McCarthy v. Lee

173 N.E.3d 448

, that the saving statute, R.C. 2305.19(A), could
not be used to extend the medical-claim statute of repose. Thus, when the McCarthys voluntarily
dismissed their 2018 complaint, the saving statute did not save their 2020 complaint from dismissal
under the statute of repose.

4
January Term, 2023

but not to the claims of a child, their children’s loss-of-consortium claim is not a
“medical claim” under the statute. But their argument ignores that derivative claims
include but are not limited to those claims listed in the statute. Other claims can be
derivative claims, and the children’s loss-of-consortium claim arises from the
diagnosis, care, and treatment of their mother.
{¶ 10} The medical providers acknowledge that the children’s loss-of-
consortium claim is a medical claim under R.C. 2305.113, but they maintain that
the statute’s exception for the medical claims of minors applies only to principal,
as opposed to derivative, claims. But the medical providers point to no language
in the statute that makes such a distinction. Instead, under the plain language of the
statute, because they are minors, the children’s derivative medical claim is itself
excluded from application of the statute of repose. See R.C. 2305.113(C).
{¶ 11} Nonetheless, the medical providers’ argument suggests the question
that must be answered in this case—a question not addressed by the statute: How
does the extinguishment of a principal medical claim by operation of the statute of
repose affect claims that are derived from that claim? The answer to the question
lies in Ohio’s treatment of loss-of-consortium claims.
When a principal medical claim fails for substantive reasons, a derivative
loss-of-consortium claim also fails
{¶ 12} The parties take different views of how Ohio treats loss-of-
consortium claims. The McCarthys contend that the general rule is that the claims
are independent and stand on their own, no matter what happens with the principal
claim. They assert that there is only one exception to this general rule—when the
principal claim is not recognized as a cause of action in Ohio. See, e.g., Schiltz v.
Meyer,

32 Ohio App.2d 221

298 N.E.2d 587

 (12th Dist.1971), aff’d,

29 Ohio St.2d 169

280 N.E.2d 925

 (1972). The medical providers, on the other hand, argue that
a loss-of-consortium claim is dependent on the existence of the underlying principal




                                          5
                             SUPREME COURT OF OHIO




claim: if the principal medical claim fails, the loss-of-consortium claim necessarily
fails. The answer is somewhere in between.
       {¶ 13} Ohio historically treated loss-of-consortium claims as independent,
nonderivative claims. In Kraut v. Cleveland Ry. Co.,

132 Ohio St. 125, 126

5 N.E.2d 324

 (1936), this court considered whether “a judgment denying recovery in
[a] wife’s action for personal injuries constitute[d] a bar to the husband’s action for
loss of services.” The court pointed to a “practically * * * unbroken line of
authority to the effect that an adjudication unfavorable to the wife in an action for
personal injuries [was] no bar to an action by the husband for loss of services or
consortium growing out of the same injuries.”

 This court concluded that the
husband’s action for loss of services was not derivative of his wife’s personal-injury
claim, explaining that “the burden [was] on the plaintiff husband to prove that the
alleged tort-feasor [was] guilty of negligence which directly contributed to his loss
and damage.”

Id. at 127

. The wife’s contributory negligence would be a defense
against the husband’s claim for loss of services, but that determination would be
independent of any resolution of the wife’s personal-injury lawsuit.

 The court
noted that “in fact, the husband [could] bring his action whether or not the wife
sue[d].”

       {¶ 14} In later cases, this court maintained the view that loss-of-consortium
claims were independent of the principal claims on which they were based. For
instance, in Corpman v. Boyer,

171 Ohio St. 233

, 236-238,

169 N.E.2d 14

 (1960),
this court implicitly treated loss-of-consortium claims as standing independently of
their underlying principal claims, holding that a longer limitations period applied
to the loss-of-consortium claim than to the principal claim. And in Dean v. Angelas,

24 Ohio St.2d 99, 104

264 N.E.2d 911

 (1970), this court determined that a wife’s
loss-of-consortium claim could proceed despite the dismissal on statute-of-
limitations grounds of her husband’s principal claim of assault and battery.




                                          6
                                January Term, 2023



       {¶ 15} Were Kraut, Corpman, and Dean the only cases to address the
relationship between principal and derivative claims, the conclusion here would be
simple: the children’s loss-of-consortium claim would be independent of their
parents’ medical-negligence claim. And because the medical-claim statute of
repose is tolled until the children reach the age of majority, the loss-of-consortium
claim would remain viable despite the dismissal of the McCarthys’ medical-
negligence claim. But in more recent cases, this court has recognized that loss-of-
consortium claims are, to an extent, derivative of—and dependent on—the
principal claims.
       {¶ 16} In Bowen v. Kil-Kare, Inc.,

63 Ohio St.3d 84, 84-87

585 N.E.2d 384

(1992), this court considered whether a husband’s release of liability made before
he was injured in an auto race defeated his wife’s claim for loss of consortium. The
court concluded that it did not, because the wife’s claim was “a separate and
independent claim against [the] appellees for the damages she sustained as a result
of [the] appellees’ conduct, and it [was] not a claim that her husband could
effectively release.”

