[Cite as Bierly v. Kettering Health Network, 2024-Ohio-3326.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

LAURA BIERLY et al. 

 Appellants

v. 

KETTERING HEALTH NETWORK et al.

 Appellees

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C.A. No. 30043

Trial Court Case No. 2023 CV 04511

(Civil Appeal from Common Pleas 

Court)

. . . . . . . . . . .

O P I N I O N

Rendered on August 30, 2024

. . . . . . . . . . . 

PATRICK K. ADKINSON, Attorney for Appellant

 

JAMES P. FLEISHER, HOWARD P. KISHER, JAREN A. HARDESTY, JOEL L. 

PESCHKE, & ANDREW B. CRANE, Attorneys for Appellee

 . . . . . . . . . . . . .

HUFFMAN, J.

{¶ 1} Laura and Bud Bierly appeal from the trial court’s judgment granting motions

for judgment on the pleadings on Laura’s foreign body medical claim and Bud’s loss of 

consortium claim; one motion was filed by Kettering Health Network, Kettering Medical 
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Center, and Kettering Memorial Hospital (collectively, “KMC”), and the other was filed by 

Drs. Najwa Tabrah and Arthur Altman (“the doctors”). Because the Bierlys failed to 

commence their causes of action within the one-year extended limitations period set forth 

in R.C. 2305.113(D)(2), their claims were barred by the statute of repose. We reject their 

argument that the statute of repose violates the right to remedy provision in the Ohio 

Constitution. The judgment of the trial court is affirmed.

 Procedural History

{¶ 2} This matter involves the application of R.C. 2305.113, which governs time 

limitations for bringing medical claims. R.C. 2305.113(A) sets forth a one-year statute of 

limitations for such claims, and R.C. 2305.113(B) provides for an extension of 180 days 

upon timely written notice. R.C. 2305.113(C) sets forth a statute of repose for a period 

of four years, and R.C. 2305.113(D)(2) provides an extension of that period in some 

circumstances in which a foreign object has been left in the body of the person making 

the claim. 

{¶ 3} On August 24, 2023, the Bierlys filed a complaint against KMC and the 

doctors, alleging that Laura Bierly had received medical care that resulted in “the improper 

retention of a large foreign body, i.e. – a lap sponge” in her body, which had resulted from 

negligence and had caused physical, psychological and emotional injury. According to 

the complaint, the doctors had performed cesarean sections on Laura in 1984 and 1987, 

and she had discovered the presence of the lap sponge in March 2022. After discovery 

of the foreign object, the Bierlys had sent “ ‘180-day’ letters” to KMC and the doctors by 

certified mail pursuant to R.C. 2305.113(B) to give notice that they were considering 
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litigation against them. 

{¶ 4} On September 27, 2023, KMC filed a motion for judgment on the pleadings, 

arguing that the complaint had not been filed within the one year provided by R.C. 

2305.113(D)(2). According to KMC, the medical negligence claims were barred by the 

statute of repose. Citing R.C. 2305.113(B)(1), KMC argued that the “180-day letters” did

not extend the statute of repose; they only applied to the statute of limitations. KMC 

argued that, because Laura’s medical negligence claims failed as a matter of law, Bud’s 

loss of consortium claim necessarily also failed. 

{¶ 5} On October 4, 2023, the doctors filed a motion for judgment on the 

pleadings; they argued that the Bierlys had not filed suit within one year of discovering 

the lap sponge, and neither the statute of repose nor the foreign body limitations provision 

of R.C. 2305.113(D)(2) could be extended by a 180-day letter. 

{¶ 6} On October 11, 2023, the Bierlys responded to the motions for judgment on 

the pleadings, arguing that the statute of limitations had not expired when they filed their 

complaint and that “no statute of repose can act to nullify filing a Complaint within the 

statute of limitations.” According to the Bierlys, the defendants’ arguments would

“eviscerate” a foreign body case “one year after discovery, and without regard to the case 

having been filed in accordance with the statute of limitations.” They argued that a 

statute of repose nullifying a case timely filed within the applicable statute of limitations 

would violate the “right to remedy” provision of Section 16, Article I, of the Ohio 

Constitution. Referring to R.C. 2305.113, the Bierlys asserted that nothing in the 

language of subsection (D)(2) “altered the fact that timely notices under . . . (B)(1) extend 
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the statute of limitations by 180 days.” 

