state declares and defines certain public policies, such public policies must be paramount, though a score of statutes conflict and a multitude of judicial decisions be to the contrary.
"No general assembly is above the plain, potential provisions of the constitution, and no court, however sacred or powerful, has the right to declare any public policy that clearly contravenes or nullifies the rights declared in the constitution." (Emphasis added.)
The holding in Kintz reads as follows:
"1. The Constitution of Ohio, Bill of Rights, Section 16, provides, among other things, `Every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.'
"2. It is the primary duty of courts to sustain this declaration of right and remedy, wherever the same has been wrongfully invaded." Id. at paragraphs one and two of the syllabus.
See, also, Byers v. Meridian Printing Co. (1911), 84 Ohio St. 408, 95
In Lafferty v. Shinn (1882), 38 Ohio St. 46, 48, this court recited Section 16, Article I and said that "* * * it is not within the power of the legislature to abridge the period within which an existing right may be so asserted as that there shall not remain a reasonable time within which an action may be commenced." If the legislature may not constitutionally enact an unreasonable statute of limitations, it follows that the legislature cannot deprive one of a right before it accrues.
We agree with the reasoning of the Supreme Court of South Dakota in Daugaard v. Baltic Co-op. Bldg. Supply Assn. (S.D. 1984), 349 N.W.2d 419, 424-425, that a statute such as R.C. 2305.11(B) unconstitutionally locks the courtroom door before the injured party has had an opportunity to open it.
When the Constitution speaks of remedy and injury to person, property, or reputation, it requires an opportunity granted at a meaningful time and in a meaningful manner. See, also, Kennedy v. Cumberland Engineering Co. (R.I. 1984), 471 A.2d 195; Boddie v. Connecticut (1970), 401 U.S. 371, 377-378; Neagle v. Nelson (Tex. 1985), 685 S.W.2d 11, 12; Berry v. Beach Aircraft Corp. (Utah 1985), 717 P.2d 670; Jackson v. Mannesmann Demag Corp. (Ala. 1983), 435 So.2d 725; Overland Constr. Co. v. Sirmons (Fla. 1979), 369 So.2d 572; Kenyon v. Hammer (1984), 142 Ariz. 69, 75-76, 688 P.2d 961, 967-968.
Accordingly we hold that R.C. 2305.11(B), as applied to bar the claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries, violates the right-to-a-remedy provision of Section 16, Article I of the Ohio Constitution.
The result we reach follows logically from our decision of December 22, 1986 in Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, syllabus, in which we held R.C. 2305.11(B) unconstitutional as applied to minors.
In Mominee, we expressed no opinion as to the constitutionality of R.C. 2305.11(B) as applied to adults (id. at
Little distinction can be made between an adult plaintiff who did not know of his or her injury and a minor. It may be argued that the adult who was unaware of the injury is under a greater disability than the minor who knew of the injury but did not assert a claim within the four-year period.
We are mindful that acts of the General Assembly are presumed valid. See State v. Dorso (1983), 4 Ohio St.3d 60, 61, 4 OBR 150, 151, 446 N.E.2d 449, 450; Peebles v. Clement (1980), 63 Ohio St.2d 314, 321, 17 O.O. 3d 203, 207, 408 N.E.2d 689, 693; State, ex rel. Taft, v. Campanella (1977), 50 Ohio St.2d 242, 246, 4 O.O. 3d 423, 425, 364 N.E.2d 21, 24. We accept the proposition that the legislature enacted R.C. 2305.11(B) in response to a perceived crisis in the area of malpractice insurance.
The right-to-a-remedy provision of Section 16, Article I does not require the analysis of rational-basis that is used to decide due process or equal protection arguments against the constitutionality of legislation. The fault in R.C. 2305.11(B) is that it denies legal remedy to one who has suffered bodily injury. This the legislature may not do even if it acted with a rational basis.
Further, the legislature when it adopted R.C. 2305.11(B) did not specifically address the situation of one who did not know of his or her injury. The statute was adopted prior to our decision in Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438; thus, presumably the intent of the legislature was to put a limit on the rule that a malpractice action could be filed any time up to one year after the termination of the physician-patient relationship. The physician-patient relationship could continue for many years after the act of malpractice. Where a plaintiff has allowed more than one year to run following discovery of injury, R.C. 2305.11(B) might pass constitutional muster as a limitation on the further time extension accorded by a continuing physician-patient relationship. However, that issue is not before us and we reserve our opinion thereon.
