Machelle Everhart, Individually and as Administrator of the Estate of Todd Everhart, Deceased, Plaintiff-Appellant, v. Coshocton County Memorial Hospital et al., Defendants-Appellees.
No. 21AP-74
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 3, 2022
[Cite as Everhart v. Coshocton Cty. Mem. Hosp., 2022-Ohio-629.]
MENTEL, J.
(C.P.C. No. 08CV-1385) (ACCELERATED CALENDAR)
D E C I S I O N
Rendered on March 3, 2022
On brief: Colley, Shroyer & Abraham Co. LPA, David I. Shroyer, for appellant. Argued: David I. Shroyer.
On brief: Reminger Co., L.P.A., David H. Krause, and Thomas N. Spyker, for appellee Joseph J. Mendiola, M.D. Argued: Thomas N. Spyker.
On brief: Poling Law, Frederick A. Sewards, and Patrick F. Smith, for appellee Mohamed Hamza, M.D.
On brief: Poling Law, Brant Poling, and Zachary R. Hoover, for appellees Coshocton County Memorial Hospital and Medical Services of Coshocton, Inc.
APPEAL from the Franklin County Court
MENTEL, J.
{¶ 1} Plaintiff-appellant, Machelle Everhart, individually and as the administrator of the estate of Todd Everhart, deceased, appeals from the January 26, 2021 decision of the Franklin County Court of Common Pleas granting the motion of defendant-appellee, Joseph J. Mendiola, M.D., for judgment on the pleadings based on the four-year statute of repose set forth in
{¶ 2} For the reasons that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} The underlying facts of this case were discussed extensively in Everhart v. Coshocton Cty. Mem. Hosp., 10th Dist. No. 12AP-75, 2013-Ohio-2210 (”Everhart I“). Briefly, appellant is a widow and administrator for the estate of her late husband, Todd Everhart. On December 21, 2003, Mr. Everhart was in an automobile accident and transported to the emergency room at Coshocton County Memorial Hospital (“Coshocton Hospital“). According to appellant, Drs. Rajendra Patel and Mohamed Hamza treated Mr. Everhart. Chest x-rays were ordered on Mr. Everhart at that time. Mr. Everhart was later transported by Life Flight from Coshocton Hospital to The Ohio State University Emergency Department (“Ohio State“). At Ohio State, new x-rays were taken of Mr. Everhart. Appellant alleged the chest x-rays showed opacity in the lung that required additional follow-up treatment to rule out malignancy. Mr. Everhart recovered from the injuries sustained
{¶ 4} On August 11, 2006, nearly three years after the automobile accident, Mr. Everhart presented at Coshocton Hospital. Mr. Everhart obtained a CT scan, which revealed masses on the right lung that were later diagnosed as advanced stage lung cancer. Mr. Everhart passed away on October 28, 2006.
{¶ 5} On January 25, 2008, appellant filed the initial complaint alleging causes of action for medical malpractice1 and wrongful death against Coshocton Hospital and several physicians. Appellant argued Coshocton Hospital and physicians deviated from the standard of medical care by failing to send, receive, or act on Mr. Everhart‘s x-ray films and radiology report as to the lung opacity. On October 2, 2008, Dr. Hamza filed a motion for summary judgment arguing that there was no physician-patient relationship with Mr. Everhart and, therefore, Dr. Hamza did not owe him a duty of care.2 Appellant requested additional time to conduct discovery before responding to the motion. Appellant
ultimately filed a memorandum in opposition with an affidavit by Dr. Harlan D. Meyer. Dr. Meyer stated that Dr. Hamza had a duty to review reports that are distributed to him, regardless of whether he saw the patient. On April 21, 2010, the trial court granted Dr. Hamza‘s motion for summary judgment. Appellant filed a motion for reconsideration of the trial court‘s decision on August 25, 2011. On January 3, 2012, the trial court denied appellant‘s motion for reconsideration but issued a nunc pro tunc entry as to the April 21, 2010 decision and entry granting summary judgment with Civ.R. 54(B) certification.
{¶ 6} On May 30, 2013, this court reversed the trial court‘s decision finding it erred granting summary judgment in favor of Dr. Hamza and remanded the case for further proceedings as there was a genuine issue of material fact whether Dr. Hamza received the x-rays and read the radiology report and, therefore, whether a physician-patient relationship existed between the parties. Everhart I at ¶ 1.
