Davis v. Mercy St. Vincent Med. Ctr.

2022 Ohio 1266, 190 N.E.3d 77

• Court: Ohio Court of Appeals
• Decided: April 15, 2022
• Docket: L-21-1095
• Status: Published

Opinion

[Cite as Davis v. Mercy St. Vincent Med. Ctr., 2022-Ohio-1266.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Donald A. Davis, Individually, and as Court of Appeals No. L-21-1095 Executor of the Estate of Monica P. Davis, et al. Trial Court No. CI0201803398

Appellants

v.

Mercy St. Vincent Medical Center, et al. DECISION AND JUDGMENT

Appellees Decided: April 15, 2022

*****

Gary W. Osborne and Jack S. Leizerman, for appellants.

Julia Smith Wiley and Kayla L. Henderson, for appellee Mercy St. Vincent Medical Center.

Taylor C. Knight and Erin Siebenhar Hess, for appellees Fayyaz H. Hashmi, M.D., Mercy Health North, LLC (fka) Mercy Health System- Northern Region and Mercy Medical Partners, Northern Region, LLC.

MAYLE, J.

{¶ 1} Plaintiffs-appellants, Donald Davis, Individually and as Executor of the

Estate of Monica Davis, and Dustin Davis, appeal the April 22, 2021 judgment of the Lucas County Court of Common Pleas, granting motions for judgment on the pleadings,

or alternatively, for summary judgment in favor of defendants-appellees, Mercy St.

Vincent Medical Center, Fayyaz H. Hashmi, M.D., and Mercy Health North, LLC, fka

Mercy Health System-Northern. For the following reasons, we reverse.

I. Background

{¶ 2} Monica Davis died on April 4, 2014, allegedly as the result of medical

negligence committed on November 4, 2013, by Fayyaz Hashmi, M.D. and other health

care providers. On May 4, 2015, after properly availing themselves of the additional 180

days to file suit under R.C. 2305.113(B), her husband and executor of her estate, Donald

Davis, and her son, Dustin Davis (collectively, “Davis”), filed a complaint against Dr.

Hashmi, his practice, Mercy St. Vincent Hospital, and others, alleging medical

negligence, loss of consortium, and wrongful death. On August 21, 2017, after extensive

discovery, Davis dismissed his claims against all defendants without prejudice under

Civ.R. 41(A)(1)(a). He refiled the case on August 15, 2018—within one year of his

voluntary dismissal without prejudice—against Dr. Hashmi, Mercy St. Vincent Hospital,

Mercy Health North, LLC, fka Mercy Health System-Northern, and Mercy Medical

Partners, Northern Region, LLC (“appellees”).

{¶ 3} On July 30, 2019, appellees filed motions for judgment on the pleadings and

for summary judgment. They argued that the four-year statute of repose for medical

claims set forth in R.C. 2305.113(C) barred Davis’s claims because he refiled his

complaint more than four years after the allegedly negligent act giving rise to his claims.

2. In a September 17, 2019 judgment, the trial court denied appellees’ motions because

Davis had refiled his lawsuit within the one-year period set forth in Ohio’s saving statute,

R.C. 2305.19.

{¶ 4} Over a year after the trial court denied appellees’ motions, on December 23,

2020, the Ohio Supreme Court decided Wilson v. Durrani, 164 Ohio St.3d. 419, 2020-

Ohio-6827, 173 N.E.3d 448. In Wilson, the court held that “a plaintiff may [not] take

advantage of Ohio’s saving statute to refile a medical claim after the applicable one-year

statute of limitations has expired if the four-year statute of repose for medical claims has

also expired.” Id. at ¶ 1.

{¶ 5} Following the Ohio Supreme Court’s decision in Wilson, appellees filed

renewed motions for judgment on the pleadings or, alternatively, for summary judgment,

and a motion for reconsideration of the trial court’s September 17, 2019 judgment. On

April 22, 2021, the trial court granted appellees’ motions for judgment on the pleadings

or, alternatively, for summary judgment. Davis appealed. He assigns a single error for

our review:

THE TRIAL COURT ERRED WHEN IT FOUND THAT THE

OHIO MEDICAL MALPRACTICE STATUTE OF REPOSE, R.C.

2305.113(C), APPLIES TO WRONGFUL DEATH CLAIMS.

