Cleveland Medical Malpractice Attorneys
As a medical malpractice lawyer, I am frequently tasked with determining the statute of limitations that applies to potential client’s medical malpractice claim. It seems like a simple question that should have a simple answer. However, often it doesn’t.
Generally speaking, the statute of limitations applicable to medical malpractice cases in Ohio is one year. (Different limitations may apply in other States.) Failure to file a medical malpractice lawsuit within the applicable statute of limitations forever bars the individual from pursuing compensation for injuries caused by the act of medical negligence. The general rule applies to all “medical claims,” which include nursing negligence, hospital negligence, pharmacy errors, dental malpractice, podiatric malpractice, and chiropractic malpractice. However, that general rule is subject to numerous exceptions.
One exception to the general rule is that the one-year statute of limitations applicable to medical claims does not begin to run until the patient terminates the patient-healthcare worker relationship. For example, if a patient has surgery that results in complications and continues to see the surgeon in follow up for those complications, the statute of limitations does not run until the patient stops seeing the surgeon. This exception only applies when the ongoing treatment is related to the original surgery, treatment or condition.
Another exception is the so-called “discovery rule.” The discovery rule tolls the statute of limitations until the patient discovers sufficient operative facts to put them on notice that they may have suffered an injury due to an act of medical negligence. For example, if a patient is treating with a physician who misdiagnoses or fails to take proper measures to diagnose their condition, then discovers later that they have suffered irreparable harm due to the delay in diagnosis and resulting delayed treatment, the one-year statute of limitations does not begin to run until the correct diagnosis is made.
A recent law enacted to address the government lockdown due to the Covid-19 pandemic may add additional time to the one-year statute of limitations. House Bill 197 tolled the statute of limitations between March 30, 2020 and July 30, 2020. This law adds an additional 4 months to the one-year statute of limitations so long as the statute of limitations did not expire prior to March 30, 2020.
The foregoing exceptions to the statute of limitations are subject to a related law called the statute of repose. The statute of repose imposes an absolute 4-year deadline for filing medical negligence lawsuits. So, for example, if the discovery rule extends the statute of limitations for five years, the patient must still file his/her lawsuit within four years of the date of the act of medical negligence. The statute of repose does not apply to so-called retained foreign object cases. A “retained foreign object” means that a medical device, piece of equipment or padding was mistakenly left in the patient during surgery when it should have been removed.
Ohio law also provides that a patient can extend their statute of limitations by issuing a so-called 180-day letter. A 180-day letter extends the statute of limitations by 180 days, if it is served before expiration of the one-year statute of limitations. Service, according to current law, occurs when the 180-day letter is mailed via certified mail. This is a new rule that has not been tested in the courts.
Note that when an act of medical negligence results in death, Ohio’s two-year wrongful death statute applies to damages arising from the moment of death. This sets up an unusual situation in Ohio where two separate statutes of limitation apply. The one-year statute of limitations applies to those damages occurring between the act of medical negligence and the moment of death whereas the two-year statute of limitations applies from the moment of death on.
Ohio law also provides that the statute of limitations is tolled while a patient is a minor or during a period of incompetency. Different rules apply when incompetency arises as a result of the act of medical negligence as opposed when the incompetency pre-dates the act of medical negligence.
As you can see, the determination of the applicable statute of limitations can involve a detailed factual inquiry and application of a variety of laws. The facts and application of these laws can create gray areas that lead to legal controversy. Generally, we try to avoid unnecessary controversies by filing suit within the initial one year following an act of medical negligence, when possible. It is important for clients who are concerned about a potential act of medical negligence to consult an experienced medical malpractice lawyer as soon as possible in order to avoid potential pitfalls associated with time limitations.
For more information about the Ohio statute of limitations for medical malpractice, contact us to consult with one of our Cleveland medical malpractice attorneys. Call us today at Mishkind Kulwicki Law Firm.
