Alan J. Sobol


The rationale of the Court was that Melnyk could be distinguished with the recent case of Wyler v. Tripi, which held that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship terminates, and which also recognized the legislature's authority to act in this area, on the basis that Wyler was not a foreign object case. Therefore, the Court felt it need not disturb the Wyler holding and could nevertheless hold the failure to remove the foreign objects in Melnyk was negligence as a matter of law and that equity and public policy require an exception to the general rule.

The central issue in Melnyk is at what point in time such a cause of action accrues. Stated more precisely, did the cause of action accrue, and thus the statute commence to run, at the time of the negligent act (i.e., the negligent failure to remove the foreign objects) or did the cause of action accrue at the time the patient discovered the negligent act? The determination of this issue invariably involves the interpretation of the phrase "after the cause of action thereof accrued."' The wording of the Ohio statute is similar to statutes of limitations in other jurisdictions in that it is phrased in general terms which require the commencement of the limitation's period merely "when the cause of action accrues." The courts have been unable to define that phrase with any consistency.