Court Rules Medical Malpractice Lawsuits Must Be Filed Within Four Years of Injury
The Ohio Supreme Court upheld a state law requiring that most medical-malpractice lawsuits be filed within four years of the act or omission alleged to have caused the injury.
In a 5-1 decision, with one justice not participating, the Supreme Court affirmed a Cuyahoga County trial court’s ruling that David and Linda Antoon waited too long to file their malpractice suit against the Cleveland Clinic Foundation and clinic doctors for an alleged faulty prostatectomy. Writing for the Court majority, Chief Justice Maureen O’Connor ruled Ohio’s four-year “statute of repose” does not violate the Ohio Constitution’s “right-to-remedy” clause.
In a concurring opinion, Justice Paul E. Pfeifer wrote the Antoons, through their own legal strategy, failed to file the case on time, but he questioned the constitutionality of the four-year time limit to bring medical malpractice cases.
Antoons Shuffle Cases Through Courts
In January 2008, David Antoon received a prostatectomy at the clinic and was treated by doctors Jihad Kaouk, Raj Goel, and Michael Lee. The surgery did not go as Antoon expected, and he consulted with Kaouk and the clinic for nearly a year. In December 2008, he had his final appointment with Kaouk and a year later, Antoon filed notice with the clinic that he would be bringing a medical malpractice case against it.
In June 2010, the Antoons filed a complaint in Cuyahoga County Common Pleas Court against the clinic and the treating doctors. In June 2011, the Antoons dismissed their claims without prejudice. After the case was withdrawn from the common pleas court, the Antoons, without an attorney, filed a variety of actions in federal court related to the surgery including a “qui tam” case in January 2012.
A qui tam action allows whistleblowing private citizens to sue under the federal False Claims Act, and allows the whistleblowers to obtain an award for uncovering an entity’s attempt to defraud the federal government. In May 2012, the Antoons, still acting pro se, amended the complaint and alleged the clinic, its employees, and the manufacturers of the equipment used in his surgery violated the False Claims Act. The Antoons did not allege medical malpractice or seek damages for malpractice in their qui tam suit.
The Antoons also argued that because they filed their federal lawsuit within one year of withdrawing their state court lawsuit, a state statute, R.C. 2305.19(A), preserved their right to refile their lawsuit in state court if the federal court rejected their claims. In December 2012, the clinic and doctors moved to have the case dismissed.
In February 2013, the Antoons, now represented by a lawyer, asked the federal court’s permission to amend the complaint, and their proposed amended complaint included the medical malpractice claim. The federal court denied the request to revise the complaint and granted the clinic’s motion to dismiss the original complaint. The dismissal was affirmed by the U.S. Sixth Circuit Court of Appeals.
The Antoons then returned to common pleas court and brought a medical malpractice lawsuit in November 2013. Although the lawsuit was initiated more than four years after the last appointment Antoon had with Kaouk, the Antoons argued federal law, 28 U.S.C. 1367(d), extends the time to file a state claim if the claim was pending in federal court and then was dismissed.
The clinic moved to dismiss the Antoons’ complaint in the common pleas court, arguing it was filed after the four-year statute of repose for medical malpractice cases that is in R.C. 2305.113(C). The clinic asserted that because the federal court never allowed the Antoons to amend their complaint to add the malpractice claim, the federal court never accepted jurisdiction of the malpractice claim. If the claim was never pending in federal court, then the law extending the deadline did not apply, the clinic maintained. The trial court agreed that because the motion to amend the complaint was denied by the federal court, the state claim was never pending and was not protected by 28 U.S.C. 1367(d).
Eighth District Considers “Vesting” Argument
The Antoons appealed to the Eighth District Court of Appeals, which reversed the trial court. The Eighth District cited the Ohio Supreme Court’s 2012 Ruther v. Kaiser decision, and concluded that once a claim has vested, the statute of repose can no longer be used to bar a lawsuit. Ohio courts have termed the moment when the injury is discovered or should have been discovered as “vesting.” Antoon discovered his injury within a year of its occurrence, and the Eighth District concluded the claim vested within the four-year time limit, and therefore the statute of repose did not apply.
The clinic and the doctors appealed the case to the Supreme Court, arguing the time limit applies to a medical malpractice lawsuit regardless of whether the injury was discovered before or after the time limit, and the Court agreed to hear the case.
