Everhart v. Coshocton Cty. Mem. Hosp.
Citation247 N.E.3d 101, 176 Ohio St. 3d 91, 2023 Ohio 4670
Date Filed2023-12-28
Docket2022-0407 and 2022-0424
JudgeFischer, J.
Cited18 times
StatusPublished
Syllabus
Statutes of reposeâR.C. 2305.113âWrongful-death claims based on medical care are "medical claims" as defined by R.C. 2305.113(E) and are therefore subject to the four-year medical-claims statute of repose set forth in R.C. 2305.113(C)âNothing in statutory wrongful-death chapter, R.C. Chapter 2125, removes wrongful-death claims based on medical care from scope of R.C. 2305.113(C)'s statute of reposeâJudgment reversed and cause remanded.
Full Opinion (html_with_citations)
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Everhart v. Coshocton Cty. Mem. Hosp., Slip Opinion No.2023-Ohio-4670
.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2023-OHIO-4670
EVERHART, INDIVIDUALLY AND AS ADMR. OF THE ESTATE OF EVERHART,
APPELLEE, v. COSHOCTON COUNTY MEMORIAL HOSPITAL ET AL.,
APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Everhart v. Coshocton Cty. Mem. Hosp., Slip Opinion No.
2023-Ohio-4670.]
Statutes of reposeâR.C. 2305.113âWrongful-death claims based on medical care
are âmedical claimsâ as defined by R.C. 2305.113(E) and are therefore
subject to the four-year medical-claims statute of repose set forth in R.C.
2305.113(C)âNothing in statutory wrongful-death chapter, R.C. Chapter
2125, removes wrongful-death claims based on medical care from scope of
R.C. 2305.113(C)âs statute of reposeâJudgment reversed and cause
remanded.
(Nos. 2022-0407 and 2022-0424âSubmitted February 28, 2023âDecided
December 28, 2023.)
APPEAL from and CERTIFIED by the Court of Appeals for Franklin County,
SUPREME COURT OF OHIO
No. 21AP-74, 2022-Ohio-629.
__________________
FISCHER, J.
{¶ 1} Once again, we are asked to analyze the medical-claim statute of
repose in R.C. 2305.113(C), and once again, we hold that it means what it says.
The broad definition of âmedical claimâ that applies to the statute of repose clearly
and unambiguously includes wrongful-death claims based on medical care, and
nothing in Ohioâs statutory wrongful-death chapter negates their inclusion.
Therefore, the statute of repose applies to such claims. Because the Tenth District
Court of Appeals held otherwise, we reverse.
I. Facts and Procedural Background
{¶ 2} On December 21, 2003, Todd Everhart was involved in an automobile
accident and was transported to Coshocton County Memorial Hospital (âCoshocton
Hospitalâ). At the hospital, doctors took x-rays of Mr. Everhartâs chest. Mr.
Everhart was not admitted to Coshocton Hospital but was instead transferred by
helicopter to the Ohio State University Medical Center. Later, appellant Joseph
Mendiola, M.D. (âDr. Mendiolaâ), who was working at Coshocton Hospital, read
the chest x-rays and dictated a report noting a âfocal area of increased opacity in
the lateral aspect of the right upper lobe, which may represent a lung contusion.â
Dr. Mendiolaâs report was distributed to various departments and physicians in
accordance with hospital procedures. Appellant Mohamed Hamza, M.D. (âDr.
Hamzaâ), was assigned as backup physician to Mr. Everhart. A backup physician
was assigned to Coshocton Hospital emergency-room patients who otherwise had
no primary-care provider, allowing the patient to contact that physician with any
questions he or she had after discharge. Although Dr. Hamza was assigned as the
backup physician, he denies ever receiving the x-rays. After a stay at the Ohio State
University Medical Center, Mr. Everhart was discharged and recovered from his
injuries.
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January Term, 2023
{¶ 3} Nearly three years later, Mr. Everhart returned to Coshocton Hospital
complaining of abdominal pain, blood in his urine, and a cough. Coshocton
Hospital personnel performed a CT scan and took x-rays, which revealed a large
mass in the right upper lobe of Mr. Everhartâs right lung. Further testing established
that he was suffering from advanced-stage lung cancer. Just two months later, Mr.
Everhart died.
{¶ 4} On January 25, 2008, Mr. Everhartâs wife, appellee, Machelle
Everhart, filed a complaint in her individual capacity and as administrator of Mr.
Everhartâs estate against Coshocton Hospital, Dr. Hamza, and Dr. Mendiola, (âthe
Coshocton defendantsâ) asserting claims of medical malpractice and wrongful
death. Mrs. Everhart also included multiple other defendants who have since been
dismissed from the case or are not parties to this appeal. Mrs. Everhart alleged,
among other things, that the Coshocton defendants had deviated from the accepted
standard of care when they failed to follow up on or inform Mr. Everhart of the
lung opacity that was visible in the chest x-rays taken at Coshocton Hospital in
2003.
{¶ 5} Several years of litigation followed, including a separate appeal to the
Tenth District, see 10th Dist. Franklin No. 12AP-75, 2013-Ohio-2210. In 2017, the Coshocton defendants sought leave to file motions for judgment on the pleadings, asserting that the lawsuit was barred by the four-year statute of repose for medical claims in R.C. 2305.113(C). The Coshocton defendants argued that before this court decided Antoon v. Cleveland Clinic Found.,148 Ohio St.3d 483
, 2016-Ohio- 7432,71 N.E.3d 974
, in 2016, it was unclear whether the statute of repose was
applicable to claims that were filed within the statute of limitations. And because
the Coshocton defendants did not include the statute of repose as an affirmative
defense in their original answers, they also sought leave to file amended answers.
{¶ 6} On November 30, 2017, the trial court stayed proceedings in the case
indefinitely based on Coshocton Hospitalâs involvement in pending bankruptcy
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SUPREME COURT OF OHIO
proceedings. The court reactivated the case in April 2019 and granted the
Coshocton defendantsâ motions for leave to file amended answers and motions for
leave to file motions for judgment on the pleadings in August 2020. Mrs. Everhart
filed a motion for leave to file a third amended complaint. In her motion, Mrs.
Everhart argued that the amended complaint would support her argument that the
defendants were not entitled to judgment on the pleadings based on the medical-
claims statute of repose because her claims were based on ongoing acts of
negligence that occurred less than four years before she filed her first complaint.
The court then denied Mrs. Everhartâs motion for leave to file a third amended
complaint in December 2020, and it granted Dr. Mendiolaâs motion for judgment
on the pleadings in January 2021.
{¶ 7} On appeal, the Tenth District held that the medical-claim statute of
repose in R.C. 2305.113(C) does not apply to wrongful-death claims, based
partially on this courtâs decisions in Klema v. St. Elizabethâs Hosp., 170 Ohio St.
519,166 N.E.2d 765
(1960), and Koler v. St. Joseph Hosp.,69 Ohio St.2d 477
,432 N.E.2d 821
(1982), in which this court held that wrongful-death claims are distinct
from medical-malpractice claims. The Tenth District reversed the decision of the
trial court on that basis and held that Mrs. Everhartâs remaining assignment of error,
which asserted that the trial court erred by denying her motion for leave to file a
third amended complaint, was moot.
{¶ 8} The Tenth District certified a conflict between its decision in this case
and three other appellate-court decisions. In Smith v. Wyandot Mem. Hosp., 2018-
Ohio-2441, 114 N.E.3d 1224(3d Dist.), and Mercer v. Keane,2021-Ohio-1576
,172 N.E.3d 1101
(5th Dist.), the Third and Fifth District Courts of Appeals each determined that the medical-claim statute of repose does apply to wrongful-death claims based on the language of R.C. 2305.113 and this courtâs decisions in Ruther v. Kaiser,134 Ohio St.3d 408
,2012-Ohio-5686
,983 N.E.2d 291
and Antoon. The Mercer court also relied on our decision in Wilson v. Durrani,164 Ohio St.3d 419
,
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January Term, 2023
2020-Ohio-6827,173 N.E.3d 448
. In Martin v. Taylor, 11th Dist. Lake No. 2021- L-046,2021-Ohio-4614
, the Eleventh District Court of Appeals also held that the
medical-claim statute of repose applies to wrongful-death claims based on the plain
language of the statute.
{¶ 9} Coshocton Hospital and Dr. Hamza filed a notice of appeal to this
court and notice of a certified conflict between the Tenth Districtâs decision in this
case and the decisions of the Third, Fifth, and Eleventh Districts in Smith, Mercer,
and Martin, respectively. Dr. Mendiola filed a separate notice of appeal and notice
of a certified conflict. We determined that a conflict exists and also accepted
Coshocton Hospital and Dr. Hamzaâs appeal and Dr. Mendiolaâs appeal. 167 Ohio
St.3d 1441,2022-Ohio-2162
,189 N.E.3d 816
;167 Ohio St.3d 1442
, 2022-Ohio- 2162,189 N.E.3d 818
. We sua sponte consolidated the two cases for briefing and ordered the parties to brief the conflict question certified by the Tenth District: âDoes the statute of repose for medical claims, set forth under R.C. 2305.113(C), apply to statutory wrongful death claims?â See167 Ohio St.3d 1441
, 2022-Ohio- 2162,189 N.E.3d 816
.
II. Standard of Review
{¶ 10} Statutory interpretation is an issue of law. State v. Straley, 139 Ohio
St.3d 339,2014-Ohio-2139
,11 N.E.3d 1175, ¶ 9
. As an issue of law, we review this matter de novo. When interpreting a statute, we first look to the language of the statute itself, and if the language is clear and unambiguous, we must apply it as written Id.; see also State v. Ashcraft, __ Ohio St.3d __,2022-Ohio-4611
, __ N.E.3d __, ¶ 7; Wilson v. Lawrence,150 Ohio St.3d 368
,2017-Ohio-1410
,81 N.E.3d 1242, ¶ 11
.
III. Analysis
A. Plain Language of R.C. 2305.113(C)âs Statute of Repose
{¶ 11} To determine which causes of action the medical-claim statute of
repose applies to, we must look first to the language of the statute. R.C.
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2305.113(C)(1) states: âNo action upon a medical, dental, optometric, or
chiropractic claim shall be commenced more than four years after the occurrence
of the act or omission constituting the alleged basis of the medical, dental,
optometric, or chiropractic claim.â The statute goes on to broadly define âmedical
claimâ as
any claim that is asserted in any civil action against a physician,
podiatrist, hospital, home, or residential facility, against any
employee or agent of a physician, podiatrist, hospital, home, or
residential facility, or against a licensed practical nurse, registered
nurse, advanced practice registered nurse, physical therapist,
physician assistant, emergency medical technician-basic,
emergency medical technician-intermediate, or emergency medical
technician-paramedic, and that arises out of the medical diagnosis,
care, or treatment of any person.
(Emphasis added.) R.C. 2305.113(E)(3).
{¶ 12} Since the General Assembly enacted the medical-claim statute of
repose, this court has decided multiple cases analyzing itâeach time declaring that
R.C. 2305.113(C) means what it says. See Antoon, 148 Ohio St.3d 483, 2016-Ohio- 7432,71 N.E.3d 974, at ¶ 22-23
; Wilson,164 Ohio St.3d 419
,2020-Ohio-6827
,173 N.E.3d 448, at ¶ 24
. In Antoon, this court considered whether the medical-
claim statute of repose applies to vested medical-malpractice claims that were filed
before the statute of repose expired but were subsequently dismissed and refiled
after the statute of repose expired. We held that R.C. 2305.113(C) âis a true statute
of repose that applies to both vested and nonvested claims,â id. at ¶ 35, and that
âthe plain language of the statute is clear, unambiguous, and means what it says,â
id. at ¶ 23.
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January Term, 2023
{¶ 13} We reiterate here that R.C. 2305.113(C) is a true statute of repose
and that it means what it says. Wrongful-death claims based on medical care are
clearly and expressly included in R.C. 2305.113(E)(3)âs broad definition of
âmedical claim.â They are claims that are âasserted in any civil action against a
physician * * * that arise[] out of the medical diagnosis, care, or treatmentâ of a
patient. Id. Therefore, they are expressly within the scope of the medical-claim
statute of repose unless another statutory provision negates their inclusion.
{¶ 14} The dissenting opinions accuse this court of legislating from the
bench and âbootstrappingâ legislation to reach a desired result. First dissenting
opinion, ¶ 37; second dissenting opinion, ¶ 89. To the contrary, we are simply
applying the plain language of R.C. 2305.113 as the General Assembly has enacted
it. In fact, it is the dissenting opinions that elevate statutory structure over plain
language, see, e.g., first dissenting opinion at ¶ 38, 62; second dissenting opinion
at ¶ 110, and use policy considerations in an effort to reach a desired result, second
dissenting opinion at ¶ 113-117.
{¶ 15} The first dissenting opinion argues that the General Assembly
intended for medical claims to be limited to those claims that fall within the
common-law definition of âmedical malpracticeâ or that are expressly listed in R.C.
2305.113(E)(3)âs definition of âmedical claim.â First dissenting opinion at ¶ 35.
Based on this premise, the first dissenting opinion argues that in Thompson v.
Community Mental Health Ctrs. of Warren Cty., Inc., 71 Ohio St.3d 194,642 N.E.2d 1102
(1994), this court already rejected the reasoning underlying our holding in this case, because Thompson held that the adoption of a definition for âmedical claimsâ did not expand the definition of âmalpracticeâ to claims beyond those included at common law, first dissenting opinion at ¶ 51, citingThompson at 195-196
. But we issue no holding in this case regarding the definition of
âmalpractice.â Rather, this case concerns medical claims, which are defined by
statute to be broader than common-law medical-malpractice claims.
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SUPREME COURT OF OHIO
{¶ 16} If it had truly been the General Assemblyâs intent to limit medical
claims to claims that fall within the common-law definition of âmedical
malpracticeâ or that are expressly listed in the definition of âmedical claim,â as the
first dissenting opinion posits, it is certainly not evident from the text of the statute.
But instead of applying the plain text of the statute as this court is required to do,
see State v. Straley, 139 Ohio St.3d 339,2014-Ohio-2139
,11 N.E.3d 1175, ¶ 9
(âwe first must look at the language of the statute itself. * * * If the language is clear and unambiguous, we must apply it as writtenâ), the first dissenting opinion attempts to determine what the General Assembly intended to enact, instead of what it did enact, see Sears v. Weimer,143 Ohio St. 312, 316
,55 N.E.2d 413
(1944),
quoting 37 Ohio Jurisprudence, Statutes, Section 278, at 514-517 (1934) (â âWhere
the language of a statute is plain and unambiguous and conveys a clear and definite
meaning, there is no occasion for resorting to the rules of statutory interpretation.
To interpret what is already plain is not interpretation, but legislation, which is not
the function of the courts, but of the general assembly. * * * An unambiguous
statute is to be applied, not interpretedâ â [ellipsis added in Sears]).
{¶ 17} The second dissenting opinion also makes much of the idea that
claims for medical malpractice are âfundamentally different from wrongful-death
claims based on alleged medical negligenceâ and argues that the General Assembly
wanted different statutes of repose to apply to the different types of claims.
(Emphasis added.) Second dissenting opinion at ¶ 87. But the second dissenting
opinion ignores the fact that it was the General Assembly that decided to include
both types of claims within R.C. 2305.113(E)(3)âs definition of âmedical claimâ
and that this court must apply the statute as it is written.
B. R.C. Chapter 2125âWrongful Death
{¶ 18} Instead of examining the language of the medical-claim statute of
repose, the Tenth District looked exclusively to the language of R.C. Chapter 2125,
which governs wrongful-death claims. But a review of that chapter reveals that
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January Term, 2023
there is no separate statute of repose for all wrongful-death actions, and nothing in
that chapter says that the medical-claim statute of repose does not apply to
wrongful-death claims.