Id. at 92

. That conclusion harkens back to the decisions in
Kraut, Corpman, and Dean. Nevertheless, in Bowen, the court also “recognize[d]
that a claim for loss of consortium is derivative in that the claim is dependent upon
the defendant’s having committed a legally cognizable tort upon the spouse who
suffers bodily injury.”

Id. at 92-93

. Thus, we distinguished the result in Bowen
from that in Schiltz,

32 Ohio App.2d 221

298 N.E.2d 587

, aff’d,

29 Ohio St.2d 169

280 N.E.2d 925

, in which a loss-of-consortium claim was barred because the
underlying principal claim sounded in a cause of action that was not recognized in
Ohio. See

Bowen at 92-93

; see also Fehrenbach v. O’Malley,

113 Ohio St.3d 18

2007-Ohio-971

862 N.E.2d 489, ¶ 11

 (“Because the loss-of-consortium claim
belongs not to the person suffering a physical injury but to another, it is
independent, and while the claim may be ‘separate’ in the sense that it is a distinct




                                         7
                              SUPREME COURT OF OHIO




and individual claim, it is a derivative action, arising from the same occurrence that
produced the alleged injury to the other familial party”).
        {¶ 17} The throughline in these cases is that when a principal claim fails for
substantive reasons, the derivative loss-of-consortium claim fails as well. So if, for
example, a parent brings a loss-of-consortium claim based on her child’s medical-
negligence claim against a doctor and the doctor is found to be not liable, the
parent’s claim would fail with the child’s claim. See Fehrenbach at ¶ 21 (“While
the [parents’] claim [for loss of consortium] remains independent and separate in
the sense that they alone control it, their claim is ‘joint and inseparable’ from [their
child’s] claim because the [parents] cannot recover damages from defendants if
defendants are found not to be liable for [the child’s] injury”); see also Grindell v.
Huber,

28 Ohio St.2d 71, 75

275 N.E.2d 614

 (1971) (“Inasmuch as the parent’s
action [for medical expenses] is derivative, a defendant, if he is not liable for the
minor’s injuries, cannot be held accountable for the medical expenses arising
therefrom”). But if the principal claim fails on nonsubstantive grounds—for
instance, if the claim were barred by the statute of limitations—the loss-of-
consortium claim would survive (so long as it too was not barred by the same statute
of limitations). See Corpman, 171 Ohio St. at 236-238,

169 N.E.2d 14

; see also
Perry v. Eagle-Picher Industries, Inc.,

52 Ohio St.3d 168

556 N.E.2d 484

 (1990),
paragraph one of the syllabus (“The dismissal of a decedent’s personal injury claim
for failure to substitute the estate as a party plaintiff pursuant to Civ.R. 25 does not
affect claims for loss of consortium or wrongful death which are joined in the same
action as required by Civ.R. 19.1”).
        {¶ 18} The McCarthys seize on this latter point and maintain that the
medical-claim statute of repose operates like the statute of limitations in that it bars
action on a claim after a certain period. Thus, they argue, because their medical-
negligence claim failed for nonsubstantive reasons, their children’s derivative claim
for loss of parental consortium remains independently viable. The trouble with the




                                           8
                                 January Term, 2023



McCarthys’ argument is that the statute of repose operates differently from the
statute of limitations.
               The statute of repose operates as a substantive bar
        {¶ 19} While “[s]tatutes of limitations and statutes of repose share a
common goal of limiting the time during which a putative wrongdoer must be
prepared to defend a claim, * * * they operate differently and have distinct
applications.” Wilson v. Durrani,

173 N.E.3d 448, ¶ 8

, citing Antoon v. Cleveland Clinic Found.,

148 Ohio St.3d 483

2016-Ohio-7432

71 N.E.3d 974, ¶ 11

. As this court has explained:


                A statute of limitations establishes “a time limit for suing in
        a civil case, based on the date when the claim accrued (as when the
        injury occurred or was discovered).” Black’s Law Dictionary 1707
        (11th Ed.2019). A statute of limitations operates on the remedy, not
        on the existence of the cause of action itself.          Mominee v.
        Scherbarth,

28 Ohio St.3d 270, 290

503 N.E.2d 717

 (1986), fn. 17
        (Douglas, J., concurring). A statute of repose, on the other hand,
        bars “any suit that is brought after a specified time since the
        defendant acted * * * even if this period ends before the plaintiff has
        suffered a resulting injury.” Black’s Law Dictionary at 1707. A
        statute of repose bars the claim—the right of action—itself. Treese
        v. Delaware,

95 Ohio App.3d 536, 545

642 N.E.2d 1147

 (10th
        Dist.1994).