Our determination rests upon denial of remedy. We do not suggest that causes of action as they existed at common law or the rules that govern such causes are immune from legislative attention. As this court said in Fassig v. State, ex rel. Turner (1917), 95 Ohio St. 232, 248, 116 N.E. 104, 108:
"No one has a vested right in rules of the common law. Rights of property vested under the common law cannot be taken away without due process, but the law itself as a rule of conduct may be changed at the will of the legislature unless prevented by constitutional limitations. The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to new circumstances. Mondou v. N.Y., N. H. & H. Rd. Co., 223 U.S. 1; Munn v. Illinois, 94 U.S. 113; Martin v. P. & L. E. Rd. Co., 203 U.S. 284; and Western Union Tel. Co. v. Commercial Milling Co., 218 U.S. 406.
"Our constitutions were made in the contemplation that new necessities would arise with changing conditions of society." (Emphasis added.) See, also, Schenkolewski v. Metroparks System (1981), 67 Ohio St.2d 31, 21 O.O. 3d 19, 426 N.E.2d 784.
As noted, the legislature, in enacting R.C. 2305.11(B), has made no effort to alter the substantive law of malpractice. Rather, the legislature has sought to limit the time in which malpractice actions may be brought and it has done so in a manner which denies to some people (including the appellant herein) a remedy for injury to their person.
Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings in accordance with our opinion herein.
Judgment reversed and cause remanded.
SWEENEY, Acting C.J., LOCHER and DOUGLAS, JJ., concur.
MARKUS and WRIGHT, JJ., concur in judgment only and dissent in part.
HOLMES, J., concurs in judgment, but dissents to the syllabus law and the opinion.
SWEENEY, J., sitting for MOYER, C.J.
MARKUS, J., of the Eighth Appellate District, sitting for SWEENEY, J.
I have previously expressed my firm belief that R.C. 2305.11(B) is unconstitutional as applied to both minors and adults, on the basis that it offends the access-to-the-courts provision of Section 16, Article I of the Ohio Constitution. See Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 290-293, 28 OBR 346, 363-365, 503 N.E.2d 717, 732-734 (Douglas, J., concurring). There, I stated that "[s]ince the bottom-line effect of this statute of repose, R.C. 2305.11(B), is to abolish a common-law right or action which existed at the time the Constitution was adopted, and since the legislature provided no reasonable alternative remedy or substitute for the one which it has abrogated, this court must hold that R.C. 2305.11(B) is violative of Section 16, Article I of the Ohio Constitutional. and is, therefore, unconstitutional. * * *" Id. at 293, 28 OBR at 365, 503 N.E. 2d at 734.
In addition, I write separately to reiterate a concern I recently expressed in my dissent to Hoffman v. Davidson (1987), 31 Ohio St.3d 60, 63-64, 31 OBR 165, 168-169, 508 N.E.2d 958, 961-962. Several statements in today's majority decision imply that it is the date of the discovery of the injury which marks the accrual of a cause of action in medical malpractice. This implication is inaccurate. It is the discovery of the malpractice which caused the injury, not just of the injury itself, which tolls the statute. As stated in my dissent to Hoffman, supra, "* * * in many cases the injury will be immediately obvious, but the patient will have no reason to suspect that the injury was actually caused by malpractice until after the limitations period has passed. * * *" Id. at 63, 31 OBR at 168, 508 N.E. 2d at 961. See, also, Frysinger v. Leech (1987), 32 Ohio St.3d 38, 44, 512 N.E.2d 337, 342-343 (Douglas, J., concurring in judgment).
A cause of action in medical malpractice does not arise from mere injury alone. The injury must be the result of malpractice. Thus, the cause of action cannot accrue until the patient discovers that malpractice has occurred, and the statute of limitations does not commence to run until such a discovery transpires, or reasonably should have transpired.
SWEENEY, J., concurs in the foregoing concurring opinion.
WRIGHT, J., concurring in judgment only and dissenting in part. Today, a majority of this court attributes a meaning to Section 16, Article I of the Ohio Constitution not heretofore recognized in the one hundred thirty-six year history of the provision.
R.C. 2305.11 provides, in pertinent part:
"(A) An action for * * * malpractice, including an action for malpractice against a physician, podiatrist, [or a] hospital * * *, shall be brought within one year after the cause thereof accrued * * *.
"(B) In no event shall any medical claim against a physician, podiatrist, or a hospital * * * be brought more than four years after the act or omission constituting the alleged malpractice occurred. * * *"
This clearcut statement was and is supported by sound public policy considerations developed by the Ohio General Assembly.
Appellant's constitutional attack on R.C. 2305.11(B) is predicated upon due process considerations under Section 16, Article I. Nowhere does appellant mention in his brief that R.C. 2305.11(B) somehow violates the "open court" provision. It will indeed come as a surprise to the litigants in the case at bar that this court, without prompting from either party, has gratuitously and sua sponte raised and decided this case on the "open court" theory.
We must remain cognizant that "[a] regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality. * * * [We have consistently] held enactments of the General Assembly to be constitutional unless such enactments are clearly unconstitutional beyond a reasonable doubt." State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 147, 57 O.O. 134, 137, 128 N.E.2d 59, 63. See, also, Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 15 O.O. 3d 450, 402 N.E.2d 519; Roosevelt Properties Co. v. Kinney (1984), 12 Ohio St.3d 7, 12 OBR 6, 465 N.E.2d 421. In addition, it is axiomatic that this court will not pass upon the constitutionality of a statute unless it is "absolutely necessary" to the resolution of the case or controversy. State, ex rel. Hofstetter, v. Kronk (1969), 20 Ohio St.2d 117, 119, 49 O.O. 2d 440, 441, 254 N.E.2d 15, 17.
Despite this wealth of authority, the majority refuses to acknowledge that Deskins v. Young (1986), 26 Ohio St.3d 8, 26 OBR 7, 496 N.E.2d 897, is on all fours with the subject cause, thus making it unnecessary to decide this case under new constitutional principles.
"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, and shall have justice administered without denial or delay."
Today, the majority ex cathedra revises this provision to read 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." The obvious flaw contained within the majority's reasoning is that this section of our Constitution only affords access to the courts to seek remedies by due course of law, not access to seek any and all remedies for perceived injuries. Stated otherwise, even appellant concedes that the "due course of law" provision of Section 16, Article I, is functionally equivalent with "due process of law" under the federal Constitution, and nothing more. In view of the fact that at least three members of today's majority have previously agreed that the four-year statute of repose within R.C. 2305.11(B) affords plaintiffs a reasonable time in which to seek redress for alleged malpractice, and hence the statute does not violate due process of law (see, e.g., Opalko v. Marymount Hospital, Inc. , 9 Ohio St.3d 63, 9 OBR 267, 458 N.E.2d 847, Sweeney and Locher, JJ., and Mominee v. Scherbarth , 28 Ohio St.3d 270, 290-291, 28 OBR 346, 363-364, 503 N.E.2d 717, 732-733, Douglas, J. concurring), it is not surprising that the majority seeks new avenues with which to declare this enactment constitutionally infirm.
In my view, the majority's initial error lies in its misreading of Lafferty v. Shinn (1882), 38 Ohio St. 46. The majority states that in Lafferty the court "recited Section 16, Article I and said that `* * * it is not within the power of the legislature to abridge the period within which an existing right may be so asserted as that there shall not remain a reasonable time within which an action may be commenced.'" (Emphasis added.) However, even a cursory examination of Lafferty demonstrates that when the court referred to the abridgment of existing or vested rights, it did so with a reliance upon Section 28, Article II (prohibiting the passage of retroactive laws), and not Section 16, Article I. Thus, the passage in Lafferty relied upon by the majority stands for the well-established principle that the General Assembly may not retroactively destroy a vested right (Section 28, Article II), not that the legislature is precluded from modifying a former common-law right.
Not every injury sustained necessarily enjoys redress in the courts. Insofar as this principle is applicable in Ohio, Judge Kennedy recently observed in Hartford Fire Ins. Co. v. Lawrence, Dykes, Goodenberger, Bower & Clancy (C.A. 6, 1984), 740 F.2d 1362, 1370:
"The Ohio courts have never held that the `open court' provision in its constitution prevents the legislature from abolishing a cause of action. In Lafferty v. Shinn, 38 Ohio St. 46, 48 (1882), the Ohio Supreme Court stated, that, under the provision, `it is not within the power of the legislature to abridge the period within which an existing right may be so asserted as that there shall not remain a reasonable time within which an action may be commenced.' This reasoning, however,
"The Ohio Supreme Court has long held that causes of action may be abolished:
"[`]No one has a vested right in rules of the common law. Rights of property vested under the common law cannot be taken away without due process, but the law itself as a rule of conduct may be changed at the will of the legislature unless prevented by constitutional limitations. 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). More recently, the Court repeated, `There is no question that the legislative branch of the government, unless prohibited by constitutional limitations, may modify or entirely abolish common-law actions and defenses,' Thompson v. Ford, 164 Ohio St. 74, 79, 128 N.E.2d 111 (1955)."
The majority fails to discuss any abolition of a vested right, so it proceeds to find under Section 16, Article I, a right of access to the courts for virtually any claim. However, it is clear to me that unless the right is vested, or the claim involves a fundamental right, access to the courts may be limited and/or regulated by the General Assembly if a rational basis exists for the limitation. Accord Bounds v. Smith (1977), 430 U.S. 817; United States v. Kras (1973), 409 U.S. 434; Boddie v. Connecticut (1971), 401 U.S. 371. Nothing in Section 16, Article I suggests otherwise.
I would stress that the question presented this day is not novel, since an examination of decisions from this and other jurisdictions demonstrates that various statutes of repose have come under attack under the precise theory advanced by the majority. Although a few jurisdictions have found similar statutes violative of constitutional provisions,
Without question, today's holding creates a constitutional dilemma of severe proportions. This court has informed the General Assembly it has no power to meet what it perceives as an epidemic crisis with responsive legislation. Who would have imagined that when Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, was decided that the groundwork was being laid for declaring all statutes of repose constitutionally infirm?
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 common law right is indelibly embedded in the Ohio Constitution and that subjective awareness of a potential 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 R.C. 2305.11(B), 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.
The empathy that all of us have for one suffering illness or injury has fostered a sense of irresponsibility born of sympathy, since the majority tacitly concedes that there are sound public policy considerations for a statute of repose of reasonable duration. The present predicament that the medical profession and health care facilities have in obtaining malpractice insurance at a reasonable cost will rapidly spread to other professions. Whether one is attracted to the concept or not, modern-day tort liability is premised upon spreading the cost of monetary losses through the medium of insurance. Insurance companies are not in business to sustain losses and thus they will not accept a risk where their exposure is incalculable on the basis of actuarial analysis. Today we have simply taken the insurance industry "out of play" in many areas of professional malpractice. Suffice it to say, I am deeply disappointed with the acumen and foresight of my brethren in the majority.
Thus I vigorously dissent from the rationale espoused by the majority.
MARKUS and HOLMES, JJ., concur in the foregoing opinion.
HOLMES, J., concurring in judgment, but dissenting to the syllabus law and the opinion.
As to the syllabus law in the present case and the body of the majority opinion, I adopt in the main what has been stated in dissent by Justice Wright. I wish to additionally point out that I have previously written on my sentiments as to the constitutionality of the four-year statute of repose as contained in R.C. 2305.11(B). As early as my commentary in Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 118, 5 OBR 247, 253, 449 N.E.2d 438, 444 (Holmes, J., dissenting in part), I concluded that the discovery rule was meritorious for Ohio, as it would apply to R.C. 2305.11(A). However, as I then stated, the public policy of the state had been expressed by the General Assembly as it related to the need for a statute of repose in medical malpractice actions and had resulted in enactment of R.C. 2305.11(B). This act of the legislative body of Ohio was carried out after a specific pronouncement of a medical malpractice crisis in this state, and upon a multitude of legislative hearings declaring this to be the public policy of Ohio. This court, in determining that such legislation is unconstitutional, not only carries out a needless task, but it sets itself apart as a super legislative body usurping the very constitutional prerogatives of the General Assembly.
The Ohio Marketable Title Act, R.C. 5301.47 through 5301.56, destroys certain ancient property interests and removes remedies used to enforce those ancient interests. It has been noted that such would not have been tolerated if no method of preserving a remedy had been provided. Smith, The New Marketable Title Act (1961), 22 Ohio St. L. J. 712, 717. As to the constitutionality of marketable title Acts generally, see Simes & Taylor, Improvement of Conveyancing by Legislation (1960) 253-273.
"* * * [N]o one has a vested interest in any rule of the common law. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, within constitutional limits, may be changed at the will of the legislature. The great office of statutes is to remedy defects in the common law as they develop, and to adapt it to the change of time and circumstance. * * * Negligence is merely the disregard of some duty imposed by law; and the nature and extent of the duty may be modified by legislation, with a corresponding change in the test of negligence, * * * and, as said by the * * * [United States Supreme Court] with respect to the Fourteenth Amendment, in Silver v. Silver, supra, when that case was before it (280 U.S. 117,  * * *).
"`We need not * * * elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.'" See, also, Fassig v. State, ex rel. Turner (1917), 95 Ohio St. 232, 248, 116 N.E. 104, 108; Sidle v. Majors (1976), 264 Ind. 206, 209, 341 N.E.2d 763, 766; Anderson v. Wagner (Miss. 1981), 402 So.2d 320, 322. To hold otherwise would "* * * encroach upon the Legislature's ability to guide the development of the law * * * simply because the rule enacted by the Legislature rejects some cause of action currently preferred by the courts * * * [and] would * * * place * * * certain non-constitutional decisions of courts above all change except by constitutional amendment." Freezer Storage, Inc. v. Armstrong Cork Co. (1978), 476 Pa. 270, 281, 382 A.2d 715, 721.
"* * * [The statute] does not bar a cause of action [based upon a vested right]; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising. Thus injury occurring more than ten years after the negligent act allegedly responsible for the harm, forms no basis for recovery. The injured party literally has no cause of action. The harm that has been done is damnum absque injuria — a wrong for which the law affords no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. The Legislature is entirely at liberty to create new rights or abolish old ones as long as no vested right is disturbed."