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Court Revives Wrongful Death Claim: In its opinion filed on May 19, 2022, the Court of Appeals of Ohio Tenth Appellate District (“Ohio Appellate Court”) revived an Ohio medical malpractice case in which the trial court had granted summary judgment to the defendant, stating, “on the authority of Everhart and McCarthy, we find the trial court erred in its October 1, 2021 decision and entry granting appellees’ motion for summary judgment that found appellant’s statutory wrongful death claim was barred under the medical malpractice statute of repose set forth in R.C. 2305.113(C).”

The Underlying Facts

On August 21, 2013, Dr. Lombardi performed a total hip replacement surgery on the decedent, Mr. Maxwell. Following the procedure, Mr. Maxwell was sent home that same day. On September 2, 2013, approximately two weeks after the procedure, Mr. Maxwell died from a pulmonary embolism. The plaintiff provided an affidavit of merit by Dr. Steven Graboff with her complaint. Dr. Graboff, a board-certified physician in orthopedic surgery, wrote, after reviewing the available medical records and documents in the case, he believed, to a reasonable degree of medical certainty, Dr. Lombardi and Joint Implant Surgeons, Inc., breached the standard of care by causing unnecessary injuries and damage to the decedent, which ultimately led to his death on September 2, 2013.

The trial court found that the statute of repose for medical malpractice claims, R.C. 2305.113(C), applied to appellant’s wrongful death claim as the underlying cause of action was derived from a medical claim.

The Ohio Appellate Court stated: “This matter concerns the application of the medical malpractice statute of repose, R.C. 2305.113(C), to a statutory wrongful death claim. This court has recently addressed the same issue in Everhart v. Coshocton Cty. Mem. Hosp., 10th Dist. No. 21AP74, 2022-Ohio-629. In Everhart, the trial court granted a motion for judgment on the pleadings finding that the plaintiff’s wrongful death claim was barred by the four-year statute of repose in R.C. 2305.113(C) as the claim was a medical claim as defined in the statute. See R.C. 2305.113(E). This court disagreed finding that R.C. 2125.02, which provides time limitations on wrongful death claims, did not set forth a statute of repose for wrongful death in this context. We also examined the medical malpractice statute regarding time limitations writing, “[t]here is not a single reference to wrongful death in R.C. 2305.113.” Everhart at ¶ 25. We, therefore, concluded that as the statute of repose for medical malpractice, set forth in R.C. 2305.113(C), did not apply, the trial court erred in finding the plaintiff was barred from pursuing her wrongful death claim. Id. at ¶ 51. This court reaffirmed this interpretation in McCarthy v. Lee, 10th Dist. No. 21AP-105, 2022-Ohio-1033, writing “[c]onsistent with our decision in Everhart, we find that wrongful death claims under R.C. 2125 are not medical claims within the meaning of R.C. 2305.113.” Id. at ¶ 33, citing Everhart at ¶ 51. The McCarthy court ultimately found that the plaintiffs’ wrongful death claims were not barred by the statute of repose in R.C. 2305.113(C) and remanded the case with instructions to vacate the portion of the trial court decision that dismissed the wrongful death claim.”

The Ohio Appellate Court therefore instructed in the present case, “The trial court is instructed to vacate the portion of its October 1, 2021 decision and entry that dismissed appellant’s wrongful death claim for failure to comply with the statute of repose.”

Source Maxwell v. Lombardi, 2022-Ohio-1686.

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