2023 Ohio 264
Ohio Ct. App.2023Background
- Claudia Kennedy, executrix of Donald Gerres’s estate, sued health providers for wrongful death and survivorship based on alleged substandard medical care that caused the decedent’s death on October 17, 2013.
- Kennedy filed an earlier suit in 2014 and voluntarily dismissed it in January 2019; she refiled in May 2019.
- Defendants moved on statute-of-repose grounds (R.C. 2305.113(C)); the trial court initially denied relief relying on Wilson I.
- The Ohio Supreme Court then decided Wilson v. Durrani (Wilson II), holding Ohio’s savings statute (R.C. 2305.19) cannot be used to refile medical claims after the four‑year statute of repose has expired.
- At trial, after Kennedy’s opening statement, the court granted a directed verdict for defendants based on Wilson II and dismissed the case. Kennedy appealed, arguing (inter alia) waiver of the repose defense, the repose’s inapplicability to wrongful‑death claims, tolling under R.C. 2305.15 for a defendant who moved out of state, and constitutional challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants waived the statute‑of‑repose defense under Civ.R. 12 | Kennedy: defendants failed to raise it in an earlier motion and thus waived it | Defendants: repose was pled as an affirmative defense in the answer and repeatedly raised; not waivable under Civ.R.12 waiver provisions | Court: no waiver; repose raised properly as an affirmative defense and was preserved |
| Whether the four‑year medical statute of repose applies to wrongful‑death claims | Kennedy: wrongful‑death claim is a separate statutory cause and R.C. 2305.113 does not reference wrongful death, so repose shouldn’t apply | Defendants: wrongful‑death claim here arises from medical diagnosis/care and fits R.C. 2305.113(E)(3)’s definition of "medical claim" | Court: applied statute’s plain language and held wrongful‑death claim was a "medical claim" subject to the four‑year repose |
| Whether R.C. 2305.15 tolls the statute of repose when a defendant leaves Ohio | Kennedy: repose tolled because Dr. Acharya moved to Pittsburgh in 2014 | Defendants: the move was for legitimate employment; applying out‑of‑state tolling to those who leave for work raises Commerce Clause concerns (Bendix/Tesar) | Court: rejected tolling here because defendant left for employment purposes and tolling cannot constitutionally apply in that situation |
| Whether the statute of repose is unconstitutional as‑applied (due process, equal protection, jury right) | Kennedy: enforcement here deprives meaningful remedy, violates due process/equal protection, and denies jury factfinding | Defendants: repose is a legislature‑authorized limit; Supreme Court precedent upholds repose as constitutional and procedural rather than a jury issue | Court: rejected constitutional challenges; relied on Supreme Court precedent (Ruther, Antoon) and held repose valid and a matter of law for disposition prior to jury factfinding |
Key Cases Cited
- Wilson v. Durrani, 173 N.E.3d 448 (Ohio 2020) (Ohio Supreme Court holds R.C. 2305.19 savings statute does not allow refiling of medical claims after the four‑year statute of repose expires)
- Ruther v. Kaiser, 983 N.E.2d 291 (Ohio 2012) (upheld constitutionality of the four‑year medical statute of repose as a legislative limit on causes of action)
- Antoon v. Cleveland Clinic Found., 71 N.E.3d 974 (Ohio 2016) (affirmed that R.C. 2305.113(C) is a valid statute of repose and does not unconstitutionally extinguish vested remedies)
- Everhart v. Coshocton Cty. Mem. Hosp., 186 N.E.3d 232 (10th Dist. 2022) (holding the medical‑claim statute of repose does not apply to wrongful‑death claims; decision created a conflict now before the Ohio Supreme Court)
- Klema v. St. Elizabeth’s Hosp. of Youngstown, 166 N.E.2d 765 (Ohio 1960) (distinguishes wrongful‑death and personal‑injury/survival claims as separate causes)
- Koler v. St. Joseph Hosp., 432 N.E.2d 821 (Ohio 1982) (recognizes wrongful‑death claims are distinct from medical‑malpractice claims)
- Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (U.S. 1988) (Commerce Clause limits application of out‑of‑state tolling to entities/persons who leave state for legitimate business, relevant to tolling argument)