McCarthy v. Lee

[Cite as McCarthy v. Lee, 2022-Ohio-1033.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kathleen McCarthy et al., :
Plaintiffs-Appellants, :
No. 21AP-105
v. : (C.P.C. No. 20CV-554)
Peter K. Lee, M.D. et al., : (ACCELERATED CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on March 29, 2022
On brief: Beausay & Nichols Law Firm, T. Jeffrey Beausay,
and Sara C. Nichols, for appellants. Argued: T. Jeffrey
Beausay.
On brief: Baker & Hostetler, LLP, John H. Burtch, and
Allison R. Thomas, for appellees. Argued: John H. Burtch.
Current counsel for appellees: FisherBroyles, LLP,
Robert B. Graziano, and Michael R. Traven.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiffs-appellants, Kathleen and Brett McCarthy, appeal the February 26,
2021 decision and entry of the Franklin County Court of Common Pleas granting the
motion for judgment on the pleadings filed by defendants-appellees, Peter K. Lee, M.D.,
OhioHealth Colon and Rectal Surgeons, and OhioHealth Physician Group. For the
following reasons, we reverse in part and affirm in part.
I. Facts and Procedural History
{¶ 2} On January 21, 2020, appellants filed a complaint in the trial court.
Appellants indicated in the complaint that this was a refiled case, with the original case
No. 21AP-105 2
having been dismissed without prejudice on January 22, 2019. Appellants' complaint
contained three causes of action including medical negligence, wrongful death, and loss of
consortium. As stated in the complaint, appellants alleged that in October 2010, Kathleen
McCarthy sought medical attention from her primary care physician due to issues including
changes in the size of her stool, increasing gas, a drop in the location plane of the anal area,
and blood and mucus in her stool. Kathleen's family doctor referred her to Dr. Lee for
evaluation.
{¶ 3} On October 19, 2010, Dr. Lee conducted a physical examination, anoscopy,
and rigid sigmoidoscopy on Kathleen. As a result of the evaluation, Dr. Lee found Grade 1
hemorrhoids and ordered a colonoscopy. On February 2, 2011, Kathleen underwent a
colonoscopy, which found mildly enlarged internal hemorrhoids but no other
abnormalities. Kathleen continued to experience symptoms but attributed her symptoms
to her diet and age.
{¶ 4} In early 2015, Kathleen became concerned due to an increase in the severity
of her symptoms. As a result, Kathleen returned to Dr. Lee, who performed another
anoscopy. Dr. Lee allegedly concluded that Kathleen's symptoms were caused by Grade 1
hemorrhoids. Dr. Lee did not order another colonoscopy but, instead, recommended
Kathleen increase her fiber and fluid intake. Dr. Lee also recommended a hemorrhoid
repair procedure, which Kathleen declined.
{¶ 5} On November 18, 2016, Kathleen underwent a physical screening in
connection with an application for insurance coverage. Upon learning that she had been
denied coverage under the insurer's premiere rate based on her test results from the
physical screening, Kathleen requested the specific results of the tests. In January 2017,
Kathleen learned her test results revealed she had abnormally high AST and ALT liver
enzyme levels. On February 2, 2017, Kathleen returned to her primary care physician who
ordered a liver ultrasound, which was performed on February 16, 2017. When the liver
ultrasound failed to identify the cause of the abnormal liver enzyme levels, Kathleen's
primary care physician referred Kathleen to Ohio Gastroenterology Group.
{¶ 6} On March 6, 2017, Kathleen was examined by Dr. Kiran Bidari of Ohio
Gastroenterology Group, who ordered an endoscopy and colonoscopy. On April 4, 2017,
No. 21AP-105 3
Dr. David Wenzke performed the procedures, discovering a mass in Kathleen's colon. On
April 12, 2017, Kathleen was informed that the mass in her colon was cancerous.
{¶ 7} On April 24, 2017, surgeons at Riverside Methodist Hospital performed a
colectomy on Kathleen and removed an invasive, moderate to poorly differentiated
adenocarcinoma tumor. However, at that point, cancer had already spread to Kathleen's
lymph nodes. From June through December 2017, Kathleen received 12 rounds of
chemotherapy. CT scans showed suspicious areas of possible metastases. On April 17,
2018, a PET scan revealed further lymph node involvement.
