Can the statute of limitations for a wrongful death claim expire when that person is still living? The Fifth District Court of Appeals recently answered that question in the affirmative in Mercer v. Keane, 2021-Ohio-1576 (5th Dist.).
In Mercer, the plaintiff filed a lawsuit against a defendant-physician and his radiology group in August 2016 for failing to diagnose a sacral mass that was clearly visible on an MRI performed and interpreted in December 2012. The plaintiff discovered the presence of the mass two and a half years later, in May 2015, when he had another MRI, which revealed the presence of a now inoperable sacral mass. The plaintiff died in February 2020 during the pendency of his lawsuit. Following his death, his wife was appointed the executor of his estate and moved to substitute the estate as the proper party. She also sought leave to amend the complaint, which the court granted, and she added the wrongful death claim and converted the medical negligence claim to a survivorship claim. Because the amended complaint was filed more than seven years after the alleged negligence, the defendants filed a motion for partial summary judgment and motion for judgment on the pleadings arguing the wrongful death action was time barred pursuant to R.C. 2305.113(C) as it was filed beyond the four-year statute of repose. The trial court granted defendants’ motions on the basis that the wrongful death action was based on a medical claim and, thus, was time barred since it was not commenced within four year of the negligence. The estate appealed the trial court’s decision.
The Fifth District Court of Appeals, relying on recent Ohio Supreme Court cases Wilson v. Durrani, 2020-Ohio-6827, and Antoon v. Cleveland Clinic Foundation, 2016-Ohio-7432, held that “while the wrongful death action is based on the same alleged act or omission as raised in the timely filed medical malpractice action, the wrongful death action is a new and independent action subject to the medical claim statute of repose.” Mercer, at ¶ 38. In so reasoning, the appeals court noted “[t]he 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.” Id., citing Antoon, at ¶ 23. “Because any action brining a medical claim is barred by Ohio’s medical-claim statute of repose if it is not timely commenced, we conclude that wrongful-death actions fall within the scope of ‘any action’ and are subject to the time restraints of the statute of repose.” Id., citing Smith v. Wyandot Mem. Hosp., 3rd Dist. No. 16-17-07, 2018-Ohio-2441, ¶ 22.
The Fifth District then went on to state: “[w]e acknowledge the result of this appeal is harsh and perhaps unintended by the General Assembly when it crafted the medical claim statute of repose, especially considering the advances in medical care allowing people to live longer with a diagnosis of cancer or other life-threating malady. As the Ohio Supreme Court acknowledged in Wilson, however, allowing an extension to file a wrongful death action may not impair the underlying purpose of the of the statute of repose, but that is a call for the legislature, not this Court.” Id. at ¶ 41, citing Wilson, 2020-Ohio-6827, ¶ 37.
Given this recent decision and until the General Assembly decides to amend R.C. 2305.113, attorneys handling medical negligence claims should consider filing any potential future wrongful death claims they may have related to that care and treatment within four years of the date of the alleged negligence, even if that client is still alive.
