Oral Argument Preview: Once Again, the Medical Malpractice Statute of Repose. David Antoon et al. v. Cleveland Clinic Foundation et al.

Update: On October 25, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument here.

On April 5, 2016, the Supreme Court of Ohio will hear oral argument in the case of David Antoon et al. v. Cleveland Clinic Foundation et al., 2015-0467. At issue in the case is whether the statute of repose for medical malpractice claims applies to causes of action that are fully vested before suit is filed.

Case Background

On January 8, 2008, Appellant David Antoon underwent prostatectomy surgery at the Cleveland Clinic. The last treatment Antoon received from CCF was December 11, 2008. By then, it had become apparent that serious complications had arisen as a result of the procedure. After extending the time to file suit by serving the defendants with a 180 day letter on December 9, 2009, Antoon and his wife filed a medical malpractice action against  Appellees Cleveland Clinic Foundation and three doctors involved in his surgery (collectively “CCF”) in state court on June 1, 2010.

Just over a year later, on June 13, 2011, the malpractice case was voluntarily dismissed without prejudice. The Antoons then filed a qui tam action in federal court on January 31, 2012 against CCF. On February 14, 2013, the Antoons sought leave to amend their complaint in order to add several claims, including medical malpractice. Leave to amend was denied, and on October 16, 2013, the federal district court dismissed the entire case.

The Antoons re-filed the malpractice case in state court on November 14, 2013. The trial court granted CCF’s motion to dismiss, finding the case was filed outside both the applicable statute of limitations and the one year savings statute. Additionally, the trial court held that the filing was barred by Ohio’s four-year statute of repose.

The Antoons appealed, and in a unanimous opinion authored by Judge Keough, and joined by Judges Jones and Stewart, the Eighth District reversed the trial court. In the issue pertinent to this appeal, the appeals court held that the trial court erred in dismissing the Antoons’ complaint on the basis that it was time barred by the statute of repose. Relying primarily on the Supreme Court of Ohio’s decision in Ruther, the Eighth District held that the statute of repose for medical malpractice only bars claims that have not yet vested within four years of the negligent act. After a claim has vested, the statute of repose has no application; rather, the timeliness of the filing is then controlled by the statute of limitations and any relevant tolling provisions.

The negligent act occurred in this case on January 8, 2008. The Antoons’ originally-filed (and voluntarily dismissed) action against CCF on June 1, 2010 was within the four year period, and had thus vested, so the statute of repose no longer applied and it was only the statute of limitations which governed the timeliness of the complaint. The Eighth District also noted that the complaint included insufficient information to warrant dismissal on statute of limitations grounds.

Key Precedent

Article I, Section 16 of the Ohio Constitution (All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.)

R.C. 2305.113 (1-year statute of limitations for medical malpractice actions:)

(A) Except as otherwise provided in this section, an action upon a medical, dental, optometric, or chiropractic claim shall be commenced within one year after the cause of action accrued.

(B) (1) If prior to the expiration of the one-year period specified in division (A) of this section, a claimant who allegedly possesses a medical, dental, optometric, or chiropractic claim gives to the person who is the subject of that claim written notice that the claimant is considering bringing an action upon that claim, that action may be commenced against the person notified at any time within one hundred eighty days after the notice is so given.

R.C. 2305.113 (C) (4-year statute of repose for medical malpractice actions: (C) Except as to persons within the age of minority or of unsound mind as provided by section 2305.16 of the Revised Code, and except as provided in division (D) of this section (which provides a one year extension in circumstances not pertinent to this case) if both of the following apply:

(1) No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.

(2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.)

R.C. 2305.19 (Savings Statute: (A) In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff’s representative may commence a new action within one year after the date of the reversal of the judgment or the plaintiff’s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. This division applies to any claim asserted in any pleading by a defendant.)

28 U.S.C. 1367 (d) (federal supplemental-subject-matter-jurisdiction saving statute) (The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless state law provides for a longer tolling period.)

Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111 (1983) (a cause of action accrues (and therefore vests) when a patient discovers or in the exercise of reasonable care and diligence should have discovered the resulting injury.)

Ruther v. Kaiser, 2012-Ohio-5686 (The medical malpractice statute of repose found in R.C. 2305.11(C) does not extinguish a vested right and thus does not violate the Ohio Constitution’s right to a remedy provision.)

Ander v. Clark, 2014-Ohio-2664 (10th Dist.) (R.C. 2305.113(C) bars claims that have not vested within four years of the negligent act. Once vesting occurs, the timeliness of the complaint is controlled by the statute of limitations and its relevant tolling provisions such as the discovery rule.)

York v. Hutchins 2014-Ohio-988 (12th Dist.) (the statute of repose requires the filing of a claim within four years, or it will be forever barred, regardless of the applicable statute of limitations.)

Singleton v. Pittsburgh Bd. of Educ., 2012 WL 4068381 (W.D. Pa., 2012) (when a federal court denies leave to amend a complaint to assert a state-law claim, the claim is dismissed without prejudice to refiling under the tolling provisions of 28 U.S.C. 1367(d)).

CCF’s Argument

CCF argues that it is incorrect to hold that the statute of repose only applies to medical claims that have not vested within four years. The statute itself is clear. It requires all medical claims to be filed within four years of the negligent occurrence. Any action not brought within four years is barred. In asserting that the statute of repose applies regardless of whether the claim has vested prior to filing a lawsuit, CCF argues that the Eighth District erred in its interpretation of the Supreme Court of Ohio’s decision in Ruther.

According to CCF, the fact that the statute of repose did not extinguish a vested right in Ruther does not imply that the statute only applies to vested rights. Rather, the proposition in Ruther should be understood to mean that “even if” a cause of action takes four years or more to vest, because it hasn’t yet been discovered, the cause of action is barred. To hold otherwise would unduly restrict the application of the statute of repose.

