What’s On Their Minds? The Application of the Medical Malpractice Statute of Repose to Vested Claims. 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.

On April 5, 2016, the Supreme Court of Ohio heard 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 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. He continued to be treated by the doctors involved until December 11, 2008. Antoon alleges that there was negligence both in the surgery and in his ongoing treatment. 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 “the Clinic”) in the Cuyahoga County Court of Common Pleas on June 1, 2010.

On June 13, 2011, the Antoons voluntarily dismissed the state malpractice case without prejudice. They then filed a qui tam action in federal court on January 31, 2012, and later filed a first amended complaint, both pro se.  After retaining counsel, the Antoons sought leave to file a second amended 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.

Within the thirty days allowed by the federal supplemental jurisdiction savings statute, the Antoons then re-filed the original medical malpractice case in state court on November 14, 2013. The trial court granted the Clinic’s motion to dismiss, finding the case was filed outside both the applicable statute of limitations and the Ohio one year savings statute. Additionally, the trial court held that the filing was barred by Ohio’s four-year statute of repose, and that the federal supplemental jurisdiction savings statute only applies to protect claims pending in federal court. Since the federal court denied leave to amend to add malpractice claims, those claims were not pending, and therefore, were not saved.

In a unanimous decision, 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.  In this case, the claim had vested, so the statute of repose had no application. The appeals court also held it could not ascertain from the complaint alone whether the statute of limitations had run, nor the applicability of 28 U.S.C. 1367 (d), the federal supplemental jurisdiction saving statute.

Read the oral argument preview of the case here.

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; also sets forth provision for extending the statute by 180 days)

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 jurisdiction savings 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.)

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.)(regardless of the applicable statute of limitations, a medical claim must be filed no later than four years after the alleged malpractice occurs, or the claim will be barred.)

At Oral Argument

Arguing Counsel

Martin T. Galvin, Reminger Co., L.P.A. Cleveland, for Appellants Cleveland Clinic Foundation, and Doctors Jihad Kaouk, Raj Goel, and Michael Lee

Matthew C. Schultz, Brannon and Associates, Dayton, for Appellees David and Linda Antoon

Clinic’s Argument

The statute of repose should be imposed as it is written-any medical claim not filed within four years of the act or omission is barred. And the statute of repose applies to both vested and non-vested claims. This is a matter of policy set by the General Assembly.

Medical practitioners are entitled to the right not to have to mount a defense within four years after the alleged negligent act or omission. Practitioners also have the right to be free from litigation after 4 years. There are going to be situations where negligence is not discovered until beyond the statute of repose, but that is a public policy trade off in order to have certainly and be free from dealing with faded memories and changing technologies and evolving standards of care.

Ruther need not be reversed or modified, although it could be clarified to hold that it applies equally to vested and non-vested claims. If Ruther doesn’t apply to vested as well as nonvested claims, the vast majority of claims will not be subject to the statute of repose. According to the Eighth District, as soon as the cause of action arises, the statute of repose is irrelevant. That is not the test. Ruther was correctly decided, but has been incorrectly applied by the appeals court in this case, and by the Tenth District in Ander.

All medical claims-vested or not-must be filed within four years of their occurrence (except for certain circumstances set forth in subsection (D), not pertinent to this case.) That is true even for cases in which the medical malpractice statute of limitations might not yet have run. That is the whole point of a statute of repose. It trumps the statute of limitations discovery rule, except for the limited circumstances in subsection (D).

The statute of repose is an outside parameter. Both the statute of limitations and the savings statute must operate within that absolute four year period.

Simply stated, regardless of the applicable statute of limitations, a person must file a medical claim no later than 4 years after the alleged act of malpractice occurs or the claim will be barred.

Specifically, in this case, the Eighth District expressly declined to take a position on whether a medical claim was pending in federal court, but did hold that the supplemental jurisdiction statute would not apply if the medical claim was never pending. It is the Clinic’s position that there was never a medical claim pending in federal court–only a qui tam case against a number of providers. Therefore, the Antoons re-filed state claim is barred by the statute of repose.

