Published September 10, 2020 · Ohio Supreme Court

Most people think of a lawsuit deadline as a single date: get the complaint filed with the clerk by then, and you are safe. In Ohio, that is only half the requirement. A father who filed his son's malpractice case one day before the deadline learned on August 20, in a decision from the Supreme Court of Ohio, that a timely filing can still end up time-barred.

The case is Moore v. Mt. Carmel Health Sys., Slip Opinion No. 2020-Ohio-4113. It is a hard lesson for one family, and it is an important warning for anyone with a medical-negligence claim.

What happened

According to the Court's opinion, Michael Moore's son was injured during a medical procedure at a Columbus-area hospital in January 2014. Medical claims in Ohio carry a short limitations period: one year under R.C. 2305.113(A). That year can be extended by 180 days if, before it runs out, the injured person sends the provider written notice that a claim is being considered, under R.C. 2305.113(B)(1). Mr. Moore used that extension, which moved his deadline to July 7, 2015.

He filed suit on July 6, 2015, one day early, against the hospital, the anesthesiologist, and the anesthesiologist's practice group. He asked the clerk to serve all three. The hospital and the practice group were served. The anesthesiologist was not: the certified mail went to the hospital, but the doctor had retired and no longer worked there.

More than a year and a half after filing, Mr. Moore had the doctor personally served at his home. By then the defendants had already asked the court to throw the case out.

The one-year service rule

Under Ohio's Civil Rule 3(A), a lawsuit is "commenced" by filing a complaint, but only if service is obtained on the defendant within one year from the filing. The Supreme Court explained the combined effect: to beat the statute of limitations, an action must be filed within the limitations period and then served within one year of that filing.

Mr. Moore filed in time but did not get service on the doctor within the following year. Under the plain language of the rule, the action against the doctor was never commenced, and the limitations period had long since passed.

Why the savings statute did not help

Ohio has a "savings statute," R.C. 2305.19(A). When a case that was commenced, or attempted to be commenced, fails for a reason other than the merits, such as a dismissal without prejudice, the plaintiff may file a new action within one year, even if the original deadline has passed. It is a genuine safety net, and plaintiffs' lawyers use it regularly.

The Tenth District Court of Appeals had treated the late service request as if Mr. Moore had dismissed and refiled the case, which would have let the savings statute apply. The Supreme Court reversed. It held that the savings statute "may be applied only when its terms have been met." Here, the case had never been dismissed during the one-year service window, and no new action had ever been filed. Asking the clerk to try service again on the old complaint was neither. The Court also narrowed an older decision, Goolsby, that had allowed a late service request to count as a refiling, limiting it to situations where the statute of limitations has not yet run.

The Court pointed out what would have preserved the claim: obtaining service within the year, or voluntarily dismissing the case within that year and refiling under the savings statute.

The lessons for injured patients and families

I want to be fair to the Moore family. Defendants retire, move, and become hard to find, and that is not the patient's fault. But the rules do not bend for that, so a plan for service has to be in place from the day the case is filed. Here is what this decision means in practice.

Filing on the last day leaves no margin. When a case is filed with months to spare, a service problem can be fixed by dismissing and refiling with time left on the clock. When it is filed one day before the deadline, every later problem has to be solved through rules that are now read strictly.

Service has to be tracked, not assumed. A lawyer should know within weeks whether certified mail was signed for, and should move to personal service, residential service, or other methods immediately if it was not. Pandemic-related delays in mail and courthouse operations this year make that tracking even more important.

Medical claims start on a short clock. One year, with a possible 180-day extension, goes fast when you are recovering from a surgical injury. As I explained in our 2012 post on the four-year repose period, there is also an outer limit that runs no matter what. Our guide chapter on deadlines and the timeline of an Ohio injury case lays out how these clocks interact.

Do not rely on COVID-19 tolling to fix a service problem. The tolling under House Bill 197, which I covered in our March post, has ended. It paused certain time limits for a few months; it did not eliminate the requirement that a filed case actually be served, and the clock is running again.

What this means for you

  • In Ohio, a lawsuit must be both filed within the deadline and served on each defendant within one year of filing.
  • The savings statute can rescue a case that was dismissed without prejudice and refiled within a year, but not one that simply sat unserved.
  • Medical-malpractice claims have a one-year limitations period, with a 180-day extension available only by written notice sent in time.
  • The earlier you talk to a lawyer, the more room there is to fix the problems that inevitably come up.

This article is general information about Ohio law, not legal advice about your situation. Reading it does not create an attorney-client relationship. Deadlines and rules change; talk to a lawyer about your specific case.