{¶ 8} On May 8, 2018, Kathleen had surgery to remove cancerous lymph nodes at
the intersection of the aorta and right iliac artery and other cancerous masses. At the time
of the filing of the complaint, Kathleen had incurable stage IV colon cancer and was
continuing to receive chemotherapy.
{¶ 9} Appellants alleged in their complaint that appellees fell below the accepted
standard of care by failing to order a colonoscopy in 2015 when Kathleen experienced an
increase in the severity of her symptoms and sought medical care from Dr. Lee. Appellants
further alleged appellees were negligent for failing to timely diagnose her colon cancer,
resulting in the progression of the cancer to stage IV without treatment. As a result of
appellees' alleged negligence, Kathleen experienced and would continue to experience pain,
mental anguish, extreme emotional distress, medical costs and treatment, loss of income
and earning capacity, and the loss of enjoyment of life and the ability to perform customary
activities. Appellants stated in the complaint that they were necessarily raising a claim for
wrongful death in light of defenses raised by appellees in the previously dismissed case
relating to the statute of repose.
{¶ 10} On the same date as the filing of the complaint, appellants also filed a motion
pursuant to Civ.R. 10(D)(2) seeking an extension of time to file an affidavit of merit. On
February 14, 2020, appellees filed an answer.
{¶ 11} On June 16, 2020, the trial court granted appellants' unopposed January 21,
2020 motion for extension of time to file an affidavit of merit. On July 30, 2020, appellants
filed a second motion pursuant to Civ.R. 10(D)(2) for an extension of time to file an affidavit
of merit. On August 12, 2020, appellees filed a memorandum in opposition to appellants'
July 30, 2020 motion. On August 24, 2020, the trial court granted appellants' July 30,
No. 21AP-105 4
2020 motion. On October 1, 2020, appellants filed an affidavit of merit in support of their
complaint.
{¶ 12} On January 22, 2021, appellees filed a motion for judgment on the pleadings
pursuant to Civ.R. 12(C). Appellees contended the claims in appellants' complaint were
properly characterized as medical claims, and were, therefore, subject to the statute of
repose under R.C. 2305.113(C). Appellees asserted that the statute of repose applied in this
case to bar appellants' claims because the complaint was filed more than four years after
the acts or omissions giving rise to the claims and the savings statute under R.C. 2305.19
did not operate as an exception to the statute of repose.
{¶ 13} On January 28, 2021, appellants filed a motion to hold appellees' January 22,
2021 motion for judgment on the pleadings in abeyance pending the outcome of
reconsideration following the Supreme Court of Ohio's decision in Wilson v. Durrani, 164
Ohio St.3d 419, 2020-Ohio-6827. On February 3, 2021, appellees filed a memorandum in
opposition to appellants' January 28, 2021 motion to hold in abeyance. On February 5,
2021, appellants filed a memorandum in opposition to appellees' motion for judgment on
the pleadings. On February 26, 2021, the trial court filed a decision and entry denying
appellants' January 28, 2021 motion to hold in abeyance and granting appellees'
January 22, 2021 motion for judgment on the pleadings.
II. Assignment of Error
{¶ 14} Appellants appeal and assign the following sole error for our review:
The trial court erred in determining that the medical statute
of repose (2305.113(C)) applies to wrongful death claims.
III. Analysis
{¶ 15} In their sole assignment of error, appellants argue the trial court incorrectly
applied the medical statute of repose under R.C. 2305.113(C) to their wrongful death claim
in granting appellees' motion for judgment on the pleadings.
