In Ohio, There is No Saving a Refiled Medical Claim if Outside the Statute of Repose

By Acacia Brush Perko

In the context of a medical claim, the statute of limitations sets the deadline for a person to file a lawsuit based on when the person acquired or discovered the injury. The statute of repose, however, prohibits a lawsuit based upon when the defendant acted regardless of when the injury occurred. In Wilson v. Durrani, the Ohio Supreme Court issued a warning to plaintiffs who voluntarily dismiss their lawsuit and then attempt to refile outside the statute of repose: there is no saving the claim and its absolutely barred.

Generally, Ohio’s savings statute, R.C. 2305.19(A), affords plaintiffs one year to re-file after voluntarily dismissing their claims, even if the filing violates the statute of limitations. But, as the Ohio Supreme Court has previously held, filing a medical claim does not indefinitely suspend the statute of repose. Antoon v. Cleveland Clinic Fund, 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 24. But, in a 5-2 decision, the Ohio Supreme Court recently made clear that the saving statute does not apply to the four-year medical malpractice statute of repose. Wilson v. Durrani, Opinion No. 2020-Ohio-6827. Thus, if a plaintiff voluntarily dismisses but does not refile within the four-year statute of repose, the action is barred by the statute of repose.

The Durrani plaintiffs filed separate medical malpractice lawsuits stemming from spinal surgeries performed by the defendant. The plaintiffs initially filed their lawsuits within the time provided by both the one-year statute of limitations and the four-year statute of repose, set forth in R.C. 2305.113(A) and (C), respectively. About two and a half years after filing, the plaintiffs voluntarily dismissed their claims without prejudice pursuant to Civ.R. 41(A)(1)(a). They refiled in another county. Consequently, their re-filing occurred five years after their surgeries, violating both R.C. 2305.113(A) and (C).

The defendant in Durrani moved for a judgment on the pleadings, arguing that the new filing violated R.C.2503.113(C). The trial court granted the defendant’s motion and dismissed the cases. The First District reversed. 2019-Ohio-3880, 145 N.E.3d 1071, ¶ 32. The question, then, turned to whether Ohio’s saving statute applies to the statute of repose for medical claims.

While a statute of limitations and a statute of repose are similar, the Ohio Supreme Court distinguished the two by their different purposes and applications. A statute of limitations establishes a deadline for plaintiffs to file a lawsuit based on when the plaintiff acquired or discovered the injury. Therefore, it “operates on the remedy, not on the existence of the cause of action itself.” It ensures a plaintiff is diligent in prosecuting known claims. Whereas, a statute of repose prohibits a lawsuit based upon the time the defendant acted, regardless of when the injury occurred. Therefore, a statute of repose “bars the claim—the right of action—itself.” It ensures defendants are “free from liability after a legislatively determined time.”

Ultimately the Court determined that the plain language of R.C. 2503.113(C) “and the general character of statutes of repose as providing an absolute temporal limit on a defendant’s potential liability” showed that the Ohio’s savings statute does not apply to the statute of repose for medical claims.

This decision greatly impacts a plaintiff’s ability to voluntarily dismiss without prejudice under Civ.R. 41(A)(1)(a) and imposes severe consequences for medical claim plaintiffs who fail to act timely. If you have any questions concerning Wilson v. Durrani or medical liability, contact a member of our Medical Malpractice or Long-Term Care Practice Groups.

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