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Can the Time Limit to File a Wrongful Death Claim Expire Before the Patient has Expired?

Some courts have said yes, the time limit to file a wrongful death claim based on medical negligence can expire even before the patient has died. If this doesn’t make sense to you, you are not alone.

In a recent decision, however, the Tenth District Court of Appeals (Franklin County, Ohio) reached the opposite conclusion. In the Everhart case, the court carefully analyzed the interplay between Ohio’s four-year “statute of repose” for medical negligence claims and Ohio’s two-year “statute of limitations” for wrongful death claims. The court upheld the longstanding precedent that medical negligence claims and wrongful death claims are distinctly separate and different. A medical negligence claim belongs to the person who suffered an injury as a result of a medical error, while a wrongful death claim belongs to the beneficiaries of the estate of the person who died. Sometimes, a person can be a victim of a medical error that causes injury as well as death. In that scenario, both a medical negligence claim and a wrongful death claim can be pursued.

However, there are different time limits for filing a medical negligence claim and a wrongful death claim. If a lawsuit is not filed within the applicable time limit, it will be thrown out by the court.

Some background on time limits for filing a medical negligence case

In the context of a medical claim, there are there are two key time limits at play: the statute of limitations and the statute of repose. The statute of limitations says that a medical claim must be filed in court within one year of the date the claim “accrues.” A claim accrues upon the later of: (a) when the patient knew or should have known of the injury; or (b) when the physician-patient relationship is terminated. (There are various exceptions to this general rule that are a bit too complicated to go into here.)

This one-year period is among the shortest limitations periods in Ohio law. We have lobbyists for medical providers and their insurance companies to thank for this very short time limit. Other kinds of cases have time limits as long as two, four, or even six years.

So, what happens when a doctor’s negligence isn’t discovered until many years later, as often happens -- for example -- in cases involving a delay in the diagnosis of cancer? That is where the statute of repose comes in. The statute of repose says that any medical claim must be filed within four years of the date of the alleged negligence, no matter when the patient discovered the injury. (Again, there are a few exceptions to this general rule.)

Under the statute of repose, if a patient is badly misdiagnosed but no injury results until five years after the misdiagnosis, the patient cannot file a lawsuit. By the time the patient is injured, it is already too late to sue.

The statute of repose is yet another layer of protection for medical providers and insurance companies, thanks again to their lobbyists.

So, how do the statutes of limitations and repose for medical negligence claims fit in with the wrongful death statute?

A victim of medical negligence must file their lawsuit within both the statute of limitations and the statute of repose. Sometimes, however, the person dies because of medical negligence. In that scenario, the patient’s estate can file a separate wrongful death claim.

Wrongful death claims are governed by a separate statute, Ohio Revised Code Section 2125.02, which provides that wrongful death claims must be filed within two years of the date of death. Until recently, it was presumed by most people involved in these kinds of cases that a wrongful death claim can be filed up to two years after the date of death, regardless of when the underlying medical negligence occurred. In other words, the wrongful death claim was not subject to the four-year statute of repose for medical negligence claims.

Unfortunately, some courts have held otherwise. For example, there have been cases where a patient files a medical negligence claim within the one-year statute of limitations (and the four-year statute of repose), but then dies more than four years after the date of negligence. The patient’s estate then attempts to add a claim for wrongful death, but the court dismisses the claim because it has been filed beyond the four-year statute of repose. Despite the extremely harsh and patently unfair result, those courts simply have said “tough luck” to victims of medical negligence.

Fortunately, the Tenth District Court of Appeals reached a different conclusion. Eventually, this issue will make its way to the Ohio Supreme Court, which will have to decide whether the four-year statute of repose for medical negligence claims should apply to wrongful death claims as well. Until then, there is much uncertainty and unpredictability when it comes to wrongful death claims that have not been – or could not be – filed within four years of the date of negligence.

Laws are confusing.

Eliminating the ability of a family to bring a wrongful death claim based on medical negligence – even before the patient has died – is just another step toward eliminating medical negligence and wrongful death lawsuits altogether. These recent decisions underscore the importance of contacting an experienced medical negligence attorney right away if you or someone you know has been the victim of a medical mistake.

At The Eisen Law Firm, we have been handling medical negligence cases for decades. We know the ins and outs of Ohio medical negligence laws, which are constantly changing and we understand the medicine involved in medical negligence claims. If you or someone you know might have a case, please contact us as soon as possible, so that we can determine whether you have a valid claim that isn’t too late to be filed. You can reach us at (216) 687-0900 or www.malpracticeohio.com for your free case evaluation.