Ohio's Four-Year Malpractice Deadline Now Applies to Wrongful-Death Cases: What Families Must Know

Published January 10, 2024 · Ohio Supreme Court

A doctor misses something on a scan. Nobody calls the patient back. Years later the cancer is found, too late, and the family that loses a husband or mother learns a second hard fact: the law may have closed the door on them before the death even happened.

That is the effect of a decision the Supreme Court of Ohio released on December 28, 2023. In Everhart v. Coshocton County Memorial Hospital, Slip Opinion No. 2023-Ohio-4670, a 4-3 majority held that a wrongful-death claim based on medical care is subject to the same four-year outer deadline as any other malpractice claim. If you suspect that medical negligence played a part in a loved one's death, this post explains what changed and what you can still do.

Two different clocks

Ohio has two kinds of time limits, and the difference matters here.

A statute of limitations starts when a claim "accrues," usually when the injury happens or is discovered. A wrongful-death action generally must be filed within two years after the death, under R.C. 2125.02(F)(1). A malpractice claim by a living patient generally must be filed within one year after it accrues, under R.C. 2305.113(A), with a possible 180-day extension if written notice is sent to the provider in time.

A statute of repose is different. It counts from the date of the medical act or omission itself, whether or not anyone knew about the harm. R.C. 2305.113(C) says no action on a medical claim may be commenced more than four years after the act or omission it is based on. When those four years pass, the claim is barred, not just delayed.

For years, families argued that the four-year repose period applied only to the patient's own malpractice claim, not to the separate wrongful-death claim that Ohio's wrongful-death statute gives the family. Several appeals courts agreed. As we explained in 2022, Ohio's appellate districts were split on this question. That split is now resolved, and it was resolved against families.

What happened in Everhart

In December 2003, Todd Everhart was taken to Coshocton County Memorial Hospital after a car crash. A physician working at the hospital read his chest x-rays and noted an area in his right lung that might be a bruise from the crash. His widow would later allege that no one followed up on that finding or told him about it. About three years later, he returned to the hospital with new symptoms, and imaging showed a large mass in the same part of his lung. It was advanced lung cancer, and he died about two months later.

His widow sued the hospital and two physicians in January 2008 over that missed finding. That was more than four years after the x-ray. Years into the case, the defendants raised the statute of repose, the trial court granted judgment to the physician who read the x-rays, and the Tenth District Court of Appeals reversed, holding that the repose statute does not reach wrongful-death claims.

The Supreme Court reversed again. Writing for the majority, Justice Fischer reasoned that the statute's broad definition of "medical claim" in R.C. 2305.113(E)(3) covers wrongful-death claims that arise from medical diagnosis, care, or treatment, and that nothing in Ohio's wrongful-death chapter carves them out. The opinion opens by saying the repose statute "means what it says." Three justices dissented. The case went back to the court of appeals to decide a remaining issue about whether Mrs. Everhart should have been allowed to amend her complaint.

The same day, the Court summarily reversed Davis v. Mercy St. Vincent Medical Center, Slip Opinion No. 2023-Ohio-4723, a Toledo-area case that had gone the other way, on the authority of Everhart.

The same wall reaches the whole family

A second decision released that day, McCarthy v. Lee, Slip Opinion No. 2023-Ohio-4696, shows how far the repose statute reaches.

Kathleen McCarthy was treated for rectal bleeding beginning in 2010 and diagnosed with hemorrhoids. In 2017 she was diagnosed with stage-three colon cancer. The malpractice claim she and her husband filed was dismissed under the four-year repose period. Their three children then sued for loss of parental consortium, meaning the loss of a parent's care, guidance, and companionship.

The Court, in a 4-3 opinion by Justice Deters, agreed that the children's claim was not itself barred by the repose statute. But it held that a consortium claim is "derivative": it depends on the parent's own claim. Once the parent's claim was extinguished by the repose statute, the children's claim could not exist either.

Put the two decisions together and the message is stark. In a medical case, the four-year clock from the date of the mistake governs the patient, the surviving spouse, the children, and the estate.

The paths that remain

This is bad news for families, but it is not the end of every case. Several routes survive, and each depends on acting quickly.

• The late-discovery exception. Under R.C. 2305.113(D)(1), if the injury could not reasonably have been discovered within three years of the act, but was discovered before the four years ran out, the claim may be filed within one year after discovery. The burden of proof is high: clear and convincing evidence that the injury could not have been found sooner.
• Foreign objects. Under R.C. 2305.113(D)(2), when a sponge, instrument, or other foreign object is left in the body, the claim may be filed within one year after the object was discovered or should have been.
• Minors and people of unsound mind. R.C. 2305.113(C) itself exempts persons within the age of minority or of unsound mind, as provided by R.C. 2305.16. Whether that applies depends on who holds the claim, and it requires careful analysis.
• Doctors who leave Ohio. In Elliot v. Durrani, 171 Ohio St.3d 213, 2022-Ohio-4190, the Supreme Court held that Ohio's absent-defendant tolling statute, R.C. 2305.15(A), pauses the medical repose period while a doctor is out of the state or has absconded. We wrote about that decision in December 2022, and it remains the law today.
• Ongoing or later care. The four years run from each act or omission. A later missed diagnosis, a later failure to follow up, or a different provider's error may start its own clock. Pinning down every date in the medical chart is one of the first things we do.

What this means for you

If you believe a delayed diagnosis, surgical error, or hospital failure contributed to the death of someone you love, do not wait until after the funeral, the estate, and the grief have run their course. The four-year period may already be close to expiring, or may have started long before anyone knew something was wrong.

What to do now:

• Write down the timeline. Every appointment, test, scan, and hospital visit you can remember, with approximate dates.
• Request the records. The medical chart is the evidence, and it tells us which dates control.
• Call a lawyer right away. Our guide chapters on deadlines and the timeline of an Ohio injury case and why you should talk to a lawyer early explain how these clocks interact. In medical cases, a few weeks can be the difference between a claim and no claim.

Our wrongful death practice handles these cases for families throughout the Dayton area and across Ohio, including the probate-court steps that must happen before a case can be filed.