Id. at ¶ 9. Put another way, “[u]nlike a true statute of limitations, which limits the
time in which a plaintiff may bring suit after the cause of action accrues, a statute
of repose * * * potentially bars a plaintiff’s suit before the cause of action arises.”



                                           9
                              SUPREME COURT OF OHIO




(Emphasis sic.) Sedar v. Knowlton Constr. Co.,

49 Ohio St.3d 193, 195

551 N.E.2d 938

 (1990), overruled on other grounds by Brennaman v. R.M.I. Co.,

70 Ohio St.3d 460

639 N.E.2d 425

 (1994), superseded by statute as stated in New
Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc.,

157 Ohio St.3d 164

2019-Ohio-2851

133 N.E.3d 482

.
        {¶ 20} The dissenting opinion protests that this court erred in Wilson when
it “restated Justice Douglas’s dictum out of context.” Dissenting opinion, ¶ 42. But
regardless of Justice Douglas’s feelings about statutes of repose, even he
acknowledged the distinct function of a statute of repose “as an absolute bar to a
cause of action ever arising.” (Emphasis added.)

Mominee at 290, fn. 17

 (Douglas,
J., concurring). And in any event, the constitutionality of statutes of repose has
been well settled by this court, see

Antoon at ¶ 18

 (collecting cases), and is not at
issue in this case.
        {¶ 21} Lest the reader be concerned after reading the dissenting opinion that
this court has spun the distinction between statutes of repose and statutes of
limitations out of whole cloth, it is worth noting that courts—including the United
States Supreme Court—have recognized the difference for over 40 years. See

Antoon at ¶ 11

, citing CTS Corp. v. Waldburger,

573 U.S. 1

, 13,

134 S.Ct. 2175

189 L.Ed.2d 62

 (2014), superseded by statute on other grounds as stated in Zyda
v. Four Seasons Hotels & Resorts,

371 F.Supp.3d 803, 806

 (Haw.2019); see also
Norfolk School Bd. v. United States Gypsum Co.,

234 Va. 32, 37

 (1987), quoting
Stevenson, Products Liability and the Virginia Statute of Limitations—A Call for
the Legislative Rescue Squad, 16 U.Rich.L.Rev. 323, 334 (1982), fn. 38
(distinguishing a statute of repose’s “ ‘substantive definition of rights’ ” from a
statute of limitations’ procedural limitation); Cheswold Volunteer Fire Co. v.
Lambertson Constr. Co.,

489 A.2d 413, 421

(Del.1985) (“While the running of a
statute of limitations will nullify a party’s remedy, the running of a statute of repose
will extinguish both the remedy and the right. The statute of limitations is therefore

10
January Term, 2023

a procedural mechanism, which may be waived. On the other hand, the statute of
repose is a substantive provision which may not be waived because the time limit
expressly qualifies the right which the statute creates”).
{¶ 22} The statute of repose, then, operates as a substantive bar to a claim.
The claim—not just the remedy—is extinguished.2 And when a principal claim is
extinguished, no other claim derived from it can exist. Here, by operation of the
statute of repose, the McCarthys’ medical-negligence claim was no longer legally
cognizable. As a result, their children’s loss-of-consortium claim is not viable.
{¶ 23} In enacting R.C. 2305.113(C), the General Assembly chose to limit
the time for which medical claims are considered legally cognizable to a period of
four years from the occurrence of the act or omission giving rise to the claim. After
the expiration of that time, the McCarthys had no cause of action. It thus follows
that the children’s derivative claim no longer exists.
CONCLUSION
{¶ 24} Although the children’s loss-of-consortium claim was not barred by
the statute of repose, it cannot exist when the principal claim on which it was based
has been extinguished under the statute of repose. The children’s derivative claim
was properly dismissed. We therefore affirm the judgment of the Tenth District
Court of Appeals.
Judgment affirmed.
KENNEDY, C.J., and FISCHER and DEWINE, JJ., concur.
BRUNNER, J., dissents, with an opinion joined by DONNELLY and STEWART,
JJ.
_________________

2. The dissenting opinion’s paraphrase of our holding is a bit off. The statute of repose bars the
parents’ claims—not those of the children. But because the parents’ claims have been extinguished,
the children’s derivative claim no longer exists.