{¶ 7} On October 17, 2023, KMC filed a reply in support of the motion for judgment 

on the pleadings, arguing that the 180-day extension of time did not apply to the statute 

of repose and that the Bierlys had failed to file suit within one year after Laura’s discovery 

of the sponge in March of 2022. KMC also argued that R.C. 2721.12, which governs 

declaratory relief, had required the Bierlys to seek a declaratory judgment and to serve 

the Ohio Attorney General in order to argue that R.C. 2305.113(C) is unconstitutional, 

which they had failed to do. According to KMC, “the General Assembly had a rational 

basis for giving foreign body plaintiffs one additional year to sue under the statute of 

repose, and [Laura] has failed to prove the statute unconstitutional beyond a reasonable 

doubt.”

{¶ 8} On October 18, 2023, the doctors filed a reply brief in support of their motion 

for judgment on the pleadings. They argued that the Bierlys’ claims were “completely 

time-barred by the absolute-bar of Ohio’s statute of repose”; they also incorporated 

KMC’s arguments set forth above. According to the doctors, the statute of limitations 

and any extensions thereunder were irrelevant, and the 180-day letter provision was

irrelevant to the statute of repose.

{¶ 9} The same day, the Bierlys filed a motion to file a sur-reply to the motion for 

judgment on the pleadings, arguing that R.C. 2721.12 did not apply. KMC responded to 

the Bierlys’ motion to file a sur-reply, arguing that any attempt to declare a statute 

unconstitutional is a declaratory action by its very nature, and R.C. 2721.12 applied. The 

trial court later indicated its acceptance of the Bierlys’ sur-reply.
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{¶ 10} On January 12, 2024, the trial court entered judgment on the pleadings in 

favor of KMC and the doctors. The court found that the sole issue presented to the court 

was a question of law: whether Laura Bierly’s medical claims were time-barred pursuant 

to the statute of repose set forth in R.C. 2305.113(C) & (D)(2). The court found that the 

Bierlys misunderstood and/or misconstrued the interplay between the statute of repose 

and the statute of limitations, concluding that “whether a claim is filed within the applicable 

statute of limitations has absolutely no bearing on whether such a claim is barred by the 

statute of repose.” The court reasoned that, given Laura’s discovery of the lap sponge 

in March 2022, she had been required to assert her medical negligence claims no later 

than March 2023 pursuant to R.C. 2305.113(D)(2). But she did not file her complaint

until August 2023, after the one-year extension of the repose period had expired. The 

court further found that the 180-day letter provision of R.C. 2305.113(B) was not 

applicable to and did not extend the statute of repose set forth in R.C. 2305.113(C) or the 

additional one-year extension for foreign object claims set forth in R.C. 2305.113(D)(2). 

{¶ 11} The court further found that the Bierlys had failed to present clear and 

convincing evidence that the statute of repose provisions enumerated in R.C. 

2305.113(C) and (D)(2) were unconstitutional as applied. The court found that R.C. 

2305.113(C) and (D) applied to Bud Bierly’s’s derivative claim for loss of consortium as 

well as the medical negligence claims. 

 Assignments of Error and Arguments

{¶ 12} The Bierlys raise three assignments of error on appeal, which we will 

consider together. First, the Bierlys argue that “it is incontrovertible that they complied 
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with the statute of limitations” in filing their complaint and that R.C. 2305.113(D)(2) was 

“never intended to supplant” the statute of limitations set forth in R.C. 2305.113(A) and 

(B)(1). They argue that “the statute of limitations (with a discovery rule accrual date) and 

retained foreign body exclusion run simultaneously for a year,” and that the statute of 

limitations “can extend further, liberally construing these two provisions to promote 

decisions on the merits.” Second, the Bierlys contend that the “180-day provision . . .

extend[ed] the statute of limitations” such that, when “the foreign body ‘statute of repose’ 

expired, the statute of limitations continued to run”; the statute of repose and the retained 

foreign body provision were intended to and should not be interpreted as “annulling a 

pending statute of limitations or any portion thereof,” because doing would violate Article 

I, Section 16 of the Ohio Constitution. Third, the Bierlys argue that, under the trial court’s 

interpretation, 180-day letters pursuant to R.C. 2305.113(B)(1) “are a futile act.” 