{¶ 19} Here, Mrs. Everhart argues that for a statute of repose to apply to
wrongful-death claims, it must be included in R.C. Chapter 2125 because, she
contends, wrongful-death claims are governed solely by that chapter. But we do
not read statutes in a vacuum. â âIt is a well-settled rule of statutory interpretation
that statutory provisions be construed together and the Revised Code be read as an
interrelated body of law.â â State v. Pribble, 158 Ohio St.3d 490,2019-Ohio-4808
,145 N.E.3d 259
, ¶ 12, quoting State v. Moaning,76 Ohio St.3d 126, 128
,666 N.E.2d 1115
(1996). â âThis court in the interpretation of related and co-existing statutes must harmonize and give full application to all such statutes unless they are irreconcilable and in hopeless conflict.â â United Tel. Co. of Ohio v. Limbach,71 Ohio St.3d 369, 372
,643 N.E.2d 1129
(1994), quoting Johnsonâs Mkts., Inc. v. New Carlisle Dept. of Health,58 Ohio St.3d 28, 35
,567 N.E.2d 1018
(1991). In this
case, far from being in hopeless conflict, the medical-claim statute of repose and
the wrongful-death statute do not conflict in any way. The medical-claim statute
of repose clearly applies to wrongful-death claims based on medical care, and the
statutory wrongful-death chapter does absolutely nothing to remove those claims
from the scope of the medical-claim statute of repose.
{¶ 20} The Tenth District below relied on the fact that the wrongful-death
chapter contains only one statute of repose, which applies to wrongful-death claims
based on product liability. The Tenth District held that the wrongful-death chapter
does not provide any other time limitations, so under the interpretive canon
expressio unius est exclusio alterius, no other time limitations can be applied. That
analysis is a misapplication of that canon. This court has held that a series of terms
is required for the canon expressio unius est exclusio alterius to apply. Summerville
v. Forest Park, 128 Ohio St.3d 221,2010-Ohio-6280
,943 N.E.2d 522
, ¶ 34-37.
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â âThe canon depends on identifying a series of two or more terms or things that
should be understood to go hand in hand.â â Id. at ¶ 36, quoting Chevron U.S.A.,
Inc. v. Echazabal, 536 U.S. 73, 81,122 S.Ct. 2045
,153 L.Ed.2d 82
(2002). In this
case, there is no series of two or more things in the wrongful-death chapter. The
existence of one statute of repose in the chapter for wrongful-death claims does not
mean that other statutes of repose throughout the Revised Code do not apply to such
claims.
C. Klema and Koler
{¶ 21} The Tenth District also relied on the fact that in both Klema, 170
Ohio St. 519,166 N.E.2d 765
, and Koler,69 Ohio St.2d 477
,432 N.E.2d 821
, this court held that wrongful-death claims are separate and distinct from the medical- malpractice claims on which they rely.2022-Ohio-629
,186 N.E.3d 232, ¶ 38-39
. The United States District Court for the Northern District of Ohio employed the same reasoning when it reached a similar conclusion in Daniel v. United States,977 F.Supp.2d 777
(N.D.Ohio 2013). In Daniel, the federal district court pointed to Klema and Koler, and it stated that in Koler, this court concluded that âabsent clear legislation to the contrary, wrongful death actions [are] governed only by provisions in the wrongful death statute.âDaniel at 782
. Therefore, the federal district court determined that the â âmedical claimâ statute of repose, set forth in another division of the code and not in the wrongful death division, [did] not apply to [the] plaintiffâs wrongful death claim.âId. at 783
. But this reliance on Klema
and Koler was misplaced.
{¶ 22} In Klema, this court held that the one-year statute of limitations for
medical-malpractice claims, found in former R.C. 2305.11, did not apply to
wrongful-death claims, because a wrongful-death claim is distinct from a claim for
medical malpractice and the wrongful-death statute contained its own two-year
statute of limitations. Klema at 521-522. Twenty-two years later, the Koler
defendants argued that this courtâs holding in Klema no longer applied because the
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January Term, 2023
General Assembly had amended R.C. 2305.11. See Am.Sub.H.B. No. 682, 136
Ohio Laws, Part II, 2809, 2810-2811. As amended, the one-year statute of
limitations still applied to âmalpracticeâ claims, but the legislature added a four-
year statute of repose for âmedical claims.â Koler at 480. The defendants in Koler argued that the General Assembly intended for âmalpracticeâ in the statute of limitations to mean the same thing as âmedical claimsâ in the statute of repose and that because the plaintiffsâ wrongful-death claims were âmedical claims,â they were subject to the one-year statute of limitations for âmalpracticeâ claims.Id.
This court disagreed, holding that the one-year statute of limitations did not apply to wrongful-death claims, because those claims were not malpractice claims, despite the amendments to R.C. 2305.11.Id. at 481
. This court did not address whether wrongful-death claims are âmedical claims,â but the court did note that R.C. 2305.11 differentiated between âmalpracticeâ claims and âmedical claims.âId.
{¶ 23} Both dissenting opinions rely heavily on Klema and Koler. The first
dissenting opinion argues that this court directly addressed whether wrongful-death
claims are âmedical claimsâ in Koler, because according to that dissent, âWe held
that no matter what kind of effect the broadly worded definition of âmedical claimâ
might have on the reach of the medical-malpractice limitations statute in former
R.C. 2305.11 (now R.C. 2305.113), it did not change the meaning of âmalpracticeâ
in former R.C. 2305.11(A) (still R.C. 2305.11(A)) and therefore, the one-year
statute of limitations set forth in R.C. 2305.11(A) could not be interpreted to apply
to wrongful-death claims unless explicitly stated.â First dissenting opinion at ¶ 72,
citing Koler at 481.
{¶ 24} Contrary to assertions in the first dissenting opinion, Klema and
Koler are not on point here, because they addressed a completely different issue,
and this court never held in Klema or Koler that a wrongful-death claim cannot be
a âmedical claimâ as R.C. 2305.113(E)(3) defines that term. Rather, in Klema and
Koler, the court refused to apply the medical-malpractice statute of limitations to
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wrongful-death claims because wrongful-death claims had their own two-year
statute of limitations. âMalpracticeâ was undefined in R.C. 2305.11, see Koler at
481, and this court held that it did not include wrongful-death claims, because those
claims were distinct from malpractice claims. In contrast, in this case, âmedical
claimâ is defined, and it is defined very broadly to include wrongful-death claims
based on medical care. See R.C. 2305.113(E)(3). Moreover, the wrongful-death
chapter does not have its own statute of repose beyond the one that applies to
product-liability claims. See R.C. 2125.02(F)(2)(a).
{¶ 25} The second dissenting opinion also relies on Klema and Koler,
noting that in those cases, this court held that the statute of limitations for
malpractice actions did not apply to wrongful-death actions, even if the death was
caused by medical malpractice. Second dissenting opinion at ¶ 108, 109, citing
Klema, 170 Ohio St. 519,166 N.E.2d 765
, at paragraph one of the syllabus, and Koler,69 Ohio St.2d at 478-481
,432 N.E.2d 821
. That opinion says that in Koler,
this court continued to hold that wrongful-death actions predicated on medical
negligence are governed by the wrongful-death statute of limitations, despite the
broader definition of âmedical claimâ that was added to the malpractice statute in
1975. Second dissenting opinion at ¶ 109. But this courtâs holdings in Klema and
Koler regarding the medical-malpractice statute of limitations are no longer good
law, because the General Assembly has amended that statute of limitations since
those cases were decided. Am.Sub.H.B. No. 327, 142 Ohio Laws, Part II, 3322. In
Klema and Koler, this court determined that the âmedical malpracticeâ statute of
limitations in R.C. 2305.11(A) did not apply to wrongful-death claims. But since
those cases were decided, R.C. 2305.11(A) has been amended to apply only to
malpractice claims that are not medical claims. Am.Sub.H.B. No. 327, 142 Ohio
Laws at 3322. Medical claims now have their own one-year statute of limitations,
which is set out in R.C. 2305.113(A), and this court has never considered whether
that statute of limitations applies to wrongful-death claims based on medical care.
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January Term, 2023
Klema and Koler are not instructive in this case.
D. Derivative Claims
{¶ 26} Further, the Tenth District relied on the fact that wrongful-death
claims are not listed among the derivative claims for relief set out in R.C.
2305.113(E)(3)âs definition of âmedical claim.â 2022-Ohio-629,186 N.E.3d 232, at ¶ 25-26
. R.C. 2305.113(E)(3)(a) explains that the term âmedical claimâ includes
â[d]erivative claims for relief that arise from the medical diagnosis, care, or
treatment of a person.â R.C. 2305.113(E)(7) goes on to define âderivative claims
for reliefâ as claims that
include, but are not limited to, claims of a parent, guardian,
custodian, or spouse of an individual who was the subject of any
medical diagnosis, care, or treatment, dental diagnosis, care, or
treatment, dental operation, optometric diagnosis, care, or treatment,
or chiropractic diagnosis, care, or treatment, that arise from that
diagnosis, care, treatment, or operation, and that seek the recovery
of damages for any of the following:
(a) Loss of society, consortium, companionship, care,
assistance, attention, protection, advice, guidance, counsel,
instruction, training, or education, or any other intangible loss that
was sustained by the parent, guardian, custodian, or spouse;
(b) Expenditures of the parent, guardian, custodian, or
spouse for medical, dental, optometric, or chiropractic care or
treatment, for rehabilitation services, or for other care, treatment,
services, products, or accommodations provided to the individual
who was the subject of the medical diagnosis, care, or treatment, the
dental diagnosis, care, or treatment, the dental operation, the
optometric diagnosis, care, or treatment, or the chiropractic
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diagnosis, care, or treatment.
{¶ 27} The Tenth District held that because the definition of âderivative
claims for reliefâ does not specifically list claims for wrongful death, the canon
expressio unius est exclusio alterius excludes them. 2022-Ohio-629,186 N.E.3d 232, at ¶ 26
. But there are two reasons why wrongful-death claims would not be included in the definition of âderivative claims for relief.â First, as the Tenth District pointed out, wrongful-death claims are independent causes of action, not derivative actions.Id.,
citing Thompson v. Wing,70 Ohio St.3d 176, 183
,637 N.E.2d 917
(1994); see also Klema, 170 Ohio St. at 521-522,166 N.E.2d 765
.
Second, the types of loss listed in R.C. 2305.113(E)(7)(a) and the expenditures
listed in division (E)(7)(b) are not causes of action, but types of injuries used to
determine the amount of damages. See R.C. 2305.113(E)(7) (â âDerivative claims
for reliefâ include, but are not limited to, claims of a * * * spouse of an individual
who was the subject of any medical diagnosis * * * and that seek the recovery of
damages for any of the followingâ). In fact, the injuries listed in division (E)(7)(a)
are also used to determine damages in wrongful-death claims. The wrongful-death
statute, R.C. 2125.02, states in part:
(D) Compensatory damages may be awarded in a civil action
for wrongful death and may include damages for the following:
(1) Loss of support from the reasonably expected earning
capacity of the decedent;
(2) Loss of services of the decedent;
(3) Loss of the society of the decedent, including loss of
companionship, consortium, care, assistance, attention, protection,
advice, guidance, counsel, instruction, training, and education,
suffered by the surviving spouse, dependent children, parents, or
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January Term, 2023
next of kin of the decedent * * *.
Furthermore, it is irrelevant that wrongful-death claims are not included in the
definition of âderivative claims for relief,â because the statutory definition of
âmedical claimâ is not limited to derivative actions. See R.C. 2305.113(E)(3).
Derivative actions are only the second portion of the definition; the first portion of
the definition is expansive, and it clearly includes wrongful-death claims arising
out of medical care.
E. The Borrowing Statute
{¶ 28} Finally, the Tenth District relied on the language of the borrowing
statute in R.C. 2305.03(A), which states: âExcept as provided in division (B) of this
section and unless a different limitation is prescribed by statute, a civil action may
be commenced only within the period prescribed in sections 2305.04 to 2305.22 of
the Revised Code.â The Tenth District, quoting R.C. 2305.03(A), held that the
medical-claim statute of repose found in R.C. 2305.113 does not apply because â âa
different limitation is prescribed by statuteâ â in R.C. 2125.02. (Emphasis deleted.)
2022-Ohio-629,186 N.E.3d 232, at ¶ 28
. But that provision is a statute of
limitations, not a statute of repose. As we explained in Antoon:
The differences between statutes of repose and statutes of
limitations have been recognized for nearly 40 years. [CTS Corp. v.
Waldburger, 573 U.S. 1, 14,134 S.Ct. 2175
,189 L.Ed.2d 62
(2014)]. A statute of limitations establishes âa time limit for suing
in a civil case, based on the date when the claim accrued (as when
the injury occurred or was discovered).â Blackâs Law Dictionary
1636 (10th Ed.2014). A statute of repose bars âany suit that is
brought after a specified time since the defendant acted * * * even
if this period ends before the plaintiff has suffered a resulting
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injury.â Id. at 1637.
(Ellipsis added in Antoon.) 148 Ohio St.3d 483,2016-Ohio-7432
,71 N.E.3d 974, at ¶ 11
. Statutes of limitations and statutes of repose serve different purposes, and
the imposition of one does not bar the imposition of another. Furthermore, even if
there were no borrowing statute, the medical-claim statute of repose would still
apply to wrongful-death claims based on medical care because those types of claims
are expressly included in the broad statutory definition of âmedical claim.â
{¶ 29} The first dissenting opinion argues that we are claiming that a statute
of repose is not a âlimitationâ within the meaning of R.C. 2305.03(A), because it is
called a statute of repose rather than a statute of limitations. First dissenting opinion
at ¶ 66. This is a gross misstatement of our holding in this case. The relevant
argument here says that when applying the borrowing statute in this case, the two-
year statute of limitations for wrongful-death claims, found in R.C. 2125.02, is the
âdifferent limitation,â not the four-year statute of repose for medical claims. We
are certainly not saying that a statute of limitations is not a âlimitation.â Nor are
we saying that a statute of repose is not a limitation. Rather, we are merely stating
that a statute of limitations does not bar the application of a statute of repose, which
is a different kind of limitation.
F. Counterarguments in the Second Dissenting Opinion
{¶ 30} The second dissenting opinion asserts that this courtâs application of
the statute of repose violates the open-courts or right-to-remedy provisions of
Article I, Section 16 of the Ohio Constitution. Second dissenting opinion at ¶ 121.
But this court expressly rejected that argument in Ruther, 134 Ohio St.3d 408,2012-Ohio-5686
,983 N.E.2d 291, at ¶ 10-15
.
{¶ 31} Furthermore, the second dissenting opinion argues that this case
should be dismissed as improvidently accepted because the trial court refused to
allow Everhart to amend her complaint, and therefore, it argues, we cannot fairly
16
January Term, 2023
determine whether the complaint was filed within four years of the alleged
wrongdoing. Second dissenting opinion at ¶ 86, 119. But that issue is not before
us.
{¶ 32} Everhart appealed the decision of the trial court to the Tenth District,
raising two assignments of error. First, she argued that the trial court erred when it
applied the medical-claim statute of repose to her wrongful-death claim. 2022-
Ohio-629, 186 N.E.3d 232, at ¶ 11. And second, she argued that the trial court erred when it denied her leave to file a third amended complaint.Id.
Finding that
the medical-claim statute of repose does not apply to wrongful-death claims, the
Tenth District reversed the decision of the trial court and declined to address the
second assignment of error. Id. at ¶ 54-55. The only issue before this court is the
one that the Tenth District decided: whether the medical-claim statute of repose
applies to wrongful-death claims. Because we hold that it does, we must remand
the case to the Tenth District for it to address Everhartâs assignment of error that
the trial court erred when it denied her request to amend her complaint for a third
time. That issue is not before this court and must be resolved by the Tenth District.
IV. Conclusion
{¶ 33} Wrongful-death claims based on medical care are clearly and
unambiguously included in the broad definition of âmedical claimâ that applies to
the statute of repose found in R.C. 2305.113(C). There are no separate statutes of
repose for wrongful-death claims beyond those that apply to product-liability
claims and certain premises-liability actions, and nothing in R.C. Chapter 2125
removes wrongful-death claims from the scope of R.C. 2305.113(C)âs statute of
repose. Statutory provisions must be construed together, and the Revised Code
must be read as an interrelated body of law. In this case, no conflict exists between
the medical-claim statute of repose and the Revised Code chapter governing
wrongful-death claims. The wrongful-death statute cannot remove wrongful-death
claims based on medical care from the scope of the medical-claim statute of repose
17
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simply by remaining silent. Accordingly, we answer the certified-conflict question
in the affirmative, reverse the judgment of the Tenth District Court of Appeals, and
remand this matter to that court for it to address Mrs. Everhartâs remaining
assignment of error.
Judgment reversed
and cause remanded.
KENNEDY, C.J., and DEWINE and DETERS, JJ., concur.
DONNELLY, J., dissents, with an opinion joined by STEWART, J.
BRUNNER, J., dissents, with an opinion.
_________________
DONNELLY, J., dissenting.
{¶ 34} I agree with the second dissenting opinion that the language of the
two statutory schemes at issue in this appealâR.C. Chapter 2125 and R.C.