A. Standard of Review
{¶ 16} Pursuant to 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." A court
considering a motion under Civ.R. 12(C) must construe the material allegations in the
complaint and all reasonable inferences to be drawn by the same in favor of the nonmoving
No. 21AP-105 5
party as true. Ohio Manufacturers' Assn. v. Ohioans for Drug Price Relief Act, 147 Ohio
St.3d 42, 2016-Ohio-3038, ¶ 10. Viewing the allegations in such light, the court may only
grant a motion under Civ.R. 12(C) where it finds no material factual issues exist and the
movant is entitled to judgment as a matter of law. Hinkle v. L Brands, Inc. World
Headquarters, 10th Dist. No. 21AP-80, 2021-Ohio-4187, ¶ 9. Thus, a motion under
Civ.R. 12(C) " 'tests the allegations of the complaint and presents a question of law.' "
Jackson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 19AP-621, 2020-Ohio-1518, ¶ 11,
quoting Zhelezny v. Olesh, 10th Dist. No. 12AP-681, 2013-Ohio-4337, ¶ 9. See Lytal v.
Crawl for Cancer, Inc., 10th Dist. No. 17AP-771, 2018-Ohio-2017, ¶ 8, citing State ex rel.
Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996), citing Peterson v.
Teodosio, 34 Ohio St.2d 161, 166 (1973) (stating that a court is permitted to consider both
the complaint and answer in resolving the question of law presented by a Civ.R. 12(C)
motion).
{¶ 17} As a trial court's decision on a motion under Civ.R. 12(C) turns on the
resolution of a question of law, we apply a de novo standard of review on appeal. Rayess v.
Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676,
¶ 18; Welther v. Plageman, 10th Dist. No. 19AP-774, 2021-Ohio-713, ¶ 6. De novo appellate
review means the court of appeals conducts an independent review, without deference to
the trial court's decision. Bayview Loan Servicing, L.L.C. v. Humphreys, 10th Dist. No.
20AP-396, 2021-Ohio-4324, ¶ 18, citing Wiltshire Capital Partners v. Reflections II, Inc.,
10th Dist. No. 19AP-415, 2020-Ohio-3468, ¶ 12.
B. Applicable Law
{¶ 18} This case involves issues arising from the interaction of statutes of limitation,
statutes of repose, and the savings statute with claims for wrongful death and medical
malpractice. Our court recently addressed these issues in a similar case involving the
application of the statute of repose for medical claims to claims for wrongful death and
medical malpractice. Everhart v. Coshocton Cty. Mem. Hosp., 10th Dist. No. 21AP-74,
2022-Ohio-629. Before turning to our resolution of that case and its application to the facts
before us, we briefly review the applicable statutory provisions and caselaw.
1. Distinctions Between Claims for Wrongful Death and Medical
Malpractice
No. 21AP-105 6
{¶ 19} "The wrongful death action is a special statutory action which does not exist
at common law." Klema v. St. Elizabeth's Hosp. of Youngstown, 170 Ohio St. 519, 524
(1960). Wrongful death claims are governed by R.C. Chapter 2125. R.C. 2125.01, which
defines actions for wrongful death, provides in pertinent part:
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.
In order to establish a wrongful death claim based on a theory of negligence, a plaintiff must
demonstrate: " '(1) the existence of a duty owing to plaintiff's decedent, i.e., the duty to
exercise ordinary care, (2) a breach of that duty, and (3) proximate causation between the
breach of duty and the death.' " Amoako-Okyere v. Church of the Messiah United Methodist
Church, 89 Ohio App.3d 17, 2015-Ohio-3841, ¶ 35 (10th Dist.), quoting Bennison v.
Stillpass Transit Co., 5 Ohio St.2d 122 (1966), paragraph one of the syllabus.
{¶ 20} Unlike claims for wrongful death, which are statutory in nature, " '[m]edical
malpractice claims have long been recognized at common law.' " Stuck v. Miami Valley
Hosp., 2d Dist. No. 28233, 2020-Ohio-305, ¶ 14, quoting LaValley v. Riverside Methodist
Hosp., 10th Dist. No. 77AP-103 (Sept. 29, 1977). See Thompson v. Community Mental
Health Ctrs. of Warren Cty., 71 Ohio St.3d 194, 195 (1994); Chilton-Clark v. Fishel, 10th
Dist. No. 16AP-76, 2016-Ohio-7135, ¶ 9, fn. 1. Similar to the requirements for a wrongful
death claim based on negligence, in order to establish a claim for medical malpractice, a
plaintiff must demonstrate: "(1) the existence of a standard of care recognized within the
medical community, (2) the breach of that standard of care by defendant, and (3) proximate
cause between the breach of the standard of care and the injury." Jenkins v. Karl HC, LLC,
10th Dist. No. 19AP-572, 2020-Ohio-1137, ¶ 11, citing Adams v. Kurz, 10th Dist. No. 09AP-
1081, 2010-Ohio-2776, ¶ 11, citing Williams v. Lo, 10th Dist. No. 07AP-949, 2008-Ohio-
2804, ¶ 11.