11
SUPREME COURT OF OHIO

BRUNNER, J., dissenting.
I. INTRODUCTION
{¶ 25} In this case, appellants, Kathleen (deceased) and Brett McCarthy,
filed suit against appellees, Dr. Peter K. Lee and OhioHealth Physician Group, Inc.
(collectively, “the medical providers”), on behalf of their children for loss of
parental consortium caused by the medical providers’ alleged medical negligence
that ultimately resulted in Kathleen’s death. In affirming the Tenth District Court
of Appeals’ decision dismissing the children’s loss-of-consortium claims, the
majority opinion posits that the medical-claim statute of repose does not merely
“bar[]” the “commence[ment]” of the children’s claims (as the statute reads), but
actually extinguishes them so that “the children’s derivative claim[s] no longer
exist[].” Compare majority opinion, ¶ 1 and ¶ 22, fn.2, with R.C. 2305.113(C).
This is a legal fiction. The doctor is still alleged to have acted negligently and
caused the children’s mother’s death. To say that the children’s claims are
extinguished ignores the fact that the children remain without a mother, whose love
and care throughout their years to adulthood is what has actually been extinguished.
{¶ 26} Despite the characterization made in the majority opinion, the
children’s claims continue to exist even if they are barred. To state that the
children’s claims do not exist as a rationale for the majority’s decision and to base
that statement on an unsupported, out-of-context footnote extracted from a 40-year-
old concurrence by a justice who argued that the statute of repose is unconstitutional
puts into question the substance and tenor of this court’s majority opinion. We
should not contort that dictum to deny any party, especially children, their day in
court.
{¶ 27} Moreover, the statute of repose would, by its own text, not bar the
children’s claims, because the claims of minors are specifically statutorily
exempted from its reach. Had the children’s claims been brought in the underlying
suit for medical malpractice and wrongful death (as we have previously stated they

12
January Term, 2023

should be), their claims would not be barred. In exercising jurisdiction in this case,
and now issuing a legal opinion in these highly fact-specific circumstances, a
majority of this court not only reviews the children’s loss-of-parental-consortium
claims in an inappropriate procedural posture, but it also gratuitously extinguishes
these claims in doing so. This hazards the appearance of an over-eagerness of this
court to substantively settle an issue because of a failure of procedure, denying
future parties substantive review when no procedural deficiencies may exist. In
this posture, accepting jurisdiction over the case and deciding this appeal is highly
improvident and places the court in a biased light. For these reasons, I respectfully
dissent.
II. ANALYSIS
A. Standard of Review and Issue Presented
{¶ 28} This court has clearly set out the standard of review for cases such
as this:

We review de novo a decision granting a motion to dismiss
under Civ.R. 12(B)(6). Alford v. Collins-McGregor Operating Co.,

152 Ohio St.3d 303

2018-Ohio-8

95 N.E.3d 382, ¶ 10

.            In
           conducting this review, we accept as true the factual allegations in
           the complaint.

   “[T]hose allegations and any reasonable
           inferences drawn from them must be construed in the nonmoving
           party’s favor.” Ohio Bur. of Workers’ Comp. v. McKinley,

130 Ohio St.3d 156

2011-Ohio-4432

956 N.E.2d 814

, ¶ 12. To grant a
           motion to dismiss, “it must appear beyond doubt that the plaintiff
           can prove no set of facts in support of the claim that would entitle
           the plaintiff to the relief sought.”

Id.





                                              13
                             SUPREME COURT OF OHIO




Valentine v. Cedar Fair, L.P.,

169 Ohio St.3d 181

2022-Ohio-3710

202 N.E.3d 704, ¶ 12

. Additionally, “ ‘[i]n ascertaining the plain meaning of the statute, the
court must look to the particular statutory language at issue, as well as the language
and design of the statute as a whole.’ ” State v. Turner,

163 Ohio St.3d 421

, 2020-
Ohio-6773,

170 N.E.3d 842, ¶ 18

, quoting K Mart Corp. v. Cartier, Inc.,

486 U.S. 281, 291

108 S.Ct. 1811

100 L.Ed.2d 313

 (1988).            Questions of statutory
interpretation are reviewed de novo. State v. Pountney,

152 Ohio St.3d 474

, 2018-
Ohio-22,

97 N.E.3d 478, ¶ 20

.
       {¶ 29} In this case, for the purposes of the medical providers’ motion to
dismiss under Civ.R. 12(B)(6), it is undisputed that in 2011, Kathleen underwent a
colonoscopy by Dr. Lee as a diagnostic measure for rectal bleeding and mucous in
her stool and that Dr. Lee reported that the colonoscopy was normal except for the
detection of internal hemorrhoids. In April 2015, she returned to Dr. Lee because
of worsening symptoms, and Dr. Lee again diagnosed hemorrhoids, but he did not
discuss other possible causes of Kathleen’s symptoms or recommend any follow-
up to rule out other conditions such as cancer. It is also undisputed that in 2017
Kathleen was diagnosed with irreversible and terminal colon cancer. She, along
with her husband Brett, initially brought claims on October 5, 2018, against the
medical providers for medical malpractice relating to Dr. Lee’s treatment of
Kathleen and on behalf of Kathleen’s estate, Brett, and the married couple’s three
children for anticipatory wrongful death and loss of consortium, but they dismissed
the action on January 22, 2019, and refiled it within a year—on January 21, 2020.
Due to the application of our decision in Wilson v. Durrani,