It is undisputed that Antoon discovered his injury shortly after his surgery in January, 2008. However, this realization (i.e., the fact that his claim had then vested) does not nullify the application of the statute of repose to his claim. Invoking a number of policy arguments, CCF keys in on the purpose of the Legislature enacting the statute of repose to serve as the absolute outer limit for all medical malpractice claims. Having a designated time frame in which a claim can be pursued provides certainty to medical providers that they will not be forced to defend suits that are based on events that occurred in the distant past. Additionally, barring such claims ensures that the documents and other evidentiary materials are fresh and available for litigation.

The particulars of this case raise no constitutional concerns. Antoon discovered his injury almost immediately, and the Antoons initially filed their malpractice claim within the four year repose period. The statute of repose did not extinguish a vested right before they knew it existed in this case. Rather, by not re-filing this lawsuit within that four year period, the Antoons let a vested right lapse. Re-filing in state court could not and did not cure that.

The qui tam action filed by the Antoons in federal court was also filed outside the statute of repose. Additionally, that action was not even conceivably a re-filing of the state medical malpractice claim, and leave to amend to add such a claim was denied. There was never a medical malpractice claim against these defendants in any federal action. The tolling provisions of 28 Section 1367(d) have absolutely no application to these facts since the Antoons never filed a medical malpractice action in federal court.

Antoons’ Argument

The Supreme Court of Ohio’s holding in Ruther is controlling in this case. In Ruther, the court held that the statute of repose does not extinguish a vested right and thus does not violate the Ohio Constitution’s right to a remedy. CCF would have the court hold the exact opposite, that is, the statute of repose does extinguish a vested right. Such a conclusion would necessarily infer that the statute of repose would violate the right to a remedy provision. Given the fact that Ruther was decided a mere four years ago, it is unlikely that the court will completely reverse its opinion. Moreover, the court is bound by the doctrine of stare decisis to adhere to its previous decision, and there is no basis to reverse it.

Additionally, the Antoons argues that the savings statute should be applied to a claim that would otherwise be barred by the statute of repose. The purpose of a savings statute is to permit cases that would have otherwise been disposed on technical grounds unrelated to the merits. Therefore, savings statutes are designed to trump statutes of repose and therefore could likewise permit the filing of the Antoons’ complaint.

Next, the Antoons addresses the relation between the federal court’s dismissal and the re-filing in state court. According to the Antoons, the tolling provisions of 28 Section 1367(d) prevent any state law time bar from preventing the refiling of the state law claim. Since the state law statute of repose attempts to time bar the Antoons’ claims while it was pending before the federal court, it violates the tolling provisions of 1367(d). CCF’s attempt to rebut this argument by claiming that the medical malpractice claims were not pending before the federal court contradicts their previously stated position that the case was a “federalization of medical malpractice” claim.

Finally, CCF’s position would render the statute of repose unconstitutional. Given the decision in Ruther, there is a strong indication that the court believed that extinguishing a vested right would violate the right to a remedy provision. Construing the statute so as to not to render it unconstitutional requires it to become inoperable upon the vesting of a right.

CCF’s Proposed Proposition of Law

Ohio’s medical malpractice statute of repose applies whenever the occurrence of the act or omission constituting the alleged medical malpractice takes place more than four years prior to when the lawsuit is filed. This statute of repose applies regardless of whether a cause of action has vested prior to the filing of a lawsuit.

Amici In Support of CCF

Amicus, The Academy of Medicine of Cleveland & Northern Ohio, filed a brief in support of CCF. According to the Academy,  the plain reading of the statute indicates that an action not filed within four years, regardless of whether it has vested or not, is barred. To hold otherwise would seriously undercut the applicability of the statute of repose. The court of appeals’ interpretation of the statute has rendered it meaningless. The broad applicability of the statute of repose is of critical importance to physicians and medical providers who rely on its mandate for the timely filing of claims.

Amici, Ohio Hospital Association, Ohio State Medical Association, and the Ohio Osteopathic Association, filed a joint brief in support of CCF. They argue that R.C. 2305.113(C), with certain exceptions not relevant to this case, cuts off all claims not filed within four years of the alleged malpractice. The statute of repose runs from a fixed date—the date of the alleged malpractice. Subsection (C) imposes a four year deadline, serving as a statute of limitations for claims that have vested and as a statute of repose for claims that have not. As advocates for medical providers, these amici stress the policy arguments in applying the statute of repose to all claims, vested or not, so as to create certainty for in the medical field. Like the CCF, Amici argue that the Antoons misconstrue the import of Ruther.  A decision in support of CCF’s proposition would not require a change in precedent.

Amicus In Support of Antoon

Amicus, Ohio Association for Justice (OAJ) filed a brief in support of the Antoons, arguing that this action is not barred by the statute of repose, and that the court of appeals should be affirmed. Like the Antoons, OAJ argues that the statute of repose only prevents non-vested claims from being litigated. Even if the court were to find that the statute of repose applies to vested claims, it does not trump the Ohio Savings Statute or 28 U.S.C. § 1367(d). R.C. 2305.113(C)(2) does not bar a re-filed action when the original action was filed within the four year period of R.C. 2305.113(C)(2) and the re-filed action is commenced within an applicable “saving” period, such as one year under R.C. 2305.19 or thirty days under 28 U.S.C.1367(d). Ruther clearly indicates that the statute of repose only applies to non-vested claims.  If the statute of repose bars vested claims, it is unconstitutional for violating the constitutional right to a remedy provision.

Student Contributor: Danielle List

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