No. 21AP-105 7
{¶ 21} The Supreme Court, recognizing the distinctions between actions for medical
malpractice and wrongful death, has stated:
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 St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U.S. 648,
658 (1915). See Koler v. St. Joseph Hosp., 69 Ohio St.2d 477, 479 (1982). Furthermore,
the Supreme Court has held that the statute authorizing 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 v. Sixt, 146 Ohio St. 527 (1946), paragraph one of the syllabus.
2. Statutes of Limitations, Statutes of Repose, and Saving Statutes
{¶ 22} "Statutes of limitations and statutes of repose share a common goal of
limiting the time during which a putative wrongdoer must be prepared to defend a claim,
but they operate differently and have distinct applications." Wilson at ¶ 8, citing Antoon v.
Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, ¶ 11, citing CTS Corp. v.
Waldburger, 573 U.S. 1, 7 (2014). See Mominee v. Scherbarth, 28 Ohio St.3d 270, 290
(1986), fn. 17. Statutes of limitations set forth " '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).' "
Wilson at ¶ 9, quoting Black's Law Dictionary 1707 (11th Ed.2019). Statutes of limitation
are designed to encourage a plaintiff's diligent prosecution of known claims. Id. at ¶ 10,
citing CTS Corp at 8, citing Black's Law Dictionary 1546 (9th Ed.2009).
{¶ 23} On the other hand, statutes of repose bar " '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.' " Wilson at ¶ 9, quoting Black's Law Dictionary 1707 (11th
Ed.2019). Statutes of repose are designed to entitle a defendant to be free from fear of
prosecution of a claim following a period of time prescribed by the legislature. See id. at
¶ 10, citing California Pub. Emps. Retirement Sys. v. ANZ Secs., Inc., ___U.S.___, 137
No. 21AP-105 8
S.Ct. 2042, 2049 (2017); Antoon at ¶ 18, quoting Ruther v. Kaiser, 134 Ohio St.3d 408,
2012-Ohio-5686, ¶ 19 (stating that " '[t]he 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' ").
{¶ 24} Unlike statutes of limitation and statutes of repose, savings statutes are
designed to extend the time for a plaintiff to file an action. "Generally, a saving statute will
provide that 'where an action timely begun fails in some manner described in the statute,
other than on the merits, another action may be brought within a stated period from such
failure.' " Wilson at ¶ 11, quoting Annotation, 6 A.L.R.3d 1043 (1966). Saving statutes are
remedial in nature and "are intended to provide a litigant an adjudication on the merits."
Id., citing Wasyk v. Trent, 174 Ohio St. 525, 528 (1963).
{¶ 25} Having set forth the general principles underlying statutes of limitations,
statutes of repose, and savings statutes, we turn to the specific statutory provisions at issue
in this appeal. R.C. 2125.02(D), which sets forth the statute of limitations for wrongful
death claims, provides that "a civil action for wrongful death shall be commenced within
two years after the decedent's death," subject to certain specified exceptions. R.C.
2125.02(D)(1).
{¶ 26} R.C. 2305.113(A), which sets forth the statute of limitations for medical
malpractice claims, provides in pertinent part that "an action upon a medical, dental,
optometric, or chiropractic claim shall be commenced within one year after the cause of
action accrued." R.C. 2305.113(C), which sets forth the statute of repose for medical
malpractice claims, provides the following:
(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.
