Ohio Supreme Court Affirms Medical Malpractice Case Filed Too Late

The Supreme Court of Ohio (“Ohio Supreme Court”) affirmed in its opinion filed on August 20, 2020 that an Ohio medical malpractice case was filed too late and that the defendants were properly granted summary judgment by the lower court, stating: “This case requires us to examine the interplay between Ohio’s savings statute, R.C. 2305.19(A), and the provisions of Civ.R. 3(A) to determine whether  an action is barred by the statute of limitations. The statute of limitations prohibits an action unless it is “commenced” prior to the expiration of the statute. Civ.R. 3(A) says that an action is “commenced” at the time it is filed if service is obtained within one year. The savings statute provides that when an action is dismissed other than on the merits, the plaintiff may refile the action within one year.”

“Here, the plaintiff filed the action just before the expiration of the statute of limitations. The plaintiff did not obtain service within one year, however. Nor did he dismiss the action during that period. The question is whether the plaintiff can nevertheless rely upon the savings statute. We hold that he may not. Because the action was not commenced within the statute-of-limitations period, it fails. The savings statute cannot be used to revive the action.”

The Ohio Supreme Court explained: “The statute of limitations for medical claims is one year. R.C. 2305.113(A). That period may be extended if, before the expiration of the limitations period, the plaintiff gives written notice to the defendant that he intends to bring a claim. R.C. 2305.113(B)(1). In such event, the action may be commenced at any time within 180 days after the notice was given. Moore [the plaintiff] took advantage of this provision, extending his deadline to commence the action to July 7, 2015. He filed his complaint one day prior to this deadline, on July 6, 2015. Simultaneously, Moore requested service of the complaint and summons on all three defendants.”

Moore failed to obtain service on defendant Dr. Humphreys during the year following the filing of the complaint as required by Civ.R. 3(A). All three defendants, including Dr. Humphreys (who had not been served), filed motions for summary judgment. The lower granted the motions for summary judgment, finding that Dr. Humphreys’s participation in the case did not prevent him from raising the defense of insufficient service of process and because the claims against the other defendants were for vicarious liability only, any liability of both parties was “extinguished.”

Ohio Supreme Court Opinion

The question the Ohio Supreme Court was asked to answer was: “when a plaintiff files instructions for service after the Civ.R. 3(A) one-year period, does the request act as a dismissal by operation of law and also act as the refiling of an identical cause of action so as to allow the action to continue?”

The Ohio Supreme Court stated “that to comply with the statute of limitations, an action must be “commenced” within the limitations period. Under Civ.R. 3(A), this occurs when the action is filed within the limitations period and service is obtained within one year of that filing. That brings us to Ohio’s savings statute. It provides: “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. R.C. 2305.19(A).”

The Ohio Supreme Court held: “Under the plain language of these three provisions, Moore’s claim is barred by the statute of limitations. Moore filed his action within the limitations period but did not obtain service on Dr. Humphreys during the one-year commencement period pursuant to Civ.R. 3(A). Thus, he did not commence his action within the statute-of-limitations period. As a result, as of July 7, 2016, his claim was time-barred. By its terms, the savings statute cannot save Moore’s claim. In order for the statute to apply, the claim must have failed “otherwise than upon the merits” and then Moore must have filed a new claim within one year thereafter. Here, when Moore issued instructions to the clerk to serve the complaint in March 2017, Moore’s claim hadn’t failed other than on the merits. The case remained on the court’s docket—it was subject to dismissal, to be sure, both because Moore had failed to accomplish service and because the statute of limitations had run. But no such dismissal had been entered, and if such dismissal had been entered, the expiration of the statute of limitations would have made the failure on the merits. See LaBarbera v. Batsch, 10 Ohio St.2d 106, 114-115, 227 N.E.2d 55 (1967) (“a judgment based upon the statute of limitations is generally regarded as on the merits and bars another action for the same cause”). Further, Moore did not file a “new action.” The only thing he did was ask the clerk to serve the original complaint that remained on the court’s docket. Thus, if the savings statute means what it says, it does not apply … [t]o apply the savings statute to revive the action in our case, despite the plain terms of Civ.R. 3(A), has the effect not of avoiding unnecessary procedural hoop jumping, but of extending the statute of limitations beyond the term set by the legislature.”

The Ohio Supreme Court concluded: “Moore’s instructions for service of process, filed after the statute of limitations had expired, cannot be treated as a voluntary dismissal and a refiling of his complaint. Because there was neither a dismissal otherwise than on the merits nor the filing of a new action, the savings statute does not apply. The court of appeals erred in concluding otherwise. We reinstate the trial court’s grant of summary judgment in favor of Dr. Humphreys and Mount Carmel. In the proceeding below, the court of appeals did not reach Moore’s final assignment of error, which asserted that Central Ohio Anesthesia could be liable even if the claim against Dr. Humphreys was barred by the statute of limitations. In light of our decision today, we remand to the court of appeals for consideration of Moore’s final assignment of error and for other proceedings consistent with this opinion.”

A dissenting opinion stated: “I agree with the appellate court that since Moore’s action against Dr. Humphreys was dismissed for lack of service, it should be viewed as a dismissal without prejudice and thus a failure otherwise than on the merits. Moore should have an additional year to refile his complaint and serve it on Dr. Humphreys. Accordingly, I respectfully dissent from the majority’s conclusion that the savings statute does not apply to save Moore’s claims.”

Source Moore v. Mt. Carmel Health Sys., Slip Opinion No. 2020-Ohio-4113.

If you or a loved one may have been injured as a result of medical malpractice in Ohio or in another U.S. state, you should promptly find an Ohio medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Sunday, October 11th, 2020 at 5:28 am. Both comments and pings are currently closed.


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