“Therefore, this court and the United States Supreme Court agree that statutes of repose are to be read as enacted and not with an intent to circumvent legislatively imposed time limits.”

Chief Justice Maureen O’Connor

“This case moves us one step closer to the time when the common law will be completely obliterated in Ohio.”

Justice Paul Pfeifer

On October 25, 2016, the Supreme Court of Ohio handed down a merit decision in Antoon v. Cleveland Clinic Found., 2016-Ohio-7432.  In a unanimous (in this case 6-0) opinion written by Chief Justice O’Connor, the court held that Ohio’s medical malpractice statute of repose is constitutional, and applies to all causes of action, whether they have vested or not.  Specifically, that means in this case, the plaintiffs’ claims are barred.  While Justice Pfeifer concurred in judgment only, he called that “a minor point indeed.” He wrote a blistering dissent as to “everything else in the majority opinion.” Justice O’Neill heard the case when it was argued, but then recused himself about four months later. The information available on the public docket indicates the reason given as “employee of Cleveland Clinic Foundation in 2008.” The Clinic is a defendant in the case.  The case was argued April 5, 2016.

Key Statutes and 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: 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.)

Townsend v. Eichelberger, 51 Ohio St. 213, 38 N.E. 207 (1894) (It is not the province of the courts to make exceptions to meet cases not provided for by the legislature. It is no longer the habit of courts to view with disfavor the plea of the statutes of limitations. Being statutes of repose, designed to secure the peace of society, and protect the individual from being prosecuted upon stale claims, they are to be construed in the spirit of their enactment.)

Sedar v. Knowlton Constr. Co. (49 Ohio St.3d 193, 551 N.E.2d 938 (1990) (upholding constitutionality of ten year statute of repose for architects, construction contractors and others who perform services related to the design and construction of improvements to real property). (Overruled by Brennaman)

Brennaman v. R.M.I., Co, 70 Ohio St.3d 460 (1994) (paragraph 2 of syllabus. R.C. 2305.131, a statute of repose, violates the right to a remedy guaranteed by Section 16, Article I of the Ohio Constitution, and is, thus, unconstitutional. Sedar v. Knowlton Constr. Co. overruled.)

Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377 (Upholding products liability statute of repose, finding statutes of repose do not automatically violate the Ohio Constitution’s right-to-remedy provision. Severely criticizes Brennaman, confining it to its particular holding that former R.C. 2305.131, the prior statute of repose for improvements to real property, was unconstitutional. “To the extent that Brennaman stands for the proposition that all statutes of repose are repugnant to Section 16, Article I, we expressly reject that conclusion.”)

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.)

Taylor v. First Resolution Invest. Corp., Slip Opinion No. 2016-Ohio-3444 (a party need not be granted an unlimited amount of time to bring a vested cause of action, but must receive only a “reasonable” amount of time in order for a law to pass constitutional muster).

Case Background

Warning! This case is a procedural nightmare.

The Original Medical Malpractice Case

On January 8, 2008, David Antoon underwent a prostatectomy at the Cleveland Clinic. Three Clinic doctors—Kaouk, Goel, and Lee–were involved in his case.  According to his brief, after the surgery Antoon was incontinent and impotent. He consulted with the doctors involved until December 11, 2008, when he had his final visit with Dr. Kaouk.

After extending the time to file suit by serving the defendants with a 180 day letter on December 9, 2009, Antoon and his wife (collectively, “the Antoons”) filed a medical malpractice action against the Cleveland Clinic Foundation and the three doctors involved in his surgery (collectively “the Clinic”) in the Cuyahoga County Court of Common Pleas on June 1, 2010.

Ok, no problem so far.  The medical malpractice case was originally timely filed for statute of limitations purposes. And the  statute of repose, for that matter.  The one year statute of limitations began to run from Antoon’s last date of treatment with Dr. Kaouk, and was properly extended by the 180-day-letter delivered on December 9, 2009.

On June 13, 2011, the Antoons dismissed their malpractice case without prejudice.

Federal Qui Tam Lawsuit

Acting pro se, the Antoons filed a qui tam action in federal district court on January 31, 2012. The original complaint did not allege medical malpractice and did not seek money damages.

On May 8, 2012, before the complaint was served, the Antoons amended the qui tam action against the Cleveland Clinic, its employees and manufacturers of equipment used during the surgery.  On December 21, the defendants moved to dismiss the amended action.

The Antoons argue that because the qui tam action was filed within one year of the dismissal of their state case, the state claim was preserved by Ohio’s saving statute, R.C. 2305.19(A).

