McCarthy v. Lee

Docket Number2022-0732
Decision Date28 December 2023
PartiesMcCarthy et al., Appellants, v. Lee et al., Appellees.
CourtOhio Supreme Court



McCarthy et al., Appellants,

Lee et al., Appellees.

No. 2022-0732

Supreme Court of Ohio

December 28, 2023

Submitted March 21, 2023

Appeal from the Court of Appeals for Franklin County, No. 21AP-426, 2022-Ohio-1413.

Beausay & Nichols Law Firm, T. Jeffrey Beausay, and Sara C. Nichols, for appellants.

FisherBroyels, L.L.P, Michael R. Traven, and Robert B. Graziano, for appellees.

Bonezzi, Switzer, Polito & Hupp Co., L.P.A., Paul W. McCartney, and Diane L. Feigi, urging affirmance for amicus curiae Ohio Association of Civil Trial Attorneys.

Bricker Graydon, L.L.P., Anne Marie Sferra, and Christopher P. Gordon, urging affirmance for amici curiae Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association.

Deters, J.

{¶ 1} Ohio's medical-claim statute of repose provides that a medical claim must be brought within four years of the act or omission that is the basis of the claim. Any action upon a medical claim brought outside that time frame is barred. R.C. 2305.113(C)(2). In this case, a husband and wife's medical-negligence claim


against the wife's medical providers was dismissed because it was barred by the statute of repose. The question here is whether their children's claim for loss of parental consortium survives that dismissal. We conclude that it does not. Once the medical-negligence claim was extinguished by the statute of repose, the children's derivative claim no longer existed. We therefore affirm the Tenth District Court of Appeals' judgment upholding the dismissal of the children's claim.


{¶ 2} In 2010, Dr. Peter K. Lee began treating Kathleen McCarthy for rectal bleeding and related symptoms. After performing a colonoscopy during which no cancerous lesions were found, Dr. Lee diagnosed Kathleen with hemorrhoids. When Kathleen returned to Dr. Lee in 2015 for continued and worsening symptoms, his diagnosis remained unchanged. Two years later, Kathleen was diagnosed with stage-three colon cancer, which progressed to stage four.

{¶ 3} Kathleen and her husband, Brett McCarthy, filed a civil action against Dr. Lee and his associated medical practices and employees in October 2018 but dismissed the complaint voluntarily. See McCarthy v. Lee, Franklin C.P. No. 18CV8403 (Jan. 22, 2019). In January 2020, the McCarthys refiled the complaint, alleging negligent care in the treatment of Kathleen's condition. The defendants in that case moved for judgment on the pleadings, arguing that the McCarthys' claim was barred by the statute of repose. The trial court agreed and dismissed the McCarthys' complaint. See McCarthy v. Lee, Franklin C.P. No. 20CV554 (Feb. 26, 2021).

{¶ 4} In April 2021, the McCarthys filed a civil action on behalf of their three minor children against Dr. Lee and OhioHealth Physician Group, Inc. (collectively, "the medical providers"), alleging loss of consortium due to the treatment of Kathleen's condition. The medical providers moved to dismiss the claim arguing it could not "stand alone" because it was a derivative claim that arose


from the McCarthys' previously dismissed medical claim. The trial court granted the motion, concluding that because the McCarthys' medical claim was barred by the statute of repose, the children had "no right to a cognizable claim under Ohio law." McCarthy v. Lee, Franklin C.P. No. 21CV2643 (July 29, 2021).

{¶ 5} The McCarthys appealed to the Tenth District. The court of appeals rejected their argument that "because the medical claim statute of repose does not apply to a minor's medical claim, [the children] should be permitted to proceed with their derivative loss of consortium claims." 2022-Ohio-1413, ¶ 11. We accepted the McCarthys' appeal to review whether a claim for loss of parental consortium can proceed if the principal claim is barred by the statute of repose. See 167 Ohio St.3d 1481, 2022-Ohio-2675, 192 N.E.3d 506.


The statute of repose

{¶ 6} R.C. 2305.113(C)(1) provides that "[e]xcept as to persons within the age of minority * * *[, n]o action upon a medical * * * claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim." Moreover, "[i]f an action upon a medical * * * claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim, then any action upon that claim is barred." R.C. 2305.113(C)(2). "R.C. 2305.113(C) does not bar a vested cause of action, but prevents a cause of action from vesting more than four years after the breach of the duty of care. Therefore, it is a true statute of repose." Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 18.