{¶ 7} In September 2017, appellees sought leave to file motions for judgment on the pleadings based on the Supreme Court of Ohio‘s decision in Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432. Appellees argued that appellant‘s claims were precluded by the four-year statute of repose under
{¶ 8} The trial court granted appellees’ motions for leave to file amended answers and motions for leave to file motions for judgment on the pleadings on August 25 and August 27, 2020, respectively. On September 4, 2020, Dr. Mendiola filed a motion for judgment on the pleadings arguing
{¶ 9} On September 15, 2020, appellant filed a motion for leave to file a third amended complaint. The motion was opposed by Coshocton Hospital and Dr. Mendiola on September 21 and September 23, 2020, respectively. A reply brief was filed on September 28, 2020. The trial court denied appellant‘s motion for leave to amend on December 11, 2020. On January 26, 2021, the trial court granted Dr. Mendiola‘s motion for judgment on the pleadings finding that appellant‘s wrongful death claim was a medical claim under
{¶ 10} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 11} Appellant assigned the following as trial court error:
- [1.] The trial court erred when it applied the statute of repose for medical claims to a statutory wrongful death claim.
- [2.] The trial court erred by denying Everhart leave to file a Third Amended Complaint.
III. LEGAL ANALYSIS
A. Appellant‘s First Assignment of Error
{¶ 12} In appellant‘s first assignment of error, she argues the trial court erred when it applied the statute of repose for medical claims to a statutory wrongful death claim.4
1. Standard of Review
{¶ 13} A motion for judgment on the pleadings under Civ.R. 12(C) “has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted.” Easter v. Complete Gen. Constr. Co., 10th Dist. No. 06AP-763, 2007-Ohio-1297, ¶ 8, citing Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581 (2001). As set forth in Civ.R. 12(C), “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” The moving party is entitled to judgment on the pleadings when, after construing all the material assertions in the complaint as true and considering all reasonable inferences in favor of the nonmoving party, the moving party is entitled to judgment as a matter of law. Welther v. Plageman, 10th Dist. No. 19AP-774, 2021-Ohio-713, ¶ 6, citing Zhelezny v. Olesh, 10th Dist.
No. 12AP-681, 2013-Ohio-4337, ¶ 8. “A motion for judgment on the pleadings is specifically intended for resolving questions of law.” Easter at ¶ 9, citing Friends of Ferguson v. Ohio Elections Comm., 117 Ohio App.3d 332, 334 (10th Dist.1997). Appellate review of a motion for judgment on the pleadings under Civ.R. 12(C) is de novo. Kamnikar v. Fiorita, 10th Dist. No. 16AP-736, 2017-Ohio-5605, ¶ 35.
2. Wrongful
{¶ 14} Ohio first enacted a wrongful death statute in 1851. Karr v. Sixt, 146 Ohio St. 527 (1946), paragraph one of the syllabus, citing 13 Ohio Jurisprudence, 384, Section 33. Prior to its enactment, there was no such statutory basis for the cause of action under Ohio law. Id. Currently, a cause of action for wrongful death is governed by
When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances which make it aggravated murder, murder, or manslaughter. When the action is against such administrator or executor, the damages recovered shall be a valid claim against the estate of such deceased person. No action for the wrongful death of a person may be maintained against the owner or lessee of the real property upon which the death occurred if the cause of the death was the violent unprovoked act of a party other than the owner, lessee, or a person under the control of the owner or lessee, unless the acts or omissions of the owner, lessee, or person under the control of the owner or lessee constitute gross negligence.
When death is caused by a wrongful act, neglect, or default in another state or foreign country, for which a right to maintain an action and recover damages is given by a statute of such other state or foreign country, such right of action may be enforced in this state. Every such action shall be commenced within the time prescribed for the commencement of such actions by the statute of such other state or foreign country.
{¶ 15} Since the inception of the wrongful death statute, the Supreme Court of Ohio has recognized that wrongful death is a separate and unique claim writing “an action for wrongful death, creates a new cause or right of action distinct and apart from the right of action which the injured person might have had and upon the existence of which such new right is conditioned.” Karr at paragraph one of the syllabus. The United States Supreme Court in St. Louis, Iron Mountain & S. Ry. Co. v. Craft, 237 U.S. 648, 658 (1915), later quoted in Klema v. St. Elizabeth‘s Hosp., 170 Ohio St. 519, 521-22 (1960), observed the established differences between a medical negligence and wrongful death claim writing:
“Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong.”