{¶ 13} KMC responds that the Bierlys’ complaint “was not filed and did not remain 

pending before the expiration of the repose period,” which ended in March 2023; thus, 

their claims were time-barred by the statute of repose. Also, according to KMC, the 

delivery of 180-day letters “is simply not a listed exception to the foreign body plaintiff 

exception to the statute of repose.” As to the constitutionality of the statute, KMC asserts

that there is a rational basis for providing foreign body plaintiffs a one-year exception 

under the statute of repose, and the statute is constitutional.

{¶ 14} The doctors respond that the statutes of repose and limitations serve 

distinct purposes and have distinct applications. They assert that the expiration of the 

statute of repose is an absolute bar to a medical claim, and a statute of repose can 
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extinguish a running statute of limitations if the medical claim is not filed within the 

timeframes set forth in R.C. 2305.113(C) and (D). According to the doctors, the “plain 

language of R.C. 2305.113(D)(2) confirms that the statute of repose expired on [the 

Bierlys’] claims prior to the filing of their Complaint,” and the plain language of R.C. 

2305.113(B) establishes that it only applies to the statute of limitations. The doctors 

argue that this matter presents the exact situation the General Assembly was seeking to 

prevent – in which doctors are forced to defend themselves against a claim of medical 

negligence that happened long ago. Finally, the doctors argue that R.C. 2305.113(D)(2) 

is a constitutional limitation on the Bierlys’ right to a remedy, in spite of the fact that is 

extinguishes a cause of action.

Standard of Review

{¶ 15} Judgment on the pleadings “ ‘is appropriate where a court (1) construes the 

material allegations in the complaint, with all reasonable inferences to be drawn 

therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt that the 

[moving party] could prove no set of facts in support of [its] claim that would entitle [it] to 

relief.’ ” Sherrod v. Haller, 2017-Ohio-5614, ¶ 6 (2d Dist.), quoting State ex rel. 

Vandenbos v. City of Xenia, 2015-Ohio-35, ¶ 11, quoting State ex rel. Midwest Pride IV, 

Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996). Determination of a motion for judgment 

on the pleadings “ ‘is restricted solely to the allegations in the pleadings and any [attached] 

writings.’ ” Id., citing Civ.R. 10(C); and Portfolio Recovery Assocs., LLC v. VanLeeuwen, 

2016-Ohio-2962, ¶ 7 (2d Dist.). Thus, “ ‘Civ.R. 12(C) requires a determination that no 

material factual issues exist and [a finding] that the movant is entitled to judgment as a 
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matter of law.’ ” Id., citing Vandenbos at ¶ 11. A motion for judgment on the pleadings 

pursuant to Civ.R. 12(C) presents only questions of law, and the appellate standard of 

review is de novo. Id., citing Portfolio Recovery Assocs. at ¶ 5.

Time Limitations for Bringing Medical Claims

{¶ 16} “Statutes of limitations and statutes of repose share a common goal of 

limiting the time during which a putative wrongdoer must be prepared to defend against 

a claim, but they operate differently and have distinct applications.” Wilson v. Durrani, 

2020-Ohio-6827, ¶ 8, citing Antoon v. Cleveland Clinic Found., 2016-Ohio-7432, ¶ 11, 

citing CTS Corp. v. Waldburger, 573 U.S. 1, 7 (2014). “Statutes of limitations and 

statutes of repose target different actors.” Wilson at ¶ 10, citing CTS Corp. at 8. 

“Statutes of limitations emphasize plaintiffs’ duty to diligently prosecute known claims.” 

Id., citing Black’s Law Dictionary (9th Ed.2009). “Statutes of repose, on the other hand, 

emphasize defendant’s entitlement to be free from liability after a legislatively determined 

time.” Id., citing CTS Corp. at 9. In other words, the purpose of a statute of repose is 

“to create a bar on a defendant’s temporal liability.” Id. at ¶ 29. “In light of those 

differences, statutory schemes commonly pair a shorter statute of limitations with a longer 

statute of repose.” Id. at ¶ 10, citing California Pub. Emps.’ Retirement Sys. v. ANZ Sec., 

Inc., 582 U.S. 497, 506 (2017). “When the discovery rule . . . governs the running of the 

statute of limitations, the ‘discovery rule gives leeway to a plaintiff who has not yet learned 

of a violation, while the rule of repose protects the defendant from an interminable threat 

of liability.’ ” Id., quoting ANZ Sec. Inc. at 506. 