2305.113âdo not allow the majorityâs conclusion. Perhaps the majority is right
that R.C. 2305.113(C) âmeans what it says,â majority opinion, ¶ 1, 12-13, but the
problem is that R.C. 2305.113 does not say what the majority proclaims, and it does
not mean what the majority infers.
{¶ 35} Contrary to the majorityâs claims, R.C. 2305.113 governs limitations
periods for common-law medical-malpractice actions. In the definition of âmedical
claimâ in R.C. 2305.113(E)(3), the General Assembly has expanded the common-
law definition of âmedical malpracticeâ to include a variety of common-law
personal-injury and derivative claims, as well as one statutorily derived cause of
action under R.C. 3721.17. However, the General Assembly has chosen not to
include the statutorily created cause of action for wrongful death among the claims
listed in R.C. 2305.113(E)(3).
{¶ 36} Under R.C. 2125.02, a wrongful-death action can generally be
brought within two years of a decedentâs death, irrespective of what kind of
underlying wrongful actâincluding medical malpracticeâcaused the death.
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January Term, 2023
Because wrongful death is a statutorily created cause of action, rules limiting
common-law causes of action are irrelevant, and exceptions or other limitations to
the wrongful-death statutory scheme must be explicit. The General Assembly has
chosen to enact two statutes of repose that make such explicit exceptions for
wrongful acts causing death: one in R.C. 2125.02(F)(2) for wrongful acts related to
products liability and one in R.C. 2305.131 for wrongful acts related to defective
construction. The General Assembly has not made any such exception for wrongful
acts related to medical malpractice.
{¶ 37} Both R.C. 2305.113 and R.C. Chapter 2125 mean what they sayâ
that is, they apply to completely distinct causes of action and their limitations
periods do not apply to each other. Thus, the medical-malpractice statute of repose
does not affect the wrongful-death cause of action at issue here. No matter what
we think about the possible policy goals behind R.C. 2305.113 or R.C. Chapter
2125, it is not our job to extend those perceived policy goals any further than the
statutory language actually allows. I respectfully dissent, and I would affirm the
judgment of the Tenth District Court of Appeals.
I. Introduction
{¶ 38} Although the majority represents that it is embarking on a plain-
meaning analysis, majority opinion at ¶ 11, 15, and that wrongful-death actions are
âexpressly includedâ in the definition of âmedical claimâ in R.C. 2305.113(E)(3),
majority opinion at ¶ 13, neither of those representations are borne out in its
analysis. The plain language of R.C. Chapter 2125 makes no mention of medical
malpractice or R.C. 2305.113, and the plain language of R.C. 2305.113 makes no
mention of wrongful death or R.C. Chapter 2125. The majority thus reaches its
conclusion through inferential leaps. However, when considering the current and
historical context of these two statutory schemes, our previous decisions construing
the same language, and properly applied canons of statutory interpretation, all signs
point directly against the inference that the majority draws. Because the majority
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overcomes this problem by glossing over a sizeable amount of linguistic and
historical context, I find it necessary to provide the context that is missing in order
to properly rebut the majorityâs analysis.
II. History of the Laws of Wrongful-Death and Medical-Negligence Actions
A. Origins in Ohio Law
{¶ 39} Patients injured by medical malpractice have long been able to
pursue a negligence cause of action under the common law. See Slater v. Baker,
95 Eng.Rep. 860, 862-863 (1767) (holding that actions for medical malpractice
sounded in trespass on the case (negligence) rather than trespass vi et armis
(battery)); Craig v. Chambers, 17 Ohio St. 253, 260 (1867), abrogated in part on other grounds by Kuhn v. Banker,133 Ohio St. 304, 314-315
,13 N.E.2d 242
(1938). On the other hand, a party injured by the death of his or her parent, spouse, or child as a result of a third partyâs wrongful act had no right of action against the tortfeasor under the common law and no right of action in Ohio until the General Assembly enacted the wrongful-death statutory scheme in 1851. See Baltimore & Ohio RR. Co. v. Chambers,73 Ohio St. 16
, 24,76 N.E. 91
(1905) (describing
Ohioâs 1851 adoption of âLord Campbellâs Act,â see 49 Ohio Laws 117).
{¶ 40} The original wrongful-death statutory scheme is strikingly similar to
the current scheme. The 1851 enactment provided that a wrongful-death claim
needed to be brought by a representative of the decedent no later than two years
after the decedentâs death for the âexclusive benefit of the [decedentâs] widow and
next of kinâ for a death âcaused by wrongful act, neglect or default,â which
otherwise would have entitled the decedent to a personal cause of action for
damages. Compare 49 Ohio Laws 117 with R.C. 2125.01 and 2125.02.
{¶ 41} Most of the substantive law governing medical malpractice is also
essentially the same now as it was in the 1800s: the elements to establish medical
malpractice are governed by the common law rather than statute. Geiselman v.
Scott, 25 Ohio St. 86, 88 (1874) (discussing the common-law elements of
20
January Term, 2023
negligence in a medical-malpractice action); Cromer v. Childrenâs Hosp. Med. Ctr.
of Akron, 142 Ohio St.3d 257,2015-Ohio-229
,29 N.E.3d 921, ¶ 23
(discussing the common-law elements of negligence in a medical-malpractice action). Medical- malpractice actions were not identified in any statute of limitations until 1894, when the General Assembly added âmalpracticeâ to the list of common-law actions subject to a one-year statute of limitations. H.B. No. 313, 91 Ohio Laws 299; see also Shuman v. Drayton,8 Ohio C.D. 12, 13
,14 Ohio C.C. 328
(Cir.Ct.1897)
(describing the transition of âmalpracticeâ in Ohio law from an unenumerated tort
subject to a catchall four-year statute of limitations to an enumerated tort subject to
a one-year statute of limitations). From 1894 until now, the law governing
limitations on medical-malpractice actions has changed dramatically in relation to
limitations on general negligence actions, but it has not changed dramatically in
relation to the law governing wrongful-death actions.
B. Expansion of Medical Malpractice to Encompass Other Causes of Action
{¶ 42} Bit by bit, the General Assembly has added to the statute governing
the limitations periods that apply to medical-malpractice actions, making those
limitations applicable to additional causes of action and types of defendants not
contemplated in the original common-law understanding of medical malpractice.
Each step in the evolution of the statute has been cumulative, leading to what is
now a rather lengthy and complex statute. As explained below, though, such
complexity has not untethered R.C. 2305.113 from its foundation in common-law
medical-malpractice actions.
1. The 1800s through 1975: a simple one-year statute of limitations for
malpractice
{¶ 43} Up through the middle of the twentieth century, Ohio law provided
that â[a]n action for libel, slander, assault, battery, malicious prosecution, false
imprisonment or malpractice * * * shall be brought within one year after the cause
thereof accrued.â See Am.Sub.S.B. No. 256, 120 Ohio Laws 646; H.B. No. 319,
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122 Ohio Laws 374. Our jurisprudence during this period demonstrates that the
common law continued to control the who, what, where, and why of the malpractice
cause of action itself because the statute did not provide any new rules on those
fronts.
{¶ 44} This court determined that the one-year statutory limitations period
on medical-malpractice actions was subject to equitable tolling under the common
law, first holding that the cause of action for certain latent injuries did not accrue
until the termination of the doctor-patient relationship, Gillette v. Tucker, 67 Ohio
St. 106,65 N.E. 865
(1902), paragraph three of the syllabus, overruled by Oliver v. Kaiser Community Health Found.,5 Ohio St.3d 111
,449 N.E.2d 438
(1983), and later holding that the cause of action did not accrue until the patient discovered or reasonably should have discovered the injury resulting from malpractice, Melnyk v. Cleveland Clinic,32 Ohio St.2d 198
,290 N.E.2d 916
(1972), syllabus. We held that the common-law understanding of medical malpractice did not include a spouseâs claims for damages for payment of medical expenses or for loss of consortium and services of the injured spouse and that the spouseâs cause of action was therefore subject to the catchall four-year statute of limitations for unenumerated causes of action set forth in former R.C. 2305.09(D), see G.C. 11224, H.B. No. 334, 112 Ohio Laws 237, recodified in Am.H.B. No. 1, 125 Ohio Laws 7. Corpman v. Boyer,171 Ohio St. 233
,169 N.E.2d 14
(1960), paragraphs one and two of the syllabus. We also held that the common-law understanding of medical malpractice did not include a claim for personal injury caused by a nurse or other nonphysician and that the cause of action for such injuries was therefore âordinary negligenceâ subject to the two-year statute of limitations for bodily injury under R.C. 2305.10. Richardson v. Doe,176 Ohio St. 370
,199 N.E.2d 878
(1964),
syllabus. In Richardson, we explained that if the General Assembly had wanted to
expand the malpractice statute of limitations set forth in former R.C. 2305.11 (now
in R.C. 2305.113) to âprotect groups other than those traditionally associated with
22
January Term, 2023
malpractice [i.e., physicians and lawyers], it should have listed the ones to be
covered.â Id. at 373.
2. 1975: addition of statute of repose and broad definition of âmedical claimâ to
medical-malpractice actions
{¶ 45} The first major legislative shift away from the common law that both
expanded the meaning of âmalpracticeâ and constricted the limitations period for
filing medical-malpractice actions occurred in 1975. The General Assembly added
that the one-year statute of limitations applied to âmalpractice, including an action
for malpractice against a physician or a hospital.â Former R.C. 2305.11(A),
Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, 2809, 2810 (âH.B. 682â). The
General Assembly also added a four-year statute of repose, applicable only to âany
medical claim against a physician or a hospitalâ and not to other causes of action
enumerated in former R.C. 2305.11(A). Former R.C. 2305.11(B), H.B. 682 at
2810. Finally, the General Assembly added definitions for the terms âhospitalâ and
âphysician,â see former R.C. 2305.11(D)(1) and (2), and, most importantly here, a
definition of âmedical claimâ as âany claim asserted in any civil action against a
physician or hospital arising out of the diagnosis, care, or treatment of any person,â
former R.C. 2305.11(D)(3), H.B. 682 at 2811. It bears emphasizing that this same
language from former R.C. 2305.11(D)âapplicable to both the statute of repose
and statute of limitations on medical-malpractice claimsâis virtually identical to
the language in R.C. 2305.113(E)(3) that the majority is using to justify its decision
today. See majority opinion at ¶ 14 (holding that the medical-malpractice statute
of repose applies to a wrongful-death action involving medical care due to R.C.
2305.113(E)(3)âs definition of âmedical claim,â which is âany claim that is asserted
in any civil action against a physician * * * that arises out of the medical diagnosis,
care, or treatment of any personâ).
{¶ 46} Despite the General Assemblyâs addition of the statute of repose and
broad definition of âmedical claimâ to former R.C. 2305.11 in H.B. 682, this court
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SUPREME COURT OF OHIO
held that the statute as a whole was still inapplicable to a husbandâs cause of action
for loss of consortium and other claims related to his wifeâs being injured by
medical malpractice and that his cause of action was still subject to R.C.
2305.09(D)âs catchall four-year statute of limitations for unenumerated causes of
action. Amer v. Akron City Hosp., 47 Ohio St.2d 85, 91,351 N.E.2d 479
(1976). Because the General Assembly did not explicitly expand the statute of limitations or statute of repose in former R.C. 2305.11 to causes of action other than medical malpractice, and because the General Assembly did not provide explicit statutory exceptions elsewhere in the Revised Code, we were precluded from applying R.C. 2305.11 to additional causes of action through inference.Id.
{¶ 47} Additionally, because the 1975 amendments to former R.C. 2305.11
still did not identify any person other than a physician, the statute did not apply to
causes of action for negligence at the hands of other medical professionals. See
Whitt v. Columbus Coop. Ents., 64 Ohio St.2d 355, 358,415 N.E.2d 985
(1980) (âIf the General Assembly had wished to protect groups which are not traditionally associated with malpractice, such as optometrists and dentists, it would have listed themâ); Lombard v. Good Samaritan Med. Ctr.,69 Ohio St.2d 471
,433 N.E.2d 162
(1982), syllabus (one-year statute of limitations in former R.C. 2305.11 was
inapplicable to negligence committed by hospital employees such as nurses and
laboratory technicians).
3. 1975-2002: specialized rules governing medical-malpractice and related
actions take over the previously short, general one-year statute of limitations
{¶ 48} In the years following the amendments to former R.C. 2305.11 in
H.B. 682, the General Assembly expanded the reach of the statute to include
various âgroups other than those traditionally associated with malpractice,â
Richardson, 176 Ohio St. at 373, 199 N.E.2d 878. At first, it made a few piecemeal
additions to former R.C. 2305.11. See Am.H.B. No. 1426, 136 Ohio Laws, Part II,
3840, 3841-3842 (adding âpodiatristâ to former R.C. 2305.11); Am.Sub.H.B. No.
24
January Term, 2023
243, 139 Ohio Laws, Part I, 2153, 2153-2154 (adding âdentistâ and âdental claimâ
to former R.C. 2305.11). In 1987, the General Assembly completely reorganized
R.C. 2305.11, essentially dividing it in two, with one expansive section governing
medical-malpractice-related actions, and one very small section governing
everything else. Am.Sub.H.B. No. 327, 142 Ohio Laws, Part II, 3322, 3322-3325
(âH.B. 327â).
{¶ 49} The lionâs share of the amended statute provided a new laundry list
of rulesâencompassing over 20 paragraphs of textâthat applied to actions for
malpractice, including âan action upon a medical, dental, optometric, or
chiropractic claim.â Former R.C. 2305.11(B) through (D), H.B. 327 at 3322-3325.
Among other things, the General Assembly enlarged the definition of âmedical
claimâ to include
any claim that is asserted in any civil action against a physician,
podiatrist, or hospital, against any employee or agent of a physician,
podiatrist, or hospital, or against a registered nurse or physical
therapist, and that arises out of the medical diagnosis, care, or
treatment of any person. âMedical claimâ includes derivative claims
for relief that arise from the medical diagnosis, care, or treatment of
a person.
Former R.C. 2305.11(D)(3), H.B. 327 at 3324. The initial portion of the statuteâ
contained in one brief paragraphâmaintained that the general one-year statute of
limitations applied to the enumerated causes of action, which included â[a]n action
for libel, slander, malicious prosecution, or false imprisonmentâ or âan action for
malpractice other than an action upon a medical, dental, optometric, or chiropractic
claim.â (Emphasis added.) Former R.C. 2305.11(A), H.B. 327 at 3322.
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SUPREME COURT OF OHIO
{¶ 50} Though H.B. 327 was yet another broad expansion of the limitations
on medical-malpractice actions, this court still did not allow former R.C. 2305.11
to extend beyond its plain language. For instance, we held that former R.C. 2305.11
was inapplicable to an action for bodily injury arising out of a hospitalâs negligent
credentialing of a physician. Browning v. Burt, 66 Ohio St.3d 544, 558,613 N.E.2d 993
(1993). We also held that former R.C. 2305.11 did not apply to claims against social workers, psychologists, or mental-healthcare facilities. Thompson v. Community Mental Health Ctrs. Of Warren Cty., Inc.,71 Ohio St.3d 194
,642 N.E.2d 1102
(1994), syllabus.
{¶ 51} In Thompson, we specifically rejected the argumentânow adopted
by the majority, see majority opinion at ¶ 26âthat the change in the reference to
âmalpracticeâ in former R.C. 2305.11(A) from âmalpractice, including an action
for malpractice against a physicianâ to âmalpractice other than an action upon a
medical * * * claimâ (emphasis added), H.B. 327 at 3322, meant that the limitations
periods in former R.C. 2305.11(B) through (D), as amended by H.B. 327, reached
beyond common-law medical-malpractice claims and now applied to any causes of
action involving a medical factual context. Thompson at 195-196. Whether
medical claims were described as being included in or excluded from the general
limitation periods in R.C. 2305.11(A), medical claims were still identified as
arising only from within the category of malpractice, the definition of which was
still controlled by common law unless the statute explicitly provided otherwise.
Thompson at 196.
4. 2002 onward: the laundry list of rules related to medical malpractice in R.C.