Antoons’ Argument

What the appeals court actually held here was that there was not sufficient information in the state court complaint to determine on a 12(B)(6) motion whether the federal supplemental jurisdiction savings statute applied to this re-filed case. The statute of repose issue was academic at best in the appeal.

Plaintiffs’ counsel spent a large part of his time going through the dates and details of all the filings in state and federal court, both before and after the Antoons retained counsel. It was his position that all filings in the state cases were timely under the statute of repose, the Ohio savings statute, and any applicable statute of limitations, and that the federal supplemental savings statute clearly did apply to this case because medical malpractice claims were pending in federal court when the case was dismissed. Further, the federal supplemental jurisdiction savings statute takes precedence over any state statute of repose. Statutes of repose do not take precedence over savings statutes; rather savings statutes trump statutes of repose. Of the state supreme courts that have examined this question, all but one have taken this position.

The medical malpractice claim in this case was clearly vested within the four year repose period. Ruther is only relevant in this case to the extent that it held that the statute of repose does not extinguish a vested right. But the medical claim in Ruther, unlike the Antoons’ claim, was not a vested right. It had not been discovered within four years of the occurrence, so it presented an entirely different set of facts. In this case, because the claim had already vested before the four years repose period had passed, the statute of repose has no application.

What Was On Their Minds

The Ruther case

Should the court just apply Ruther in this case, asked Justice O’Donnell? Does the court need to clarify the language about vested rights? Are there other states that have taken the position this court took in Ruther?

Is Ruther relevant here, asked Chief Justice O’Connor?

Didn’t the court determine in Ruther that the statute of repose is a valid exercise of the General Assembly’s authority to limit a cause of action, asked Justice Lanzinger, author of Ruther, and who seemed most concerned about its holding. Need the court change anything in Ruther? Clarify vested versus nonvested rights? Wasn’t the court simply trying to explain what a statute of repose was in that case?

 Statute of Repose

Must all claims be filed within four years from the date of the incident, asked Chief Justice O’Connor?

When did the statute of repose expire in this case asked Justice O’Donnell? When did it commence?

Is the statute of repose an absolute outside parameter, asked Justice Lanzinger? All the other things—the statute of limitations and the savings statute, must operate within that capped period? The statute of repose does not bar a vested cause of action, but it prevents a cause of action from vesting more than four years after the breach of care?

Interaction of Statute of Limitations and Statute of Repose

In the medical malpractice context, if a patient is still being treated postoperatively by the physician, when does the statute of limitations start to run, asked Justice O’Donnell? What happens if the termination of the doctor-patient relationship is more than five years after the surgery? Is the claim barred by the statute of repose? Does the statute of repose eclipse the statute of limitations? (yes, said counsel for the Clinic) When did the medical claim in this case commence? What was the last incidence of negligence?

If a patient doesn’t discover an injury and in the exercise of reasonable diligence couldn’t have within that four year window, is that claim barred by the statute of repose, asked Justice Pfeifer?

Savings Statutes

Is the Ohio savings statute in play for the re-filing as long as it is in the 4 year ambit of the statute of repose, asked Justice O’Donnell? What if the one year allowed in the Ohio savings statute goes beyond the 4 year repose period, which prevails? (Repose, said Clinic’s counsel).

What Happened in Federal Court

Was there a medical claim filed in the federal proceeding, asked Justice O’Donnell? Didn’t the federal court deny leave to amend the federal complaint to add medical malpractice claims? So then, was it really pending in federal court? Does the motion to amend the complaint somehow bring that claim into federal court? Must this court decide whether or not the medical claim that was originally filed in the trial court is the same claim that the federal court disallowed and dismissed? Is the federal court complaint part of this record?

