The Ohio Supreme Court Interprets A Parent's Claim To Benefit From The Tolling Provision Of Minority And Disability Of A Child
The Ohio Supreme Court recently determined that a parent's claim for injury that arises out of and is, thus, derivative of the child's claim, does not need to be filed within one year of the termination of the physician/patient relationship or discovery of injury arising from the medical treatment. In the past, courts have interpreted Ohio law requiring a parent to file his or her claim for injuries, including, but not limited to, medical expenses incurred, within one year of the date that the cause of action arising from the treatment of the minor child or disabled child "accrues."
This provision in the law has created procedural problems and difficult decisions to be made with regard to the proper timing of a lawsuit when a minor child or disabled child is injured due to medical negligence. The typical example arises out of an injury to a baby at birth. Often, the full nature and extent of the injury, especially the future economic impact of the injury from a vocational standpoint, cannot be determined until the child reaches his teen years. Because of the potential argument that future damages are speculative until neurological, neuropsychological, neuropsychiatric and other milestones are reached with regard to the injury caused at birth or shortly thereafter, it is important for the evidence to be timed appropriately to avoid prejudicing the full potential recovery for the injured child/disabled patient. Thus, minority has always been interpreted as a disability to a child under Ohio Rev. Code § 2305.16.
Minor plaintiffs in all litigation have until their 18th birthday before the tolling provision of minority is lifted, at which time the applicable statute of limitations begins to run. Historically, the same application of the disability provision has not been applied to the parent's claim arising from the disabled child's injury. Attorneys handling medical malpractice claims have been dealing with a provision under § 2305.113 and its predecessor § 2305.11, where the nature of a medical claim made the loss of services or derivative claim of a parent, a medical claim as well. Courts interpreting the statute have ruled in many cases that the parent's claim for loss of services and derivative claims arising out of a minor child's claim, does not enjoy the tolling provision of minority or disability. Parents have been placed in a position of having to waive their claim in the interests of allowing the minor child's claim to "mature" until it is appropriate to file. On other occasions, a minor's claim has been filed early and not at the most advisable time so as to preserve and protect the derivative claim of the parent which in many cases includes the medical expenses of the injured minor child. Attorneys handling medical claims have been faced with this issue and difficult decisions have had to be made, including issues that might create potential conflicts of interest in representing the parents and minor child.
Fortunately, the Supreme Court in Fehrenbach vs. O'Malley, 113 Ohio St. 3d 18, 862 N.E.2d 489has clarified the statute of limitations in medical negligence claims where an injured child is disabled due to medical negligence and where an injured minor child is injured due to medical negligence. Since the claims of the parent and the injured minor child and injured disabled child are joint and inseparable, the Ohio Supreme Court has recognized that the interest of the parent and the child should not be put at odds with each other and should not be forced to be litigated on a piecemeal basis. Therefore, a parent's claim arising out of injury to his or her minor or disabled child, is tolled pursuant to Ohio Rev. Code § 2305.16 during the period of time that the minor child's claim is tolled. In this way, the potential for inconsistent results; potential conflicts of interest in representing the parent and injured child in a medical malpractice claim; and in terms of promoting judicial economy and avoiding two trials is achieved.
If you or a loved one are currently involved in litigation arising out of a medical claim and believe that a derivative claim may have been waived or not pursued because of this conflict in the interpretation of the law, you should consult with your attorney as this decision may impact in a significant way the overall value of the claim.