II. Law and Analysis

{¶ 6} The issue in this case is whether a plaintiff may rely on Ohio’s wrongful-

death saving statute, R.C. 2125.04, to refile a wrongful-death claim predicated on

3. medical negligence within one year of voluntarily dismissing his original complaint

without prejudice but more than four years after the allegedly negligent act occurred—

i.e., after the statute of repose for filing a “medical claim” has expired. Davis argues that

where a wrongful-death claim is timely-filed to begin with, is dismissed without

prejudice, and is refiled within one year of dismissal under the wrongful-death saving

statute, that claim is not barred by the medical-claim statute of repose.

{¶ 7} Appellees respond that a wrongful-death claim predicated on alleged

medical negligence is a “medical claim” that is subject to the four-year statute of repose

set forth in R.C. 2305.113(C); the statute of repose may be tolled only as specified in

R.C. 2305.113(C). They argue that the general saving statute and the wrongful-death

saving statute are operatively identical, so Wilson applies with equal force to actions

refiled under the wrongful-death saving statute. Appellees point us to other Ohio cases

that hold that the four-year medical-claim statute of repose applies to wrongful-death

actions arising from negligent medical care.

A. Standards of Review

{¶ 8} The trial court granted appellees’ motion for judgment on the pleadings or,

alternatively, motions for summary judgment.

{¶ 9} Under Civ.R. 12(C), “[a]fter the pleadings are closed but within such time as

not to delay the trial, any party may move for judgment on the pleadings.” In considering

a Civ.R. 12(C) motion, the trial court may review only “the complaint and the answer as

well as any material incorporated by reference or attached as exhibits to those pleadings.”

4. Walker v. City of Toledo, 2017-Ohio-416, 84 N.E.3d 216, ¶ 19 (6th Dist.). Employing

the same standard as a Civ.R. 12(B)(6) motion for failure to state a claim upon which

relief may be granted, the trial court must construe as true the material allegations in the

complaint and draw all reasonable inferences in favor of the nonmoving party. Id. at ¶

18, citing McMullian v. Borean, 167 Ohio App.3d 777, 2006-Ohio-3867, 857 N.E.2d

180, ¶ 7 (6th Dist.); Ohio Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act, 147

Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, ¶ 10, citing Rayess v. Educational

Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d

1267, ¶ 18. If it appears from the pleadings and the materials incorporated by reference

or attached as exhibits that the nonmoving party can prove no set of facts entitling it to

relief, the trial court may dismiss the plaintiff’s claims under Civ.R. 12(C). Ohio

Manufacturers’ Assn. at ¶ 10. We review the trial court’s judgment de novo. Reister v.

Gardner, 164 Ohio St.3d 546, 2020-Ohio-5484, 174 N.E.3d 713, ¶ 17.

{¶ 10} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the

moving party is entitled to judgment as a matter of law; and (3) that

reasonable minds can come to but one conclusion, and that conclusion is

5. adverse to the party against whom the motion for summary judgment is

made, who is entitled to have the evidence construed most strongly in his

favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375

N.E.2d 46 (1978), Civ.R. 56(C).

{¶ 11} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,

662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,

675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

B. The Statutes at Issue

{¶ 12} Davis’s complaint alleged claims for medical negligence, loss of

consortium, and wrongful death. The statute of limitations for Davis’s claims for medical

negligence and loss of consortium is set forth in R.C. 2305.113(A). It provides that “an

6. action upon a medical * * * claim shall be commenced within one year after the cause of

action accrued.” Under R.C. 2305.113(B)(1), if, before the expiration of the one-year

period, a plaintiff provides the defendant written notice that he is considering bringing an

action, he may extend the statute of limitations by 180 days from the time proper notice is

given. See Szwarga v. Riverside Methodist Hosp., 2014-Ohio-4943, 23 N.E.3d 260, ¶ 8

(10th Dist.).

{¶ 13} R.C. 2305.113(C) sets forth a four-year statute of repose for medical

claims. It provides that “[e]xcept as to persons within the age of minority or of unsound

mind,” and except as provided in R.C. 2305.113(D), “[n]o action upon a medical * * *

claim shall be commenced more than four years after the occurrence of the act or

omission constituting the alleged basis of the medical * * * claim.” R.C. 2305.113(C)(1).