{¶ 17} R.C. 2305.113(A) sets forth the statute of limitations for medical claims in 
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Ohio:

(A) Except as otherwise provided in this section, an action upon a medical

. . . claim shall be commenced within one year after the cause of action 

accrued.

(B)(1) If prior to the expiration of the one-year period specified in division 

(A) of this section, a claimant who allegedly possesses a medical . . . claim 

gives to the person who is the subject of that claim written notice that the 

claimant is considering bringing an action upon that claim, that action may 

be commenced against the person notified at any time within one hundred 

eighty days after the notice is so given.

{¶ 18} “A claim for medical malpractice accrues, and the one-year statute of 

limitations begins to run, ’ “(a) when the patient discovers, or in the exercise of reasonable 

care and diligence should have discovered, the resulting injury, or (b) when the physicianpatient relationship terminates, whichever occurs later.” ’ ” Wilson at ¶ 14, quoting 

Frysinger v. Leach, 32 Ohio St.3d 38, 41-42 (1987). R.C. 2305.113(B)(1) provides an 

exception to R.C. 2305.113(A) by allowing claimants to extend the one-year statute of 

limitations for an additional 180 days from the time notice of intent to sue is given to 

potential defendants. See Marshall v. Ortega, 87 Ohio St.3d 522, 523 (2000). By its 

plain language, R.C. 2305.113(B)(1) applies to “the one-year period specified in division 

(A)” of R.C. 2305.113. See Shade v. Bleser, 2005-Ohio-6544, ¶ 24 (2d Dist.) (because 

a medical malpractice action was filed more than one year after the anniversary of 

decedent’s death, the action was timely only if plaintiff sent a 180-day notice letter to the 
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defendants prior to the expiration of the statute of limitations and if the action was filed 

within 180 days of the provision of that notice).

{¶ 19} “The medical negligence statute of repose was enacted by the General 

Assembly in 1975 as an alleged ‘emergency measure,’ in a ‘legislative “response to what 

was largely perceived throughout the country to be a medical negligence ‘crisis’ 

manifested by sharply increased medical malpractice insurance premiums, cancellation 

of policies, and physician work slowdowns.” ’ ” Bugh v. Ohio Dept. of Rehab. & Corr., 

2019-Ohio-112, ¶ 21 (10th Dist.). R.C. 2305.113 sets forth the statute of repose for 

medical claims and provides:

(C) 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 . . . claim shall be commenced more than four 

years after the occurrence of the act or omission constituting the alleged 

basis of the medical . . . claim.

(2) If an action upon a medical . . . claim is not commenced within four years 

after the occurrence of the act or omission constituting the alleged basis of 

the medical . . . claim, then, any action upon that claim is barred.

{¶ 20} “Unlike the statute of limitations in a medical negligence case, which begins 

to run when the plaintiff discovers or should have discovered an injury, the statute of 

repose bars ‘ “any suit that is brought after a specified time since the defendant acted . . .

even if this period ends before the plaintiff has suffered a resulting injury.” ’ ” Taylor-
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Jones v Kettering Med. Ctr., 2021-Ohio-738, ¶ 17 (2d Dist.), quoting Antoon, 2016-Ohio7432, at ¶ 11. “The ‘plain language of the statute is clear, unambiguous, and means 

what it says. If a lawsuit bringing a medical . . . claim is not commenced within four years 

after the occurrence of the act or omission constituting the basis for the claim, then any 

action on that claim is barred.’ ” Id., quoting Antoon at ¶ 23. 

{¶ 21} “[E]xceptions to a statute of repose require ‘a particular indication that the 

legislature did not intend the statute to provide complete repose but instead anticipated 

the extension of the statutory period under certain circumstances,’ as when the statute of 

repose itself contains an express exception.” (Citation omitted.) Wilson, 2020-Ohio6827, at ¶ 29. “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.” 

Ruther v. Kaiser, 2012-Ohio-5686, ¶ 2. “Those exceptions allow one additional year 

after discovery of an injury to file suit.” Id.

