In Ohio, while the usual statute of limitations for both personal injury and property damage is two (2) years, § 2305.113 provides that an action for medical malpractice must in all cases be filed within four (4) years from the date that the medical negligence occurred. If the basis of the claim is discovered in the 3rd year and could not have been discovered earlier, the plaintiff is given 1 year from the date discovery to file suit. This statute of repose does not apply to claims for foreign objects left inside the body.
Ohio’s medical malpractice statute of repose has not been without its controversy. In 1987, the Ohio Supreme Court ruled, in two separate decisions, that Ohio’s medical malpractice statute of repose violated the Ohio Constitution.[1] Those decisions reflected unrest with the harsh results that medical malpractice statutes of repose can create and with the enactment of statutes of repose in response to the “perceived” medical malpractice insurance crisis a decade earlier. The decisions amplify the logic and fairness of applying the “discovery rule” to medical malpractice actions and with the principal purpose of tort law, compensating injured victims. Generally, the “discovery rule” says that the statute of limitations for medical negligence begins to run when the patient/plaintiff has sufficient evidence that a wrong has been committed by an identified person. But all too often the injury isn’t “discovered” until many years later. The court held that as applied to bar claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries, the statute violated the Ohio Constitution right to remedy provision. The court struck down the statute.
In 2003, the Ohio Legislature enacted a new medical malpractice statute of repose in § 2305.113. It provided that “No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.” However, it provided an exception for cases where the injury was not discovered until later. Subsection (D)(1) of the statute provided:
If a person making a medical claim, dental claim, optometric claim, or chiropractic claim, in the exercise of reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within three years after the occurrence of the act or omission, but, in the exercise of reasonable care and diligence, discovers the injury resulting from that act or omission before the expiration of the four-year period specified in division (C)(1) of this section, the person may commence an action upon the claim not later than one year after the person discovers the injury resulting from that act or omission.
So far, this statute has withstood constitutional scrutiny, and in 2021 the Ohio Court of Appeals indicated that the new statute of repose statute did not violate the Equal Protection Clause.[2] However, on December 28, 2023, the Ohio Supreme Court was asked to review decisions by the 1st, 6th, and 10th District Courts of Appeals[3] which had indicated that this absolute four-year deadline in the statute of repose did not apply to wrongful death claims or derivative claims brought by survivors of a deceased patient. The Ohio Supreme Court reversed the decisions in the 1st, 6th, and 10th District Courts of Appeals, holding that the medical malpractice statute of repose does, in fact, apply in wrongful death claims and derivative claims brought by the children of a deceased parent.
The court began by noting a difference between Survival Claims and Wrongful Death claims. Claims for medical negligence resulting in injury to a patient are fundamentally different from claims based on medical negligence resulting in death. Though the claims originate in the same negligence, they do not overlap. One is for the wrong to the injured patient and is confined to the personal loss and suffering before death. The other claim is for the wrong to those left behind who survive the decedent, being confined to their loss as a result of the injured person’s death. A wrongful-death action does not accrue until the wrongful act (in this case, medical misdiagnosis) causes death. The court held that there was no reason to exclude medical negligence wrongful death cases or derivative claims from the statute of repose found in Section 2305.11. The court said that if the statute of repose eliminates the cause of action, there can be no derivative loss of consortium claim. It said that to permit a derivative loss of consortium claim where the underlying claim from which it is derived no longer exists would be inconsistent.
A chart detailing the statutes of limitations and repose for all 50 states can be found HERE. For any questions regarding subrogating medical negligence claims, contact Lee Wickert at leewickert@mwl-law.com.
[1] Hardy v. VerMeulen, 512 N.E.2d 626 (Ohio1987), cert. denied, 108 S. Ct. 1029 (1988); Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709 (Ohio 1987).
[2] Taylor-Jones v. Kettering Med. Ctr., 2021 WL 942920 (Ohio App. 2021).
[3] McCarthy v. Lee, 2022 WL 910231 (Ohio App -10th Dist. 2022); Maxwell v. Lombardi, 2022 WL 1580463 (Ohio App.-10th Dist. 2022); Ewing v. UC Health, 193 N.E.3d 1132 (Ohio App.-1st Dist. 2022); Davis v. Mercy St. Vincent Med. Ctr., 190 N.E.3d 77 (Ohio App.-6th Dist. 2022) (all holding that the medical claims statute of repose is inapplicable to medically based wrongful-death claims).
