Antoon v. Cleveland Clinic Found. (Slip Opinion)

2016 Ohio 7432, 71 N.E.3d 974, 148 Ohio St. 3d 483
Ohio Supreme Court·Decided October 25, 2016·No. 2015-0467·Published·Cited by 67 cases

Opinions

O’Connor, C J.

{¶ 1} In this appeal, we consider whether Ohio’s medical-malpractice statute of repose, R.C. 2305.113(C), applies to a cause of action that had vested for an act or [484]*484omission allegedly constituting medical malpractice that took place more than four years earlier. We hold that R.C. 2305.113(C) is a true statute of repose that applies to both vested and nonvested claims. Therefore, any medical-malpractice action1 must be filed -within four years of the occurrence of the act or omission alleged to have caused a plaintiffs injury. Appellees, David Antoon (“Antoon”) and Linda Antoon (collectively, the “Antoons”), filed their lawsuit after the statute of repose expired. The complaint was not protected by R.C. 2305.19, Ohio’s saving statute, or 28 U.S.C. 1367, the tolling statute for state claims over which a federal court has supplemental jurisdiction, because, as the Antoons admit in their merit brief to this court, the district court “declined to exercise supplemental jurisdiction” over the malpractice claims. The district court’s action resulted in the Antoons never having the medical-malpractice claims pending in the federal court. Because neither the saving statute nor the tolling statute applies in this case, we decline to determine whether they extend the time for filing beyond the expiration of the statute of repose. We reverse the judgment of the Eighth District Court of Appeals, hold that the trial court appropriately dismissed the case pursuant to the motion by the appellants, Cleveland Clinic Foundation (doing business as the Cleveland Clinic) and Drs. Jihad Kaouk, Raj Goel, and Michael Lee (collectively, the “Clinic”), and remand the cause to the trial court with instructions to enter judgment for the Clinic.

Relevant Background

The Alleged Malpractice

{¶ 2} The facts are not in dispute. On January 8, 2008, David Antoon underwent a prostatectomy at the Clinic. Drs. Kaouk, Goel, and Lee were involved in treating Antoon or performing the operation. Antoon did not experience the recovery he hoped for following surgery and spent nearly a year consulting with Dr. Kaouk and other Clinic practitioners regarding side effects of the surgery. December 11, 2008, was Antoon’s final appointment with Dr. Kaouk.

The First State-Court Complaint

{¶ 3} On December 9, 2009, Antoon timely notified the Clinic, pursuant to R.C. 2305.113(B), that he would be bringing medical-malpractice claims against them within 180 days. On June 6, 2010, the Antoons filed a complaint in the Cuyahoga County Common Pleas Court alleging medical malpractice and derivative claims against the Clinic and the doctors who provided care to Antoon. On June 13, 2011, the Antoons dismissed their claims without prejudice.

[485]*485 The Federal Claims

{¶ 4} Both before and after dismissal of their state case, the Antoons, acting pro se, filed a variety of actions in federal court and with federal agencies relating to Antoon’s surgery. Relevant here is the qui tam action2 that the Antoons filed without counsel in federal district court on January 31, 2012. The Antoons allege that the qui tam case, filed within one year of the dismissal of their common pleas court action, preserved their state claims pursuant to Ohio’s saving statute, R.C. 2305.19(A). However, the Antoons’ qui tam lawsuit did not allege medical malpractice and did not seek damages.

{¶ 5} On May 8, 2012, before the complaint was served, the Antoons, still acting pro se, amended their qui tam action. The amended complaint alleged that the Cleveland Clinic, its employees, and the manufacturer of equipment used during the surgery had violated the False Claims Act, 31 U.S.C. 3729. On December 21, 2012, the defendants moved to dismiss the amended action.

{¶ 6} On February 13, 2013, with the motion to dismiss pending, the Antoons, now having retained counsel, moved for leave to file a second amended complaint, which was attached to the filing. The offered second amended complaint named the Cleveland Clinic and manufacturing and government defendants. It included the claims asserted in the two previous complaints but added state law medical-malpractice claims. On October 16, 2013, the district court denied leave and granted the defendants’ motion to dismiss the first amended complaint. That holding was affirmed on appeal. United States ex rel. Antoon v. Cleveland Clinic Found., 788 F.3d 605, 620 (6th Cir.2015).

The Second State-Court Complaint

{¶ 7} Following dismissal of their complaint by the federal court, on November 14, 2013, the Antoons, through counsel, filed a complaint in the Cuyahoga County Court of Common Pleas alleging state malpractice claims. The Antoons argue that their complaint was timely pursuant to 28 U.S.C. 1367(d), which tolls the period of limitations for any state claim over which a federal court has supplemental jurisdiction if the claimant asserted the claim in a federal court case. The period of limitations “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” 28 U.S.C. 1367(d).

{¶ 8} The Clinic moved to dismiss pursuant to Civ.R. 12(B)(6), asserting that the Antoons failed to state a claim upon which relief could be granted because [486]*486both the statute of limitations and statute of repose applicable to their claims had expired. The trial court granted the motion, finding that “the case was filed outside the applicable statute of limitations and outside the one year allowed by the Ohio saving statutes. Further, this filing is also outside the statute of repose, R.C. 2305.113(C) which requires that a medical claim be filed no more than four years after the alleged malpractice.” The trial court determined the federal tolling statute, 28 U.S.C. 1367(d), applies only “to protect claims while pending in federal court.” According to the trial court, because the Antoons’ motion to amend the complaint to add the malpractice claims was denied, the state claims were never pending and were not protected.

{¶ 9} The Antoons appealed, and the Eighth District Court of Appeals reversed the trial court’s judgment. The appellate court relied on this court’s decision in Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, syllabus, and concluded that once a claim has vested, the statute of repose can no longer operate to bar litigation. The appellate court’s opinion acknowledges that vesting had occurred by the time the Antoons filed their first .lawsuit in the matter in 2010.

The Discretionary Appeal

{¶ 10} We granted the Clinic’s request for discretionary review to address a single proposition of law:

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Antoon v. Cleveland Clinic Found. (Slip Opinion), 2016 Ohio 7432, 71 N.E.3d 974, 148 Ohio St. 3d 483 (Ohio 2016).

2016 Ohio 7432 (Antoon v. Cleveland Clinic Found. (Slip Opinion)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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