On March 21, 2007 the Ohio Supreme Court unanimously ruled that a parent’s claim for loss of consortium may be tolled while the child is a minor, affirming the First Appellate District’s decision in Fehrenbach v. O’Malley, 113 Ohio St.3d 18, 2007-Ohio-971.
Fehrenbach involved a medical negligence claim in which plaintiffs alleged the defendant physician failed to timely diagnose bacterial meningitis in a 14-month- old child in 1991. The Fehrenbachs filed their complaint in 1997, suing as their child’s guardian and also in their own right for loss of consortium and medical expenses.
The trial court dismissed the parents’ claims on the grounds that they were not timely filed. The First District reversed, finding that the tolling provisions of R.C. 2305.16 inure to the benefit of parents pursuing a claim for loss of consortium and medical expenses.
Under the tolling statute, if a person entitled to bring a medical claim is within the age of minority at the time the cause of action accrues, that person may bring the claim within a year of reaching the age of majority. The statute also provides that when the interests of two or more parties are joint and inseparable, the benefits of tolling inure to all of the claimants.
What was unclear before the Supreme Court’s ruling was whether derivative claims for loss of consortium and medical expenses by a minor’s parent are “joint and inseparable” from the minor’s claim and therefore also tolled during the child’s infancy.
The Supreme Court previously held that a single wrong against a child gives rise to two separate and distinct causes of action, one in favor of the child and one in favor of the parent. Grindell v. Huber, (1971), 28 Ohio St. 3d 71. Furthermore, The Court held that claims for loss of consortium are “separate and distinct” causes of action. Id. at 74.
However, in Fehrenbach, the Supreme Court ultimately found that a parent’s claim for loss of consortium against a third party for injuries to the parent’s minor child is, in fact, an interest that is “joint and inseparable” from the child’s own claim and therefore the parent’s claim may be tolled during the child’s minority. The Court explains that the independent nature of the loss of consortium claim is based on control and ownership of the claim and that such a claim may be “separate” in the sense that it is a distinct claim, but is “joint and inseparable” as such claims arise from the same occurrence that produced the injury.
In coming to this decision, the Supreme Court cited Civil Rule 19.1, the compulsory joinder rule, and its accompanying Staff Notes, indicating that this Rule mandates such claims be joined even though under substantive law there may be two independent claims. The Court reasoned that joinder of the child’s and parent’s claims promotes judicial economy and limits the possibility of conflicting outcomes.
If you have questions regarding this opinion or any other issue concerning medical claims, please feel free to contact one of the attorneys in our medical malpractice group.
