As a Cleveland medical malpractice lawyer, I am frequently asked what steps are involved in filing a medical malpractice lawsuit in Ohio courts? First, of course, you have to have a meritorious claim. To establish a claim for medical negligence or medical malpractice the following 3 things must be supported by evidence: negligence, proximate cause and damages. You will find a discussion of these elements here.
Statute of Limitations
Your medical malpractice claim must be brought within one year if the date on which the act of medical negligence occurred. This is referred to as the statute of limitations. This is a general rule that is subject to a number of exceptions. For instance, the one-year statute of limitations does not begin to run until the patient discovers sufficient facts to be reasonably informed that an act of medical negligence caused him/her some injury. Likewise, the statute of limitations dies not begin to run until the patient terminates his/her relationship with the doctor who caused the injury. The one-year statute of limitations can also be extended by serving a “180 day letter” on each potential defendant before the deadline expires. Further complicating matters, exceptions that extend the statute of limitations beyond one year are limited to a four-year extension called the statute of repose.
The statute of limitation is also extended when the injury occurs to a child or incompetent individual or if the injury renders the individual incompetent as in the case of a severe stroke or brain injury. Likewise, when an act of medical negligence results in death, the ensuing claim is subject to a two-year wrongful death statute of limitations. This is a greatly simplified discussion of the statute of limitations under Ohio law. There remain many gray areas that have yet to be resolved by the courts. Also, note that different limitations periods apply to different claims and may vary by State. As you can see, determining the statute of limitations that is applicable to your claim can be complicated. The best advice is to seek legal counsel as soon as possible.
“Venue” refers to the choice of court where you file your lawsuit. There are both federal courts and state courts. Medical malpractice claims are typically filed in Ohio’s state courts, called the courts of common pleas. However, in some circumstances, your lawsuit must be filed in federal court or be commenced by filing an administrative claim with the U.S. Government. Claims will be filed in federal court when a federal agency or quasi-federal agency, like the VA Hospital System or the American Red Cross, are involved, or where a physician is insured by a federally-funded liability insurance program. Claims can also be brought in federal court when the physician and patient reside in different states but the malpractice occurred in Ohio, as occasionally happens in counties located along Ohio’s border.
When filing a medical malpractice claim in an Ohio court of common pleas, you must file in one of 88 county courts. The choice of court can be significant. Based on a recent survey, a majority of counties in Ohio have never recorded a verdict in favor of a plaintiff in a medical malpractice trial. These are mostly rural counties. So, most trial lawyers prefer to file a lawsuit in the more populous counties: Cuyahoga, Hamilton, Franklin, Lorain, Mahoning, Montgomery, Lucas, Summit, and Stark. With many hospital systems branching out into rural areas with satellite facilities, the opportunity to bring suit in an urban county has increased.
Affidavit of Merit
Ohio law also requires that a medical malpractice lawsuit be filed with an “affidavit of merit.” This is an affidavit signed by a qualified physician who has reviewed relevant medical records certifying that, based on his/her review, it appears that substandard medical care resulted in injury to the patient. A lawsuit can be filed without an affidavit of merit but only if the lawyer moves for an extension of time to file an affidavit and explains why one could not be procured before expiration of the statute of limitations.
In explaining these considerations, I am by no means suggesting that filing a medical malpractice claim can be done on a do-it-yourself basis. Quite the opposite. Medical malpractice cases are extremely complex and difficult to prove. The process of deciding whether to file a suit at all requires careful consideration. Then, filing suit timely, in the right court and with the right accompanying paperwork, require experienced legal counsel. This all takes time. So you are well-advised to seek out representation early in the process in order to protect your legal rights and give yourself the best chance at success.
If you are interested in discussing your concerns about a medical error, feel free to contact my office. We practice throughout the State of Ohio.