Is My Injury Claim a Medical Claim or a Negligence Claim and What Difference Does It Make?
Is expert testimony required to support a claim against a hospital? Most of the time the answer is yes, however there are circumstances where a patient's claim against a hospital or nurse may be considered a non medical claim. The significance of this issue is that in order to file a lawsuit that involves a "medical claim" you need to have an affidavit of merit from qualified experts just to file the lawsuit. Also if the claim is a medical claim then it is governed by a shorter statute of limitations. If it is a negligence claim against the hospital or nurse it is a 2 year statute of limitations whereas if it is a medical claim it is a 1 year statute of limitations.
The analysis starts with whether the injury occurred as a result of the diagnosis, care or treatment of a patient. See ORC 2305.113(E)(3)(b). A recent case involved a patient that was injured when she was being transported in a wheelchair. The patient stood up and fell fracturing her knee. The Court ruled in that case that this was a simple negligence action and not a medical claim. Thus no expert to prove negligence and a 2 year statute of limitations. See Hill v. Wadsworth-Rittman Area Hospital(2009) 185 Ohio App. 3d. The rationale is that an injury of this nature should not require expert testimony and the jury can determine whether the fall was due to negligence without hiring an expert. Other courts have determined that a patient that was injured while being transported from his room to physical therapy is ancillary to and an inherently necessary part of medical treatment and requires expert testimony. See Rome v. Flower Memorial Hosp. (1994) 70 Ohio St. 3d. See also Grubb v. Columbus Community Hospital (1997) 117 Ohio App. 3d 670.
In our analysis of a case unless you need to resort to a 2 year statute or the injury is clearly unrelated to medical treatment we will retain an expert. If the injury is outside the 1 year statute then in determining whether there is a need for expert testimony one must argue that the injury does not constitute a medical claim. If you or a loved one has been injured due to the negligence of a healthcare provider please let us help you determine if you have a case and whether the time limitations have expired. This is a tricky area of the law and we are well equipped to help get you answers.