Klema at 521, quoting Iron Mountain at 658.
{¶ 16} There is no doubt that wrongful death is a separate and unique cause of action from other claims.
{¶ 17} Conversely, the cause of action for medical malpractice is derived from common law. Koler v. St. Joseph Hosp., 69 Ohio St.2d 477, 479 (1982). The General Assembly enacted
- (1) No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.
- (2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis
of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.
{¶ 18} The Supreme Court of Ohio has explained the legislative purpose of enacting a statute of repose for medical malpractice claims under
“Many policy reasons support this legislation. 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.
Forcing medical providers to defend against medical claims that occurred 10, 20, or 50 years before presents a host of litigation concerns, including the risk that evidence is unavailable through the death or unknown whereabouts of witnesses, the possibility that pertinent documents were not retained, the likelihood that evidence would be untrustworthy due to faded memories, the potential that technology may have changed to create a different and more stringent standard of care not applicable to the earlier time, the risk that the medical providers’ financial circumstances may have changed—i.e., that practitioners have retired and no longer carry liability insurance, the possibility that a practitioner‘s insurer has become insolvent, and the risk that the institutional medical provider may have closed.
Responding to these concerns, the General Assembly made a policy decision to grant Ohio medical providers the right to be free from litigation based on alleged acts of medical negligence occurring outside a specified time period.”
Antoon, 2016-Ohio-7432, at ¶ 18, quoting Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, ¶ 19-21.
{¶ 19} As noted in Antoon, the Supreme Court of Ohio limited its analysis, however, to the application of the statute of repose to medical malpractice cases. The question
{¶ 20} As a cause of action for wrongful death is statutory in nature, we begin our analysis with the text of the wrongful death statute,
{¶ 21} Upon review,
{¶ 22} Arguendo, even if the statutory language was ambiguous,7 we
{¶ 23} Here,
{¶ 24} Appellees argue the four-year statute of repose for a medical malpractice claim precludes a wrongful death cause of action if it arises from a medical claim. Appellees rely on another statutory canon, ”in pari materia, which means ‘upon the same matter or subject.’ ” Thomas, 79 Ohio St.3d 225, quoting Black‘s Law Dictionary 791 (6th Ed.1990). Appellees contend that as the wrongful death and medical malpractice statute deal with the same underlying claim they should be read as if they were one statute. We disagree.
{¶ 25}
“Derivative claims for relief” include, but are not limited to, claims of a parent, guardian, custodian, or spouse of an individual who was the subject of any medical diagnosis, care, or treatment, dental diagnosis, care, or treatment, dental operation, optometric diagnosis, care, or treatment, or chiropractic diagnosis, care, or treatment, that arise from that diagnosis, care, treatment, or operation, and that seek the recovery of damages for any of the following:
(a) Loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, or any other intangible loss that was sustained by the parent, guardian, custodian, or spouse;
(b) Expenditures of the parent, guardian, custodian, or spouse for medical, dental, optometric, or chiropractic care or treatment, for rehabilitation services, or for other care, treatment, services, products, or accommodations provided to the individual who was the subject of the medical diagnosis, care, or treatment, the dental diagnosis, care, or treatment, the dental operation, the optometric diagnosis, care, or treatment, or the chiropractic diagnosis, care, or treatment.
{¶ 26} Here, the causes of action identified as “derivative claims for relief” do not include wrongful death. Again, the statutory canon expressio unius est exclusio alterius informs our analysis that the inclusion of these causes of action implicitly excludes others. While the General Assembly‘s inclusion of the phrase “but are not limited to” leaves open the possibility a cause of action for wrongful death falls under this category, a wrongful death claim is not a derivative claim of medical malpractice, but a separate, independent cause of action. “Because a wrongful death action is an independent cause of action, the right to bring the action cannot depend on the existence of a separate cause of action held by the injured person immediately before his or her death. To conclude otherwise would convert the wrongful death action from an independent cause of action to a derivative action, one dependent on a separate cause of action.” (Emphasis added.) Thompson v. Wing, 70 Ohio St.3d 176 (1994).
{¶ 27} The General Assembly has demonstrated that it is capable of enacting a statute of repose that addresses wrongful death claims in other contexts. In 1963, the General Assembly first enacted
[N]o cause of action to recover damages for bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe
condition of an improvement to real property and no cause of action for contribution or indemnity for damages sustained as a result of bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property shall accrue against a person who performed services for the improvement to real property or a person who furnished the design, planning, supervision of construction, or construction of the improvement to real property later than ten years from the date of substantial completion of such improvement.