{¶ 27} As used in R.C. 2305.113, the term "medical claim" is defined as:
No. 21AP-105 9
[A]ny claim that is asserted in any civil action against a
physician, podiatrist, hospital, home, or residential facility,
against any employee or agent of a physician, podiatrist,
hospital, home, or residential facility, or against a licensed
practical nurse, registered nurse, advanced practice registered
nurse, physical therapist, physician assistant, emergency
medical technician-basic, emergency medical technician-
intermediate, or emergency medical technician-paramedic,
and that arises out of the medical diagnosis, care, or treatment
of any person.
R.C. 2305.113(E)(3). The statute further provides that a "medical claim" includes the
following:
(a) Derivative claims for relief that arise from the medical
diagnosis, care, or treatment of a person;
***
(c) Claims that arise out of the medical diagnosis, care, or
treatment of any person or claims that arise out of the plan of
care prepared for a resident of a home and to which both types
of claims 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.
R.C. 2305.113(E)(3). R.C. 2305.113(E)(7) provides that "derivative claims for relief"
include, but are not limited to, the following:
[C]laims 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,
No. 21AP-105 10
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.
{¶ 28} Ohio's savings statute, R.C. 2305.19, provides in pertinent part:
In any action that is commenced or attempted to be
commenced * * *, if the plaintiff fails otherwise than upon the
merits, the plaintiff * * * may commence a new action within
one year after the * * * plaintiff's failure otherwise than upon
the merits or within the period of the original applicable statute
of limitations, whichever occurs later.
Thus, if the action fails other than on the merits, "the savings statute 'may be used only once
to invoke an additional one-year time period in which to refile an action.' " Brownfield v.
Krupman, 10th Dist. No. 14AP-294, 2015-Ohio-1966, ¶ 10, quoting Boggs v. Baum, 10th
Dist. No. 10AP-864, 2011-Ohio-2489, ¶ 30, citing Hancock v. Kroger Co., 103 Ohio App.3d
266, 269 (10th Dist.1995).
C. Analysis
{¶ 29} Here, appellants raise two arguments related to their claims for medical
malpractice and wrongful death. With regard to their claim for medical malpractice,
appellants argue the statute of repose is not a bar to the refiling of their medical malpractice
claim under the savings statute. Appellants acknowledge that the Supreme Court in Wilson
recently reached the opposite conclusion regarding the interaction between the statute of
repose and the savings statute.
{¶ 30} Appellants did not set forth an assignment of error with regard to the medical
malpractice claim, therefore we address the argument only to observe that Wilson would
dispose of the same. In Wilson, the plaintiffs initially filed medical malpractice complaints
within four years of the alleged malpractice, but voluntarily dismissed such complaints
before refiling them in another county. The plaintiffs contended that, having voluntarily
dismissed their claims pursuant to Civ.R. 41(A) and having thus failed otherwise than on
the merits, they were entitled pursuant to R.C. 2305.19(A) to refile such claims within one
year. The Supreme Court accepted review of the case to determine whether the savings
statute operated as an exception to the statute of repose for medical claims. In considering
this question, the Supreme Court stated that "exceptions to a statute of repose require 'a
No. 21AP-105 11
particular indication that the legislature did not intend the statute to provide complete
repose but instead anticipated the extension of the statutory period under certain
circumstances,' as when the statute of repose itself contains an express exception." Wilson
at ¶ 29, quoting California Pub. Emps. Retirement Sys. at 2050. Based on the "absence of
an express incorporation of the Ohio saving statute as an exception in the medical statute
of repose, the General Assembly's express incorporation of the savings statute as an
exception to another statute of repose in R.C. Chapter 2305, and the general character of
statutes of repose as providing an absolute temporal limit on a defendant's potential
liability," the court found that the savings statute was not an exception to the bar on claims
imposed by the statute of repose. Wilson at ¶ 37. The court held that "[e]xpiration of the
statute of repose precludes the commencement, pursuant to the saving statute, of a claim
that has previously failed otherwise than on the merits in a prior action." Id. at ¶ 38. As a
result, the court concluded the plaintiffs' claims were barred by the statute of repose for
medical claims pursuant to R.C. 2305.113(C).