2305.11 is moved to its own statute, R.C. 2305.113
{¶ 52} Following additional amendments in 2002, R.C. 2305.11 remained
a very lopsided statute, with a small portion governing the general one-year statute
of limitations for various torts, including âmalpractice,â and the remainder
governing the limitations periods for the subset of malpractice that included
26
January Term, 2023
âmedical claims.â Former R.C. 2305.11(A) and (B)(1), Am.Sub.H.B. No. 412, 149
Ohio Laws, Part V, 8352 (âH.B. 412â).1 The General Assembly again expanded
the definition of a âmedical claimâ to include claims against a âhome, or residential
facility.â Former R.C. 2305.11(D)(3), H.B. 412 at 8354. The General Assembly
also expanded the types of claims that should be considered medical claims, for the
first time adding a statutory cause of action to the list:
âMedical claimâ includes the following:
(a) Derivative claims for relief that arise from the medical
diagnosis, care, or treatment of a person;
(b) Claims that arise out of the medical diagnosis, care, or
treatment of any person and to which either of the following apply:
(i) The claim results from acts or omissions in providing
medical care;
(ii) The claim results from the hiring, training, supervision,
retention, or termination of caregivers providing medical diagnosis,
care, or treatment.
(c) Claims that arise out of the medical diagnosis, care, or
treatment of any person and that are brought under section 3721.17
of the Revised Code.
Former R.C. 2305.11(D)(3)(a) through (c), H.B. 412 at 8354.
{¶ 53} Later in 2002, the General Assembly finally separated the provisions
governing malpractice on medical claims from the general one-year statute of
1. The General Assembly made other substantial changes to R.C. 2305.11 in 1996. Am.Sub.H.B.
No. 350, 146 Ohio Laws, Part II, 3867, 3912-3915. However, the amendments were later found to
be unconstitutional in their entirety by State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86
Ohio St.3d 451,715 N.E.2d 1062
(1999), paragraphs two and three of the syllabus, so they are
omitted from this opinionâs analysis.
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SUPREME COURT OF OHIO
limitations. Am.Sub.S.B. No. 281, 149 Ohio Laws, Part II, 3791 (âS.B. 281â). The
language previously contained in R.C. 2305.11(B) through (D) was moved to the
newly enacted R.C. 2305.113. S.B. 281 at 3799-3804. The general one-year statute
of limitations continued to indicate that a medical claim was a subset of
malpractice. See former R.C. 2305.11(A), S.B. 281 at 3796 (referring to âan action
for malpractice other than an action upon a medical * * * claimâ). The new R.C.
2305.113(A) included a one-year statute of limitations on medical-malpractice
actions â[e]xcept as otherwise provided in this section,â and the new R.C.
2305.113(C) designated the four-year statute of repose as one of those exceptions.
S.B. 281 at 3799-3800.
{¶ 54} The relevant language of R.C. 2305.113 has remained largely the
same since 2002, apart from a few additions to the list of actions that constitute a
âmedical claim.â See, e.g., 2014 Sub.H.B. No. 290 (adding âclaims that arise out
of skilled nursing care or personal care services provided in a home pursuant to a
plan of care, medical diagnosis, or treatmentâ to R.C. 2305.113(E)(3)(d));2 2018
Am.Sub.H.B. No. 7 (adding â[d]erivative claims for relief that arise from the plan
of care prepared for a resident of a homeâ to R.C. 2305.113(E)(3)(b)).
{¶ 55} Presently, R.C. 2305.11(A) continues to provide that âan action upon
a medical * * * claimâ falls within the category of âmalpractice.â Further, the
separate statute setting out periods of limitations for medical claims continues to
provide a one-year statute of limitations for medical claims â[e]xcept as otherwise
provided in this section,â R.C. 2305.113(A), and the four-year statute of repose
continues to be one of those exceptions, R.C. 2305.113(C).
C. Limitations on Wrongful-Death Actions
{¶ 56} The history of the statutory limitations on a wrongful-death cause of
action is far less complicated. In 1851, the General Assembly created a cause of
2. This language added in 2014 Sub.H.B. No. 290 is now contained in R.C. 2305.113(E)(3)(e).
28
January Term, 2023
action for wrongful death that belonged exclusively to the decedentâs âwidow and
next of kin,â allowing for the recovery of damages caused by âthe pecuniary injury
resulting from such death.â 49 Ohio Laws 117. Recovery was possible only if the
action was âcommenced within two years after the death of such deceased personâ
and the death was âcaused by [a] wrongful act, neglect or defaultâ that would have
otherwise entitled the decedent to a personal cause of action for damages. Id.
{¶ 57} This court has long recognized that an action on a wrongful-death
claim is âaltogether distinct and apart from the right of action which the injured
person might have had and upon the existence of which such new right is
conditioned.â Karr v. Sixt, 146 Ohio St. 527, 531,67 N.E.2d 331
(1946). A wrongful-death claim does not involve the same parties, the same type of injury, or the same type of damages as a claim on the predicate wrongful act. Russell v. Sunbury,37 Ohio St. 372
, 375-376 (1881); Gibson v. Solomon,136 Ohio St. 101, 108
,23 N.E.2d 996
(1939). Accordingly, even when a person injured by a wrongful act is able to file a personal-injury suit prior to death, the decedentâs next of kin may file a wrongful-death action to recover for their own independent injuries caused by the loss of that person. Mahoning Valley Ry. Co. v. Van Alstine,77 Ohio St. 395
, 416,83 N.E. 601
(1908).
{¶ 58} In 1931, the General Assembly added that a wrongful-death action
must be filed within two years of the decedentâs death â[e]xcept as otherwise
provided by law.â Former G.C. 10509-167, Am.S.B. No. 10, 114 Ohio Laws, 320,
438-439. Wrongful-death-claim defendants pointed to the added phraseââexcept
as otherwise provided by lawââto argue that the statutes of limitations for actions
on predicate wrongful acts (subsequently governed by R.C. Chapter 2305),
superseded the two-year limitations period set forth in former G.C. 10509-167
(subsequently recodified in R.C. 2125.02). See Klema v. St. Elizabethâs Hosp. of
Youngstown, 170 Ohio St. 519, 521-522,166 N.E.2d 765
(1960) (involving the
argument that the one-year statute of limitations for medical malpractice should
29
SUPREME COURT OF OHIO
prevail over the two-year limitations period for wrongful death). In Klema, this
court unanimously rejected such reasoning, holding that because the wrongful-
death cause of action was created by statute rather than the common law, any
statutes not explicitly governing wrongful death were inapplicable:
The action being a statutory one relating to a specific type of cause,
i.e., wrongful death, the phrase, âexcept as otherwise provided by
law,â can only relate to other provisions relating to death. And the
only other provisions relating to death actions are those contained in
the wrongful death statute itself, namely, the provisions relating to
actions arising in other states and the saving provision. It is to these
that the phrase must necessarily relate.
Id. at 524.
{¶ 59} Although the phrase âexcept as otherwise provided by lawâ is no
longer included in the wrongful-death statutory scheme, Am.Sub.H.B. No. 332, 139
Ohio Laws, Part II, 2458, 2459, our reasoning in Klema provides particularly salient
insight into the relationship between R.C. Chapter 2125 and other laws contained
in the Revised Code and the common law.
{¶ 60} Even after the significant changes in 1975 to the law governing
medical-malpractice limitations periods, as described above in Section II(B), this
courtâs decision in Klema remained good law. See Koler v. St. Joseph Hosp., 69
Ohio St.2d 477, 479-480,432 N.E.2d 821
(1982). After the 1975 overhaul of former R.C. 2305.11 in H.B. 682, wrongful-death-claim defendants pointed to the broad nature of the new definition of âmedical claimâ and the new four-year statute of repose to argue that the statutory limitations on medical-malpractice actions superseded the two-year statute of limitations for wrongful-death actions found in R.C. 2125.02.Koler at 480-481
. This court again rejected the attempt to extend
30
January Term, 2023
the reach of former R.C. 2305.11(A) (what is now R.C. 2305.113(A)) by inference.
In addition to reinforcing the holding in Klema that wrongful-death actions are
unique and controlled only by the express language in R.C. Chapter 2125, this court
held that the significant changes to R.C. 2305.11(B) through (D) did not change the
fact that actions under those provisions were still a subset of âmalpracticeâ under
R.C. 2305.11(A). Koler at 481.
{¶ 61} The only other big change to the wrongful-death statutory scheme
that is relevant to this analysis3 was enacted in 2004 as part of a broad tort-reform
bill in Am.Sub.S.B. 80, 150 Ohio Laws, Part V, 7915 (âS.B. 80â). In S.B. 80, the
General Assembly added a ten-year statute of repose for wrongful-death claims
related to product-liability claims, R.C. 2125.02(D), as well as a ten-year statute of
repose for personal-injury claims related to product liability, R.C. 2305.10(C)(1).
S.B. 80 at 7926, 7932. The General Assembly also expressly included wrongful-
death claims in a ten-year statute of repose for defective-construction claims in R.C.
2305.131. S.B. 80 at 7937-7938. Although the General Assembly also made
changes to R.C. 2305.113 in S.B. 80, it did not add âwrongful deathâ to the
definition of âmedical claimâ in R.C. 2305.113(E)(3) or to any other provision
within R.C. 2305.113. See S.B. 80 at 7933-7937.
D. Summary
{¶ 62} From the foregoing history of our laws governing wrongful-death
actions and the limitations periods for medical-malpractice actions, it is clear that
the two types of actions have always been and continue to be governed by separate
sets of rules. The substance of medical-malpractice actions has been and continues
3. As with the statutory scheme in R.C. Chapter 2305 governing limitations periods for common-
law actions in that chapter, the General Assembly also attempted to make changes to R.C. Chapter
2125 in 1996. Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, 3900-3906. Those
amendments, however, were later found to be unconstitutional in their entirety by Ohio Academy of
Trial Lawyers, 86 Ohio St.3d 451,715 N.E.2d 1062
, at paragraphs two and three of the syllabus,
and so they are omitted from this discussion.
31
SUPREME COURT OF OHIO
to be governed by the common law unless otherwise provided by statute.
Wrongful-death actions continue to be creatures of statute. Medical malpractice
was identified as a subset of malpractice when it initially appeared in our stateâs
statutory limitations on actions, and it is still identified as a subset of malpractice
in R.C. 2305.11, albeit a subset with limitations periods that are provided separately
in R.C. 2305.113. The General Assembly has made a variety of additions and
exceptions to these actions in its repeated amendments to both R.C. 2125.02 and
R.C. 2305.113, but none of those amendments has changed the relationship
between the two statutes, or rather, the lack of a relationship. The General
Assembly was put on notice in Klema that exceptions to the wrongful-death
statutory scheme would need to be explicit in order to be effective, and the General
Assembly subsequently made explicit exceptions related to products liability and
defective construction but not medical malpractice.
III. Inapposite and Controlling Precedent
A. Inapposite: Antoon and Wilson
{¶ 63} You may notice that the foregoing historical review of the
independence and non-interrelationship between R.C. Chapters 2305 and 2125 did
not mention the cases Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483,2016-Ohio-7432
,71 N.E.3d 974
and Wilson v. Durrani,164 Ohio St.3d 419
, 2020- Ohio-6827,173 N.E.3d 448
. That is because those casesâdespite the majorityâs
marked reliance on them, see majority opinion at ¶ 12-14âare irrelevant to the
question whether any of the rules in R.C. 2305.113 apply to wrongful-death actions
under R.C. Chapter 2125.
{¶ 64} The question in Antoon was whether the medical-malpractice statute
of repose, R.C. 2305.113(C), was constitutional in the context of a medical-
malpractice action that was timely when initially filed but, following a voluntary
dismissal of the initial complaint, was refiled after the four-year statute of repose.
Antoon at ¶ 1, 27-29, 34. Because the underlying action was for medical
32
January Term, 2023
malpractice, there was no dispute whether R.C. 2305.113 was applicable, and
nothing in Antoon addressed wrongful-death actions.
{¶ 65} The question in Wilson was whether a medical-malpractice action,
which was otherwise filed in compliance with the medical-malpractice statute of
limitations, R.C. 2305.113(A), and refiled in compliance with the applicable
savings statute, R.C. 2305.19(A), could nonetheless be barred by the medical-
malpractice statute of repose, R.C. 2305.113(C). Wilson at ¶ 1-4. No one disputed
that R.C. 2305.113 was applicable to medical-malpractice actions, no wrongful-
death action was involved, and the only dispute was regarding the interplay among
applicable statutes.
{¶ 66} In both Antoon and Wilson, this court described R.C. 2305.113(C)
as being a âtrueâ statute of repose when explaining why other rules within the same
statutory scheme could not be used to save medical-malpractice actions from the
absolute four-year accrual limit in R.C. 2305.113(C). Antoon, 148 Ohio St.3d 483,2016-Ohio-7432
,71 N.E.3d 974, at ¶ 22, 35
; Wilson,164 Ohio St.3d 419
, 2020- Ohio-6827,173 N.E.3d 448, at ¶ 16, 38
; see also Ruther v. Kaiser,134 Ohio St.3d 408
,2012-Ohio-5686
,983 N.E.2d 291, ¶ 18
. Some of this emphasis on being a âtrueâ statute of repose stems from the fact that we previously referred to all statutory periods of limitation, including statutes of repose, as âstatutes of limitation.â4 See, e.g., Baird v. Loeffler,69 Ohio St.2d 533, 535
,433 N.E.2d 194 4
. Although we now use separate terms for the two concepts, it remains true that a statute of repose imposes a certain kind of âlimitationâ on a cause of action and that the time limit provided in a statute of repose is a â âperiod of limitation.â â Wilson,164 Ohio St.3d 419
,2020-Ohio-6827
,173 N.E.3d 448, at ¶ 35
, quoting 735 Ill.Stat.Ann. 5/13-217; see also Elliot v. Durrani,171 Ohio St.3d 213
,2022-Ohio-4190
,216 N.E.3d 641, ¶ 21
(âthis court in Wilson quoted with approval the meaning of the phrase âperiod of limitationâ as interpreted by the Seventh Circuit Court of Appeals in Hinkle v. Henderson,85 F.3d 298
(7th Cir.1996); that court applied the phrase to both a statute of repose
and a statute of limitationsâ), citing Wilson at ¶ 35. The majority ignores this logic and contravenes
our precedent when it claims that statutes of repose are not included in the following language found
in R.C. 2305.03(A): âunless a different limitation is prescribed by statute, a civil action may be
commenced only within the period prescribed in sections 2305.04 to 2305.22 of the Revised Code.â
33
SUPREME COURT OF OHIO
(1982) (referring to the four-year limitations period in what is now R.C.
2305.113(C) as a âstatute of limitationâ); Mominee v. Scherbarth, 28 Ohio St.3d
270, 273,503 N.E.2d 717
(1986) (same); Hardy v. VerMeulen,32 Ohio St.3d 45, 45-46
,512 N.E.2d 626
(1987), fn. 2 (noting for the first time that the four-year limitations period in what is now R.C. 2305.113(C) is ânot a traditional statute of limitationsâ and is akin to statutes that âhave sometimes been described as statutes of reposeâ), overruled on other grounds by Ruther. We later emphasized that a statute of repose is â â[u]nlike a true statute of limitations,â â because the former can bar the possibility of litigation before the cause of action accrues and the latter applies only after the cause of action has accrued. Groch v. Gen. Motors Corp.,117 Ohio St.3d 192
,2008-Ohio-546
,883 N.E.2d 377
, ¶ 112, quoting Sedar v. Knowlton Constr. Co.,49 Ohio St.3d 193, 195
,551 N.E.2d 938
(1990).
{¶ 67} In Ruther, we explained that a statutory limitations period is a âtrue
statute of reposeâ when it âdoes not bar a vested cause of action, but prevents a
cause of action from vesting.â Id. at ¶ 18. We held that there is no vested right to
prosecute common-law causes of action and that abolishing, redefining, or placing
time limits on the accrual of a common-law cause of action is within the purview
of the General Assembly. Id. at ¶ 13-14. We concluded that the General
Assemblyâs decision to limit medical-malpractice causes of action to injuries
discovered within four years of the negligent act or omission was a valid exercise
of the legislatureâs powers and not a violation of the right-to-remedy provision of
Article I, Section 16 of the Ohio Constitution. Ruther at ¶ 24, 35. Thus, the references to a âtrueâ statute of repose in Ruther, Antoon, and Wilson relate to the statuteâs effect on the identified cause of action. They have nothing to do with Majority opinion at ¶ 28. The majorityâs willingness to risk the unintended consequences of its statement seems particularly unwise given that the only reward is the rebuttal of a rather minor point in the Tenth Districtâs analysis, see2022-Ohio-629
,186 N.E.3d 232, ¶ 28-29
.
34
January Term, 2023
expanding statutes of repose to apply to anything other than the identified causes
of action.
