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Ohio Supreme Court Clarifies Medical Statute of Limitations

This article was originally published in the Stark County Medical Society newsletter.

The Ohio Supreme Court issued a decision in late December that clarifies and finalizes the Ohio law regarding the period of time in which patients can assert claims for medical malpractice. The Court was examining the interplay between three different statutes being the statute of limitations, the statute of repose, and the savings statute.

Most practitioners are familiar with the statute of limitations. The statute of limitations is a specific statute that limits the time period in which a lawsuit can be filed which starts when the injury occurred or is discovered. In essence, it provides a limited period of time in which a claim can be filed, and if not filed in that period, denies the Claimant a chance to even assert a claim as if an event had occurred. In Ohio, the statute of limitations for a medical malpractice action is a one-year period which begins at the later of the termination of the patient-physician relationship or the patient discovers or should have discovered that an injury had occurred.

The second statute is the statute of repose.  Unlike the statute of limitations, which limits the time period in which to assert the claim, the statute of repose is focused on when the physician is relieved of any potential exposure for any conduct that arose prior to the cutoff date. In Ohio, the statute of repose for medical claims is four years. In other words, the claim must be filed within four years after the occurrence or omission of conduct which the Plaintiff claims was wrongful has actually occurred. The difference between the two is the statute of repose is a hard cutoff of claims as opposed to the statute of limitations which is triggered by discovery of the mistake.

The third statute is what is known as the savings statute. Under the savings statute, if a party timely files a claim for example, but that same lawsuit is later dismissed by the Plaintiff other than on the merits, the savings statute permits that Plaintiff refiling the lawsuit within one year effectively treating the renewed lawsuit as having been filed within the initial year even if the date of the refiling is after the end of the one year or four years. 

The issue before the Supreme Court was whether or not a party who had filed a claim within the four-year statute of repose could dismiss and refile the action within a year after the end of the four years, effectively making it a fifth year asserting the savings statute would apply.  

After carefully reviewing the history of prior court decisions and more importantly reviewing other provisions in Ohio law, the Ohio Supreme Court concluded that the statutes are clear that if a claim is not commenced and pursued within the four-year statute of repose, the claim is barred. The Court specifically found that the savings statute would not apply, and a Plaintiff could not file, dismiss and refile the claim. The Court also noted however that even within that interpretation there still remains two specific exemptions that may extend the time for filing. The first exception is if the injured party was a minor where the time periods begin when the minor turns 18, or second, if the patient should happen to be of “unsound mind” as the statute defines which would make that patient not able legally to make a determination for themselves if a claim existed or should have existed. 

The Court pointed out that the reason for the statute of repose was to give medical providers certainty with respect to the time in which a claim can be brought against them and a time after which they would be free from the fear of litigation. Based upon that underlying purpose, the Court concluded that the savings statute does not give the Plaintiff an additional year to refile a case. The Supreme Court further noted that there were other provisions in Ohio law where the state legislature had in fact been clear that the savings statute would be available to a party for the refiling of a claim. For example, other statutory provisions dealing with product liability claims specifically authorized the invocation of the savings statute whereas the claims for medical malpractice do not. The Court concluded that the savings statute does not extend for another year the time period in which a claim can be filed thereby putting a cap at a maximum of four years. The Court goes on to note that even though arguments had been asserted that public policy should permit an extension, the Court concluded that that is a matter to be addressed specifically by the legislature and that the Court itself would not create a new rule or rewrite the law period.

If you have any questions or would like to receive a copy of the Court’s Decision, please contact me, Scott P. Sandrock, at spsandrock@bmdllc.com or (330) 253-4367.

Surprise! A Cautionary Tale for Out-Of-Network Billing: The No Surprises Act and the Impact on Healthcare Providers

SURPRISE! Congress passed The No Surprises Act at the end of 2020. Providers, particularly those billing as out-of-network providers, should start thinking about strategies to comply with this new law, set to take effect on January 1, 2022. In its most basic sense, the new law prohibits providers from billing patients for more than the in-network cost-sharing amount in most situations where surprise bills happen. It specifically applies to non-government payers and the amounts will be set through a process described in the new law. In particular, the established in-network cost-sharing amount must be billed for the following services:

Ohio Enacts Substantial Changes to Employment Discrimination Laws

In January, Governor Mike DeWine signed into law the Employment Law Uniformity Act, amending the employment protections in the Ohio Civil Rights Act in several significant ways. Such changes to the state’s anti-discrimination and anti-harassment laws have been considered and debated for years and finally made their way into Ohio law. What has changed for employment claims under the amended Ohio Civil Rights Act?

OHIO ADOPTS THE SERIES LLC: Implementation of Ohio’s Revised Limited Liability Company Act is Coming

On January 7, 2021, Ohio adopted S.B. 276. The new legislation establishes the Ohio Revised Limited Liability Company Act (“ORLLCA”) which effectively replaces the current Ohio LLC Act. ORLLCA will be fully effective as of January 2022. While the new law contains numerous changes to the existing LLC landscape, below is an overview of some of the key differences under the ORLLCA.

Will Federal Legislation Open Cannabis Acquisition Floodgate?

Are potential buyers quietly lobbying at federal and state levels to kick open the door to launch a new round of strategic acquisitions? Will presently pending federal legislation, the SAFE and MORE Acts, providing safe harbor for banks and re- or de-scheduling marijuana, be sufficient to mobilize into action major non-cannabis companies that previously shunned the cannabis industry due to the unknown implications of owning businesses whose activities are illegal under federal law?

The Future of the Families First Coronavirus Response Act

Over the last year we all have had to adjust to the new normal ushered in by the coronavirus pandemic. Schools and daycares closed, businesses transitioned from in-office work to work from home, bars and restaurants have closed their doors...all to slow the spread and try to prevent this pandemic from spiraling out of control. The start of the pandemic was utter pandemonium. Working parents trying to balance both caring for their now at-home children and their livelihood. Businesses trying to decide how to implement leave policies with limited information. Employees determining if they could financially afford to take time off. We were all flying by the seat of our pants trying to adjust to our new normal.