{¶ 28} As set forth in
Except as provided in division (B) of this section and unless a different limitation is prescribed by statute, a civil action may be commenced only within the period prescribed in sections
2305.04 to2305.22 of the Revised Code . If interposed by proper plea by a party to an action mentioned in any of those sections, lapse of time shall be a bar to the action.
(Emphasis added.)
{¶ 29} As noted in Giannobile,
{¶ 30} Distinguishing the statute of repose for medical malpractice from the wrongful death statute conforms with many other statutory and procedural requirements that differentiate the two causes of action. Of note, a wrongful death claim is governed by
{¶ 31} Appellees rely on several cases from the Supreme Court of Ohio that conclude
{¶ 32} In Ruther, 2012-Ohio-5686, a widow brought a medical malpractice action against defendants for failure to evaluate an abnormal laboratory result regarding high liver enzymes. The Supreme Court took the case for the proposition that
not violate the open courts provision, Section 16, Article I, of the Ohio Constitution. In Ruther, the Supreme Court found that
A statute of limitations establishes “a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).” Black‘s Law Dictionary 1707 (11th Ed.2019). A statute of limitations operates on the remedy, not on the existence of the cause of action itself. Mominee v. Scherbarth, 28 Ohio St.3d 270, 290, 28 Ohio B. 346, 503 N.E.2d 717, fn. 17 (Douglas, J., concurring). A statute of repose, on the other hand, bars “any suit that is brought after a specified time since the defendant acted * * * even if this period ends before the plaintiff has suffered a resulting injury.” Black‘s Law Dictionary at 1707. A statute of repose bars the claim—the right of action—itself. Treese v. Delaware, 95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th Dist.). The United States Supreme Court has likened the bar imposed by a statute of repose to a discharge in bankruptcy—as providing “a fresh start” and “embod[ying] the idea that at some point a defendant should be able to put past events behind him.” CTS Corp. at 9.
Statutes of limitations and statutes of repose target different actors. Id. at 8. Statutes of limitations emphasize plaintiffs’ duty to diligently prosecute known claims. Id., citing Black‘s Law Dictionary 1546 (9th Ed.2009). Statutes of repose, on the other hand, emphasize defendants’ entitlement to be free from liability after a legislatively determined time. Id. at 9. In light of those differences, statutory schemes commonly pair a shorter statute of limitations with a longer statute of repose. California Pub. Emps.’ Retirement Sys. v. ANZ Securities, Inc., __U.S.__, 137 S.Ct. 2042, 2049, 198 L.Ed.2d 584 (2017). When the discovery rule—that is, the rule that the statute of limitations runs from the discovery of injury—governs the running of a statute of limitations, the “discovery rule gives leeway to a plaintiff who has not yet learned of a violation, while the rule of repose protects the defendant from an interminable threat of liability.” Id. at __, 137 S.Ct. at 2050.
{¶ 33} The Supreme Court in Wilson ultimately found
4. Other Ohio Appellate Districts
{¶ 34} Appellees argue three Ohio appellate courts have found Ohio‘s medical
{¶ 35} In Fletcher, the Eighth District Court of Appeals considered whether an affidavit of merit must be filed with a wrongful death action under
{¶ 36} In Smith, the Third District Court of Appeals affirmed the trial court‘s decision to dismiss the estate‘s complaint for wrongful death concluding the action was based on a medical claim and, therefore, outside the medical malpractice statute of repose,
The Supreme Court of Ohio stated that Ohio‘s medical-claim statute of repose clearly and unambiguously bars “any action” bringing a medical claim commenced more than four years
after the occurrence of the act or omission constituting the basis for the claim. (Emphasis sic.) [Antoon] at ¶ 23. Because any action bringing a medical claim is barred
(Emphasis sic.) Smith at ¶ 22.
