The Statute of Repose After Antoon, And What Looms On The Horizon

October 31, 2016

Last week, the Supreme Court of Ohio reaffirmed the constitutionality of R.C. 2305.113(C)’s statute of repose, which bars most[1] lawsuits alleging medical claims from being commenced more than four years after the act or omission at issue. In Antoon v. Cleveland Clinic Foundation, Slip Opinion No. 2016-Ohio-7432, Chief Justice Maureen O’Connor – leading a 5-1 majority – reversed the Eighth District Court of Appeals and held that R.C. 2305.113(C)’s four-year statute of repose applies to both a vested claim (i.e., a medical claim that already has or should have been discovered) and a nonvested claim (i.e., a medical claim that has not been and should not have been discovered yet). 

Notably, the Antoon majority spent the first half of its opinion explaining the long history of the statute of repose and – perhaps more importantly – its virtues.  As the majority observes, “a statute of repose is not an unjust and discreditable defense but rather, a law designed to secure fairness to all parties.”  While both the Eighth District and the plaintiffs in Antoon sought to apply language from the Supreme Court’s recent statute-of-repose decision, the majority rejected these arguments as an ‘impermissibly narrow reading of Ruther [v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686],” which – unlike Antoon – did not address a vested claim.

Once the Supreme Court majority reaffirmed the constitutionality and propriety of R.C. 2305.113(C) in Antoon, it had no trouble demonstrating the untimeliness of that particular claim.  The plaintiffs’ medical claim accrued (i.e., vested) by December 2008, and – after taking advantage of R.C. 2305.113(B)’s brief extension – they timely filed that claim in state court in June 2010.  The plaintiffs voluntarily dismissed that complaint without prejudice in June 2011, and pursued a non-medical qui tam claim in federal court in January 2012.  The federal court denied leave for plaintiffs to subsequently add their medical claim in that case, and dismissed their qui tam claim in October 2013.  The plaintiffs then re-filed their original medical claim in state court in November 2013.

Citing the plan language and “absolute limit” of R.C. 2305.113(C), the Antoon majority recognized that since the plaintiffs re-filed their November 2013 complaint beyond the four-year statute of repose, it was untimely.  In doing so, the majority purposely ignored the original June 2010 filing date, reminding the plaintiffs that “once a complaint has been dismissed without prejudice, legally, that action is deemed to never have existed.”  While the plaintiffs tried to save their claim with R.C. 2305.19’s one-year savings period and 28 U.S.C. 1367’s tolling statute, the majority deferred comment on those statutes because neither had been properly invoked.                            

But that looming confrontation is inevitable.  Put simply, does R.C. 2305.113(C)’s “absolute” four-year limit trump R.C. 2305.19’s one-year savings period?  Both the plain language in R.C. 2305.113(C) andthe majority’s particular rationale in Antoon suggest it does even when a medical claim is re-filed within the one-year savings period.   


[1]           By express statutory exclusion, the four-year statute of repose does not necessarily bar the medical claim of those who: are in the age of minority; are of unsound mind; could not timely discover their injury; or have a foreign-object claim. 

 

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