{¶ 68} In the present appeal, there is no dispute regarding a medical-
malpractice cause of action, and there is no attempt to construe R.C. 2305.113(C)
as something other than a statute of repose. The only dispute is whether R.C.
2305.113 applies at all to the statutory cause of action for wrongful death. The fact
that R.C. 2305.113(C) is a âtrue statute of reposeâ that prevents the accrual of
causes of action identified in the statute is irrelevant to the question whether it
applies to any causes of action that are not identified in the statute (e.g., wrongful-
death claims). Accordingly, the majorityâs reliance on Antoon and Wilson is
misplaced, and its claim to be merely applying the holdings from Antoon and
Wilson to this case is misleading.
B. Controlling: Klema and Koler
{¶ 69} Just as the majority is wrong that Antoon, 148 Ohio St.3d 483, 2016- Ohio-7432,71 N.E.3d 974
, and Wilson,164 Ohio St.3d 419
,2020-Ohio-6827
,173 N.E.3d 448
, are relevant to this dispute, it is wrong in denying the relevance of Klema,170 Ohio St. 519
,166 N.E.2d 765
, and Koler,69 Ohio St.2d 477
,432 N.E.2d 821
. The majority declares Klema and Koler to be inapplicable for two
reasons: (1) the versions of R.C. 2305.11 in effect when those decisions were
rendered applied to âmalpractice claimsâ but now R.C. 2305.113 applies to
âmedical claimsâ rather than âmalpractice,â majority opinion at ¶ 24-25; and (2)
Klema and Koler held only that a wrongful-death claim is not âmalpractice,â and
neither case addressed whether a wrongful-death claim could be a âmedical claim.â
These points are inaccurate and otherwise involve distinctions without a difference.
{¶ 70} As explained above when discussing the history of Ohioâs statutory
limitations periods for common-law medical-malpractice claims, although the time
limits set forth in R.C. 2305.113 for filing a âmedical claimâ are provided
separately from the time limits set forth in R.C. 2305.11 for filing other malpractice
35
SUPREME COURT OF OHIO
claims, the cause of action for a âmedical claimâ is still a subset of a malpractice
cause of action, R.C. 2305.11(A). The majority appears to lose sight of the fact that
statutes like R.C. 2305.11 and 2305.113 do not create or govern the substance of
any causes of action; they merely provide time limitations on the accrual and
litigation of causes of action that already exist under the common law or other
statutes. See Hardy, 32 Ohio St.3d at 46,512 N.E.2d 626
(explaining that expanding the limitations periods in what is now R.C. 2305.113(C) â[did] not change the substantive character of a malpractice actionâ), overruled on other grounds by Ruther,134 Ohio St.3d 408
,2012-Ohio-5686
,983 N.E.2d 291
. The
limitations periods set out in R.C. 2305.113 do not create a new cause of action
called âmedical claimsâ; rather, they apply to medical-malpractice actions, and the
definition of âmedical claimâ in R.C. 2305.113(E)(3) brings various categories of
personal-injury and derivative actions within the scope of medical malpractice
solely for the purpose of applying limitations periods to those actions.
{¶ 71} The General Assembly is free to add to the categories identified in
R.C. 2305.113(E)(3), to include relevant wrongful-death claims, or to otherwise
create an express exception to the rules in R.C. Chapter 2125. But we made it clear
in Klema that the General Assembly must do so expressly, and we made it clear in
Koler that the legislature cannot do so by using expansive but generic language.
Klema at 524; Koler at 480-481. The General Assemblyâs amendments moving the
limitations periods for medical-malpractice actions from R.C. 2305.11(B) through
(D) to R.C. 2305.113, see S.B. 281 at 3799-3804, did not erase its obligation to be
explicit when expanding the reach of rules that otherwise would apply only to
common-law medical-malpractice causes of action.
{¶ 72} Contrary to the majorityâs assertion that âthis court did not address
whether wrongful-death claims are âmedical claimsâ â in Koler, majority opinion at
¶ 22, the court did indeed address that question in its opinion. We held that no
matter what kind of effect the broadly worded definition of âmedical claimâ might
36
January Term, 2023
have on the reach of the medical-malpractice limitations statute in former R.C.
2305.11 (now R.C. 2305.113), it did not change the meaning of âmalpracticeâ in
former R.C. 2305.11(A) (still R.C. 2305.11(A)) and therefore, the one-year statute
of limitations set forth in R.C. 2305.11(A) could not be interpreted to apply to
wrongful-death claims unless explicitly stated. Koler at 481. Apart from the
changes in statutory numbering, the same continues to be true today. Accordingly,
the majorityâs efforts to distinguish and discredit our decisions in Klema and Koler
are misinformed and therefore do not justify the conclusions that it has reached.
IV. Statutory Interpretation
{¶ 73} Returning to the majorityâs main analysis, the only affirmative
support that the majority provides for its conclusion that wrongful-death actions are
âclearly and expressly includedâ in the plain language of R.C. 2305.113, majority
opinion at ¶ 13, is the fact that the term âmedical claimâ in R.C. 2305.113(E)(3) is
defined as âclaims that are âasserted in any civil action against a physician * * *
that arise[] out of the medical diagnosis, care, or treatmentâ of a patientâ (ellipsis
and brackets sic), majority opinion at ¶ 13, quoting R.C. 2305.113(E)(3). To be
sure, this definition uses some terms that can be construed very broadly, but â âa
statuteâs meaning does not always turn solely on the broadest imaginable
definitions of its component words,â â Dubin v. United States, 599 U.S. 110, 120,143 S.Ct. 1557
,216 L.Ed.2d 136
(2023), quoting Epic Sys. Corp. v. Lewis,584 U.S. __
, __,138 S.Ct. 1612, 1631
,200 L.Ed.2d 889
(2018). â[T]he meaning of statutory language, plain or not, depends on context.â King v. St. Vincentâs Hosp.,502 U.S. 215, 221
,112 S.Ct. 570
,116 L.Ed.2d 578
(1991).
{¶ 74} As thoroughly explained above in Section II(B), the provisions of
R.C. 2305.113 are set forth in the context of limitations periods for common-law
medical-malpractice actions. To the extent that the General Assembly intends for
R.C. 2305.113 to apply beyond the common-law understanding of medical
malpractice or to statutory causes of action, the legislature must make that intent
37
SUPREME COURT OF OHIO
clear through express language rather than implication. See Shrader v. Equitable
Life Assur. Soc. of the United States, 20 Ohio St.3d 41, 44,485 N.E.2d 1031
(1985) (âa statute should not be construed to impair pre-existing law in the absence of an explicit legislative statement to the contraryâ); Vaccariello v. Smith & Nephew Richards, Inc.,94 Ohio St.3d 380, 384
,763 N.E.2d 160
(2002) (âcodification [of a legal doctrine] does not thereby abrogate the common lawâ). We have repeatedly held that if the General Assembly wants to expand R.C. 2305.113 (or former R.C. 2305.11) to apply to actors or actions beyond common-law medical malpractice, it must list the actors or actions to be covered. Klema, 170 Ohio St. at 521-524,166 N.E.2d 765
; Richardson, 176 Ohio St. at 373,199 N.E.2d 878
; Hocking Conservancy Dist. v. Dodson-Lindblom Assocs., Inc.,62 Ohio St.2d 195, 197-198
,404 N.E.2d 164
(1980); Koler,69 Ohio St.2d at 481
,432 N.E.2d 821
; Thompson, 71 Ohio St.3d at 195-196,642 N.E.2d 1102
.
{¶ 75} In the list of actions considered to be medical claims, R.C.
2305.113(E)(3), the only item that involves a statutorily derived cause of action is
R.C. 2305.113(E)(3)(d), which applies to â[c]laims that arise out of the plan of care,
medical diagnosis, or treatment of any person and that are brought under section
3721.17 of the Revised Code.â5 Accordingly, the plain meaning of âany civil
actionâ in R.C. 2305.113(E)(3) does not include unenumerated statutory causes of
action such as wrongful death.
{¶ 76} The remainder of the majority opinion criticizes points made by the
Tenth District Court of Appeals, appellee, and the second dissenting opinion, but
without its faulty premise that the plain language of R.C. 2305.113 includes
5. The right of action in R.C. 3721.17(G)(1) belongs to nursing-home residents for violations of the
Ohio Nursing Home Patientsâ Bill of Rights found in R.C. 3721.10 through 3721.17. See Cramer
v. Auglaize Acres, 113 Ohio St.3d 266,2007-Ohio-1946
,865 N.E.2d 9, ¶ 9-11
.
38
January Term, 2023
wrongful-death actions, much of the majorityâs analysis does not hold up. For
example, in rejecting the argument that R.C. 2305.113 is inapplicable to wrongful-
death actions because the plain language of the statute of repose in R.C. 2125.02(F)
does not include medical malpractice, the majority purports to apply a mishmash
of canons of construction, including the related-statutes canon and harmonious-
reading canon. Majority opinion at ¶ 19-20. However, the ârelatedâ statutory
language with which R.C. Chapter 2125 must supposedly be harmonized is the
language in R.C. 2305.113 that the majority claims âclearly applies to wrongful-
death claims,â majority opinion at ¶ 19. The majority criticizes the Tenth District
for noting that wrongful death is not contemplated in the definition of âderivative
claims for reliefâ under R.C. 2305.113(E)(7), majority opinion at ¶ 26-28, citing
2022-Ohio-629,186 N.E.3d 232, ¶ 25-26
, but the majority only counters that the main definition of âmedical claimâ in R.C. 2305.113(E)(3) âclearly includes wrongful-death claims,â majority opinion at ¶ 27. The majority also criticizes the Tenth District for noting that R.C. 2305.03(A) provides an exception to any âperiod prescribedâ in R.C. 2305.04 through 2305.22 when âa different limitation is prescribed by statute,â majority opinion at ¶ 28, citing2022-Ohio-629 at ¶ 28
, but
apart from the baffling argument that a period of repose is not a âperiod prescribed,â
majority opinion at ¶ 28, which I refuted above in footnote 4, the majority concludes
that R.C. 2305.03(A) is irrelevant because wrongful-death claims âare expressly
included in the broad statutory definition of âmedical claim,â â majority opinion at
¶ 28.
{¶ 77} The majority commits different errors in criticizing the Tenth
Districtâs conclusion that based on the interpretive canon expressio unius est
exclusio alterius (otherwise known as negative implication), there is no wrongful-
death statute of repose for the wrongful act of medical malpractice. The majority
holds that the canon cannot apply here, because there is only one, rather than
multiple, wrongful-death statute of repose. Id. at ¶ 20. The majorityâs reasoning is
39
SUPREME COURT OF OHIO
flawed for two reasons. First, the majority ignores the fact that there is more than
one wrongful-death statute of repose.6 As explained above in Section II(C), there
is a ten-year statute of repose in R.C. 2125.02(F)(2) for a wrongful-death cause of
action âinvolving a product liability claim.â And there is also a ten-year statute of
repose in R.C. 2305.131(A) for any wrongful-death action âthat arises out of a
defective and unsafe condition of an improvement to real property.â Second, the
majorityâs requirement of multiple statutes of repose within a âseries of terms,â
majority opinion at ¶ 20, is an improper narrowing of the canonâs applicability.
Even if R.C. 2125.02(F)(2) were the sole wrongful-death statute of repose, the
negative-implication canon would still apply.
{¶ 78} The essential characteristic we are supposed to look for when
determining whether a statute carries a negative implication is the exclusivity of a
term in relation to a particular class, i.e., an â â âassociated group or series.â â â
Natl. Labor Relations Bd. v. SW Gen., Inc., 580 U.S. 288, 302,137 S.Ct. 929
,197 L.Ed.2d 263
(2017), quoting, Chevron U.S.A., Inc. v. Echazabal,536 U.S. 73, 80
,122 S.Ct. 2045
,153 L.Ed.2d 82
(2002), quoting United States v. Vonn,535 U.S. 55, 65
,122 S.Ct. 1043
,152 L.Ed.2d 90
(2002). The reference to a âseriesâ relates to the existence of a group or class to which the item or exception belongs rather than the nature of the item or exception itself. SeeVonn at 65
(âexpressing one
item of a commonly associated group or series excludes another left
unmentionedâ).
{¶ 79} Ohioâs wrongful-death statutory scheme might not identify a class
using a series of terms, but it does identify a class through a series of criteria. The
statutory scheme applies to a class comprised of acts that (1) are wrongful, (2)
6. By the end of its analysis, the majority also reaches the perplexing conclusion that â[t]here is no
separate statute of repose for wrongful-death claims,â majority opinion at ¶ __. To the contrary,
there are statutes of repose for wrongful-death claims, they just donât apply to wrongful acts related
to medical malpractice.
40
January Term, 2023
resulted in the decedentâs death, and (3) would theoretically have been actionable
by the decedent if he or she had survived.7 R.C. 2125.01. A variety of acts fall
within this statutorily defined class, including purposeful and negligent acts, as well
as acts that carry strict liability. See, e.g., Collins v. Sotka, 81 Ohio St.3d 506,692 N.E.2d 581
(1998), paragraph two of the syllabus (wrongful-death case involving murder); Wise v. Timmons,64 Ohio St.3d 113
,592 N.E.2d 840
(1992) (wrongful- death case involving automobile accident); Lisk v. Hora,109 Ohio St. 519, 523
,143 N.E. 545
(1924) (wrongful-death case involving a dog bite); Koler,69 Ohio St.2d at 479-480
,432 N.E.2d 821
(wrongful-death case involving medical malpractice); Fortman v. Dayton Power & Light Co.,80 Ohio App.3d 525
, 526- 528,609 N.E.2d 1296
(2d Dist.1992) (wrongful-death case involving negligent construction); Shover v. Cordis Corp.,61 Ohio St.3d 213, 215
,574 N.E.2d 457
(1991) (wrongful-death case involving products liability), overruled byCollins at 511
. Of all items in this class of legally actionable wrongful acts, only two are
subject to a statute of repose: wrongful acts involving defective construction and
wrongful acts involving products liability.
{¶ 80} Thus, we have an â âassociated group or series,â â Chevron U.S.A. at
302, quoting Vonn at 65, of legally actionable acts or omissions that are covered by the wrongful-death statutory scheme, and we have two acts within that group identified as being subject to a statute of repose in R.C. 2305.131(A) and R.C. 2125.02(F)(2). This supports the negative implication that other wrongful acts within the groupâsuch as those related to medical malpracticeâare not subject to a statute of repose. 7. The statute applies to acts for which the decedent would have potentially had a cause of action, irrespective of whether the cause of action was or could have been successfully maintained by the decedent. See May Coal Co. v. Robinette,120 Ohio St. 110, 117
,165 N.E. 576
(1929).
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SUPREME COURT OF OHIO
{¶ 81} Finally, in its unsuccessful attempt to repudiate Klema and Koler,
see majority opinion at ¶ 23-25, the majority fails to establish that its analysis does
not conflict with the prior-construction canon of interpretation, which presumes
that once we interpret the meaning of a statutory provision, the legislatureâs use of
that same language in a new or amended statute is presumed to incorporate that
interpretation. See Seeley v. Expert, Inc., 26 Ohio St.2d 61, 72-73,269 N.E.2d 121
(1971), citing Doll v. Barr,58 Ohio St. 113
, 121,50 N.E. 434
(1898); Bragdon v. Abbott,524 U.S. 624, 645
,118 S.Ct. 2196
,141 L.Ed.2d 540
(1998). As explained above in Sections II(B), II(C), and III(B), we already considered and soundly rejected the argument that the periods of limitations for medical-malpractice actions necessarily applied to wrongful-death actions based on the definition of âmedical claimâ as â âany claim asserted in any civil action against a physician or hospital arising out of the diagnosis, care or treatment of any person.â âKoler at 480
,
quoting former R.C. 2305.11(D)(3), H.B. 682 at 2811. Because the General
Assembly decided to keep a virtually identical definition of âmedical claimâ when
it enacted R.C. 2305.113 in 2002, see S.B. 281 at 3801-3802, our interpretation of
that definition in Koler still controls.
III. Conclusion
{¶ 82} After many of our decisions finding that a particular cause of action
or a particular kind of medical-care professional falls outside the statute governing
limitations on medical-malpractice actions, now found in R.C. 2305.113, the
General Assembly has chosen to make additions to the statute to include the
previously excluded actor or cause of action. The General Assembly has not made
that choice regarding causes of action for wrongful death. If the General Assembly
wants the medical-malpractice statute of repose in R.C. 2305.113 to apply to
wrongful-death causes of action, the General Assembly is free to add language
saying as much.
