The Ohio First District Court of Appeals (“Ohio Appellate Court”) held in its opinion filed on December 27, 2017 in eight consolidated cases on appeal that the Ohio statute of repose for medical claims was not unconstitutional and that the plaintiffs’ claims against a former spine surgeon were “medical claims” for which the four-year statute of repose applied, thereby determining that their claims were untimely filed.
The appeals represented six out of over 500 cases filed against a former spine surgeon and the various hospitals where he worked or he otherwise performed surgeries. The plaintiffs alleged that the spine surgeon convinced them to have unnecessary spinal surgery, that he performed the surgery improperly, that he used implants off-label that caused further problems, that he covered up his actions through fraud and destruction of evidence, and that the hospitals were also liable for the spine surgeon’s wrongful actions.
Ohio’s Statute Of Repose
R.C. 2305.113 is Ohio’s statute of repose for medical claims, which provides: “an action upon a medical * * * claim shall be commenced within one year after the cause of action accrued.” R.C. 2305.113(A). Subsections (C)(1) and (2) provide: “[n]o action upon a medical claim * * * shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim,” and “[i]f an action upon a medical * * * claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim, then any action upon that claim is barred.”
What Is A “Medical Claim”?
R.C. 2305.113(E)(3) defines a “medical claim” as “any claim that is asserted in any civil action against a physician [or] hospital * * * and that arises out of the medical diagnosis, care, or treatment of any person.” The definition of medical claim includes: (a) Derivative claims for relief that arise from the plan of care, medical diagnosis, or treatment of a person; (b) Claims that arise out of the plan of care, medical diagnosis, or treatment of any person and to which either of the following applies: (i) The claim results from acts or omissions in providing medical care. (ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medical diagnosis, care, or treatment.
The Ohio Appellate Court had previously held that claims for negligence, negligent credentialing, and fraud were medical claims within the statute of repose. With regard to the plaintiffs’ remaining claims for battery (i.e., that the spine surgeon committed battery against the plaintiff by performing a surgery that was unnecessary, contraindicated for the plaintiff’s medical condition, and for which he did not properly obtain informed consent), lack of informed consent (i.e., that the spine surgeon’s informed consent forms failed to fully cover all the information necessary and required for the procedures and that no one verbally informed the plaintiff of the information and risks required for informed consent), intentional infliction of emotional distress (i.e., that the spine surgeon’s conduct as described in the complaint was intentional, reckless, outrageous, and offends against the generally accepted standards of morality), and vicarious liability, the Ohio Appellate Court held that these claims were all asserted against a physician or hospital and arose out of the medical diagnosis, care, or treatment of the plaintiffs. Therefore, they are “medical claims” subject to the limitations period in the statute of repose.
However, the plaintiffs’ spoliation of evidence claim (i.e., that the spine surgeon and others willfully altered, destroyed, delayed, hid, modified and/or spoiled the plaintiff’s records, billing records, paperwork and related evidence * * * with knowledge that there was pending or probable litigation involving the plaintiff) did not arise out of the medical diagnosis, care, or treatment of the plaintiffs, and therefore are not “medical claims.”
The Ohio Appellate Court therefore reversed the trial court’s judgment to the extent it held the statute of repose unconstitutional and to the extent that it denied the appellants’ motions to dismiss the medical claims, and remanded the causes for dismissal of the medical claims against the appellants and for further proceedings consistent with the law and its opinion.
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