{¶ 22} R.C. 2305.113(D) expressly extends the four-year period of repose as 

follows: 

(D)(1) If a person making a medical claim . . . in the exercise of reasonable 

care and diligence, could not have discovered the injury resulting from the 

act or omission constituting the alleged basis of the claim within three years 

after the occurrence of the act or omission, but, in the exercise of 

reasonable care and diligence, discovers the injury resulting from that act 
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or omission before the expiration of the four-year period specified in division 

(C)(1) of this section, the person may commence an action upon the claim 

not later than one year after the person discovers the injury resulting from 

that act or omission.

(2) If the alleged basis of a medical claim . . . is the occurrence of an act or 

omission that involves a foreign object that is left in the body of the person 

making the claim, the person may commence an action upon the claim not 

later than one year after the person discovered the foreign object or not later 

than one year after the person, with reasonable care and diligence, should 

have discovered the foreign object.

{¶ 23} Wilson held that “R.C. 2305.113(C) is a true statute of repose that, except 

as expressly stated in R.C. 2305.113(C) and (D), clearly and unambiguously precludes 

the commencement of a medical claim more than four years after the occurrence of the 

alleged act or omission that forms the basis of the claim.” Wilson at ¶ 38. In Wilson, 

the trial court had entered judgment on the pleadings in favor of a doctor and certain 

medical facilities because the statute of repose barred the plaintiff’s refiled claims that

arose from surgeries performed more than four years before the claims were refiled. Id.

at ¶ 4. The First District reversed the trial court’s grant of judgment on the pleadings, 

holding that plaintiffs “had timely refiled their claims pursuant to the saving statute and 

that the statute of repose did not bar their refiled claims.” Id. at ¶ 5.

{¶ 24} The Supreme Court conducted the following analysis regarding exceptions 

to a statue of repose:
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The absence of an express exception in R.C. 2305.113(C) for 

application of the saving statute takes on additional import when we 

compare R.C. 2305.113(C) with R.C. 2305.10(C), which imposes a ten-year 

statute of repose for product-liability claims, and unlike R.C. 2305.113(C), 

expressly states that it applies “[e]xcept as otherwise provided in” R.C. 

2305.19, the saving statute. In the same bill in which it enacted R.C. 

2305.10(C), with its express inclusion of the saving statute, the General 

Assembly also enacted R.C. 2305.131, which created a statute of repose 

for premises-liability and construction-defect claims. Am.Sub.S.B. No. 80, 

150 Ohio Laws, Part V, 7915, 7937-7938. The General Assembly did not 

include the saving statute as an express exception to application of the 

premises-liability and construction-defect statute of repose. Nor did it take 

the opportunity to incorporate the saving statute as an express exception to 

the medical statute of repose, even though it made other minor 

amendments to R.C. 2305.113 in that bill. Id. at 7933, 7936-7937. The 

“General Assembly's use of particular language to modify one part of a 

statute but not another part demonstrates that the General Assembly knows 

how to make that modification and has chosen not to make that modification 

in the latter part of the statute.” Hulsmeyer v. Hospice of Southwest Ohio, 

Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903, ¶ 26.

Not only does the General Assembly's incorporation of the saving 

statute in the product-liability statute, R.C. 2305.10(C), demonstrate that the 
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General Assembly knew how to create an exception to a statute of repose 

for application of the saving statute when it intended to do so, but it also 

demonstrates the General Assembly's understanding that without an 

express indication to the contrary, the saving statute would not override the 

statutes of repose. Otherwise, there would have been no need for the 

General Assembly to have expressly included the saving statute as an 

exception in R.C. 2305.10(C).

Wilson at ¶ 30-32.

{¶ 25} Based upon the foregoing, we conclude that if the General Assembly had 

intended to make the 180-day provision applicable not only to the statute of limitations, 

but also to the statute of repose, it would have done so. The 180-day provision expressly 

applies to the “one-year period specified in division (A) of this section.” We agree with 

the trial court that the Bierlys’ claims were time-barred by the statute of repose. The

alleged negligence was discovered in March 2022, meaning that the Bierlys had to file 

their complaint no later than March 2023. As their complaint was filed in August 2023, it 

was untimely and subject to an absolute bar.

