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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.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.