2022-Ohio-1033, ¶ 2-13, 33-34

173 N.E.3d 448, ¶ 38

 (holding that the saving statute does not
extend to the statute of repose), the refiled suit was dismissed by the trial court as
having been filed beyond the statute of repose, and that dismissal was affirmed on
appeal as to the medical-malpractice claim; however, the Tenth District reversed
the trial court’s dismissal of the wrongful-death claim, finding that the claim was




                                         14
                                  January Term, 2023



not barred by the medical-claim statute of repose. See McCarthy v. Lee, __ Ohio
St.3d __,

2023-Ohio-4699

, __ N.E.3d __; McCarthy v. Lee, 10th Dist. Franklin No.
21AP-105,

.
          {¶ 30} Slightly more than a year and three months after refiling the action
on January 21, 2020, the McCarthys filed on April 28, 2021, an action against the
medical providers on behalf of their children for derivative claims relating to
increased care, loss of parental consortium, and emotional distress—all caused by
the sickness and loss of their mother. The question in this appeal is whether the
April 2021 action filed by the McCarthys on behalf of their children for losses
caused to them by their mother’s misdiagnosis, decline, and death was timely and
properly filed or whether it was barred due to the failure of the medical and
wrongful-death claims in the January 2020 action by operation of the statute of
repose.
                 B. What Primary Claims Underlie the Children’s
                        Loss-of-Parental-Consortium Claims
          {¶ 31} The parties in this case focus on whether dismissal of the primary
claims extinguishes derivative claims. Before exploring that question, there is a
preliminary issue to be addressed: What are the primary claims from which the
children’s loss-of-consortium claims derive?
          {¶ 32} In most cases, a plaintiff who alleges to have been injured by medical
negligence brings a claim for malpractice, and the plaintiff’s family members seek
compensation for loss of consortium occasioned by the medical malpractice if the
malpractice claim is proved. If, during the pendency of the malpractice action, the
plaintiff dies, the plaintiff’s estate is substituted for that plaintiff and a wrongful-
death claim is brought on behalf of the decedent’s heirs. See R.C. 2125.01 and
2125.02(A), (B).      At that point, the loss-of-consortium claims by the family
members are still derivative of the same single course of negligence underlying
both the medical-malpractice and now the wrongful-death claims. But insofar as



                                           15
                                  SUPREME COURT OF OHIO




the family members bringing the loss-of-consortium claims seek compensation
both for the loss occasioned by the decedent’s sickness and the loss occasioned by
the decedent’s death, the loss-of-consortium claims are derivative of both the
original medical-malpractice claim and the wrongful-death claim.3
         {¶ 33} In this case, the McCarthys brought claims on October 5, 2018, for
medical malpractice and for the anticipatory wrongful death of Kathleen (in light
of the fact that Kathleen’s condition was known to be terminal and apparently to
avoid potential application of the statute of repose4); Brett’s claims included loss of
consortium.5 The parties dismissed the initial suit in January 2019 and refiled a
virtually identical suit in January 2020 pursuant to the saving statute, R.C.
2305.19(A). But because of our ruling in Wilson,

2022-Ohio-1033, at ¶ 2-13

, 2020-Ohio-
6827,

173 N.E.3d 448, at ¶ 38

 (holding that the saving statute does not extend the
statute of repose), the refiled suit was dismissed in its entirety by the trial court for
being filed beyond the statute of repose. The McCarthys appealed the trial court’s
dismissal of their 2020 action, see McCarthy,

, and while
that appeal was pending, they filed a separate lawsuit on behalf of their minor
children solely for loss of parental consortium. The appellate court affirmed the


3. While claims for wrongful death and loss of consortium overlap, they are not identical. A claim
for loss of consortium has been recognized at common law for many years. See Clouston v.
Remlinger Oldsmobile Cadillac,

22 Ohio St.2d 65

258 N.E.2d 230

 (1970), paragraph two of the
syllabus. An action for wrongful death is statutory in origin and sets forth a presumption of damages
and limits on who may recover. R.C. 2125.02(A); see also Taylor v. Ernst & Young, L.L.P.,

130 Ohio St.3d 411

2011-Ohio-5262

958 N.E.2d 1203

, ¶ 52.

