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Nasser v. Orthopaedic Association of Youngstown9/26/2002
JUDGMENT: Affirmed
. Plaintiff-appellant, Mark Nasser, guardian of Jamal Nasser (Jamal), appeals from the decision of the Mahoning County Court of Common Pleas dismissing his lawsuit against defendants-appellees, Orthopaedic Associates of Youngstown, Inc. (Orthopaedic Associates) and A.D. Kasamias, MD (Dr. Kasamias).
. Appellant filed a complaint on December 18, 2000 on Jamal's behalf alleging that on, before and after June 27, 1984 Dr. Kasamias was negligent in treating him and as a direst result Jamal suffered injuries to his left arm and elbow causing pain, suffering, disability and permanent damage. The complaint also alleged that at all relevant times Dr. Kasamias was employed by Orthopaedic Associates and acted within the scope of his employment.
. The complaint stated that Jamal originally filed his claim on September 16, 1986. It stated that in November of 1988 Jamal began treatment for psychological/psychiatric disorders. The complaint further alleged that sometime before November of 1991, Jamal's psychological/psychiatric disorders progressed to the point that he became mentally incompetent. The complaint also stated that Jamal's original claim was dismissed without prejudice on November 27, 1991. It finally asserted that the Mahoning County Probate Court granted appellant guardianship over his brother Jamal on November 27, 2000.
. Appellees filed a Civ.R. 12(B)(6) motion to dismiss the complaint for failure to state a claim alleging that the statute of limitations had expired. They asserted that Jamal should have refiled his compliant by November 27, 1992. Appellant filed a response claiming that Jamal had been of unsound mind and, therefore, the savings statute tolled the statute of limitations. At this time, he also asserted that the application of R.C. 2305.16 to Jamal's case that appellees urged would deny Jamal of equal protection of the law. The trial court treated appellees' 12(B)(6) motion as a motion for summary judgment and reviewed evidentiary materials submitted by appellant. It determined in its May 31, 2001 judgment entry that Jamal did not meet the requirements of the savings statute and, therefore, the statute of limitations precluded him from litigating his claim. Appellant filed his notice of appeal on July 2, 2001.
. Appellant asserts two assignments of error, the first of which states:
. "THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION TO DISMISS, AS THE APPLICATION OF O.R.C. ยง2305.16 TO THE FACTS OF THIS CASE OPERATES TO DENY JAMAL NASSER EQUAL PROTECTION OF THE LAW."
. Appellant argues that R.C. 2305.16 prejudices Jamal since he became of unsound mind after his cause of action accrued. He asserts that R.C. 2305.16 as applied to Jamal denies him of the fundamental right to redress his injury in court. Appellant claims that the statute's requirement that one must be hospitalized with a diagnosis resulting in an unsound mind is not applicable to the mentally ill of today. Furthermore, appellant argues that the statute unfairly discriminates against the poor who cannot afford the best healthcare insurance.
. Appellant presents a historical background of mental disorders and how the medical profession has treated them since the enactment of R.C. 2305.16. He explains that at the time the legislature enacted R.C. 2305.16, many more people were institutionalized than are today. Appellant points out that in the late 1970s Ohio enacted R.C. 5122.01, which restricts involuntary hospitalization only to those who are dangerous to themselves or others. Appellant asserts that when read together, R.C. 5122.01 and R.C. 2305.16 create a privileged class for those who are hom
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