12/13/2022

Recent Legal Actions to Note

McCarthy v. Lee, __ Ohio St.3d __, 2022 Ohio 0732

OSMA joined the Ohio Hospital Association in filing an amicus brief in the Ohio Supreme Court to support the decision of Ohio’s 10th District Court of Appeals that when a medical malpractice claim is barred by Ohio’s statute of repose, that any loss of consortium claim arising out of that malpractice claim is also barred.

A statute of repose sets an outer limit on the time frame during which a plaintiff must file a malpractice claim or lose their right to sue. As part of the OSMA’s tort reform initiatives adopted by the Ohio Legislature, the OSMA vigorously advocated for clear and certain rules regarding Ohio’s statue of repose. Ohio law governing medical malpractice actions, Ohio Revised Section 2305.113.(C), states that no medical, dental, optometric or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission that constitutes the alleged basis of the claim. The statute further bars the filing of claims after four years.

Plaintiffs brought a medical malpractice claim for a failure to diagnose their mother’s cancer. The trial court held that the claim was barred by Ohio’s statute of repose. Plaintiffs then brought an action for loss of parental consortium (loss of benefits of relationship between parent and child). The 10th District held that a claim derivative of a medical malpractice claim that has been barred by Ohio’s statute of repose is also barred by the same statute.

Plaintiffs appealed this decision to the Supreme Court of Ohio, and the Court accepted review of the case. OSMA and OHA are arguing that the decision of the 10th District should be upheld and that derivative claims against providers remain barred when the primary medical malpractice claim is barred.

 Also:

Clawson v. Heights Chiropractic 2022-Ohio- 4154

The Ohio Supreme Court held in November that a malpractice claim against employer of a chiropractor is barred where a malpractice claim against the chiropractor is also barred pursuant to the statute of limitations.

In this case a malpractice claim brought against a chiropractor, the Plaintiff claimed that excessive pressure by the chiropractor caused her breast implant to rupture. Ohio’s statute of limitations for medical malpractice claims is one year from the discovery of the malpractice. The Plaintiff failed to bring the claim against the chiropractor within that time period, so the claim was barred. The Plaintiff then refiled the complaint naming the chiropractor’s employer. The Court held that because the Plaintiff failed to file against the employer within one year (same timeline as the chiropractor), the Plaintiff’s claim against the employer was barred as well under the same statute of limitations.