Ohio Supreme Ct. Holds Repose Statute Applies to Wrongful Death, Derivative Claims

A divided Ohio Supreme Court on Thursday drew a bright line around the state’s statute of repose for medical malpractice claims, ruling in separate cases that an absolute four-year deadline to bring an action applies to both wrongful death claims and derivative claims that stem from alleged negligence by medical providers.

“We reiterate here that R.C. 2305.113(C) is a true statute of repose and that it means what it says,” the majority decision says.

The high court reversed decisions by the 1st District, 6th and 10th District Court of Appeals that held the statute of repose does not apply to wrongful death claims and affirmed a decision by the 12th that held it does. The court also affirmed a ruling by the 10th District that a derivative claim, filed by the children of a couple whose medical malpractice claim was filed too late, is also barred by the statute of repose.

Machelle Everhart challenged a trial court decision to dismiss a malpractice suit she filed against the Coshocton Hospital and other medical providers after her husband, Todd, died from lung cancer. Her suite alleges that chest x-rays taken in 2003 after Todd was hurt in a car accident revealed an abnormality in his right lung, but doctors at the hospital did not investigate. Todd learned three years later that he suffered advanced-stage lung cancer. He died two months later.

The 10th District Court of Appeals revived Everhart’s suit, holding that a wrongful death claim is not the same as a medical malpractice.The court noted that Ohio has a specific statute that governs wrongful death actions that makes no mention of the medical malpractice statute of repose.

The Ohio Hospital Association, State Medical Association and Osteopathic Association filed an amicus brief after the Coshocton Hospital appealed the 10th District’s ruling to the Supreme Court. Lawyers for the organizations urged the high court not to accept any “unwritten exceptions” to the statute of repose.

The brief says statutes of repose are not the same as statutes of limitations, for which the clock starts ticking when the plaintiff discovers the injury. Statutes of repose emphasize a defendants entitlement to be free of liability after a certain time, the brief says.

Ohio is one of at least 18 states that have adopted statutes of repose for medical malpractice claims, according to a chart compiled by the White and Williams law firm. The deadline to file claims range from two years after injury in Arkansas to 10 years for Missouri and Massachusetts.

The Ohio high court said in its ruling that it saw no reason exempt wrongful death claims from the statute of repose.

“Wrongful-death claims based on medical care are clearly and expressly included in R.C. 2305.113(E)(3)’s broad definition of ‘medical claim,'” the high court’s opinion says.

The high court reversed two similar decisions by the 1st and 6th District appellate courts and affirmed a decision by the 12th District in three short “slip opinions.”

The other case decided by the Supreme Court on Thursday involved a loss of parental consortium claim filed by the children of Kathleen and Brett McCarthy against Dr. Peter K. Lee and the OhioHealth Physician Group.

The McCarthys alleged that Lee failed to properly diagnose Kathleen’s colon cancer, leading to her death. A trial court dismissed the couple’s medical malpractice claim because it was filed after the four-year deadline in the statute of repose.

The couple then filed an action on behalf of their children. Their attorneys argued that the children’s “derivative claim” for loss of consortium is not barred by the statute of repose because it is not a medical malpractice claim.

Both the 10th District and the Supreme Court disagreed.

“Essentially, the statute of repose eliminates the cause of action,” the high court’s 4-3 decision says. “Without a primary claim, there can be no derivative loss of consortium claim. Permitting a derivative loss of consortium claim where the underlying claim from which it is derived no longer exists would be inconsistent with this basic principal.”