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We start with a disclaimer:  The following metaphorical exercise is somewhat forced, but we are doing it anyway.  If you are like us, then you are a few months in on a pattern of only buying groceries every week or so, perhaps supplemented by bulk deliveries of meat or seafood that you may need to fit into the rotation of meals prepared at home.  Whether you plan out your meals before you make your main weekly purchase, you wing it, or fit in somewhere in between, you try to minimize waste.  You look at “sell by” dates, “best before” dates, and “eat before this date or you will be violently ill” in making preliminary judgments, but the eyes and nose—the old smell test—play an even bigger role.  You may be able to pick out some rusty lettuce from a bag of salad and use the rest, but gray, funky ground beef is going straight into the garbage no matter what date is on the package.  (Why both of these items seem to stay fresh for less time than they did five months ago is a whole different kettle of fish.)  Depending on your time and tolerance, there may be some other food items you can salvage rather than toss based on how you trim and/or prepare them.

Late-filed lawsuits can get tossed based on either a statute of limitations or a statute of repose, but they operate differently.  Statutes of limitations run from date of accrual, are shorter, and have a bunch of potential exceptions that can be used to a save a case that was filed after the apparent date of accrual plus the limitations period.  Statutes of repose run from the date of the act or omission (e.g., sale), are longer, and have few, if any, recognized exceptions to keep a case from getting tossed.  When a state legislature has declined to include any exceptions with a statute of repose, a conscious decision has been made that the application of the statute may result in some seemingly harsh outcomes, a fact that courts sometimes note in throwing out a case while redirecting any indignation toward the legislature.  (Our old case discussed here comes to mind.)

Statutes of repose, with their later “file by dates” and less wiggle room, can be powerful tools.  We have posted on them more than a few times, including a relatively recent survey of the law across the country.  Today’s case comes from the heart of it all, Ohio, and involves the statute of repose for medical malpractice actions.  While the four-year statute of repose for such cases is much shorter than the ten year statute in Ohio for product liability actions, many of the same principles apply.  That is why we thought Jonas v. Durrani, Nos. C-180457-58, 2020 Ohio App.  LEXIS 21715 (Ohio Ct. App. July 22, 2020), was worth discussing.  We do not often post on decisions from intermediate state appellate courts, but Jonas appears to be one of at least four decisions from the same court relating to cases against the same physician, at least one of which going up to the Ohio Supreme Court.  In addition, we know that lots of smoke does not always mean there is fire, but the physician fled the country and lost his medical license, making us think that cases against him would have been pretty juicy if they survived repose.

Jonas actually had two cases consolidated on appeal with somewhat different facts, which are pared down a bit here.  The Jonas plaintiff had 2008 back surgery and sued the surgeon, his practice, and hospital #1 in 2014.  She then dismissed and refiled in 2015, adding a second hospital and a range of claims.  The Carr plaintiff had surgeries in 2005, 2007, and 2010 performed by the same surgeon, sued him, his practice, and hospital #2 in 2013, dismissed in 2015, and refiled in 2015 against the same defendants.  Both cases were dismissed on statute of repose and had motions for leave denied.  Most of the meat of the decision related to the wide-ranging arguments raised by the Jonas plaintiff.

The Ohio statute of repose runs from “the occurrence of the act or omission constituting the alleged basis of the medical . . . claim.”  For the Jonas plaintiff, it was clear that the 2008 surgery was the act at issue and her suit was brought more than four years later.  The first attempt was to cast her claims for fraud and negligent credentialing as nonmedical.  Other appeals with this same surgeon as a defendant had already largely addressed this argument.  For instance, “simply placing a ‘fraud’ label on a claim cannot side-step the statute of repose.”  Id. at *7.  Next up was the argument that the court should create an equitable estoppel or fraud exception not included in the actual statute or supported by the legislative record.

Where the General Assembly could have included an equitable estoppel or fraud exception (as some other states have done), but declined to do so, our job is not to supplant that authority, but rather to apply the statute as written.

Id. at *9.  Then plaintiff tried to say that the savings clause—remember, her case was re-filed after voluntary dismissal—saves a case that was originally filed late.  Nah.

Plaintiff also went backwards and argued that the act starting the statute was really something other than the surgery, but “we see no allegations of a later separate act or omission that would enable us to stretch the starting line for the statute of repose period.”  Id. at *11.  The faucet from the proverbial kitchen sink came next with claims that some sort of tolling should apply because of the surgeon’s 2013 flight and 2014 loss of licensure, but her claim was barred in 2012 so the court did not need to decide whether to make new law.

The stopper from that sink came in the way of the old “foreign object” exception, which Ohio has added to both its statute of limitations and statute of repose for medical malpractice actions.  The argument was that the device implanted in connection with the 2008 surgery triggered the exception.  The exception is really intended to cover someone unintentionally left in the body during a surgery—like a sponge—not something intentionally left in—like the device the operative note talked about implanting.  If this analysis sounds familiar, then you might be thinking of this post from March that discussed a Utah decision that Jonas relied on in reaching the same conclusion.

To adopt [plaintiff’s] position would be to expand the ‘foreign objects’ exception and render every medical device case a potential candidate for a longer repose period.  A plaintiff could, by challenging the medical reasoning of the doctor or the effectiveness of the consent, circumvent the repose period.  That would frustrate, rather than further, the intent of the General Assembly.

Id. at *18.  The only thing left for the Jonas plaintiff—the pipe below the stopper in the sink, we guess—was to say she should have been allowed to flesh out her allegations, but this was pointless because all her additional allegations related to the surgery that triggered the repose period.  Id. at *20.

The Carr plaintiff’s arguments were much more direct.  He sued within four years of his third surgery, so his claims based on that third surgery against the defendants involved in it could proceed.  Id. at *22.  The rest were barred (and not resurrected based on a later surgery).  He also did not get to amend his complaint because he wanted to add a claim under the state RICO statute and that required allegations about a criminal enterprise that he did not make.  Id. at **22-24.

While the surgeon, and perhaps other defendants, may have had liability, all the medical malpractice claims from these plaintiffs had they been brought in the timely fashion, we do appreciate the enforcement of the legislature’s intent to bar claims brought outside of the statute of repose.  That does not always happen, but letting older and older claims proceed can end up creating a number of problems that are hard to swallow.