They then hired a lawyer.  On February 13, 2013, while the motion to dismiss was pending, the Antoons sought leave to file a second amended complaint, adding state law medical malpractice claims.

On October 16, 2013, the federal district court denied leave to file the second amended complaint and granted the defendants’ motion to dismiss the first amended complaint.  This ruling was affirmed by the Sixth Circuit Court of Appeals.

OK, Now it’s Back to State Court. Tick-tock.

On November 14, 2013, which was within the thirty days allowed by 28 U.S.C. 1367(d), the federal supplemental jurisdiction savings statute, the Antoons re-filed the medical malpractice case in state court. 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.

State Appellate Decision

In a unanimous decision, the Eighth District reversed the trial court. Relying primarily on the decision in Ruther v. Kaiser, the Eighth District held that once a claim had vested, which this one did when the Antoons filed their first lawsuit in 2010, the statute of repose can no longer bar the claim.

Read the oral argument preview of the case here and the analysis here.

Merit Decision

 Executive Summary: Four Years and You’re Out!

The court essentially adopted the Clinic’s argument that Ohio’s four year medical malpractice statute of repose permissibly applies to both vested and nonvested claims, and that regardless of the applicable statute of limitations, under Ohio’s medical malpractice statute of repose, a medical claim must be filed no later than 4 years after the alleged act of malpractice occurs or the claim will be barred.

In other words, the statute of repose means exactly what it says.  File four years from the time of the occurrence or you’re out.

Analysis

The court begins with a detailed discussion of statutes of limitations and repose.  They are different, although they share the same purpose, which is to limit the time in which an alleged tortfeasor should have to defend a claim.

Definitions and Policy Choices

 A statute of limitations establishes a time when a civil action must be filed, based on the date the claim accrued (meaning either when it occurred or was discovered).

A statute of repose bars a lawsuit a specific number of years after the culpable act, even if that period ends before the plaintiff has suffered a resulting injury. For a medical claim, that period in Ohio is four years.  There are some exceptions to that four years in subsection (D) of the medical malpractice statute of repose not pertinent to this case.

The court makes clear that R.C. 2305.1113(C) is a statute of repose, because the time for bringing a suit under this section begins to run from the time of the occurrence that forms the basis of the claim.

As the court wrote in Ruther, “Just as a plaintiff is entitled to a meaningful time and opportunity to pursue a claim, a defendant is entitled to a reasonable time after which he or she can be assured that a defense will not have to be mounted for actions occurring years before.”  The court reiterates, as it did in Ruther, that a statute of repose is a valid policy choice made by the General Assembly, without which “medical providers are left with the possibility of unlimited liability indefinitely.”

Applying Ohio’s Medical Malpractice Statute of Repose

For the purposes of this case, the medical malpractice claims were filed on November 14, 2013, more than four years from the date of the claimed negligent treatment. It should have been filed by January 8, 2012.

The court rejected the Antoons’ argument that their June 1, 2010 filing and subsequent dismissal without prejudice suspended the statute of repose indefinitely.  It is settled law that once a complaint has been dismissed without prejudice, legally the action is treated as if it had never existed.

It should be noted that even after the Antoons dismissed their claims without prejudice on June 13, 2011, they still had more than six months to file within the statute of repose.

Ruther v. Kaiser

Here is the syllabus of Ruther:

The medical-malpractice statute of repose found in R.C. 2305.113(C) does not extinguish a vested right and thus does not violate the Ohio Constitution, Article I, Section 16. (Hardy v. VerMeulen, 32 Ohio St.3d 45, 512 N.E.2d 626 (1987), overruled.)

Read an analysis of the merit decision in Ruther here.

At oral argument, the Clinic argued that Ruther need not be reversed or modified, although it could be clarified to hold that it applies equally to vested and non-vested claims. The court did exactly that, criticizing the appeals court and the Antoons for “an impermissibly narrow reading of Ruther.” The court noted that Ruther involved an as-applied challenge to the medical malpractice statute of repose, involving a claim that had not vested before the statute expired.  So consideration of a vested claim was not before the court in Ruther, and any discussion of vested causes of action “was made solely in the context of addressing a claim that accrued after the statute of repose had expired.”  That isn’t the situation in the Antoons’ case.

Constitutional Challenge to the Statute

 A medical malpractice claim vests when a patient discovers or in the exercise of reasonable diligence should have discovered the resulting injury.  The Antoons argued that if R.C. 2305.113(C) extinguishes a vested right it violates the right-to-remedy provision in the Ohio Constitution (Article I, Section 16).  The high court rejects that argument, finding that as long as a party is granted a reasonable time to bring a claim, the law passes constitutional muster. This four-year statute allows that. So, R.C. 2305.113(C) is constitutional both when it extinguishes a vested and nonvested cause of action.

