When a medical malpractice case filed by a parent is dismissed, a child’s lawsuit for the loss of the companionship also gets dismissed.

When a medical malpractice case filed by a parent is dismissed, a child’s lawsuit for the loss of the companionship also gets dismissed.

When a medical malpractice case filed by a mother and father against a physician was dismissed for being filed too late, it resulted in the dismissal of a claim brought by their children for the loss of the companionship of their deceased mother, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court found that when a medical malpractice claim is barred by the four-year deadline to file under R.C. 2305.113, the “derivative” lawsuit tied to the medical claim also fails. The decision affirmed the ruling of the Tenth District Court of Appeals, which found that once a parent’s medical negligence claim is extinguished by the four-year limit, the children’s claim for loss of their mother’s companionship and affection no longer exists.

Writing for the Court majority, Justice Joseph T. Deters explained that R.C. 2305.113(C)(2) enacted a “statute of repose,” which places a strict four-year time limit on filing a case alleging injury by medical error. Failure to meet the deadline is substantive grounds for dismissing a case, he wrote, and when a case is dismissed on substantive grounds, any other claims derived from the case are also dismissed.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer and R. Patrick DeWine joined Justice Deters’ decision.

In a dissenting opinion, Justice Jennifer Brunner asserted that the children’s loss of consortium lawsuit was separate and distinct from the medical negligence claims made by their parents. She noted the statute of repose does not apply to cases filed by minors and the dismissal of the parents’ lawsuit does not extinguish the right for the children to proceed in their lawsuit.

Justices Michael P. Donnelly and Melody Stewart joined Justice Brunner’s opinion.

Patient’s Colon Cancer Undetected
In 2010, Dr. Peter K. Lee began treating Kathleen McCarthy for rectal bleeding and related symptoms. A colonoscopy detected no cancerous lesions, and Lee diagnosed McCarthy with hemorrhoids. When McCarthy returned to Lee in 2015, complaining of worsening symptoms, his diagnosis did not change. Two years later, McCarthy was diagnosed with stage three colon cancer, which progressed to stage four.

The next year, in 2018, McCarthy and her husband filed a medical malpractice case against Lee and other medical providers. The couple voluntarily dismissed the case and refiled it in 2020. The medical providers asked the Franklin County Common Pleas Court to dismiss the case, arguing it was filed after the four-year deadline established by R.C. 2305.113(C)(2).

The trial court dismissed the case in February 2021. In April 2021, the McCarthys filed a loss of consortium lawsuit on behalf of their three minor children against Lee and other medical providers due to the negligent treatment of Kathleen. The trial court concluded that because the parents’ medical negligence case was barred by the statute of repose, the children’s claim could not proceed.

The McCarthys appealed to the Tenth District, arguing that R.C. 2305.113(C) exempts claims by minors, and since the McCarthy children were all minors at the time, their case could proceed. The Tenth District rejected the argument, and the couple appealed to the Supreme Court, which agreed to hear the case. Kathleen McCarthy died in December 2022.

Supreme Court Analyzed Medical Claim Time Limit Law
R.C. 2305.113(C)(2) states: “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.” However, the law does not apply “to persons within the age of minority.”

The law establishing a four-year limit is a statute of repose, which differs from a statute of limitations, Justice Deters wrote. A statute of limitations sets a time limit for when a case may be filed based on the date when the injury occurred or was discovered. A statute of repose sets a time limit for when a case may be filed based on when the accused acted. Unlike a statute of limitations, a statute of repose may prevent the filing of a lawsuit even before an injury is discovered, the opinion explained.

The McCarthys conceded that when they refiled their complaint against Lee in 2020, it was more than five years after the doctor’s last treatment of Kathleen. As a result, their case was dismissed because of the statute of repose.

The medical providers argued that a claim of loss of consortium, in which a person claims to be harmed when deprived of the benefits of a family relationship, is dependent on the existence of the medical negligence claim. If a medical claim fails, then the loss of consortium claim also fails, the providers maintained.

The majority opinion explained that this is not always the case. The Court ruled that if the medical negligence claim failed for some “nonsubstantive reason,” such as missing the statute of limitations deadline to file the case, then the separate loss of consortium claim could continue. But if the principal claim fails for “substantive reasons,” then a derivative claim also fails.

 For example, the Court noted, a parent might bring a loss of consortium claim based on a doctor’s medical negligence in treating a child as an attempt to recover the costs of medical expenses paid to treat the child. That claim would be filed as a derivative claim to a principal claim of medical negligence against the doctor. If the doctor was found not to have committed negligence in treating the child, then the loss of consortium claim would fail.

The McCarthys argued the statute of repose is a nonsubstantive reason for dismissing a case, and the children’s case should proceed. But the majority concluded that the statute of repose operates differently than a statute of limitations and is a substantive reason for dismissing the case. Because the parents’ lawsuit was extinguished by the statute of repose, the children’s claim no longer existed, Justice Deters wrote.

Claim Should Move Forward, Dissent Maintained
In her dissenting opinion, Justice Brunner wrote that the children alleged the doctor acted negligently and caused their mother’s death. The statute of repose does not apply to the cases filed by minors, and the law does not extinguish their case because it is separate and distinct from the case filed by parents, she stated.

Justice Brunner noted that the parents’ medical negligence claims did not fail based on the merits, such as a trial court finding that the doctor did not commit malpractice. Rather, their claims having been dismissed because of the statute of repose, should have no bearing on the separate cases filed on behalf of the children. She stated that this is because the children’s case is derived from a claim of wrongful death relating to Lee’s alleged negligence. Since the second lawsuit is not tied to the first, and because the statute of repose does not apply to cases filed by minors, the children’s case should have proceeded, she concluded. However, ultimately, because case law exists that all of the cases involved should be brought together and not separately, Justice Brunner stated that the case is so unusual it should not have been accepted for review, being unlikely to occur again.

2022-0732. McCarthy v. Lee, Slip Opinion No. 2023-Ohio-4696.

View oral argument video of this case.

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