4. See, e.g., Mercer v. Keane,

2021-Ohio-1576

172 N.E.3d 1101, ¶ 5-7, 43

 (5th Dist.) (holding that
when an estate was substituted as the complainant after a medical-malpractice plaintiff’s death and
attempted to assert a wrongful-death claim seven years and four months after the alleged act or
omission that gave rise to the claim, such claim was barred by the statute of repose).

5. Spousal consortium, which is not statutorily defined, has long been defined by this court as “the
conjugal fellowship of husband and wife, and the right of each to the company, co-operation and
aid of the other in every conjugal relation.” Flandermeyer v. Cooper,

85 Ohio St. 327

, 340-341,

98 N.E. 102

 (1912).




                                                 16
                                January Term, 2023



trial court’s dismissal of the McCarthys’ medical-malpractice claim and that claim
was not further appealed. McCarthy,

2022-Ohio-1033, at ¶ 2-13, 33-34

. This court
ultimately affirmed the trial court’s dismissal of the parents’ wrongful-death claim.
McCarthy, __ Ohio St.3d __,

2023-Ohio-4699

, __ N.E.3d __.
       {¶ 34} Though the children’s mother was alive when their 2021 action for
loss of parental consortium was filed, it is undisputed that she passed away on
December 2, 2022. As heirs their claims are derivative of the wrongful conduct
that prematurely caused their mother’s permanent absence from their lives. At no
time have these children reached majority and at no time have their claims expired,
even under a statute of repose. These claims have existed since the alleged
malpractice occurred, they still exist, and the statute of repose does not apply to the
children’s claims, because of their status as minors.
C. Indirect Application of the Statute of Repose Based on Failure of Primary
                                       Claims
       {¶ 35} Assuming arguendo that both primary claims—medical malpractice
and wrongful death—were properly dismissed under the statute of repose (see
Everhart v. Coshocton Cty. Mem. Hosp., __ Ohio St.3d __,

2023-Ohio-4670

, __
N.E.3d __, ¶ 84-122, (Brunner, J., dissenting)), the next question is whether
dismissal of those claims extinguished the children’s loss-of-parental-consortium
claims. Underlying arguments on both sides of that issue is the question of what is
“derivative” in the context of loss of consortium:


               Ohio common law recognizes that when one spouse is
       injured, the other spouse is also damaged and may assert his or her
       own cause of action against the tort-feasor for those damages—i.e.,
       a claim for loss of consortium. Clouston v. Remlinger Oldsmobile
       Cadillac, Inc. (1970),

22 Ohio St.2d 65, 74

51 O.O.2d 96, 101-102

258 N.E.2d 230, 235

. “Consortium consists of society, services,



                                          17
                             SUPREME COURT OF OHIO




       sexual    relations   and   conjugal    affection   which    includes
       companionship, comfort, love and solace.”

Id.,

 paragraph three of
       the syllabus. Even though a loss of consortium claim is derivative
       in that it is dependent upon the defendant’s having committed a
       legally cognizable tort upon the spouse who suffers bodily injury,
       Bowen v. Kil-Kare, Inc. (1992),

63 Ohio St.3d 84, 93

585 N.E.2d 384, 392

, it is nonetheless legally separate and independent from the
       claim of the spouse who suffered the bodily injury.

24 Ohio St.2d 99, 101, 104



Schaefer v. Allstate Ins. Co.,

76 Ohio St.3d 553, 557

668 N.E.2d 913

 (1996). But
see Cross v. Cincinnati Ins. Co., 4th Dist. Adams No. 02CA758,

2004-Ohio-328, ¶ 24-26

 (noting that Schaefer was superseded by statute on issue of insurance-
coverage limits). Notwithstanding later developments in the law of insurance
contracts, Schaefer’s general statements about the derivative-yet-independent
nature of loss-of-consortium claims remain in the caselaw, having their own
application to children’s loss-of-parental-consortium claims.
       {¶ 36} There are many cases in which this court has recognized that when
a legally cognizable tort cannot be or has not been proved, both the primary and
derivative claims fail. See, e.g., Grindell v. Huber,

28 Ohio St.2d 71

275 N.E.2d 614

 (1971), paragraphs one and two of the syllabus (when a motorist—named at
fault in child’s personal-injury suit—was cleared of fault for hitting the child, the
parent’s derivative loss-of-consortium claim also failed). Civ.R. 19.1 and decisions
such as Coleman v. Sandoz Pharmaceuticals Corp.,

74 Ohio St.3d 492

660 N.E.2d 424

 (1996), make clear that loss-of-consortium claims should be brought, when
feasible, with the underlying claim. See

Coleman at 494

, quoting High v. Howard,

64 Ohio St.3d 82, 94-95

592 N.E.2d 818

 (1992) (Resnick, J., dissenting) (holding
that “ ‘a child’s loss of parental consortium claim must be joined with the injured
parent’s claim whenever feasible’ ” [emphasis deleted and punctuation




                                         18
                                January Term, 2023



harmonized]). Few cases involve the issue of when a separate loss-of-consortium
claim survives the procedural rejection of an underlying claim. One such case
involved a statute-of-limitations-barred primary claim filed by a husband for
battery against his attacker, which left intact his wife’s claim for loss of consortium
(which had a longer statute of limitations). Dean v. Angelas,

264 N.E.2d 911

 (1970). In another case, we held that a husband’s signed
release barring his own recovery for injuries he sustained during a race due to
alleged negligence by the racetrack proprietor did not bar his wife’s and children’s
loss-of-consortium claims, because they had not signed a release of their claims.