Statutes of Repose Are Legislative Judgments
Chief Justice O’Connor noted statutes of repose are a part of legal tradition, with one of the first being enacted in England in 1623. She recounted that the U.S. Supreme Court first upheld a statute of repose in 1825, and the Ohio Supreme Court affirmed one in 1891 (Kerper v. Wood). She explained a statute of repose differs from a statute of limitations. A statute of limitations sets a time limit for filing a civil lawsuit based on a date when an injury occurred or was discovered. A statute of repose sets a time limit that can end even before an injury has been discovered.
The chief justice wrote a statute of repose is a legislative judgment that should lead to some certainty against the threat of being sued, and the Ohio Supreme Court has upheld the legislature’s judgment in previous cases.
“Just as a plaintiff is entitled to a meaningful time and opportunity to pursue a claim, a defendant is entitled to a reasonable time after which he or she can be assured that a defense will not have to be mounted for actions occurring years before. The statute of repose exists to give medical providers certainty with respect to the time within which a claim can be brought and a time after which they may be free from the fear of litigation,” she wrote, citing the Ruther decision.
Case Must Be Filed in Four Years
Chief Justice O’Connor wrote that R.C. 2305.113(C) is “clear, unambiguous, and means what it says.”
“If a lawsuit bringing a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the basis for the claim, then any action on that claim is barred,” she wrote.
The Court rejected the Antoons’ argument that filing, then dismissing, the lawsuit would indefinitely suspend the statute of repose because they met the requirement of “commencing” the lawsuit within four years of the injury. Chief Justice O’Connor wrote that once a complaint has been dismissed without prejudice the action is viewed as having never existed. That made the date of commencement the day the Antoons’ refiled the case, and it was after the four-year deadline.
Court Rejects Antoons’ Constitutional Claims
Citing Ruther, the Antoons asserted that if the statute of repose extinguished a vested right, then the law violates the Ohio Constitution’s right to remedy found in Article 1, Section 16. That section states: “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.”
Chief Justice O’Connor noted the phrase “by due course of law,” and wrote the state constitution does not prohibit the legislature from placing a time limit on when a lawsuit can be brought. She wrote the Court has ruled that a party does not have to be provided an unlimited amount of time to bring a lawsuit, but only a reasonable amount of time in order to comply with Article 1, Section 16.
“For the statute to be constitutional, the General Assembly must have a rational basis for determining the period of time during which a party may bring suit based on a vested cause of action,” she wrote.
She concluded that the four-year statute does not completely block a lawsuit and complies with the constitution even if it involves a vested injury that was discovered within the four years.
Time Extensions Not Applicable
The chief justice ruled the application of the state and federal statutes that would have extended the time for the Antoons to file their malpractice lawsuit did not apply because the couple did not follow the rules.
The Ohio saving statute applies if a party files a substantially similar case within one year of dismissing the case with prejudice. The Antoons filed the federal qui tam case seven months after dismissing their state case, but did not particularly allege malpractice by the Cleveland Clinic and the doctors, and they also included a dozen more parties that were not part of the original case. The cases were not substantially the same, the Court ruled, so the saving statute does not apply.
Similarly, the federal statute may have allowed more time to file in state court if the federal court had taken jurisdiction of the Antoons’ malpractice claim. Because the malpractice claim was never pending in federal court, the federal statute did not apply, the Court concluded.
The Court reversed the Eighth District and remanded the case to the trial court to enter a judgment in favor of the clinic and the doctors.
Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French joined the chief justice’s opinion. Justice William M. O’Neill did not participate in the case.
Concurrence Contends Statutes Undermine Constitutional Protections
In his concurring opinion, Justice Paul E. Pfeifer wrote the Court should have limited its ruling to the finding that the Antoons filed too late by relying on saving statutes that did not apply to their case. Instead, the Court “saw an opportunity to further assault the fundamental constitutional right to a remedy.”
He wrote the right to redress a wrong in court has been under assault by the Ohio General Assembly since the 1970s, and that the Ohio Supreme Court in its 1986 Mominee v. Scherbarth ruled the state constitution trumps a statute of repose. Justice Pfeifer’s concurrence quotes extensively from a concurring opinion in the Mominee decision, asserting it is still relevant, and he wrote that the majority rebukes the decision’s findings without even referencing it.
“It can readily be seen that where the injury is not discovered within the prescriptive period, the effect of the repose is to abolish the party’s right of action altogether,” Justice Pfeifer wrote citing Mominee. “A person so situated is literally given no opportunity to bring his action because the right to proceed is obliterated before it even accrues. In actual effect, this abolition grants the negligent doctor an area of absolute immunity from suit at the expense of the patient’s constitutionally guaranteed right to access to the courts.”
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