42
January Term, 2023
{¶ 83} We have interpreted the General Assemblyâs additions to R.C.
2305.113(E)(3) to expand the application of the statute as far as the language will
allow, but no further. There is no reason at this point for us to relieve the General
Assembly of its duty to be explicit when expanding R.C. 2305.113 beyond the
common law and to instead infer the addition of statutory wrongful-death actions
on the General Assemblyâs behalf. I respectfully dissent, and I would affirm the
judgment of the Tenth District Court of Appeals.
STEWART, J., concurs in the foregoing opinion.
_________________
BRUNNER, J., dissenting.
I. INTRODUCTION
{¶ 84} In December 2003, the deceased, Todd Everhart (âEverhartâ),
received medical care from appellants, Coshocton County Memorial Hospital
(âCoshocton Hospitalâ) and Drs. Mohamed Hamza and Joseph J. Mendiola, after
an auto accident. The care he received included an x-ray of his chest, which
revealed an âopacityâ in his lung that should have been but was not examined
further. That failure permitted Everhartâs lung cancer to go undiscovered until
August 2006, and the cancer proved to be fatalâEverhart died on October 28,
2006. Everhartâs widow and estate administrator, Machelle Everhart, appellee,
filed suit on January 25, 2008, within the two-year statute of limitations for a
wrongful-death claim. The statute of repose for wrongful-death claims, which
applies only in certain products-liability cases, did not affect this claim, which
allegedly occurred from professional negligence and malpractice.
{¶ 85} The trial court, after approximately 12 years of litigation, permitted
appellants to assert the statute of repose as an affirmative defense yet
simultaneously prevented appellee from amending her complaint to respond to this
belated defense. The trial court thereafter granted judgment on the pleadings to one
of the medical-provider appellants on the grounds that the four-year medical-
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malpractice statute of repose barred the wrongful-death and consortium claims
brought on behalf of the decedentâs estate and his surviving widow. The Tenth
District Court of Appeals reversed. I would dismiss this case as having been
improvidently accepted, and in the absence of that disposition, affirm on the merits.
Thus, I respectfully dissent.
{¶ 86} We cannot fairly determine whether the alleged wrongdoing by
appellants was within four years of any malpractice because the trial court refused
to allow appellee to amend her complaint in response to appellantsâ belated
assertion of the statute of repose. This makes the case not appropriate for review,
and dismissing it as improvidently accepted is the better course.
{¶ 87} But to the extent that we consider the merits of the case, I would
affirm, because this wrongful-death action was brought within the wrongful-death
statute of limitations, and the wrongful-death statute of repose applies only in
product-liability and defective-construction cases. The majority focuses on the
broad language of the medical-malpractice statute of repose and finds this
wrongful-death claim to be subject to the limitation found in that statute. But no
amount of word parsing can escape the elemental fact that claims for medical
malpracticeâthose claims that result in injury short of deathâare fundamentally
different from wrongful-death claims based on alleged medical negligence.
Though each type of claim can originate from the same type of negligence, the
claims are completely distinct: one is for the wrong to the injured patient and is
confined to loss and suffering before death, see R.C. 2305.113, while the other is
for the wrong to the decedentâs beneficiaries and is confined to their loss as a result
of the death, see R.C. 2125.02. For this reason, we have previously held that they
are different claims governed by different limitations periods. And further, not only
are the two kinds of claims factually different under the common law, but the
legislature has also recognized their differences because they are addressed and
governed by completely different chapters of the Revised Code (R.C. Chapters
44
January Term, 2023
2125 and 2305), wherein each has its own statute of limitations and statute of
repose. Wrongful-death claims and medical-malpractice claims can and do have
different statutes of limitations and repose. And it is possible that because of their
differences, the General Assembly does not want the statute of repose in other types
of wrongful-death cases to apply (see R.C. 2125.02(F)(2)), because the limitation
in that statute does not apply in cases such as Everhartâs.
{¶ 88} A wrongful-death action does not accrue until the wrongful act (in
this case, medical misdiagnosis) causes death. In cases such as Everhartâs, where
a statute of repose may run before the stricken patient dies, prohibiting relatives
from bringing a wrongful-death suit, as the majority now does, violates the Ohio
Constitutionâs command that â[a]ll 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.â Article
I, Section 16, Ohio Constitution.
{¶ 89} Today, the majority attempts to bootstrap legislation not meant to
address medical malpractice resulting in wrongful death to impose what the
legislature did not. In our fidelity to the rule of law, we should not transmute a
statute to fit a situation for which it was not written. Our fealty must be to the law
as written and not to anticipate the legislature in matters of policy. Applying the
medical-malpractice statute of repose to claims of wrongful death, especially when
there are two distinct statutory schemes for these two claims, results in our
assuming the role of the legislature. While some may wish for that result to occur
today, there is little basis in law to support it. What this court does today is
tantamount to making a legal theory âstickâ after having been haphazardly thrown
against the wall in Everhartâs case.
{¶ 90} I would dismiss this case as improvidently accepted because of the
trial courtâs failure to allow all parties to be fully heard on appellantsâ defense or,
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to the extent that this court addresses the merits, I would affirm. The majority does
otherwise, and so I respectfully dissent.
II. FACTS AND PROCEDURAL HISTORY
{¶ 91} I adopt the majorityâs statement of facts and case history but find it
necessary to make some additional observations about the posture of the case.
Specifically, I would note that although appellants all answered and generically
raised the statute of âlimitationsâ as a defense,8 none of their many answers to
appelleeâs three complaints specifically raised the statute of repose. Only after nine
years of litigation and having been alerted by new caselaw, see Antoon v. Cleveland
Clinic Found., 148 Ohio St.3d 483,2016-Ohio-7432
,71 N.E.3d 974
, to what could
have been pled as a defense in their initial answer, did appellants finally raise that
issue. That is, starting in August 2017, appellants sought leave to amend their
answers and to file motions for judgment on the pleadings, asserting that the case
should be dismissed as having been filed beyond the medical-claims statute of
repose. Before the trial court ruled on those motions, however, the case was stayed
due to bankruptcy proceedings involving appellant Coshocton Hospital.
{¶ 92} After the case was reactivated in 2019 and the trial court granted
them leave to do so, appellants amended their answers to assert the statute-of-repose
defense against appelleeâs claims and asked for judgment on the pleadings.
{¶ 93} One month after the trial court granted leave to appellants to amend
their answers, appellee sought leave to amend her complaint in response. Her third
amended complaint would have added an allegation that in January 2006, less than
four years before the filing of the initial complaint in 2008, Everhart had returned
to Coshocton Hospital for a suspected kidney stone. Although the 2003 x-ray film
and report of the opacity in his lung remained a part of his medical records, he still
was not told of the opacity or instructed to follow up with his physician about that
8. The litigation began with a complaint filed on January 25, 2008, and that complaint was amended
in October 2008 and August 2009 to add parties. The allegations remained substantially the same.
46
January Term, 2023
finding. The third amended complaint would also have included allegations about
appellantsâ continuing failure to notify Everhart of the issue, to create a relevant
discrepancy report, and to notify Dr. Hamza, the physician who had been in charge
of Everhartâs follow-up care.
{¶ 94} On December 11, 2020, despite having allowed appellantsâ belated
amendments to add a previously unraised affirmative defense, the trial court denied
appellee leave to amend her allegations to account for that belated and previously
unraised defense by way of a third amended complaint. The trial court justified its
denial by stating that appellee had waited too long to amend, that the appellants
would be prejudiced, and that appellee had âoffered no reason why she * * * waited
[so] long to amend her complaint,â despite the appellantsâ having asserted the new
defense after nearly a decade of litigation.
{¶ 95} The following month, the trial court granted Dr. Mendiolaâs motion
for judgment on the pleadings. The court concluded that the allegations in
appelleeâs second amended complaint did not show a continuing course of
malpractice and that the treatment date for the purposes of the statute of repose was
December 21, 2003. The trial court did not consider or engage with the allegations
in the proposed third amended complaint, which alleged a continuing course of
malpractice. And the court concluded that the medical-claims statute of repose
applied to appelleeâs wrongful-death claim because the wrongful-death and loss-
of-consortium claims arose from the medical diagnosis, care, or treatment of
Everhart. The trial court did not address the other appellantsâ motions for judgment
on the pleadings, but upon granting Dr. Mendiolaâs motion, the court certified that
there was no just reason for delay under Civ.R. 54(B).
{¶ 96} As the majority notes, the case is now before us as a jurisdictional
appeal and based on a question certified by the Tenth District: âDoes the statute of
repose for medical claims, set forth under R.C. 2305.113(C), apply to statutory
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SUPREME COURT OF OHIO
wrongful death claims?â See 167 Ohio St.3d 1441,2022-Ohio-2162
,189 N.E.3d 816
.
III. ANALYSIS
A. The Standard and the Need to Dismiss as Improvidently Accepted
{¶ 97} In Reister v. Gardner, we recently held:
Our review of a judgment on the pleadings is de novo. 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
,
¶ 8. Dismissal is appropriate under Civ.R. 12(C) when (1) the court
construes as true, and in favor of the nonmoving party, the material
allegations in the complaint and all reasonable inferences to be
drawn from those allegations and (2) it appears beyond doubt that
the plaintiff can prove no set of facts that would entitle him or her
to relief. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio
St.3d 565, 570,664 N.E.2d 931
(1996).164 Ohio St.3d 546
,2020-Ohio-5484
,174 N.E.3d 713, ¶ 17
. At the outset, the trial
courtâs exercise of discretion is open to question when it allowed defendants-
appellants to assert new, unraised affirmative defenses after nearly a decade of
litigation, while simultaneously denying plaintiff-appellee the right to amend her
complaint to address the belated defenses. The trial court has prevented us from
justly determining whether the alleged wrongdoing by appellants was within four
years of the filing of the action. We cannot with integrity review this case, and that
is why I would, in the first instance, dismiss the case as having been improvidently
accepted.
{¶ 98} However, if we consider, which today we do, the certified question
about the meaning of the statutes, I agree with the majority that our review is de
48
January Term, 2023
novo. See State v. Pountney, 152 Ohio St.3d 474,2018-Ohio-22
,97 N.E.3d 478, ¶ 20
(questions of statutory interpretation are reviewed de novo). Additionally, I note that â âin 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.â â 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).
B. Whether the Wrongful-Death Action Was Timely Filed
{¶ 99} No one disputes that on December 21, 2003, Everhart was involved
in an automobile accident and was transported to Coshocton Hospital. As part of
his treatment, Everhartâs chest was x-rayed. That image showed an âincreased
opacityâ in the right upper lobe of his right lung. This finding should have, but did
not, result in notification to Everhart and medical follow-up to determine whether
the abnormality was malignant. According to the allegations in the complaint, the
opacity was, in fact, lung cancer, which would have been treatable at that time,
permitting Everhartâs survival from the disease. However, because of the alleged
negligence of appellants, Everhart was transferred to The Ohio State University
Medical Center without the x-ray records and without follow-up instructions.
Appellee alleged that this negligence prevented Everhart from learning of the
cancer until his CT scan in August 2006, almost three years later, when the disease
was beyond remedy. Everhart died of lung cancer on October 28, 2006. It is
likewise undisputed that appellee commenced this litigation for medical
malpractice and wrongful death on January 25, 2008. The question is whether the
wrongful-death action was timely filed.
{¶ 100} R.C. Chapter 2125 governs wrongful-death actions. R.C. 2125.01
provides:
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When the death of a person is caused by wrongful act,
neglect, or default which would have entitled the party injured to
maintain an action and recover damages if death had not ensued, the
person who would have been liable if death had not ensued * * *
shall be liable to an action for damages, notwithstanding the death
of the person injured * * *.
{¶ 101} R.C. 2125.02 provides:
(A) Except as provided in this division, a civil action for
wrongful death shall be brought in the name of the personal
representative of the decedent for the exclusive benefit of the
surviving spouse, the children, and the parents of the decedent, all
of whom are rebuttably presumed to have suffered damages by
reason of the wrongful death, and for the exclusive benefit of the
other next of kin of the decedent.
* * *
(C)(1) The jury, or the court if the civil action for wrongful
death is not tried to a jury, may award damages authorized by
division (D) of this section, as it determines are proportioned to the
injury and loss resulting to the beneficiaries described in division
(A) of this section by reason of the wrongful death and may award
the reasonable funeral and burial expenses incurred as a result of the
wrongful death.
***
(D) Compensatory damages may be awarded in a civil
action for wrongful death and may include damages for the
following:
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January Term, 2023
(1) Loss of support from the reasonably expected earning
capacity of the decedent;
(2) Loss of services of the decedent;
(3) Loss of the society of the decedent, including loss of
companionship, consortium, care, assistance, attention, protection,
advice, guidance, counsel, instruction, training, and education,
suffered by the surviving spouse, dependent children, parents, or
next of kin of the decedent;
(4) Loss of prospective inheritance to the decedentâs heirs
at law at the time of the decedentâs death;
(5) The mental anguish incurred by the surviving spouse,
dependent children, parents, or next of kin of the decedent.
{¶ 102} In addition to defining the cause of action, R.C. Chapter 2125
provides limitations periods, including a traditional statute of limitations, a statute
of repose, and a saving statute. The limitations period is set forth in R.C.
2125.02(F)(1) and provides: âExcept as provided in division [(F)(2)] of this section,
a civil action for wrongful death shall be commenced within two years after the
decedentâs death.â
{¶ 103} The statute of repose is set forth in R.C. 2125.02(F)(2)(a):
Except as otherwise provided in divisions (F)(2)(b), (c), (d),
(e), (f), and (g) of this section or in section 2125.04 of the Revised
Code, no cause of action for wrongful death involving a product
liability claim shall accrue against the manufacturer or supplier of a
product later than ten years from the date that the product was
delivered to its first purchaser or first lessee who was not engaged
in a business in which the product was used as a component in the
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production, construction, creation, assembly, or rebuilding of
another product.
{¶ 104} Then, the saving statute makes clear that failure otherwise than
upon the merits allows a new a wrongful-death action to be commenced within one
year:
In every civil action for wrongful death that is commenced
or attempted to be commenced within the time specified by division
(F)(1) or (F)(2)(c), (d), (e), (f), or (g) of section 2125.02 of the
Revised Code, if a judgment for the plaintiff is reversed or the
plaintiff fails otherwise than upon the merits, the plaintiff or, if the
plaintiff dies and the cause of action survives, the personal
representative of the plaintiff may commence a new civil action for
wrongful death within one year after the date of the reversal of the
judgment or the plaintiffâs failure otherwise than upon the merits or
within the period specified by any of those divisions, whichever
occurs later.
R.C. 2125.04.
{¶ 105} Under the statutes governing wrongful death, the statute of repose
does not apply to appelleeâs claim because it is not a product-liability claim. R.C.
2125.02(F)(2). Consequently, Everhartâs estate had two years from the date of his
death to file the claim. R.C. 2125.02(F)(1). Because he died on October 28, 2006,
and the case was commenced on January 25, 2008, the wrongful-death claim was
clearly timely. Appellants and the majority assert, however, that appelleeâs claim
was untimely because even though it was filed within the statute of limitations for
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January Term, 2023
wrongful-death actions and the statute of repose for wrongful-death actions is
inapplicable, it was brought outside the statute of repose for medical claims.
C. Whether an Otherwise Timely Wrongful-Death Claim Is Governed by the
Medical-Malpractice Statute of Repose
{¶ 106} R.C. 2305.113 sets forth a one-year statute of limitations and a four-
year statute of repose for medical claims:
(A) Except as otherwise provided in this section, an action
upon a medical, dental, optometric, or chiropractic claim shall be
commenced within one year after the cause of action accrued.
(B)(1) If prior to the expiration of the one-year period
specified in division (A) of this section, a claimant who allegedly
possesses a medical, dental, optometric, or chiropractic claim gives
to the person who is the subject of that claim written notice that the
claimant is considering bringing an action upon that claim, that
action may be commenced against the person notified at any time
within one hundred eighty days after the notice is so given.
***
(C) Except as to persons within the age of minority or of
unsound mind as provided by section 2305.16 of the Revised Code,
and except as provided in division (D) of this section, both of the
following apply:
(1) No action upon a medical, dental, optometric, or
chiropractic claim shall be commenced more than four years after
the occurrence of the act or omission constituting the alleged basis
of the medical, dental, optometric, or chiropractic claim.
