2021 Ohio 4614
Ohio Ct. App.2021Background
- Nancy Martin received care from Drs. Taylor and Bold between 2011–2014; plaintiff alleges delayed diagnosis/treatment of lung cancer. Nancy died September 2, 2017.
- Plaintiffs originally sued in January 2016, voluntarily dismissed in May 2017, and refiled (survival and wrongful-death claims) on May 10, 2018.
- Defendants moved for summary judgment contending both claims were barred by the four-year medical statute of repose, R.C. 2305.113(C), and that the savings statute did not revive claims beyond the repose.
- The trial court initially relied on the First District’s Wilson v. Durrani (Wilson I) and denied summary judgment as to the malpractice claim, but held the repose barred any wrongful-death theory based on acts on or before May 10, 2014.
- After the Ohio Supreme Court reversed Wilson I in Wilson v. Durrani (Wilson II) holding the savings statute does not extend the medical statute of repose, defendants renewed summary judgment; plaintiffs sought additional time and later submitted supplemental expert reports and a Civ.R. 60(B) motion.
- The trial court denied the Civ.R. 56(F) continuance and Civ.R. 60(B) relief and granted renewed summary judgment on both medical-malpractice (survival) and wrongful-death claims; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Denial of extra time under Civ.R.56(F) / denial of Civ.R.60(B) to present supplemental expert reports | Martin needed time and later-discovered expert reports to show acts/omissions within the repose period; relief warranted | Martin delayed unreasonably; he knew the relevant time window after prior rulings and could have sought reports earlier | Trial court did not abuse discretion: Civ.R.56(F) and Civ.R.60(B) relief denied for lack of due diligence and no extraordinary basis for relief |
| 2) As-applied constitutional challenge under Art. I, §16 (right-to-remedy) to applying the statute of repose to wrongful-death claim | Applying the repose to bar wrongful-death damages denies a vested remedy in violation of the state constitution | Legislature may define causes and vesting; wrongful-death claim vests at death, and repose can prevent vesting beyond four years | Repose did not violate right-to-remedy: wrongful-death cause would not have vested until death, which occurred more than four years after the alleged breaches |
| 3) Request that Wilson II be given prospective-only effect | Wilson II should apply prospectively to avoid unfairness to pending cases | Wilson II contains no prospective-only directive; Supreme Court denied a request for prospective application | Wilson II applies retroactively; trial court properly applied it to this case |
| 4) Whether a wrongful-death claim is a "medical claim" subject to R.C. 2305.113(C) repose | Wrongful-death statute is separate; repose statute for "medical claim" should not reach wrongful death | Wrongful-death claims based on medical diagnosis/care fall within the statutory definition of "medical claim" | Court: wrongful-death claim here is a "medical claim" under R.C. 2305.113(E)(3); repose applies |
Key Cases Cited
- Wilson v. Durrani, 164 Ohio St.3d 419, 173 N.E.3d 448 (Ohio 2020) (Ohio Supreme Court held the savings statute does not extend the four-year medical statute of repose)
- Ruther v. Kaiser, 134 Ohio St.3d 408, 983 N.E.2d 291 (Ohio 2012) (cause of action for medical malpractice accrues when patient discovers or should have discovered resulting injury; repose can prevent vesting)
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (Ohio 1976) (standards for prevailing on a Civ.R. 60(B) motion)
- Oliver v. Kaiser Community Health Foundation, 5 Ohio St.3d 111, 449 N.E.2d 438 (Ohio 1983) (accrual rule: malpractice cause accrues when injury is discovered or should have been discovered)
- State ex rel. Bosch v. Industrial Commission of Ohio, 1 Ohio St.3d 94, 438 N.E.2d 415 (Ohio 1982) (general rule that judicial decisions apply retrospectively unless expressly limited)