Bowen at 90-93

. In these cases, had there been a finding that the defendant did not
commit a tort in the primary claim, a derivative loss-of-consortium claim would not
have survived. Schaefer at 557. But because the claims were barred for reasons
unrelated to the question of the tortfeasor’s fault, the derivative claims survived.
Here, although the process of proving negligence of the defendants was cut short
by the procedural bar of the statute of repose for their parents, the children’s
derivative loss-of-parental-consortium claims should have survived.
       {¶ 37} Contradicting this principle, the majority opinion ignores the
procedural posture of the 2018 and 2020 actions and posits that the children’s
separately filed claims for loss of parental consortium stemming from the missed
diagnosis and later death of their mother also do not survive the dismissal of their
parents’ claims, even though their parents’ claims did not fail on the merits. But
for this court’s recent decision in Everhart, Brett would have been entitled to bring
a wrongful-death claim after Kathleen’s death, even if no medical claims had been
filed while she was living. The fact that the children’s parents’ anticipatory
wrongful-death and related loss-of-consortium claims were filed in the event of the
statute of repose’s application does not change the nature of the children’s claims,
nor should it extinguish them, as they remain minors to this day and their claims
differ from their parents’ claims. The majority opinion’s conclusion that “[o]nce



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                             SUPREME COURT OF OHIO




the medical-negligence claim was extinguished by the statute of repose, the
children’s derivative claim no longer existed,” majority opinion at ¶ 1, wrongly
diverges from the principle that a loss-of-consortium claim is “legally separate and
independent from the claim of the [parent] who suffered the bodily injury,”
Schaefer at 557.
       {¶ 38} Though the majority opinion cites Wilson,

173 N.E.3d 448

, for its view that the children’s claims cease to
exist, that application contorts Mominee v. Scherbarth,

28 Ohio St.3d 270, 290

503 N.E.2d 717

 (1986), fn. 17 (Douglas, J., concurring), to reach a holding entirely
opposite to the view expressed in Justice Douglas’s concurring opinion. In Wilson,
we stated the following:


               A statute of limitations operates on the remedy, not on the
       existence of the cause of action itself. Mominee v. Scherbarth,

28 Ohio St.3d 270, 290

503 N.E.2d 717

 (1986), fn. 17 (Douglas, J.,
       concurring). A statute of repose, on the other hand, bars “any suit
       that is brought after a specified time since the defendant acted * * *
       even if this period ends before the plaintiff has suffered a resulting
       injury.” Black’s [Law Dictionary] at 1707 [11th Ed.2019]. A statute
       of repose bars the claim—the right of action—itself. Treese v.
       Delaware,

95 Ohio App.3d 536, 545

642 N.E.2d 1147

 (10th
       Dist.[1994]).


Wilson at ¶ 9. Critical to this quote, as used in the majority opinion, is the out-of-
context citation to a footnote written by Justice Douglas in Mominee in which the
justice opined that the medical-claim statute of repose is wholly unconstitutional.
Using this footnote from Mominee to support the conclusion drawn in Wilson




                                         20
                                January Term, 2023



should not suffice for nor be compounded by the broad-sweeping conclusion of the
majority denying relief to the McCarthys.
       {¶ 39} In Mominee, this court held that a medical-claim statute of repose
(then under R.C. 2305.11(B)) was unconstitutional as applied to minors because it
violated the right-to-remedy provision of the Ohio Constitution. Mominee at
syllabus. That constitutional provision provides, “All courts shall be open, and
every person, for an injury done him in his land, goods, person, or reputation, shall
have remedy by due course of law, and shall have justice administered without
denial or delay.” Ohio Constitution, Article I, Section 16. Justice Douglas
concurred in this court’s holding in Mominee but noted that he would have held the
medical-claim statute of repose to be unconstitutional as applied to any claimant;
he observed in a footnote in his separate opinion:


               Some confusion arises as to terminology between a statute
       of limitations and one of repose. This confusion necessarily affects
       the ultimate result herein. A true statute of limitations works on the
       remedy rather than the right and governs the time within which a
       legal proceeding must be instituted after a cause of action accrues
       (is discovered).    A statute of repose is not a true statute of
       limitations, but rather is an absolute bar to a cause of action ever
       arising. R.C. 2305.11(B) is a statute of repose.


