Medical Malpractice

For a medical malpractice lawyer, time limits are a key threshold consideration.  Under Ohio law, the following cases are considered “medical claims” subject to a one-year statute of limitations: medical negligence, medical malpractice, hospital negligence, nursing negligence, nursing home abuse, nursing home neglect, chiropractor negligence, podiatrist negligence, dental malpractice, and pharmacy errors.  The terms “medical negligence” and “medical malpractice” are synonyms that can be used interchangeably.

The one-year statute of limitations is subject to a number of exceptions.  For example, the one year does not begin to run until the patient has terminated his or her relationship with the hospital, nursing home, physician, nurse or another healthcare worker who caused their injury.  In addition, the one year does not begin to run until the patient has discovered sufficient operative facts to put them on notice that they may have been a victim of medical negligence.  This is known as the “discovery rule.”  Finally, the statute of limitations does not begin to run while a patient is incompetent or a minor.  The rules applicable to incompetence vary depending on whether the individual was rendered incompetent as a result of injuries caused by the act of medical negligence or became incompetent either before or after the date of injury.  For minors, the one-year statute of limitations begins to run when they reach the age of majority at age 18 and expires when they turn 19.

The one-year statute of limitations applicable to medical claims can be extended through the issuance of “180-day” letters to each potential defendant before the expiration of the one-year deadline.  Rules pertaining to 180-day letters were recently changed, leaving some uncertainty about their application.  A careful medical malpractice lawyer will avoid the use of 180-day letters when possible.

In addition to the statute of limitations, Ohio has enacted a statute of repose.  The statute of repose applies to cases where the discovery rule has extended the statute of limitations beyond one year from the date of the act of medical negligence.  The statute of repose sets an absolute deadline of four years for filing such cases.  So, in some instances, a patient will not discover the operative facts necessary to put them on notice of a potential medical claim before the statute of repose has expired.  These claims are time-barred.  For example, if radiological imaging (MRI, CAT scan, x-ray or ultrasound) reveals a suspicious finding that was either missed by the radiologist or not properly communicated to the patient, but the patient does not discover that the suspicious finding is actually cancer that remained untreated for over four years later, their claim is time-barred.  The statute of repose, however, does not apply to cases involving retained foreign objects.  A retained foreign object is an instrument, medical device, piece of equipment, towel or packing that is erroneously left inside a patient during surgery as a result of a medical mistake.

When an act of medical malpractice results in a fatality, damages arising as a result of the individual’s death are subject to a two-year statute of limitations under Ohio’s wrongful death statute.  Wrongful death lawsuits must be filed within two years of the date of the individual’s death.  It is not clear whether the statute of repose applies to wrongful death claims.  This issue has not been resolved by Ohio courts as of the publication date of this blog (June, 2020).

For a medical malpractice lawyer, the applicable statute of limitations is the first consideration in determining whether to undertake representation when a potential client has been injured by a medical error or other professional negligence giving rise to a medical claim.  Often, the determination of the applicable statute of limitations requires a factual investigation, including review of relevant medical records.  Since expiration of these time limits results in an absolute bar to bringing a medical malpractice lawsuit or another medical claim, it is important for you to seek legal advice as soon as possible in order to protect your legal rights.  The lawyers at Mishkind Kulwicki Law are available for a free, no-fee consultation.  We welcome your calls.  We are here to help.