Statute of Limitations: Discovery Rule for Malpractice
![handle is hein.journals/aklr17 and id is 665 raw text is: STATUTE OF LIMITATIONS:
DISCOVERY RULE FOR MALPRACTICE
N OLIVER V. KAISER COMMUNITY HEALTH FOUNDATION' the Ohio Supreme
Court adopted the discovery standard for medical malpractice actions,
which are subject to Ohio's one-year statute of limitations.' In Oliver the court
held that a medical malpractice cause of action accrues and the statute of
limitations commences to run when the patient discovers, or in the exercise
of reasonable care and diligence should have discovered, the resulting injury.I
Shortly after Oliver, the court applied the discovery rule to legal malpractice
cases in Skidmore & Hall v. Rottman.' The discovery standard replaces Ohio's
previously judicially adopted rule of termination of the professional relation-
ship as the accrual point for malpractice claims.'
The source of controversy over the accrual point of malpractice claims
is Ohio Revised Code Section 2305.1 I(A), which provides that a malpractice
action shall be brought within one year after the cause thereof accrued.6
This provision provides no clue for determining when the one-year limitation
begins to run.7 By contrast, the legislature did enact a discovery rule for deter-
mining when a cause of action arises for bodily injury caused by exposure to
asbestos, chromium, or substances such as agent orange.'
Without legislative definition, determining the accrual of a malpractice
'5 Ohio St. 3d 111, 449 N.E.2d 438 (1983).
'OHio REV. CODE ANN. § 2305.1 (A)(Baldwin 1983). See infra note 6 and accompanying text.
'5 Ohio St. 3d at 111, 449 N.E.2d at 439.
'5 Ohio St. 3d 210, 450 N.E.2d 684 (1983).
'Oliver expressly overruled Wyler v. Tripi, 25 Ohio St. 2d 164, 267 N.E.2d 419 (1971); Lundberg v. Bay
View Hospital, 175 Ohio St. 133, 191 N.E.2d 821 (1963); DeLong v. Campbell, 157 Ohio St. 22, 104 N.E.2d
177 (1952); Amstutz v. King, 103 Ohio St. 674, 135 N.E. 973 (1921); Bowers v. State, 99 Ohio St. 361,
124 N.E. 238 (1919); Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865 (1902).
'OHIo REV. CODE ANN. § 2305.11(A)(Baldwin 1983). Although this provision was amended in 1975 and
1981, the legislature has never defined the cause accrued language.
'However, an argument can be made that a clue does exist in OHio REv. CODE ANN. § 2305.11(B). See
infra note 28 and accompanying text. The use of the word act or omission in this provision could be
interpreted as a signal that accrued in Subsection (A) also means at the time of the act or omission.
'OHio REV. CODE ANN. § 2305.10 (Baldwin 1983), as amended, provides:
An action for bodily injury or injuring personal property shall be brought within two years after
the cause thereof arose. For purposes of this section, a cause of action for bodily injury caused
by exposure to asbostos or to chromium in any of its chemical forms arises upon the date on which
the plaintiff is informed by competent medical authority that he has been injured by such exposure,
or upon the date on which, by the exercise of reasonable diligence, he should have become aware
that he had been injured by the exposure, whichever date occurs first.
See O'Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84, 447 N.E.2d 727 (1983) where the court held that,
by judicial application, this discovery rule applies to actions filed prior to the amendment.
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Statute of Limitations: Discovery Rule for Malpractice
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