McCarthy v. Lee, 2022 Ohio 1033

Kathleen McCarthy experienced rectal/colonic symptoms beginning in 2010; Dr. Peter Lee evaluated her (anoscopy/rigid sigmoidoscopy) and ordered a colonoscopy in 2011 that found only mild internal hemorrhoids.
In early 2015 Kathleen returned to Dr. Lee with worsening symptoms; he performed an anoscopy, attributed symptoms to Grade 1 hemorrhoids, advised conservative care, and did not order a colonoscopy.
In 2017 another physician performed endoscopy/colonoscopy and diagnosed invasive colon adenocarcinoma with nodal involvement and later metastatic disease (stage IV); Kathleen underwent colectomy, chemotherapy, further surgeries, and remained incurable at time of complaint.
Plaintiffs (Kathleen and Brett McCarthy) refiled claims in January 2020 for medical negligence, wrongful death, and loss of consortium after an earlier dismissal without prejudice; they later filed an affidavit of merit.
Defendants moved for judgment on the pleadings arguing R.C. 2305.113(C) (the four‑year medical statute of repose) barred the claims and that the savings statute, R.C. 2305.19, could not revive them. The trial court granted the motion; plaintiffs appealed.
The appellate court affirmed dismissal of the medical‑malpractice claim (bound by Ohio Supreme Court in Wilson v. Durrani) but reversed as to the wrongful‑death claim, holding the medical statute of repose does not apply to R.C. Chapter 2125 wrongful‑death actions and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the medical statute of repose (R.C. 2305.113(C)) is avoidable by refiling under the savings statute after an earlier action failed otherwise than on the merits	McCarthy: R.C. 2305.19 permits refiling within one year after failure; thus the malpractice claim may be refiled	Lee: Wilson controls; the savings statute does not create an exception to the medical statute of repose	Held: Appellate court, bound by Wilson, agreed the malpractice claim is barred by the medical statute of repose and affirmed dismissal of the malpractice claim
Whether the medical statute of repose applies to wrongful‑death claims arising from medical care	McCarthy: Wrongful‑death claims under R.C. Chapter 2125 are distinct and not within the scope of R.C. 2305.113's medical‑claim repose	Lee: Wrongful‑death is a derivative medical claim under R.C. 2305.113(E) and thus subject to the four‑year repose	Held: Reversed as to wrongful death — wrongful‑death claims are separate under Chapter 2125 and the medical statute of repose does not apply; the trial court erred in dismissing that claim

Wilson v. Durrani, 164 Ohio St.3d 419 (Ohio 2020) (Ohio Supreme Court held the savings statute does not operate as an exception to the medical statute of repose; refiling barred)
Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483 (Ohio 2016) (discussed purpose and operation of statutes of repose in medical‑malpractice context)
CTS Corp. v. Waldburger, 573 U.S. 1 (U.S. 2014) (explained the distinct character and purpose of statutes of repose)
Klema v. St. Elizabeth's Hosp. of Youngstown, 170 Ohio St. 519 (Ohio 1960) (explained wrongful‑death actions are statutory and distinct from personal‑injury claims)
Karr v. Sixt, 146 Ohio St. 527 (Ohio 1946) (holding wrongful‑death statute creates a separate cause of action)