Is the federal action a stay on the Ohio statute of repose, asked Chief Justice O’Connor? Does it take precedence over the state statute? Even if the statute of repose expires while the case is in federal court? Because the Antoons’ claim was vested, the 4 years started to run, but the intervening action in the federal court put that in limbo until the federal action was completed?

Vested versus Non-Vested Claims

What is the definition of vested, asked Chief Justice O’Connor? Does anything limit a vested claim?

Does the statute of repose affect a vested claim at all, asked Justice O’Donnell?

Didn’t the appeals court hold that because there was a vested right in this case, there could be no statute of repose, asked Justice O’Neill?

How it Looks from the Bleachers

To Professor Emerita Bettman

This case is such a procedural mess the court could kick it out of exasperation, but probably won’t because two appeals courts have now held that the statute of repose does not apply to vested claims. The justices who spoke (and most didn’t, or only briefly—the questioning was dominated by the Chief, and Justices O’Donnell and Lanzinger) seemed genuinely concerned about whether the statute of repose should apply to both vested and nonvested claims.

Neither side actually quarreled with the syllabus of Ruther, which is that Ohio’s statute of repose does not extinguish a vested right, and thus does not violate the Ohio Constitution. (Read an analysis of the merit decision in Ruther here.) The difference between the two sides is quite simple-the Clinic argues that the statute of repose applies to all claims, vested or not, while the Antoons argue it only applies to nonvested claims, and since their claim was vested, the statute of repose has no application to their lawsuit, which was originally filed well within the statute of repose period. It was the subsequent dismissals and re-filings between state and federal court that really complicate the matter.

If the court does reach the question of whether the statute of repose applies to all claims, I’m calling this for the Clinic. Student contributor Danielle List disagrees and thinks the Antoons may pull out a win. It may well depend on what is in this record about the federal action. I think a majority of the justices are going to find, as they did in Ruther, that the General Assembly has the right to limit a cause of action, and has limited medical claims to four years, with a small nod to the discovery rule in subsection D of the statute, which allows a little extra time for discovery in the fourth year or for foreign objects.

The dismissal of the case from state court and the re-filing in federal court complicates things. If it is clear from the record in this case that there was never a medical malpractice claim pending in the federal case (and despite the long explanation by the plaintiffs’ counsel, that’s what it sounded like to me), then the federal thirty day savings statute won’t apply, and the court won’t have to deal with the gnarly issue of whether that trumps the Ohio statute of repose. If the federal savings statute doesn’t apply, it looks like the Antoons re-filed state claim would be barred by the statute of limitations alone, without dealing with the repose issue.

If the court deals with the statute of repose issue head on, Justice Pfeifer will most likely dissent, or at least write separately, joined by Justice O’Neill, who wasn’t on the court when Ruther was decided. Pfeifer generally takes the position–as he did in dissent in Ruther–that any statutory limitation on an undiscovered claim violates the right to remedy provision of the Ohio Constitution. But he needn’t assert that position here, since the claim in this case wasn’t undiscovered, just re-filed.  He is likely to agree with the court of appeals that once a claim has vested, the timeliness of the complaint is controlled by the statute of limitations and its relevant tolling provisions, such as the discovery rule, not by the statute of repose.

To Student Contributor Danielle List

The procedural issues in this case make it very difficult to follow, let alone predict. With regard to the interpretation of Ruther, I think the court is going to have to clarify the statute of repose’s operation, if any, on vested claims. On this issue, I think it’s possible that the Antoons will pull out a win by having the court clarify that the statute of repose only prevents claims from vesting four years after the alleged negligence.

There was a great deal of inconsistency between the parties as to what was alleged in the first complaint filed in federal court, but from the information given, I wouldn’t be surprised if the medical malpractice claim was found not to have been before federal court. Regardless, in order for the Antoons to prevail in the end, this court or the trial court on remand would have to decide not only that there was a medical malpractice action pending before federal court, but also that the federal 30 day statute stayed the statute of repose so as to allow it to be re-filed in state court.

 

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