{¶ 37} Upon review, the phrase “any action” in Antoon, subsequently adopted in Wilson, refers to medical malpractice and derivative claims under
{¶ 38} Moreover, Smith‘s holding ignores the well-established case law that wrongful death and medical malpractice are separate and unique claims. The Supreme Court of Ohio has consistently found medical malpractice and wrongful death are distinct causes of action. The most developed example of this distinction is regarding statute of limitations. See Klema, 170 Ohio St. 519. In Klema, the Supreme Court considered whether the medical malpractice or the wrongful death statute of limitations applied to a cause of action for wrongful death when the case involves a medical claim. The Supreme Court in Klema found that the medical malpractice statute of limitations did not apply to wrongful death claims stating “[t]he action being a statutory one relating to a specific type of cause, i.e., wrongful death, the phrase, ‘except as otherwise provided by law,’ can only relate to other provisions relating to death. And the only other provisions relating to death actions are those contained in the wrongful death statute itself.” Id. at 524. The Supreme Court in Klema concluded that the malpractice statute of limitations, set out in a separate provision of the Ohio Revised Code, did not apply to a wrongful death claim. Id.
{¶ 39} In Koler, 69 Ohio St.2d 477, the Supreme Court considered whether a one-year statute of limitations for medical malpractice should control over the two-year statute of limitations for wrongful death claims because the case involved a complaint against a hospital and, therefore, was a medical claim. The defendants in Koler argued the changes to the statutory language demonstrated the General Assembly‘s intent to include wrongful death claims within the meaning of malpractice. Id. at 480. The Supreme Court disagreed reaffirming the holding in Klema concluding that the two claims are distinct causes of action even when arising from a “medical claim.” Id. at 480-81. ” ‘[N]o part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same
{¶ 40} Similarly, federal courts have also cited Klema and Koler for the proposition that, under Ohio law, the statute of limitations for wrongful death and medical malpractice are distinct even when the case involves a “medical claim.” De La Torre v. Corr. Corp. of Am., 2017 U.S. Dist. LEXIS 210999 (N.D.Ohio 2017) (writing “when reviewing the timeliness of a wrongful death action, the Ohio Supreme Court held that the expiration of the statute of limitations period for a medical malpractice action does not mean that a wrongful death action is necessarily untimely“); Daniel v. United States, 977 F.Supp.2d 777, 782 (N.D.Ohio 2013) (“Whatever confusion there may be regarding the relative meanings of the terms ‘medical claim’ and ‘malpractice,’ it was clear to the Koler court that a malpractice action could not be a wrongful death action.“). At the very least, these cases stand for the proposition that there is no basis to assume the definition of “medical claim” under
{¶ 41} In Daniel, the United States District Court for the Northern District of Ohio concluded the statute of repose in
The current wrongful death statute reads: “Except as provided in division (D)(2) of this section, a civil action for wrongful death shall be commenced within two years after the decedent‘s death.”
Ohio Rev. Code § 2125.02(D)(1) . Section (D)(2) of the wrongful death statutes only deals with “wrongful deaths involving products liability.” That is the sole category of exceptions to the two-year wrongful death statute of limitations the Ohio legislature has seen fit to include. Following the reasoning in Klema and Koler, the Court finds that the “medical claim” statute of repose, set forth in another division of the code and not in the wrongful death division, does not apply to plaintiff‘s wrongful death claim.
{¶ 42} In Smith, the Third District disagreed with the analysis in Daniel finding
{¶ 43} The Smith court‘s argument misses the mark. Daniel did not equate statute of repose and statute of limitations but analogized that when addressing a similar argument regarding whether a medical malpractice time limitation should apply to a wrongful death claim, outstanding Supreme Court precedent has recognized that the two causes of action are unique. The statute of limitations analysis in Daniel provides an instructive example of how simply considering all “medical claims” in the same manner, despite wrongful death and medical negligence having separate statutes, is the incorrect approach. While there is no doubt that the statute of limitations and statute of repose address different motivations and actors, the central argument of Daniel is correct, that a reviewing court should not apply a definition of “medical claims” addressing medical malpractice actions when considering a wrongful death case unless there is a statutory basis for such an interpretation.
{¶ 44} As noted in Daniel, in addition to the plain language of
in a wrongful death action.” Giannobile, Franklin C.P. No. 15CV-1854, at 10. If the General Assembly intended
{¶ 46} In 2012, Mr. Mercer presented for an MRI of the lumbar spine due to lower back pain. In 2015, Mr. Mercer had a subsequent MRI, which discovered an undiagnosed sacral mass later found consistent with sacral chordoma. Mr. Mercer, his wife, and minor child filed a medical malpractice and loss of consortium action in 2016. On February 29, 2020, Mr. Mercer passed away and a suggestion of death was listed as metastatic chordoma to the pelvis and sacrum. In May 2020, Mrs. Mercer, as executor of the estate of Mr. Mercer, filed a motion to order substitution of proper parties and amend the complaint which was granted by the trial court. The amended complaint converted the medical malpractice action to a survivorship claim, removed the loss of consortium claim, and added a wrongful death claim pursuant to
wrongful death action was filed beyond the four-year statute of repose under
{¶ 47} The Fifth District in Mercer relied, in part, on the analysis in Wilson, which examined the two exceptions in
{¶ 48} Moreover, the General Assembly made its intentions clear in the language employed in
{¶ 49} Finally, the Mercer court‘s application of the medical malpractice statute of repose conflicts with the plain language of
When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not
ensued * * * shall be liable to an action for damages, notwithstanding the death of the person injured * * *.
