Background Facts

On December 3, 2020, plaintiffs—husband and wife—filed a complaint against defendants asserting causes of action for professional negligence, negligent infliction of emotional distress, loss of consortium, and vicarious liability. The
complaint asserted that Mr. Rankin was under the care of Dr. Kirsh for several years. In March 2016, Dr. Kirsh prescribed trimethoprim/sulfamethoxazole, a.k.a. Bactrim, to Mr. Rankin for treatment of a urinary tract infection. The recommended course of treatment for Bactrim is allegedly seven to 14 days. Yet, Dr. Kirsh continued to prescribe Bactrim to Mr. Kirsh through December 2016, when the Bactrim treatment was discontinued upon Mr. Rankin presenting to the emergency room and being hospitalized. When Mr. Rankin arrived at the emergency room, he was in a state of renal failure.

The Ohio medical malpractice complaint averred that Mr. Rankin sustained temporary and permanent injury as a result of the care provided by Dr. Kirsh and asserted deficiencies in treatment relating to the failure to properly monitor Mr. Rankin during the treatment with Bactrim and the failure to conduct routine blood tests to determine the effect the Bactrim had on Mr. Rankin. Attached to the complaint was an “Affidavit of Merit” from Keith Hunter, M.D., opining that Dr. Kirsh breached the standard of care in his treatment of Mr. Rankin, causing substantial and lasting injury. Defendants answered the complaint on December 18, 2020, asserting a defense, among others, that the cause of action was barred by the medical-claim statute of repose.

Statute of Repose

The medical-claim statute of repose prohibits any action upon a medical claim, as defined in R.C. 2305.113(E)(3), from commencing more than four years after the occurrence of the act or omission constituting the alleged basis of the medical claim. R.C. 2305.113(C). Any action on a medical claim not commenced within four years of such act or omission is time-barred. Plaintiffs argued that the trial court erred in applying the medical-claim statute of repose to bar their complaint as the medical-claim statute of repose may not bar a claim where the statute of limitations—
pursuant to the savings statute—had yet to run.

The Court of Appeals First Appellate District of Ohio (“Ohio Appellate Court”) stated in its September 22, 2023 Opinion: “plaintiffs’ claims arise from Dr. Kirsh’s treatment of Mr. Rankin with the medication Bactrim and/or the failure to monitor or conduct blood tests on Mr. Rankin during such treatment. The complaint expressly describes Dr. Kirsh as “a physician who provided surgical care and treatment to Prince Rankin from April 6, 2015 to December 1, 2016,” and says that the last date that Dr. Kirsh prescribed Bactrim to Mr. Rankin was December 1, 2016. The complaint also provides that Mr. Rankin discontinued taking Bactrim on December 2, 2016. No other dates were asserted in the complaint. Looking to either day, the statute of repose ran before the refiled complaint was filed on December 3, 2020. Even if plaintiffs would have included the date that Mr. Rankin arose from unconsciousness in the hospital or the date that he fully understood why he was in the hospital in the complaint, the result would not change as “R.C. 2305.113(C)
starts the statute of repose running on the date the alleged malpractice was committed, not the date of its discovery” … Therefore, any medical claims against Dr. Kirsh which arise from the act of treating Mr. Rankin with Bactrim, or the omission in monitoring or conducting testing during such treatment, are time-barred by the medical-claim state of repose.”

Source Rankin v. Kirsh, M.D., Appeal No. C-220632.

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