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Day v. Hissa11/14/1994
statute, considering its prior history, purpose and effect?
"(3) Will the retrospective application produce substantial inequitable results (`injustice or hardship')?" Anello v. Hufziger, 48 Ohio App.3d at 30, 547 N.E.2d at 1222.
In applying this test to the retrospective application of the Hiatt v. S. Health Facilities, Inc. decision, the answer to all three questions is in the negative. The recent decision is controlling. Therefore this court will not affirm the dismissal of appellant's action on the basis of R.C. 2307.42.
In considering the first question of the Chevron Oil test, the legislation was enacted in 1975 and has not been the subject of much case law. In the sense that "foreshadowed" was used by the Anello court, the decision was foreshadowed by the filing practices in effect prior to the enactment of R.C. 2307.42.
Retrospective application of the Hiatt decision will not retard the operation of the procedural rules as set forth by the Ohio Supreme Court in the Rules of Civil Procedure. In fact, the decision simply eradicates a conflict in the existing filing requirements.
Finally, the retrospective application of this ruling will not produce inequitable results. Appellee remains no less capable of defending himself against appellant's claim of malpractice under the general filing requirements than he was under the requirement of an affidavit documenting a consultation per R.C. 2307.42.
Having met the test as set forth by Chevron Oil Co. v. Huson, we find that R.C. 2307.42 is of no force and effect in the present action. The trial court's dismissal of the action is reversed. We therefore remand this action to the trial court to vacate its prior dismissal.
Judgment accordingly.
NAHRA, C.J., and HARPER, J., concur. |