Ohio Supreme Court Rules that the Medical Statute of Repose Applies to Wrongful Death and Derivative Claims

On December 28, 2023, the Ohio Supreme Court issued decisions applying Ohio's four-year statute of repose R.C. 2305.113(D) to wrongful death and derivative medical claims.

In Everhart v. Coshocton Co. Mem. Hosp., Slip Opinion No. 2023-Ohio-4670, the Supreme Court reversed the 10^th District Court of Appeals and applied the four-year bar to wrongful death claims based upon alleged negligent medical care. In a 4-3 decision, Justice Patrick Fischer, writing for the majority, ruled 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's definition of “medical claim” applied to all types of claims for medical care, including an independent and statutorily regulated wrongful death cause of action arising from allegedly negligent medical care.

In a dissent, Justice Jennifer Brunner cautioned: “[i]mportantly, 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 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.

OF NOTE: The Ohio Supreme Court's ruling in Everhart also resolved an appeal in favor of RCO Law clients on the identical statute of repose issue addressed in Everhart, in a claim being defended by RCO Law attorneys Julia Wiley and Kayla Henderson that was also pending before the Ohio Supreme Court, but was stayed pending the Court's ruling in Everhart.

In addition to the Everhart decision, the Ohio Supreme Court released two rulings in the McCarthy v. Lee matters, Slip Opinion No. 2023-Ohio-4696 (appealing from Franklin County App. Court Case No. 21AP-426, 2022-Ohio-1413) and Slip Opinion No. 2023-Ohio-4699 (appealing from Franklin County App. Court Case No. 21AP-105, 2022-Ohio-1033). The Court found that when a medical malpractice claim is barred by the four-year statute of repose (R.C. 2305.113), any “derivative” loss-of-parental-consortium claim arising from the medical claim “no longer exists.”

After an alleged negligent delay in diagnosis of her colon cancer, Kathleen McCarthy 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 Ohio Supreme Court, held that the savings statute did not apply to extend 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 failed under the four-year statute of repose in R.C.2305.113.

These decisions follow the Court's holding in Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, wherein the Court ruled that the savings statute could not be used to refile beyond the statute of limitations if the statute of repose has expired.

For questions or to discuss these cases, please contact attorneys in RCO Law's Healthcare and Medical Malpractice Practice Group.