The Four-Year Wall: Ohio Supreme Court Upholds the Medical Malpractice Statute of Repose

Published December 14, 2012 · Ohio Supreme Court

A Warren County man's doctor saw elevated liver enzymes on his lab work in 1995, 1997, and 1998 and, the family alleged, never followed up. A decade later he was diagnosed with a liver lesion and hepatitis C, and he died while his lawsuit was pending. Last week the Supreme Court of Ohio held that his medical-negligence claim was barred before he ever knew he had one. The decision is Ruther v. Kaiser, and every Ohioan who has ever wondered about an old test result needs to understand it.

What the Court decided

Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, was decided December 6, 2012. The question was whether R.C. 2305.113(C), the medical-malpractice "statute of repose," is constitutional when applied to a patient who could not have discovered the malpractice before the deadline passed.

A statute of limitations starts running when a claim accrues, which for medical claims generally means when the patient discovers, or reasonably should have discovered, the injury. A statute of repose is different. It starts running from the date of the doctor's act or omission, and when it expires the claim is gone, whether or not the patient had any way of knowing about it.

R.C. 2305.113(C) provides that no medical claim may be commenced more than four years after the act or omission on which it is based, and that a claim not brought within that time "is barred." The trial court and the Twelfth District Court of Appeals had held the statute unconstitutional as applied to Mrs. Ruther, relying on a 1987 Supreme Court decision, Hardy v. VerMeulen, which struck down an earlier version of the repose statute under the "right to remedy" clause of the Ohio Constitution.

The Supreme Court reversed, 6 to 1, and overruled Hardy. The majority reasoned that the right-to-remedy clause protects only vested rights, that a medical claim does not vest until the injury is discovered, and that the General Assembly may lawfully provide that no claim can vest more than four years after the negligent act. In the majority's words, "The General Assembly has the right to define the contours of a cause of action." The Court noted that most states with repose statutes have upheld them.

Justice Pfeifer dissented alone, writing that future injured Ohioans "will find the courthouse doors barred for the presentation of their future legitimate injury claims."

What the rule now looks like

Putting the statute and the decision together, here are the deadlines that govern medical, dental, optometric, and chiropractic claims in Ohio:

One year from accrual. Under R.C. 2305.113(A), a medical claim must be filed within one year after it accrues. Accrual is generally the later of when the patient discovers or should have discovered the injury, or when the doctor-patient relationship for that condition ends.

The 180-day letter. Under R.C. 2305.113(B)(1), a patient who sends written notice to the provider before the one-year period expires, stating that the patient is considering a claim, gets an additional 180 days from the notice to file.

Four years from the act, period. Under R.C. 2305.113(C), no claim may be filed more than four years after the act or omission, regardless of when the patient discovered it. After Ruther, this bar is enforceable even against a patient who had no possible way of knowing.

Narrow extensions. R.C. 2305.113(D) gives one additional year to a patient who could not have discovered the injury within three years but discovers it during the fourth year, and one year from discovery for a foreign object left in the body. The patient has the burden of proving, by clear and convincing evidence, that the injury could not have been discovered earlier.

Minors and persons of unsound mind. The four-year bar does not apply to persons within the age of minority or of unsound mind, whose deadlines are governed by separate tolling rules.

Note that these are different from the two-year deadline that applies to most other injury claims. Medical claims have the shortest limitations period in Ohio injury law and now a hard outer wall.

Who this decision hurts

The people most affected by Ruther are patients whose injuries take years to show themselves: missed or misread test results, undiagnosed cancers that grow slowly, surgical errors that cause gradual damage, and medication or treatment decisions whose consequences do not appear until much later. We wrote last year about the Supreme Court's recognition, in a delayed cancer diagnosis case, that tumor growth is a physical injury and emotional distress is recoverable. Ruther does not change what is recoverable. It changes whether a claim exists at all once four years have passed.

It is worth noting what the Court did not decide. Mrs. Ruther's wrongful-death claim had been held timely by the trial court, that ruling was not appealed, and the Supreme Court expressly said the wrongful-death claim was not before it. Whether and how the repose statute interacts with wrongful-death claims, which have their own two-year limitations period, is a question the decision leaves open.

What patients should do differently

The practical lesson of Ruther is that waiting to see how things turn out is no longer safe. Specifically:

• Get copies of your test results. You are entitled to your records. If a lab value is flagged as abnormal, ask what is being done about it and get the answer in writing.
• Follow up on anything that is not explained. An abnormal result that is never discussed is exactly the pattern in Ruther.
• If you suspect something was missed, get a second opinion promptly. The clock on the repose period started on the date of the original act, not when you became suspicious.
• Talk to a lawyer before the four-year mark, not after. A medical-negligence case requires expert review of the records, which takes time. We explained the expert-proof requirement in the informed-consent setting here; the same requirement applies to nearly every medical claim.
• If a family member died, act immediately. Wrongful-death deadlines run from the date of death, and the interplay with the repose statute is unsettled.

What this means for you

Ruther v. Kaiser is a bad decision for injured patients, and we will not pretend otherwise. A claim can now be extinguished before the patient knows it exists. The paths that remain are the one-year limitations period from discovery, the 180-day notice letter, the narrow fourth-year and foreign-object extensions, the exemption for minors, and the still-open question of wrongful-death claims. Every one of those paths rewards the patient who investigates early and penalizes the one who waits. If you have a concern about care you or a family member received, the time to find out whether a claim exists is now.

Our personal injury practice includes medical-negligence claims, and the first step in every one is a careful review of the records against the calendar.