(Emphasis sic.)

Mominee at 290, fn. 17

 (Douglas, J., concurring). Today, a
majority of this court indirectly bases its holding on a footnote in a concurring
opinion from nearly 40 years ago rather than on the text of the statute and caselaw
established by a majority of this court after that concurring opinion was written.




                                         21
                                  SUPREME COURT OF OHIO




         {¶ 40} In Mominee, Justice Douglas described his constitutional
repugnance6 for the statute of repose, characterizing it as “an absolute bar to a cause
of action ever arising.”

70 Ohio St.3d 460, 466-467

 The majority opinion today turns his observation on its
head, misusing it in completely the opposite context to decimate the bedrock rights
of access to the courts for children, holding that the medical-claim statute of repose
bars even their derivative claims (despite the fact that the text of R.C. 2305.16 and
2305.113(C) specifically exempts claims of minors from the reach of R.C.
2305.113). The majority opinion of this court departs from all textual and factual
bases and proclaims that the medical-claim statute of repose does not merely
“bar[]” the “commence[ment]” of children’s claims for loss of parental consortium
(as R.C. 2305.113(C)(2) provides) but renders them nonexistent. It is disappointing
that such unnecessary, illogical, and farcical verve would inform the holding of this
court’s majority opinion today. As former United States Vice-president Hubert
Humphrey once said, “the moral test of government is how that government treats
those who are in the dawn of life, the children; those who are in the twilight of life,
the elderly; and those who are in the shadows of life—the sick, the needy and the
handicapped.” 123 Congressional Record 37287 (1977).
         {¶ 41} This court should rely on the text of the medical-claim statute of
repose, which provides that “[n]o action * * * shall be commenced more than four



6. This view was part of Ohio’s caselaw for many years. See Hardy v. VerMeulen,

32 Ohio St.3d 45

512 N.E.2d 626

 (1987), syllabus (holding the medical-claim statute of repose unconstitutional);
Brennaman v. R.M.I. Co.,

639 N.E.2d 425

 (1994), and paragraph two
of the syllabus (holding that a statute of repose for tort actions arising from defective or unsafe
conditions of real-property improvements, which terminated a tortfeasor’s liability before claims
accrued, violated the right-to-remedy provision of the Ohio Constitution), opinion amended,

71 Ohio St.3d 1211

643 N.E.2d 138

 (1994) (clarifying last sentence of majority opinion); Burgess v.
Eli Lilly & Co.,

66 Ohio St.3d 59, 60-63

609 N.E.2d 140

 (1993), and paragraphs one and two of
the syllabus (holding that a statute of limitations that deemed actions to have accrued before they
could be filed with a realistic chance of surviving a motion to dismiss violated the right-to-remedy
provision of the Ohio Constitution). But see Ruther v. Kaiser,

134 Ohio St.3d 408

, 2012-Ohio-
5686,

983 N.E.2d 291

, syllabus (overruling Hardy and upholding medical-claim statute of repose
as constitutional).

22
January Term, 2023

years after the occurrence of the act or omission constituting the alleged basis of
the * * * claim” and that “[i]f an action * * * is not commenced within four years
after the occurrence of the act or omission constituting the alleged basis of the * * *
claim, then, any action upon that claim is barred,” R.C. 2305.113(C). In short, the
statute does not differentiate “repose” from other limitations periods or even use
the term “repose.” It refers only to claims being “barred” or prohibited from being
“commenced”; it never suggests that claims cease to exist.
{¶ 42} Today, a majority of this court oversteps its judicial role and decrees
policy when it divines that the McCarthy children’s loss-of-parental-consortium
claims are nonexistent. The children’s claims are real, and those claims will not go
away no matter how we characterize them. Today’s decision is a classic example
of figuring out how to get to a desired result, even if it involves finding a 40-year-
old footnote from a nonmajority opinion, stripping it from its context, and recasting
it to fit an inapposite purpose. In this case, the children’s loss-of-parental-
consortium claims are straightforward: they claim that the doctor erred, their
mother died because of it, and they suffer because of her absence. While there may
be a procedural bar (or not), their claims do exist. Moreover, it’s an affront to the
work and dedication of a former member of this court who would never have
countenanced the majority opinion’s view and who, in fact, favored striking down
the statute of repose as wholly unconstitutional. See Hardy v. VerMeulen,

32 Ohio St.3d 45, 50

512 N.E.2d 626

 (1987) (Douglas, J., concurring). We erred in Wilson
when we restated Justice Douglas’s dictum out of context, and we should not now
give that dictum the legs to carry the law in a direction never intended by its words,
especially to harm some of the weakest members of our society—children. See
Wilson,