 Right to Remedy

{¶ 26} “When the constitutionality of a statute is challenged as part of a civil action 

for damages, a trial court has jurisdiction to address the statute’s constitutionality.” Grover 

v. Bartsch, 2006-Ohio-6115, ¶ 29 (2d Dist.) R.C. 2721.12(A), which governs declaratory 

relief, “ ‘applies only when the constitutionality of a statute is raised in a declaratory 

judgment action and not when the issue is raised in a motion filed in an ordinary civil 
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action.’ ” Id., quoting Tonti v. Tonti, 2004-Ohio-2529, ¶ 136 (10th Dist.) Thus, we reject 

KMC’s claim that the Bierlys could not raise the constitutionality of the statute under the 

circumstances of this case.

{¶ 27} However, we find the Bierlys’ claim that the statute of repose is 

unconstitutional because it denies their right to a remedy to be without merit. 

Initially, we note that statutes enacted by the Ohio General Assembly are 

presumed to be constitutional. State v. Melms, 2018-Ohio-1947, 101 

N.E.3d 747, ¶ 25 (2d Dist.). Thus, “before a court may declare [a statute] 

unconstitutional it must appear beyond a reasonable doubt that the 

legislation and constitutional provisions are clearly incompatible.” State ex 

rel. O'Brien v. Heimlich, 10th Dist. Franklin No. 08AP-521, 2009-Ohio-1550, 

¶ 24, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128

N.E.2d 59 (1955), paragraph one of the syllabus. Because the 

constitutionality of a statute presents a question of law, an appellate court 

reviews a trial court's determination of constitutionality de novo. Andreyko 

v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025,

¶ 11 (1st Dist.).

A review of the constitutionality of the statute of repose for medical 

malpractice claims “must be conducted according to the ‘rational basis’ test, 

since . . . [a medical negligence] case involves neither a fundamental right 

nor a suspect class.” Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 

58, 514 N.E.2d 709 (1987). “The rational-basis test involves a two-step 
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analysis. We must first identify a valid state interest. Second, we must 

determine whether the method or means by which the state has chosen to 

advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio 

St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne 

Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260, 267, 652 N.E.2d 

952 (1995). * * *

Taylor-Jones, 2021-Ohio-738, at ¶ 14-15 (2d Dist.).

{¶ 28} Article 1, Section 16, states: “All courts shall be open, and every person, for 

an injury done him in his lands, 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 constitutional principles – ‘open courts,’ ‘right to 

remedy,’ and ‘due course of law.’ ” Ruther, 2012-Ohio-5686, at ¶ 10. Ruther was 

concerned with the “right to remedy” principle. Id. at ¶ 11. The Supreme Court 

determined that a “plain reading of Article I, Section 16 reveals that it does not provide for 

remedies without limitation or for any perceived injury.” Id. at ¶ 12. “Rather, the rightto-remedy clause provides that the court shall be open for those to seek remedy ‘by due 

course of law.’ ” (Emphasis in original.) Id. “Article I, Section 16 does not prevent the 

General Assembly from defining a cause of action.” Id.

{¶ 29} After noting that 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,” Ruther determined that R.C. 2305.113(C) was a valid exercise of the 
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authority to define or limit a cause of action. Id. at ¶ 14. The Supreme Court noted that 

a cause of action for malpractice accrues, or vests, “when a patient discovers or in the 

exercise of reasonable care and diligence should have discovered the resulting injury.” 

Id. at ¶ 17, citing Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111 (1983); 

Hershberger v. Akron City Hosp., 34 Ohio St.3d 1 (1987), syllabus. Because “an injury 

may not manifest itself within one year of a breach of a duty of care,” the General 

Assembly “provided the general discovery period of four years.” Ruther at ¶ 18. 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.” Id. Antoon clarified 

and expanded Ruther, holding that “R.C. 2305.113(C) “applies to both vested and 

nonvested claims. Therefore, any medical-malpractice action must be filed within four 

years of the occurrence of the act or omission alleged to have caused a plaintiff’s injury.”

Antoon, 2016-Ohio-7432, at ¶ 1. 

{¶ 30} We cannot conclude that the limitation set forth by R.C. 2305.113(C), and 

extended by R.C. 2305.113(D)(2), violates the right to remedy provision in the Ohio 

Constitution. In other words, while the right to remedy provision grants a right of access 

to the courts, it is not a perpetual or infinite one. 

{¶ 31} Based upon the foregoing, the Bierlys’ assignments errors are overruled. 

The judgment of the trial court is affirmed.

. . . . . . . . . . . . .

EPLEY, P.J. and LEWIS, J., concur. 
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