Courts Split on Whether Ohio's Medical-Malpractice Time Bar Applies to Wrongful-Death Claims

Published August 9, 2022 · Ohio Appeals Courts

When a family loses someone after a hospital stay or a surgery that went wrong, grief comes first and lawyers come much later. By then, a family may be told that the deadline has already passed, because Ohio's four-year medical statute of repose closed the door before anyone knew what had happened.

Two Ohio appeals courts have now said that is wrong when the claim is for wrongful death. On July 27, 2022, the First District Court of Appeals in Cincinnati decided Ewing v. UC Health, 2022-Ohio-2560, joining an April decision from the Sixth District in Toledo, Davis v. Mercy St. Vincent Medical Center, 2022-Ohio-1266. Other districts disagree, and the Supreme Court of Ohio is expected to settle the issue. Here is what the split means for families right now.

Two different clocks for medical claims

Ohio puts two time limits on most medical-malpractice claims. Under R.C. 2305.113(A), a medical claim generally must be filed within one year after it accrues. Under R.C. 2305.113(C), the statute of repose, no medical claim may be filed more than four years after the act or omission that caused the harm, with narrow exceptions.

A statute of repose is harsher than a statute of limitations. A limitations period usually starts when you are injured or discover the injury. A repose period starts with the defendant's conduct and runs regardless of what anyone knew. In Wilson v. Durrani (2020), the Supreme Court of Ohio held that even Ohio's saving statute, which normally lets a plaintiff refile a dismissed case within a year, cannot extend the four-year repose period. I explained that decision in our post on Wilson v. Durrani.

Wrongful-death claims have their own deadline. Under R.C. 2125.02(D)(1), a wrongful-death action must be commenced within two years after the death. Our guide chapter on deadlines and the timeline of an Ohio injury case walks through how these clocks interact.

The question in Ewing and Davis is whether a wrongful-death claim that grows out of medical care must satisfy both clocks.

The Ewing case

Shirley Ewing was an inpatient at the University of Cincinnati Medical Center from February 18 to March 22, 2014. Her family alleged that during that stay she suffered a broken leg that was not timely recognized, leading to surgery with a rod and pins. She died on March 25, 2014. Her daughter filed suit, voluntarily dismissed it in April 2017, and refiled in April 2018, more than four years after the care at issue. The trial court threw out the entire case under the four-year repose statute.

The First District split the claims in two:

• The survivorship claim, which belongs to the estate and covers the patient's own injuries and suffering before death, was a medical claim and was barred by the repose statute. The court followed Wilson on that point.
• The wrongful-death claim, which belongs to the family and covers their losses from the death, was revived.

The court explained that a wrongful-death action is a separate statutory claim that did not exist at common law and does not arise until death. The General Assembly wrote exactly one exception into R.C. 2125.02(D): a ten-year repose period for wrongful-death claims involving defective products. It wrote no similar exception for medical care. The court held that the wrongful-death claim "is governed solely by the period of limitation" in R.C. 2125.02(D) and is not subject to the medical repose statute. As long as the original suit was filed within two years of death, the saving statute could carry the refiled claim forward.

The Davis case

Davis reached the same conclusion three months earlier. Monica Davis died on April 4, 2014, allegedly as the result of medical negligence on November 4, 2013. Her husband and son filed suit in 2015, dismissed it in 2017, and refiled in August 2018 under the wrongful-death saving statute.

The Sixth District held that the four-year medical repose statute does not apply to wrongful-death actions based on negligent medical care. It reasoned that wrongful-death claims based on malpractice already follow the two-year wrongful-death limitations period rather than the one-year medical period, so there is no reason the other time limits in the medical statute should govern them either. The court also noted that when the legislature wanted a repose period to override the wrongful-death statute, it said so expressly.

Why this is a split, not settled law

These decisions are good news for families, but they are not the last word.

• Other districts disagree. According to the Ewing and Davis opinions, the Third and Eleventh Districts have held that wrongful-death claims arising from medical care are subject to the four-year repose period, focusing on the broad definition of "medical claim" in R.C. 2305.113(E)(3).
• The Supreme Court is involved. The Davis court certified its conflict with those districts to the Supreme Court of Ohio for a final decision. The Ewing opinion also notes that the Tenth District in Columbus reached the same result as Cincinnati and Toledo earlier this year, and that the Supreme Court has accepted an appeal in that case.
• Our own district. As of this writing, we are not aware of a reported decision from the Second District Court of Appeals, which covers Dayton and the surrounding counties, taking a side.

Until the Supreme Court rules, the answer depends on where the case is filed, and any family relying on these decisions should understand the ruling could change.

What this means for you

If you lost a loved one after medical care that may have been negligent, the practical advice does not depend on how the split is resolved:

1. Do not assume it is too late. If the care happened more than four years ago, a wrongful-death claim may still be possible in some courts today. Have it reviewed.
2. Do not assume you have time, either. The two-year wrongful-death deadline runs from the date of death. And the safest course is to file within four years of the care whenever possible, so the outcome of the Supreme Court case does not matter.
3. Do not count on dismissing and refiling. Both Ewing and Davis involved cases that had been dismissed and refiled. The survivorship claims did not survive the repose period, and the wrongful-death claims survived only because of these rulings.
4. Get the records now. Hospital charts, imaging and medication records take time to collect and review, and a medical expert must review them before suit is filed.

Our wrongful death practice handles these cases, including claims against hospitals. Families in Southwest Ohio who have followed the Durrani litigation know how much turns on medical-claim deadlines; see our January post on a Durrani fraud verdict affirmed on appeal. The reasons to act early are laid out in Why You Should Talk to a Lawyer Early.