If you really want to get down into the weeds about this, go back and read Groch v. Gen. Motors (see precedent section).

What the Court Didn’t Decide

The court doesn’t decide whether Ohio’s savings statute, or the federal supplemental jurisdiction savings statute, when properly invoked, allow actions to survive past the expiration of the statute of repose.  I would think the answer to this question should be yes, but it doesn’t matter in this case, since the court finds that neither applies here.

The Ohio savings statute applies only if a party files a substantially similar action within one year of a dismissal without prejudice.  The qui tam action filed by the Antoons was filed about seven months after the state claim was dismissed, but did not assert medical malpractice claims, so the state savings statute was inapplicable.

Likewise, the federal tolling statue applies only to state-law claims over which a federal court has exercised supplemental jurisdiction.  The federal court in this case declined to exercise supplemental jurisdiction over the malpractice claims the Antoons asserted in their second amended complaint, so the federal tolling statute is also inapplicable here.

Case Resolution

R.C. 2305.11 applies to both vested and nonvested claims.  The Antoons filed their accrued claims more than four years after the alleged malpractice, so their claims are barred by the statute of repose.  The court of appeals is reversed, and the case remanded back to the appeals court with the mandate to enter judgment for the Clinic.

Essentially, the state trial court judge got it right in the first place..

Justice Pfeifer’s Position

While Justice Pfeifer agreed with the judgment, he agreed with absolutely nothing else. He wrote a passionate argument for a muscular application of the Ohio Constitution’s right-to-remedy provision.

Here’s his take on what he calls a very simple case.

“This case is quite simple. The complaint was filed too late by pro se plaintiffs. They attempted to avail themselves of Ohio’s saving statute, R.C. 2305.19(A), but that attempt was ill considered because the federal action relied upon did not allege medical malpractice or seek damages. We should have reversed the judgment of the court of appeals summarily and the story should have ended. Alas, this court saw an opportunity to further assault the fundamental constitutional right to a remedy.”

Pfeifer accuses the majority of allowing “the statute of repose to swallow the right-to-a-remedy clause.” He notes that he has written extensively about statutes of repose, and how, in his opinion they undermine constitutional protections. (see Groch again). Instead of writing again, he elects to quote extensively from the separate concurrence written by then-Justice Andy Douglas thirty years ago in Mominee v. Scherbarth, which struck down an earlier medical malpractice statute of repose. Douglas’ position, which Pfeifer has long adhered to, is that legislation that abolishes or curtails a cause of action that existed at common law at the time the Constitution was adopted is invalid under the right-to-remedy provision unless a reasonable substitute is provided.  Medical negligence is such a common law cause of action.  When a person suffers an injury as a result of medical malpractice, and doesn’t discover it within four years, the statute of repose impermissibly abolishes that cause of action with no meaningful substitute.  “In actual effect, (this is Douglas writing) this abolition grants the negligent doctor an area of absolute immunity from suit at the expense of the patient’s constitutionally guaranteed right to access to the courts.”

Pfeifer has long adhered to this view.  He certainly feels the most strongly about it, and he is about to leave the court.  His quarrel with the majority opinion is that “negligent medical providers are more important than the people they injure.” Anyone who suffers a medical malpractice injury but doesn’t discover it within four years is out of luck. (Just to be clear, that would not include Antoon.  He knew of his injury almost immediately).

Concluding, Pfeifer wrote,

“This court is wrong. The right to a remedy is a power reserved to the people by the people in Ohio’s Constitution, and it cannot be diminished by statute. I trust that this court will eventually realize its mistake and find the will to protect Ohioans from future encroachments on their constitutional rights.”

His swansong on this topic, perhaps?

Case Syllabus

None

Concluding Observations

Justice Pfeifer’s voice (and colorful writing style) will surely be missed.

 After sorting out the procedural morass, which Justice Pfeifer simplified into one paragraph, the result in this case seemed to me a foregone conclusion.  Here’s what I wrote after argument, correctly calling this one for the Clinic:

“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.

“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.”

Statutes of repose have had a colorful history with the courts, with “liberal” justices disfavoring them, and “conservative” justices finding it within the policy purview of the General Assembly to adopt them.  This is an area where judicial elections do make a difference.  If anyone doubts that, read  Sedar v. Knowlton Constr. Co, Brennaman v. R.M.I., Co, and Groch in chronological order.