Doe v. White9/23/1994
ained of in this case clearly constitute a battery. Specifically, White argues that because the parties intentionally engaged in sexual intercourse, a battery occurred. In Love, the Ohio Supreme Court held that a person is liable for battery when he acts with intent to cause a harmful or offensive contact and such contact results, unless a person is privileged in such contact. Love, supra. Here, the parties both clearly consented to sexual intercourse. Thus, no battery occurred, since the contact was consensual and privileged. The one-year statute of limitations for battery is inapplicable to this case.
Alternatively, White argues that if the battery statute of limitations is inapplicable, the malpractice statute of limitations contained in R.C. 2305.11 should be applied. Doe's complaint clearly alleges an action for counselor malpractice. Ohio, however, does not specifically recognize such a cause of action and treats such causes of action as negligence.
In a long line of cases interpreting R.C. 2305.11, Ohio courts have consistently refused to extend the statute of limitations to include malpractice claims which are neither specifically enumerated in the terms of the statute nor included in the common-law definition of "malpractice." See Investors REIT One v. Jacobs (1989), 46 Ohio St.3d 176, 546 N.E.2d 206; Hocking Conservancy Dist. v. Dodson Lindblom Assoc., Inc. (1980), 62 Ohio St.2d 195, 16 O.O.3d 217, 404 N.E.2d 164; Whitt v. Columbus Coop. Enterprises (1980), 64 Ohio St.2d 355, 18 O.O.3d 512, 415 N.E.2d 985; Richardson v. Doe (1964), 176 Ohio St. 370, 27 O.O.2d 345, 199 N.E.2d 878; Reese v. K-Mart Corp. (1981), 3 Ohio App.3d 123, 3 OBR 140, 443 N.E.2d 1391; Richard v. Staehle (1980), 70 Ohio App.2d 93, 24 O.O.3d 121, 434 N.E.2d 1379. The common-law definition of "malpractice" included only attorneys and physicians. Richardson, supra. Thus, other actions of professional malpractice are treated as negligence and governed by the statute of limitations in either R.C. 2305.09 or 2305.10.
White argues, however, that an amendment to R.C. 2305.11 in 1987 changed the meaning of the statute so as to include all forms of malpractice. Former R.C. 2305.11 provided in part:
"An action for libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice, including an action for malpractice against a physician, podiatrist, or a hospital or upon a statute for a penalty for forfeiture, shall be brought within one year after the cause of action thereof accrued (Emphasis added.)
The legislature amended R.C. 2305.11 in 1987, providing in part:
"An action for libel, slander, malicious prosecution, or false imprisonment, an action for malpractice other than an action upon a medical, dental, optometric, or chiropractic claim, or an action upon a statute for a penalty or forfeiture, shall be commenced within one year after the cause of action accrued (Emphasis added.)
Appellant argues that the amended R.C. 2305.11, in effect at the onset of this action, includes all forms of malpractice. We find this argument unpersuasive.
The amendment to R.C. 2305.11 does not clearly express a legislative intent to expand the term "malpractice" to all professional occupations. The Ohio Supreme Court in Richardson stated: "It is well-established that where a statute uses a word which has a definite meaning at common law, it will be presumed to be used in that sense and not in the loose popular sense." Richardson, supra, 176 Ohio St. at 372-373, 27 O.O.2d at 347, 199 N.E.2d at 880. Further, it is presumed that the legislature is fully aware of any prior judicial interpretation of an existing statute when enacting an ame
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