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July 11, 2006

One of the guys in the office recently had a potential malpractice case come in, except that the alleged malpractice happened more than four years ago.  That's a problem; RC 2305.113(C) provides a four-year statute of repose for med-mal actions.  A statute of repose is similar to a statute of limitations, but works slightly differently:  the latter runs from the time that the cause of action accrues, while the former runs from the date of occurrence, and is an absolute bar.

For example, let's say you get heart surgery in 1998.  You don't have any problems until 2003, when they have to cut you open again, at which time your new doctor tells you that your old doctor screwed up.  The statute of limitations isn't a bar, because the cause of action didn't "accrue" until you were told (or had reason to believe) that the first doctor committed malpractice.  But the statute of repose prohibits the action, because it provides that an action can't be brought more than four years "after the occurrence of the act or omission constituting the alleged basis" for the malpractice claim.  Which, of course, is the 1998 surgery.

There's no case law on the statute, because it was only enacted in 2003, and wouldn't apply to any cases prior to that time.  It's flatly unconstitutional, though, at least under current Supreme Court cases.  Back in 1999, in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, the Supreme Court tossed out the tort reforms the Ohio legislature had passed in 1996, including a statute of repose for medical malpractice cases.  Since then, of course, the legislature's passed a whole raft of tort reform legislation, and given the changes in the composition of the Supreme Court over the past several years, the fate of that legislation is uncertain.

I think it's unlikely that the statute of repose will survive, though, because the argument against it is pretty good.  Even before Sheward, the Court had struck down the architectural statute of repose of 10 years in Brennaman v. RMI, on the grounds that it violated the Ohio Constitution's right to remedy provision, because it could deny a person a remedy before they were even aware that they had been wronged.

I'm not going to get into the pros and cons of tort reform.  You can make some decent arguments for a lengthy statute of repose in certain instances, but four years for medical malpractice is simply brutal.  It'll probably be another three years before we get a definitive answer on this one, though.

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