Bugh v. Ohio Dep't of Rehab. & Corr.
128 N.E.3d 906
| Ohio Ct. App. | 2019Background
- Plaintiff Richard Bugh, formerly incarcerated in ODRC facilities (1989–2014), sued ODRC and OSUWMC for medical negligence alleging failure to diagnose/treat progressive phrenic nerve compression causing bilateral diaphragmatic paralysis; complaint filed May 4, 2016.
- Experts (Drs. Conomy and Thomas) opined spinal decompression (laminectomy/discectomy) or other procedures could have prevented or reduced his respiratory disability; one opined candidacy extended into 2011–2012.
- OSUWMC was dismissed on repose grounds based on alleged last culpable treatment in 2008–2009.
- The Court of Claims granted ODRC summary judgment, holding the four‑year statute of repose (R.C. 2305.113(C)) barred Bugh’s suit because the last culpable omission occurred by late 2011.
- On appeal the majority held the last culpable omission by ODRC was July 26, 2012 (when providers reviewed a neurology report noting progressive bilateral diaphragmatic dysfunction), so Bugh’s May 4, 2016 filing was within four years; summary judgment reversed.
- One judge dissented, believing the claim had already accrued and was time‑barred under the statute of limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2305.113(C) statute of repose bars Bugh's claim | Repose should run from last culpable act by ODRC—when ODRC last treated/patient relationship ended (argued release date Nov 21, 2014) or at least through July 26, 2012 | Repose ran earlier (by 2011/early 2012) because experts said candidacy for decompression ended then; suit filed after four years | Repose did not bar claim; last culpable omission was July 26, 2012, so suit filed within four years; verdict reversed |
| Proper accrual / last culpable act date for repose analysis | Accrual for repose measured from last omission by defendant; expert affidavit shows omissions continued into July 2012 | Earlier omissions (2011) were the operative acts; any later deterioration was the natural progression, not new omissions | Court found material fact (July 26, 2012) precluding repose bar on summary judgment |
| Admissibility of expert affidavits that supplemented earlier reports | Affidavits clarify ongoing failures and extend opinion through 2014; admissible for summary judgment evaluation | Affidavits offered new opinions beyond expert reports and are barred by L.C.C.R. 7(E) | Majority treated expert reports/affidavits in plaintiff's favor and found evidence supporting a July 26, 2012 last omission; lower court’s exclusion of affidavit‑opinions was not outcome‑determinative here |
| Constitutional challenge to the statute of repose (right to remedy) | Argued repose as applied violated Ohio Constitution right to remedy | State defended repose as constitutional and applied neutrally | Moot—court reversed on repose grounds; constitutional argument not reached |
Key Cases Cited
- Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483 (2016) (distinguishes repose from limitations and upholds repose in some applications)
- CTS Corp. v. Waldburger, 573 U.S. 1 (2014) (statute of repose measures time from defendant's last culpable act or omission)
- Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991) (describing repose as a cutoff independent of injury discovery)
- Mominee v. Scherbarth, 28 Ohio St.3d 270 (1986) (invalidated medical‑malpractice repose as applied to minors)
- Ruther v. Kaiser, 134 Ohio St.3d 408 (2012) (discusses purpose and constitutionality of Ohio medical malpractice statute of repose)
- Groch v. Gen. Motors Corp., 117 Ohio St.3d 192 (2008) (statutes of repose and constitutional challenges)
- Opalko v. Marymount Hosp., 9 Ohio St.3d 63 (1984) (upholding repose in certain contexts)
- Hershberger v. Akron City Hosp., 34 Ohio St.3d 1 (1987) (factors for accrual of medical malpractice actions)
- Wade v. Reynolds, 34 Ohio App.3d 61 (1986) (savings statute interplay with repose in refiling sequence)