{¶ 51} In the case sub judice, Mr. Everhart died on October 28, 2006. Appellant brought her wrongful death claim on January 25, 2008. As the medical malpractice statute of repose, set forth in
{¶ 52} Appellant‘s sole assignment of error is sustained.
B. Everhart‘s Second Assignment of Error
{¶ 53} In appellant‘s second assignment of error, she argues that the trial court erred in denying her motion for leave to file a third amended complaint. Appellant argued that leave should be granted so that she may supplement the record to establish the timeline of events that the statute of repose was not implicated. It is well-established law that a
reviewing court will generally not address issues that are deemed moot. Croce v. Ohio State Univ., 10th Dist. No. 20AP-14, 2021-Ohio-2242, ¶ 16. ” ‘The doctrine of mootness is rooted in the “case” or “controversy” language of Section 2, Article III of the United States Constitution and in the general notion of judicial restraint.’ ” Bradley v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 10AP-567, 2011-Ohio-1388, ¶ 11, quoting James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 791 (10th Dist.1991). A case is considered moot if “they are or have become fictitious, colorable, hypothetical, academic or dead. The distinguishing characteristic of such issues is that they involve no actual genuine, live controversy, the decision of which can definitely affect existing legal relations.” (Internal quotations and citations omitted.) Doran v. Heartland Bank, 10th Dist. No. 16AP-586, 2018-Ohio-1811, ¶ 12. It is not the function of a reviewing
{¶ 54} After careful review of the evidence, we find appellant‘s argument no longer presents a live, justiciable controversy as the statute of repose does not preclude appellant from proceeding with a wrongful death claim. Accordingly, appellant‘s motion for leave to file a third amended complaint is therefore moot.15
IV. CONCLUSION
{¶ 55} Having sustained appellant‘s first assignment of error and found appellant‘s second assignment of error moot, we reverse and remand this case to the Franklin County Court of Common Pleas for further proceedings consistent with law and this decision.
Judgment reversed; cause remanded.
KLATT and DORRIAN, JJ., concur.
Notes
In enacting division (D)(2) of
- (1) To declare that the ten-year statute of repose prescribed by division (D)(2) of
section 2125.02 and division (C) ofsection 2305.10 of the Revised Code , as enacted by this act, are specific provisions intended to promote a greater interest than the interest underlying the general four-year statute of limitations prescribed bysection 2305.09 of the Revised Code , the general two-year statutes of limitations prescribed bysections 2125.02 and2305.10 of the Revised Code , and other general statutes of limitations prescribed by the Revised Code; - (2) To declare that, subject to the two-year exceptions prescribed in division (D)(2)(d) of
section 2125.02 and in division (C)(4) ofsection 2305.10 of the Revised Code , the ten-year statutes of repose shall serve as a limitation upon the commencement of a civil action in accordance with an otherwise applicable statute of limitations prescribed by the Revised Code; - * * *
- (8) To declare that division (D)(2) of
section 2125.02 and division (C) ofsection 2305.10 of the Revised Code , as enacted by this act, strike a rational balance between the rights of prospective claimants and the rights of product manufacturers and suppliers and to declare that the ten-year statutes of repose prescribed in those sections are rational periods of repose intended to preclude the problems of stale litigation but not to affect civil actions against those in actual control and possession of a product at the time that the product causes an injury to real or personal property, bodily injury, or wrongful death[.]
[T]he wrongful death action does not even arise until the death of the injured person. It follows, therefore, that the injured person cannot defeat the beneficiaries right to have a wrongful death action brought on their behalf because the action has not yet arisen during the injured person‘s lifetime. Injured persons may release their own claims; they cannot, however, release claims that are not yet in existence and that accrue in favor of persons other than themselves.