{¶ 31} As appellants acknowledge, notwithstanding their arguments regarding the
Supreme Court's holding in Wilson, we are bound to follow the precedent of the Supreme
Court of Ohio. See generally In re C.J., 10th Dist. No. 16AP-891, 2018-Ohio-931, ¶ 77; In
re W.W.E., 10th Dist. No. 15AP-167, 2016-Ohio-4552, ¶ 34; Coniglio v. State Med. Bd. of
Ohio, 10th Dist. No. 07AP-298, 2007-Ohio-5018, ¶ 8. As a result, we would not find the
trial court erred in dismissing appellants' medical malpractice claim pursuant to Civ.R.
12(C) because no material factual issues existed and appellees were entitled to judgment as
a matter of law.
{¶ 32} Next, appellants argue that claims for medical malpractice and wrongful
death are distinct and, as such, the statute of repose applies only to their claim for medical
malpractice, not their claim for wrongful death. We recently resolved this question in our
decision in Everhart. In that case, the trial court granted a motion for judgment on the
pleadings because it found the plaintiff's wrongful death claim was a medical claim under
R.C. 2305.113(E) and, consequently, was barred by the statute of repose. Reviewing the
history of and differences between claims for wrongful death and medical malpractice, we
found that a claim for "wrongful death is a separate and unique cause of action from other
claims." Everhart at ¶ 16. We noted that R.C. 2125.02, which governs limitations on
No. 21AP-105 12
wrongful death claims, did not provide a statute of repose for a wrongful death arising out
of a medical claim. In discussing whether the statute of repose for medical claims in R.C.
2305.113(C) applied to a medical wrongful death claim, we noted that "[t]here is not a single
reference to wrongful death in R.C. 2305.113." Id. at ¶ 25. Applying statutory canons of
construction, we found the absence of reference to wrongful death in R.C. 2305.113 to be
crucially important given the extensive list of claims included under "derivative claims for
relief" pursuant to R.C. 2305.113(E)(7). Acknowledging the Supreme Court's holding in
Wilson, we noted the court's holding was specific to the application of the savings statute
to medical malpractice claims and had not been expanded to include Ohio's wrongful death
statute. As a result, we held that the statute of repose for medical claims under R.C.
2305.113(C) did not apply to claims for wrongful death under R.C. Chapter 2125 and,
therefore, concluded the trial court erred in finding the plaintiff was barred from pursuing
her wrongful death claim. Id. at ¶ 51. Compare Smith v. Wyandot Mem. Hosp., 3d Dist.
No. 16-17-07, 2018-Ohio-2441, ¶ 32 (finding trial court did not err in dismissing estate's
wrongful death action for failing to state a claim for which relief can be granted because the
action was not filed within period provided by statute of repose for medical claims).
{¶ 33} In this case, the trial court found appellants' claims, including appellants'
wrongful death claim, were medical claims as defined by R.C. 2305.113(E)(3). Therefore,
the trial court found the statute of repose for medical claims under R.C. 2305.113(C) applied
to bar appellants' wrongful death claim. Consistent with our decision in Everhart, we find
that wrongful death claims under R.C. Chapter 2125 are not medical claims within the
meaning of R.C. 2305.113. Everhart at ¶ 51. Therefore, we find the trial court erred in its
February 26, 2021 decision and entry insofar as it applied the statute of repose for medical
claims to appellants' wrongful death claim.
{¶ 34} Having found that appellants' claim for wrongful death is not barred by the
medical claim statute of repose, on remand, we instruct the trial court to vacate that portion
of its February 26, 2021 decision and entry which dismissed appellants' wrongful death
claim pursuant to Civ.R. 12(C) on grounds of failure to comply with the statute of repose.
{¶ 35} Accordingly, we sustain appellants' sole assignment of error.
No. 21AP-105 13
IV. Conclusion
{¶ 36} Having sustained appellants' sole assignment of error, we affirm in part and
reverse in part the February 26, 2021 decision and entry granting appellees' motion for
judgment on the pleadings, and remand this matter to the Franklin County Court of
Common Pleas for proceedings consistent with law and this decision.
Judgment affirmed in part;
reversed in part; and
cause remanded.
KLATT and MENTEL, JJ., concur.