{¶ 7} The statute's application to the McCarthys' medical-negligence claim is straightforward. The "act or omission" that was the basis of that claim occurred in 2015, when Dr. Lee treated Kathleen for the second time. The complaint in which the McCarthys asserted a medical claim was filed more than four years after


Dr. Lee's treatment of Kathleen, and so, any action upon the claim was also barred by the statute of repose. See R.C. 2305.113(C)(2).[1]

{¶ 8} The parties differ on how the medical-claim statute of repose applies to the children's loss-of-consortium claim. Recall that R.C. 2305.113 is directed toward medical claims. A "[m]edical claim" is "any claim that is asserted in any civil action against a physician * * * that arises out of the medical diagnosis, care, or treatment of any person." R.C. 2305.113(E)(3). Included in the definition of "medical claim" are "[derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person." R.C. 2305.113(E)(3)(a). And "derivative claims for relief,"

include, but are not limited to, claims of a parent, guardian, custodian, or spouse of an individual who was the subject of any medical diagnosis, care, or treatment * * * that arise from that diagnosis, care, treatment, or operation, and that seek the recovery of damages for * * * [l]oss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, or any other intangible loss that was sustained by the parent, guardian, custodian, or spouse.

R.C. 2305.113(E)(7)(a).

{¶ 9} The McCarthys argue that because the definition of "derivative claims for relief explicitly refers to the claims of a parent, guardian, custodian, or spouse


but not to the claims of a child, their children's loss-of-consortium claim is not a "medical claim" under the statute. But their argument ignores that derivative claims include but are not limited to those claims listed in the statute. Other claims can be derivative claims, and the children's loss-of-consortium claim arises from the diagnosis, care, and treatment of their mother.

{¶ 10} The medical providers acknowledge that the children's loss-of-consortium claim is a medical claim under R.C. 2305.113, but they maintain that the statute's exception for the medical claims of minors applies only to principal, as opposed to derivative, claims. But the medical providers point to no language in the statute that makes such a distinction. Instead, under the plain language of the statute, because they are minors, the children's derivative medical claim is itself excluded from application of the statute of repose. See R.C. 2305.113(C).

{¶ 11} Nonetheless, the medical providers' argument suggests the question that must be answered in this case-a question not addressed by the statute: How does the extinguishment of a principal medical claim by operation of the statute of repose affect claims that are derived from that claim? The answer to the question lies in Ohio's treatment of loss-of-consortium claims.

When a principal medical claim fails for substantive reasons, a derivative loss-of-consortium claim also fails

{¶ 12} The parties take different views of how Ohio treats loss-of-consortium claims. The McCarthys contend that the general rule is that the claims are independent and stand on their own, no matter what happens with the principal claim. They assert that there is only one exception to this general rule-when the principal claim is not recognized as a cause of action in Ohio. See, e.g., Schiltz v. Meyer, 32 Ohio App.2d 221, 298 N.E.2d 587 (12th Dist. 1971), aff'd, 29 Ohio St.2d 169, 280 N.E.2d 925 (1972). The medical providers, on the other hand, argue that a loss-of-consortium claim is dependent on the existence of the underlying principal


claim: if the principal medical claim fails, the loss-of-consortium claim necessarily fails. The answer is somewhere in between.

{¶ 13} Ohio historically treated loss-of-consortium claims as independent, nonderivative claims. In Kraut v. Cleveland Ry. Co., 132 Ohio St. 125, 126, 5 N.E.2d 324 (1936), this court considered whether "a judgment denying recovery in [a] wife's action for personal injuries constitute[d] a bar to the husband's action for loss of services." The court pointed to a "practically * * * unbroken line of authority to the effect that an adjudication unfavorable to the wife in an action for personal injuries [was] no bar to an action by the husband for loss of services or consortium growing out of the same injuries." Id. This court concluded that the husband's action for loss of services was not derivative of his wife's personal-injury claim, explaining that "the burden [was] on the plaintiff husband to prove that the alleged tort-feasor [was] guilty of negligence which directly contributed to his loss and damage." Id. at 127. The wife's contributory negligence would be a defense against the husband's claim for loss of services, but that determination would be independent of any resolution of the wife's personal-injury lawsuit. Id. The court...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT