On December 28, 2023, the Ohio Supreme Court issued decisions implicating the impact of the four-year statute of repose established in R.C. 2305.113(D) on two cases involving claims related to medical errors.
The Supreme Court in Everhart v. Coshocton Co. Mem. Hosp., Slip Opinion No. 2023-Ohio-4670, reversed a decision by the 10th District Court of Appeals and applied the four-year limitation to wrongful death claims based upon alleged faulty medical care. In a 4-3 decision, Justice Fischer writing for the majority found that, as with other lawsuits based on medical care, wrongful death suits must be filed within four years of the medical provider’s alleged error. The majority determined that the legislature defined “medical claim” to apply to all types of claims for medical care including the independent and statutorily regulated wrongful death cause of action arising from allegedly negligent medical care.
Two thorough dissenting opinions argued that the plain language of the statute of repose for medical malpractice and related claims explicitly did not include the statutorily created cause of action for wrongful death among “medical claims” to which the statute of repose applies. The first dissent written by Justice Donnelly examines the legislative and caselaw history of wrongful death and medical negligence actions, concluding that the “two types of actions have always been and continue to be governed by separate sets of rules.” The first dissent further analyzes cited cases as distinguishable or irrelevant to the questions presented in Everhart.
The second dissent written by Justice Brunner argues that the application of a four-year statute of repose as applied by the majority violates the “right to remedy” provision contained in Article I, Section 16 of the Ohio Constitution. Justice Brunner, among other bases articulated in the dissent, posits that barring plaintiffs from claims when they could not have otherwise discovered the error violates a constitutional protection. Justice Brunner cautions: “Importantly, a wrongful-death action does not accrue until the wrongful act (in this case, medical misdiagnosis) actually causes death. This means that the majority’s reasoning and application will now cause the statute of repose to run in many cases before the stricken patient even manages to die, preventing his or her relatives from bringing a wrongful-death suit unless they macabrely bring it before their loved one dies.”
Ultimately, however, the Court has determined that the four-year statute of repose set forth under the medical negligence statute applies to wrongful death claims where the alleged cause of death is medical malpractice. Attorneys practicing in this area must be aware of this ruling, along with recent decisions that the savings statute does not allow for a refiled action outside the underlying statute of repose. Heeding Justice Brunner’s caution, attorneys bringing such claims should consider the need to raise a wrongful death claim that has not yet accrued, just in the event of a subsequent fatal outcome.
For more on this ruling, see Court News Ohio’s recent article, Deadline for Medical Error Lawsuits Applies to Wrongful Death Claims and related coverage.
In addition to the Everhart decision, the Court released two rulings in the McCarthy v. Lee matters, Slip Opinion No. 2023-Ohio-4696 (appealing from the Franklin County App. Court Case No. 21AP-426, 2022-Ohio-1413) and Slip Opinion No. 2023-Ohio-4699 (appealing from the Franklin County App. Court Cases No. 21AP-105, 2022-Ohio-1033). The Court found that when a medical malpractice claim is barred by the four-year statute of repose in R.C. 2305.113, the “derivative” loss-of-parental-consortium claim arising from the medical claim “no longer exists.”
After Kathleen McCarthy’s colon cancer diagnosis was allegedly negligently delayed, Kathleen and her husband Brett filed a medical malpractice claim against the physician and related defendants. Following a refiled complaint after a voluntary dismissal, the lower courts, affirmed by the OSC, held that the savings statute did not apply to the statute of repose. This resulted in the dismissal of Kathleen and Brett McCarthy’s claims arising from alleged medical negligence. Subsequently, the McCarthys filed a suit on behalf of their three minor children alleging loss of parental consortium. In McCarthy v. Lee, Slip Opinion No. 2023-Ohio-4699, the Ohio Supreme Court reversed the decision of the Tenth District Court of Appeals and dismissed the children’s consortium claim upon the finding that the parents’ medical negligence claim fails under the four-year statute of repose limit in R.C.2305.113.
As the Court continues its trend of strict application of a medical statute of repose, we maintain an interest in whether caselaw will bear out the same trend for the legal malpractice statute of repose effective June 14, 2021. Attorneys are well-advised to be thoroughly apprised of current case law and be extraordinarily cautious when determining deadlines by which to file a new case and the implications of the statute of repose on a Civ. R. 41(A) dismissal.
Please remain vigilant to the changing landscape in medical negligence torts to ensure competence and avoid an error regarding an applicable statute of repose or limitations. Finally, we encourage plaintiffs’ attorneys especially to again review the holding of Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827.
If you have any questions or concerns related to this ruling, please contact OBLIC’s experienced Claims and Loss Prevention attorneys for assistance.
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
|Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
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