(2) If an action upon a medical, dental, optometric, or
chiropractic claim is not commenced within four years after the
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occurrence of the act or omission constituting the alleged basis of
the medical, dental, optometric, or chiropractic claim, then, any
action upon that claim is barred.
(D)(1) If a person making a medical claim, dental claim,
optometric claim, or chiropractic claim, in the exercise of reasonable
care and diligence, could not have discovered the injury resulting
from the act or omission constituting the alleged basis of the claim
within three years after the occurrence of the act or omission, but, in
the exercise of reasonable care and diligence, discovers the injury
resulting from that act or omission before the expiration of the four-
year period specified in division (C)(1) of this section, the person
may commence an action upon the claim not later than one year after
the person discovers the injury resulting from that act or omission.
(2) If the alleged basis of a medical claim, dental claim,
optometric claim, or chiropractic claim is the occurrence of an act
or omission that involves a foreign object that is left in the body of
the person making the claim, the person may commence an action
upon the claim not later than one year after the person discovered
the foreign object or not later than one year after the person, with
reasonable care and diligence, should have discovered the foreign
object.
(3) A person who commences an action upon a medical
claim, dental claim, optometric claim, or chiropractic claim under
the circumstances described in division (D)(1) or (2) of this section
has the affirmative burden of proving, by clear and convincing
evidence, that the person, with reasonable care and diligence, could
not have discovered the injury resulting from the act or omission
constituting the alleged basis of the claim within the three-year
54
January Term, 2023
period described in division (D)(1) of this section or within the one-
year period described in division (D)(2) of this section, whichever
is applicable.
R.C. 2305.113(E) then defines âmedicalâ claims broadly:
As used in this section:
***
(3) âMedical claimâ means any claim that is asserted in any
civil action against a physician, podiatrist, hospital, home, or
residential facility, against any employee or agent of a physician,
podiatrist, hospital, home, or residential facility, or against a
licensed practical nurse, registered nurse, advanced practice
registered nurse, physical therapist, physician assistant, emergency
medical technician-basic, emergency medical technician-
intermediate, or emergency medical technician-paramedic, and that
arises out of the medical diagnosis, care, or treatment of any person.
âMedical claimâ includes the following:
(a) Derivative claims for relief that arise from the medical
diagnosis, care, or treatment of a person.
{¶ 107} R.C. 2305.113(E)(7) goes on to explain:
âDerivative claims for reliefâ include, but are not limited to,
claims of a parent, guardian, custodian, or spouse of an individual
who was the subject of any medical diagnosis, care, or treatment,
dental diagnosis, care, or treatment, dental operation, optometric
diagnosis, care, or treatment, or chiropractic diagnosis, care, or
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SUPREME COURT OF OHIO
treatment, that arise from that diagnosis, care, treatment, or
operation, and that seek the recovery of damages for any of the
following:
(a) Loss of society, consortium, companionship, care,
assistance, attention, protection, advice, guidance, counsel,
instruction, training, or education, or any other intangible loss that
was sustained by the parent, guardian, custodian, or spouse;
(b) Expenditures of the parent, guardian, custodian, or
spouse for medical, dental, optometric, or chiropractic care or
treatment, for rehabilitation services, or for other care, treatment,
services, products, or accommodations provided to the individual
who was the subject of the medical diagnosis, care, or treatment, the
dental diagnosis, care, or treatment, the dental operation, the
optometric diagnosis, care, or treatment, or the chiropractic
diagnosis, care, or treatment.
{¶ 108} While we have not previously considered whether the medical
statute of repose applies to wrongful-death actions with a medical-negligence
origin, we have held that the statute of limitations for malpractice actions does not
apply in wrongful-death actions, even if the death was caused by medical
malpractice. Klema v. St. Elizabethâs Hosp. of Youngstown, 170 Ohio St. 519,166 N.E.2d 765
(1960). In so doing, we stated, âWhere an alleged negligent act was such as would have, if death had not ensued, entitled a person to maintain an action therefor, a cause of action for wrongful death exists in such decedentâs personal representative, and such cause of action for wrongful death cannot be defeated merely by reason of the bar of limitation which would have been applicable to decedentâs action.âId.
at paragraph one of the syllabus. We reasoned:
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January Term, 2023
âAlthough originating in the same wrongful act or neglect,
the two claims are quite distinct, no part of either being embraced in
the other. One is for the wrong to the injured person, and is confined
to his personal loss and suffering before he died, while the other is
for the wrong to the beneficiaries, and is confined to their pecuniary
loss through his death. One begins where the other ends, and a
recovery upon both in the same action is not a double recovery for a
single wrong but a single recovery for a double wrong.â
Id. at 521, quoting St. Louis, Iron Mountain & S. Ry. Co. v. Craft, 237 U.S. 648,
658,35 S.Ct. 704
,59 L.Ed. 1160
(1915).
{¶ 109} When Klema was decided, the malpractice statute of limitations
was simpler than it is today, merely providing: âAn action for * * * malpractice
* * * shall be brought within one year after the cause thereof accrued.â See also
former R.C. 2305.11, Am.Sub.H.B. No. 989, 135 Ohio Laws, Part II, 982. The first
iteration of language expansively defining the term âmedical claimâ was enacted
by the General Assembly in 1975. See former R.C. 2305.11.9 Thus, when Klema
9. The statute was amended as follows:
Sec. 2305.11. (A) An action for libel, slander, assault, battery, malicious
prosecution, false imprisonment, or malpractice, INCLUDING AN ACTION
FOR MALPRACTICE AGAINST A PHYSICIAN OR A HOSPITAL or upon a
statute for a penalty or forfeiture, shall be brought within one year after the cause
thereof accrued, provided that an action by an employee for the payment of unpaid
minimum wages, unpaid overtime compensation, or liquidated damages by reason
of the nonpayment of minimum wages or overtime compensation, shall be
brought within two years after the cause thereof accrued.
IF A WRITTEN NOTICE, PRIOR TO THE EXPIRATION OF TIME
CONTAINED IN THIS DIVISION, IS GIVEN TO ANY PERSON IN A
MEDICAL MALPRACTICE CASE THAT AN INDIVIDUAL IS PRESENTLY
CONSIDERING BRINGING AN ACTION AGAINST THAT PERSON
RELATING TO PROFESSIONAL SERVICES PROVIDED TO THAT
INDIVIDUAL, THEN AN ACTION BY THAT INDIVIDUAL AGAINST
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was decided, the limitations period did not textually encompass claims other than
âmalpractice.â But now there exist broad definitions of âmedical claimâ and
âderivative claims for relief,â so the medical-claims limitations statute might
conceivably encompass wrongful-death actions against doctors or hospitals that
arose out of the medical diagnosis, care, or treatment of the decedent. See R.C.
2305.113(E). Yet, this court has continued to apply Klema to distinguish medical-
malpractice claims from wrongful-death claims in the context of limitations for
filing. See Koler v. St. Joseph Hosp., 69 Ohio St.2d 477, 478-481,432 N.E.2d 821
(1982). In Koler, this court reasoned:
[A]ppellants observe that R.C. 2305.11(D)(3) defines the
term âmedical claimâ as â* * * any claim asserted in any civil action
against a physician or hospital arising out of the diagnosis, care or
treatment of any person.â 136 Ohio Laws 2811. Appellants reason
that a wrongful death claim against a physician or hospital seeking
THAT PERSON MAY BE COMMENCED AT ANY TIME WITHIN ONE
HUNDRED EIGHTY DAYS AFTER THAT NOTICE IS GIVEN.
(B) IN NO EVENT SHALL ANY MEDICAL CLAIM AGAINST A
PHYSICIAN OR A HOSPITAL BE BROUGHT MORE THAN FOUR YEARS
AFTER THE ACT OR OMISSION CONSTITUTING THE ALLEGED
MALPRACTICE OCCURRED. THE LIMITATIONS IN THIS SECTION FOR
FILING SUCH A MALPRACTICE ACTION AGAINST A PHYSICIAN OR
HOSPITAL APPLY TO ALL PERSONS REGARDLESS OF LEGAL
DISABILITY AND NOTWITHSTANDING SECTION 2305.16 OF THE
REVISED CODE, PROVIDED THAT A MINOR WHO HAS NOT ATTAINED
HIS TENTH BIRTHDAY SHALL HAVE UNTIL HIS FOURTEENTH
BIRTHDAY IN WHICH TO FILE AN ACTION FOR MALPRACTICE
AGAINST A PHYSICIAN OR HOSPITAL.
***
(D) AS USED IN THIS SECTION:
***
(3) âMEDICAL CLAIMâ MEANS ANY CLAIM ASSERTED IN ANY
CIVIL ACTION AGAINST A PHYSICIAN OR HOSPITAL ARISING OUT OF
THE DIAGNOSIS, CARE, OR TREATMENT OF ANY PERSON.
(Capitalization sic.) Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, at 2810-2811.
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January Term, 2023
damages because of the death of the patient is a âmedical claim.â
Furthermore, appellants allude to the following portion of
Am.Sub.H.B. No. 682: â(B) In no event shall any medical claim
against a physician or hospital be brought more than four years after
the act or omission constituting the alleged malpractice occurred.â
136 Ohio Laws 2810. Appellants urge that we construe this
provision as evidencing a legislative intent that âmalpracticeâ and
âmedical claimsâ are interchangeable terms under R.C. 2305.11 as
amended. Therefore, appellants conclude that all âmedical claims,â
including those for wrongful death, fall within the one-year statute
of limitations.
As we noted in Lombard v. [Good Samaritan] Medical
Center (1982), 69 Ohio St.2d 471, [433 N.E.2d 162
,] this provision in R.C. 2305.11(B) is confusing. Yet, the operative language of R.C. 2305.11(A) remains clear: âAn action for * * * malpractice * * * shall be brought within one year * * *.â (Emphasis added.) We must construe statutes of limitations narrowly within the statutory language. Chisnell v. Ozier Co. (1942),140 Ohio St. 355
, [44 N.E.2d 464
,] paragraph eight of the syllabus. âThe statute of limitations contained in R.C. 2305.11(A) is limited to the areas specifically enumerated therein and to the common-law definition of âmalpractice.â â (Emphasis added.) Hocking Conservancy Dist. v. Dodson-Lindblom Assoc. (1980),62 Ohio St.2d 195
[,404 N.E.2d 164
]. Whatever confusion there may be regarding the relative
meanings of the terms âmedical claimâ and âmalpracticeâ within the
rest of R.C. 2305.11, for statute of limitations purposes,
Am.Sub.H.B. No. 682 has not changed the meaning of
âmalpractice.â âWe do not believe the purpose of the General
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Assembly in adopting R.C. 2305.11(B) while leaving R.C.
2305.11(A) virtually unchanged was to alter this courtâs prior
interpretations of the medical malpractice statute of limitations * *
* .â Vance v. St. Vincent Hospital (1980), 64 Ohio St.2d 36, 41[,
414 N.E.2d 406]. Therefore, absent clear legislation to the contrary,
this courtâs holding in Klema controls.
(Ellipses added in Koler.) Id. at 480-481. In short, despite the broader definition
of âmedical claimâ added to the malpractice statute by the General Assembly in
1975, this court has continued to hold that wrongful-death actions predicated on
medical negligence are governed by the wrongful-death statute of limitations.
{¶ 110} Today the majority focuses on the generic language of the medical-
malpractice-statute definition of statute of repose and vastly broadens its
application, even though the only statute of repose in the wrongful-death statute is
related not to medical malpractice, but to product-liability claims. The majority
seems to find persuasive the argument that the simple, generic definition of
âmedical claimâ in R.C. 2305.113(E)(3) encompasses some wrongful-death
actions, even though the overall structure of the statute simply does not support it.
Lower courts have split on the question,10 but nowhere in the Ohio Revised Code
is it evident that the legislature intended for wrongful death by alleged medical
10. Compare McCarthy v. Lee, 10th Dist. Franklin No. 21AP-105, 2022-Ohio-1033, ¶ 34; Maxwell v. Lombardi, 10th Dist. Franklin No. 21AP-556,2022-Ohio-1686, ¶ 19
; Wood v. Lynch, 10th Dist. Franklin No. 20AP-289,2022-Ohio-1381, ¶ 19
; Ewing v. UC Health,2022-Ohio-2560
,193 N.E.3d 1132, ¶ 31
(1st Dist.); Davis v. Mercy St. Vincent Med. Ctr.,2022-Ohio-1266
,190 N.E.3d 77, ¶ 63
(6th Dist.) (all holding that the medical claims statute of repose is inapplicable to medically based wrongful-death claims) with Kennedy v. W. Res. Senior Care,2023-Ohio-264
,207 N.E.3d 143, ¶ 32
(11th Dist.); Martin v. Taylor, 11th Dist. Lake No. 2021-L-046,2021-Ohio-4614, ¶ 46
; Mercer v. Keane,2021-Ohio-1576
,172 N.E.3d 1101, ¶ 40
(5th Dist.); Smith v. Wyandot Mem. Hosp., 2018- Ohio-2441,114 N.E.3d 1224, ¶ 27
(3d Dist.) (holding that the medical-claims statute of repose
applies to medically based wrongful-death claims).
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January Term, 2023
negligence to be a subject of the medical statutes of limitations that apply to persons
still living, including the statute of repose.
D. The Majorityâs Application of the Medical-Malpractice Statute of Repose
to the Wrongful-Death Cause of Action Unconstitutionally Closes the
Courthouse to Litigants
{¶ 111} The Ohio Constitution guarantees: âAll 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.â Article I, Section 16, Ohio Constitution. Over 35 years ago,
recognizing that this constitutional provision meant that the rights of the people to
be compensated for wrongs done to them was superior to the legislatureâs desire to
limit insurance-claim payouts, we struck down the statute of repose enacted in 1975
by Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, at 2810-2811. We held that the
statute of repose âas applied to bar the claims of medical malpractice plaintiffs who
did not know or could not reasonably have known of their injuries, violates the
right-to-remedy provision of Section 16, Article I of the Ohio Constitution.â Hardy
v. VerMeulen, 32 Ohio St.3d 45,512 N.E.2d 626
(1987), syllabus, overruled by Ruther v. Kaiser,134 Ohio St.3d 408
,2012-Ohio-5686
,983 N.E.2d 291
, syllabus.
There, we reasoned:
Our courts are to be open to those seeking remedy for injury to
person, property, or reputation.
As this court said in Kintz v. Harriger (1919), 99 Ohio St.
240, 247,124 N.E. 168
, 170:
âManifestly, when the constitution of the state declares and
defines certain public policies, such public policies must be
paramount, though a score of statutes conflict and a multitude of
judicial decisions be to the contrary.
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SUPREME COURT OF OHIO
âNo general assembly is above the plain, potential
provisions of the constitution, and no court, however sacred or
powerful, has the right to declare any public policy that clearly
contravenes or nullifies the rights declared in the constitution.â
(Emphasis added.)
The holding in Kintz reads as follows:
â1. The Constitution of Ohio, Bill of Rights, Section 16,
provides, among other things, âEvery person, for an injury done him
in his land, goods, person, or reputation, shall have remedy by due
course of law.â
â2. It is the primary duty of courts to sustain this declaration
of right and remedy, wherever the same has been wrongfully
invaded.â Id. at paragraphs one and two of the syllabus.
See, also, Byers v. Meridian Printing Co. (1911), 84 Ohio
St. 408,95 N.E. 917
, paragraph two of the syllabus (a legislative enactment changing the presumption and burden of proof as to malice in defamation cases was found unconstitutional and void under Section 16, Article I); Williams v. Marion Rapid Transit, Inc. (1949),152 Ohio St. 114
,39 O.O. 433
,87 N.E.2d 334
(denial of remedy to an unborn viable child violated Section 16, Article I); Primes v. Tyler (1975),43 Ohio St.2d 195, 205
,72 O.O.2d 112, 117
,331 N.E.2d 723, 729
(the Ohio Guest Statute was found in violation
of Section 16, Article I, â* * * in that it closes the courts and denies
a remedy by due course of law to some but not all the people of this
state * * *â).
In Lafferty v. Shinn (1882), 38 Ohio St. 46, 48, this court
recited Section 16, Article I and said that â* * * it is not within the
power of the legislature to abridge the period within which an
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January Term, 2023
existing right may be so asserted as that there shall not remain a
reasonable time within which an action may be commenced.â If the
legislature may not constitutionally enact an unreasonable statute of
limitations, it follows that the legislature cannot deprive one of a
right before it accrues.
