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Don’t Dabble: The Medical Malpractice Statute of Repose Can Be Tricky
Post on July 9th, 2020

Ohio Revised Code 2305.113 establishes the statute of limitations for filing medical malpractice claims, requiring a claimant to commence an action within one year after the cause of action accrued. The statute also contains a statute of repose, stating that a claim is barred if not commenced within four years of the event giving rise to the claim. The Ohio Supreme Court found the statute of repose constitutional in Antoon v. Cleveland Clinic Foundation, 2016-Ohio-7432, but specifically did not determine how the statute of repose would operate if ORC 2305.19(A), the “savings statue,” was also involved when a claim had been Civil Rule 41(A) dismissed prior to the running of the statute of repose. Id. at ¶30.

To avoid potential legal malpractice problems, a suit which was filed and dismissed pursuant to Civil Rule 41(A) should be refiled before the four-year statute of repose expires. This issue is currently before the Ohio Supreme Court in Robert Wilson v. Abubakar Atiq Durrani, MD, et al., Ohio Supreme Court Case. No. 2019-1560. Given the uncertainty associated with the statue of repose, it is best NOT to rely on the COVID-19 tolling provisions for filing or refiling a medical malpractice action.