(Ellipsis added in Hardy and footnote omitted.) Id. at 46-47; see also, e.g.,
Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 466-467,639 N.E.2d 425
(1994) (a construction statute of repose that terminated liability before claims accrue violated the right-to-remedy provision of the Ohio Constitution); Burgess v. Eli Lilly & Co.,66 Ohio St.3d 59, 60-63
,609 N.E.2d 140
(1993) (a statute of limitations that
deemed actions 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).
{¶ 112} Ohioâs statutes of repose for medical and other negligence emerged
around the year 1975, when the legislature recognized what was characterized at
the time as an insurance-industry âcrisis.â Over time, this characterization has been
heavily criticized.11 Numerous publications have demonstrated the relation of
11. See Mominee v. Scherbarth, 28 Ohio St.3d 270, 280-281,503 N.E.2d 717
(1986) (Celebrezze,
C.J., concurring), in which one member of this court suggested that the insurance industry had
created its own crisis to justify legislation with a similar constricting effect on aggrieved partiesâ
access to the stateâs courts when discussing tort-reform.
As one scholarly article explains, â[p]remiums seem to be less of a financial
burden when compared to total health care spending. * * * Even after the rapid
growth in premiums during the mid-1970âs, malpractice insurance costs seem to
be about one percent of total health care spending since 1976.â Bovbjerg, Koller
& Zuckerman, Information on Malpractice: A Review of Empirical Research on
Major Policy Issues (Spring 1986), 49 Law and Contemp. Probs. 85, 93
(hereinafter âEmpirical Researchâ).
Although the medical profession and its insurers insist that a new crisis
in the affordability of malpractice insurance is upon us, a more dispassionate
analyst of this assertion has recently observed that âwhether insurance is in fact
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SUPREME COURT OF OHIO
cyclical insurance-rate emergencies of the 1970s, 1980s, and 1990s to market
conditions, not tort litigation. Americans for Insurance Reform, Medical
Malpractice Insurance: Stable Losses/Unstable Rates 2-6 (Oct. 10, 2002),
unaffordable remains to be demonstrated. It is noteworthy that despite the
continued increase in premium costs, the ratio of such costs to average provider
income has not changed substantially. The AMAâs [American Medical
Associationâs] own surveys show that average premium costs as a percentage of
physicianâs gross income were about 3.7% in 1983, down from 4.4% in 1976 and
about the same as in 1979.â Robinson, The Medical Malpractice Crisis of the
1970âs: A Retrospective (Spring 1986), 49 Law and Contemp. Probs. 5, 31.
Health care providers also claim that judicial erosion of the legislated
malpractice reforms has hurt consumers by forcing physicians to practice costly
defensive medicine. Although this contention may have some factual basis, noted
authorities have found it to be overstated.
â* * * In 1985 the American Medical Association estimated that the
annual cost of defensive medicine now exceeds $15 billion. Even in the context
of an annual health care budget that exceeds $375 billion, a cost of $15 billion for
unproductive medical practices would be reason for grave concern. It would be,
that is, if there were good reason to believe that costs of such magnitude are being
incurred.
âIn fact, evidence of defensive medicine is notoriously unreliable. The
AMAâs estimate was based on the most casual empirical techniqueâsoliciting
physiciansâ subjective opinions through an AMA survey. The basis for those
opinions in this particular survey is not revealed; however, if earlier reports of
defensive medicine by health care providers are representative of the rationale
underlying those opinions, one must be deeply skeptical.â Robinson, Rethinking
the Allocation of Medical Malpractice Risks Between Patients and Providers
(Spring 1986), 49 Law and Contemp. Probs. 173, 177. See, also, Empirical
Research, supra, at 108-109.
Finally, the medical profession decries the âlong-tailâ liability which
may result from striking the statute of repose as to minors, and claims that this
will increase the cost of malpractice insurance. Yet the cyclical nature of the
insurance industry itself also contributes to the increase in malpractice insurance
premiums. One fifteen-year study concludes as follows:
âThe insurance industryâs natural behavior contributes to the continuing
cycles of âcrisisâ and âremission.â The high investment yields of the early 1980âs
and the influx of new carriers led to continued price cutting (below actuarially
appropriate levels) through 1983. In 1984, the strong dollar reduced the amount
of insurance and reinsurance capacity available from sources outside the United
States (notably London), and emerging losses in the United States finally forced
companies to raise premiums.â Posner, Trends in Medical Malpractice Insurance
1970-1985 (Spring 1986), 49 Law and Contemp. Probs. 37, 48.
(Ellipses and brackets sic.) Id. at 280-281 (Celebrezze, C.J., concurring).
64
January Term, 2023
http://www.centerjd.org/air/StableLosses.pdf (accessed June 21, 2023)
[https://perma.cc/FML2-MAUV]. That is, rates are driven principally by how
profitably (or not) insurance companies can invest premiums in the broader market,
not on payouts. Id. at 2-3. Thus, insurance rates were shown to rise when the
broader market falls and the reverse happens when the market improves. Id. at 3.
Even a publication of the American College of Surgeons from last year states that
despite the assertion by the insurance industry that high-dollar plaintiffsâ verdicts
drove premium increases,
an extensive study that examined the relationship between medical
liability premiums and the medical liability system during previous
crises demonstrated that damage awards played only a limited role
in premium spikes that occurred in the early 2000s.
The study examined the three crises in premiums that
occurred in Illinois in the mid-1980s, the mid-1990s, and the early
2000s. The findings showed that paid claims rates rose sharply
between 1980 and 1985. The paid claims then leveled off between
1986 and 1993, and then began a sustained period of decline. By
2010, claims were 75% lower than at the peak in 1991. Claims were
lower despite the payout per claim increasing steadily over the same
period. This adjustment was interpreted as evidence of the
disappearance of small claims and those involving less severe
injuries.
In summary, the study of statewide data indicated the total
direct costs (awards to plaintiffs plus defense costs) attributable to
medical liability litigation increased between 1980 and 1992, with a
particularly dramatic increase in 1991. Total direct costs then
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declined steadily except for a modest increase between 2000 and
2002.
Thus, of the three previous hard markets for liability
premiums in Illinois, only the first crisis was temporally related to a
major increase in liability claims payouts. This evidence indicates
that should a new hard market be imminent, it should not be
attributed to the recent increase in claims with payouts exceeding
tens of millions of dollars, as some industry executives have
suggested.
(Footnotes omitted.) Bailey, Is There a Correlation between Physician
Employment and Liability Premiums?, Bulletin of the American College of
Surgeons (Feb. 4, 2022), https://bulletin.facs.org/2022/02/is-there-a-correlation-
between-physician-employment-and-liability-premiums/ (accessed June 21, 2023)
[https://perma.cc/W6S2-LECN]. Nor is this a crisis point for physicians or
hospitals, as the same report notes that on âaverage, across all specialties and all
states, liability premiums represent approximately 3.2% of practice income,â id.,
which is roughly what it was in 1986, when Mominee was released, id., 28 Ohio
St.3d at 280,503 N.E.2d 717
(Celebrezze, C.J., concurring).
{¶ 113} Despite these facts, in 2012 we âfully abdicate[d] our solemn duty
to enforce and protect constitutional rights afforded citizens since the beginning of
statehood.â Ruther, 134 Ohio St.3d 408,2012-Ohio-5686
,983 N.E.2d 291, at ¶ 44
(Pfeifer, J., dissenting). This court overruled Hardy,32 Ohio St.3d 45
,512 N.E.2d 626
, and concluded that the statute of repose could bar medical-malpractice claims by plaintiffs even when the statute of repose had run before the claims accrued.Ruther at ¶ 21, 35
. Today, we again abdicate our constitutional responsibility and
make things worse yet for Ohioans, some of whose families will never be able to
66
January Term, 2023
prove their deceased loved one died because of medical negligence if they die after
this court-created statute of repose has expired.
{¶ 114} The statute of repose is difficult enough to manage in the case of a
medical claim when the patient survives but may not be fully aware of the
malpractice-induced injury. But a wrongful-death action does not accrue until the
wrongful act (i.e., malpractice) actually causes death. Collins v. Sotka, 81 Ohio
St.3d 506, 509,692 N.E.2d 581
(1998). It is not unusual for a medical mistake, particularly a misdiagnosis, to result in death years after it is committed. See Wood v. Lynch, 10th Dist. Franklin No. 20AP-289,2022-Ohio-1381, ¶ 4-6
(patient last treated by the appellee hospital in 2011 and died on September 4, 2016); McCarthy v. Lee, 10th Dist. Franklin No. 21AP-105,2022-Ohio-1033, ¶ 3-4
(patient treated in 2010 and 2015 and died on December 2, 2022); Martin v. Taylor, 11th Dist. Lake No. 2021-L-046,2021-Ohio-4614, ¶ 11-14
(patient treated 2011 through 2014 and
died on September 2, 2017).
{¶ 115} In Mercer v. Keane, for example, the complaint alleged that
Bradley Mercer was examined in December 2012, at which time a clearly visible
mass was evident on multiple images near his sacrum/coccyx, yet the doctor failed
to diagnose it. 2021-Ohio-1576,172 N.E.3d 1101, ¶ 2
(5th Dist.). By 2015, the mass was found to have greatly increased in size and had become an inoperable sacral chordoma.Id.
In 2020, during trial preparation on a timely filed medical-
malpractice case, Mercer succumbed to metastatic chordoma of the pelvis and
sacrum. Id. at ¶ 4. His estate was successfully substituted as a party, and it amended
the claims from medical malpractice to wrongful death. Id. at ¶ 5. However, even
though it was an amendment and even though the medical appellants were already
litigating the claims, the action was dismissed as time barred because the ânewâ
claim for wrongful death was filed more than four years after the 2012
misdiagnosis. Id. at ¶ 5-7. That result was affirmed on appeal by the Fifth District
Court of Appeals. Id. at ¶ 5-7, 43.
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SUPREME COURT OF OHIO
{¶ 116} As a further example, in McCarthy, Kathleen McCarthy was
misdiagnosed with hemorrhoids in 2010 and 2015 when, in fact, she had colon
cancer. Id. at ¶ 3-4. When she was accurately diagnosed with colon cancer in 2017,
she discovered the injury caused by the misdiagnosis, and therefore, her medical-
malpractice cause of action had accrued within the medical statute of repose. A
complaint was filed in 2019. Id. at ¶ 2, 6.12 However, McCarthy did not die of her
terminal cancer until 2022, so her wrongful-death claim did not accrue until seven
years after her last misdiagnosis. Under the majorityâs application of the medical-
malpractice statute of repose to wrongful-death claims, her family would not now
be able to bring a wrongful-death claim, even though the claim just accrued and
even though the medical provider in question was originally sued within the statute
of repose for a medical-malpractice action. McCarthyâs situation illustrates another
bizarre and ghoulish consequence of the majorityâs viewâwhen McCarthy
commenced her malpractice action, she and her husband also brought an unaccrued
wrongful-death claim just in case she died (which, unfortunately, she did).
McCarthy at ¶ 2, 9. To preserve wrongful-death claims under the majorityâs decision, medical-malpractice plaintiffs will now routinely need to consider bringing unaccrued wrongful-death claims with their prospective heirs in case they die from the medical malpractice during the pendency of the suit beyond the medical statute of repose. Yet in so doing, they will risk dismissal of such claims because, of course, still being alive, no wrongful death will yet have occurred. This is a result that is not âjust and reasonableâ or, for that matter, legally âfeasible of execution.â R.C. 1.47(C) and (D). 12. McCarthyâs attorney voluntarily dismissed the case and refiled in 2020 under the saving statute.McCarthy at ¶ 2
. But our decision in Wilson v. Durrani,164 Ohio St.3d 419
,2020-Ohio-6827
,173 N.E.3d 448
, holding that the statute of repose is not extended by the saving statute, rendered her refiling of the medical-malpractice claim outside the statute of repose.McCarthy at ¶ 29-30
.
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January Term, 2023
{¶ 117} These results are farcical. They are a product of an insurance-
industry âcrisisâ with dubious origins. We should neither feign helplessness nor
concoct a statute of repose where the legislature has provided none. This is an
injustice, because applying the legislation in this way flouts the Ohio Constitutionâs
imperative that â[a]ll 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.â Article I, Section 16,
Ohio Constitution.
{¶ 118} The complaint here alleges that on December 21, 2003, Everhart
should have been diagnosed with lung cancer. Instead, he died from it, without
timely medical treatment, on October 28, 2006. The majorityâs unreasonable,
unconstitutional, and unjust analysis today callously compounds that misfortune in
wrongful-death actions, further depriving Everhartâs loved ones and others like
them of compensation for all that he and other loved ones might have contributed
to their lives.
IV. CONCLUSION
{¶ 119} Because the trial court permitted the assertion of affirmative
defenses after nearly a decade of litigation, yet simultaneously prevented an
amendment to the complaint that would have addressed such belated defenses, we
cannot fairly consider whether the alleged wrongdoing by appellants was within
four years of filing the action. Thus, in the first instance, I would dismiss the appeal
as having been improvidently accepted.
{¶ 120} To the extent that we consider the merits of the case, no one
disputes that this wrongful-death action was brought within the wrongful-death
statute of limitations and that the wrongful-death statute of repose is inapplicable
to deaths caused by medical malpractice. While the majority focuses on the broad
definition of âmedical claimâ in order for Machelle Everhart to bring a wrongful-
death claim within the medical statute of repose, we have repeatedly held that
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SUPREME COURT OF OHIO
claims for medical negligence resulting in injury to a patient are fundamentally
different from claims based on medical negligence resulting in death. Though the
claims originate in the same negligence, they do not overlap. One is for the wrong
to the injured patient and is confined to the personal loss and suffering before death.
The other claim is for the wrong to those left behind who survive the decedent,
being confined to their loss as a result of the injured personâs death. For this reason,
we have previously held that they are different claims and governed by different
limitations periods in the Revised Code. And, of course, not only are the claims
different in fact, but under the Revised Code, each has its own statute of limitations
and statute of repose.
{¶ 121} Importantly, a wrongful-death action does not accrue until the
wrongful act (in this case, medical misdiagnosis) causes death. This means that the
majorityâs reasoning and application will now cause the statute of repose to run in
many cases before the stricken patient even manages to die, preventing his or her
relatives from bringing a wrongful-death suit unless they macabrely bring it before
their loved one dies. Interpreting the law in this incongruous and patently
oppressive manner is abhorrent and also violates the Constitutionâs command that
â[a]ll 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.â Article I, Section 16, Ohio
Constitution. Rather than focus on our role as protectors of the Ohio Constitution
and the individual rights it enumerates, this court unconstitutionally applies a
medical-malpractice statute of repose to a wrongful-death action, despite the fact
that the legislature itself provided no statute of repose for wrongful-death claims of
this type and sets forth a different statute of limitations for medical-malpractice
claims.
{¶ 122} I would dismiss this case as having been improvidently accepted
because of the failure of the trial court to permit an amended complaint in response
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January Term, 2023
to a decade-later amended answer, but because no such dismissal is in the offing, I
would affirm on the merits. Since the majority does neither, I dissent.
_________________
Colley Shroyer & Abraham Co., L.P.A., and David I. Shroyer, for appellee.
Brant E. Poling and Zachary R. Hoover; and Collins, Roche, Utley &
Garner, L.L.C., and David L. Lester, for appellant Coshocton County Memorial
Hospital.
Frederick A. Sewards and Patrick F. Smith; and Collins, Roche, Utley &
Garner, L.L.C., and David L. Lester, for appellant Mohamed Hamza.
Reminger Co., L.P.A., David H. Krause, Thomas N. Spyker, and Melvin
Davis; and Taft Stettinius & Hollister, L.L.P., and Aaron M. Herzig, for appellant
Joseph J. Mendiola.
The Mellino Law Firm L.L.C., and Calder Mellino; and Flowers & Grube,
Louis E. Grube, Paul W. Flowers, and Melissa A. Ghrist, urging affirmance for
amicus curiae Ohio Association for Justice.
Reminger Co., L.P.A., Holly Marie Wilson, Brianna Marie Prislipsky, and
Thomas A. Prislipsky, urging reversal for amicus curiae Thomas Keane.
Squire Patton Boggs (U.S.), L.L.P., Lauren S. Kuley, and G. Luke Burton,
urging reversal for amici curiae Ohio Hospital Association, Ohio State Medical
Association, and Ohio Osteopathic Association.
Sean McGlone, urging reversal for amicus curiae Ohio Hospital
Association.
_________________
71