“If an action upon a medical * * * claim is not commenced within four years after the

occurrence of the act or omission constituting the alleged basis of the medical * * *

claim, then, any action upon that claim is barred.” R.C. 2305.113(C)(2). R.C.

2305.113(D) sets forth two exceptions to the statute of repose:

(1) If a person making a medical claim * * *, in the exercise of

reasonable care and diligence, could not have discovered the injury

resulting from the act or omission constituting the alleged basis of the claim

within three years after the occurrence of the act or omission, but, in the

exercise of reasonable care and diligence, discovers the injury resulting

from that act or omission before the expiration of the four-year period

7. specified in division (C)(1) of this section, the person may commence an

action upon the claim not later than one year after the person discovers the

injury resulting from that act or omission.

(2) If the alleged basis of a medical claim * * * is the occurrence of

an act or omission that involves a foreign object that is left in the body of

the person making the claim, the person may commence an action upon the

claim not later than one year after the person discovered the foreign object

or not later than one year after the person, with reasonable care and

diligence, should have discovered the foreign object.

{¶ 14} Davis’s wrongful death claim was brought under Chapter R.C. 2125.

Under R.C. 2125.01, “[w]hen the death of a person is caused by wrongful act, neglect, or

default which would have entitled the party injured to maintain an action and recover

damages if death had not ensued, the person who would have been liable if death had not

ensued * * * shall be liable to an action for damages, notwithstanding the death of the

person injured * * *.” The time within which a wrongful-death claim must be brought is

set forth in R.C. 2125.02(D)(1). It provides that “[e]xcept as provided in division (D)(2)

of this section, a civil action for wrongful death shall be commenced within two years

after the decedent’s death.” R.C. 2125.02(D)(2) provides a ten-year statute of repose

applicable only to wrongful death actions involving product-liability claims and carves

out certain exceptions to that statute of repose. The wrongful-death statute of repose is

substantially similar to R.C. 2305.10(C)(1), which states that “no cause of action based

8. on a product liability claim” shall accrue later than ten years after certain events, and

subject to certain exceptions.

{¶ 15} Finally, for plaintiffs who file a complaint that “fails otherwise than upon

the merits,” R.C. 2305.19(A) and R.C. 2125.04 are “saving statutes” that allow plaintiffs

to file a new action within one year of that failure otherwise than on the merits. R.C.

2305.19(A), the general saving statute, provides:

In any action that is commenced or attempted to be commenced, if in

due time a judgment for the plaintiff is reversed or if the plaintiff fails

otherwise than upon the merits, the plaintiff * * * may commence a new

action within one year after the date of the reversal of the judgment or the

plaintiff’s failure otherwise than upon the merits or within the period of the

original applicable statute of limitations, whichever occurs later. This

division applies to any claim asserted in any pleading by a defendant.

R.C. 2125.04, the wrongful-death savings statute, provides:

In every civil action for wrongful death that is commenced or

attempted to be commenced within the time specified by division (D)(1) or

(D)(2)(c), (d), (e), (f), or (g) of section 2125.02 of the Revised Code, if a

judgment for the plaintiff is reversed or the plaintiff fails otherwise than

upon the merits, the plaintiff * * * may commence a new civil action for

wrongful death within one year after the date of the reversal of the

9. judgment or the plaintiff's failure otherwise than upon the merits or within

the period specified by any of those divisions, whichever occurs later.

C. Wilson v. Durrani

{¶ 16} The trial court dismissed Davis’s refiled complaint after the Ohio Supreme

Court’s December 23, 2020 decision in Wilson, 164 Ohio St.3d. 419, 2020-Ohio-6827,

173 N.E.3d 448. In Wilson, the court considered whether the general saving statute, R.C.

2305.19(A), permits a plaintiff to refile a medical claim after the four-year statute of

repose in R.C. 2305.113(C) has expired.

{¶ 17} In Wilson, two separate plaintiffs (Sand and Wilson) filed complaints in

Butler County in March of 2013, and April of 2013, respectively, for injuries resulting

from spinal surgeries that Dr. Durrani performed in April of 2010, and February and

April of 2011. Both plaintiffs voluntarily dismissed their complaints without prejudice

under Civ.R. 41(A)(1)(a) on November 25, 2015, and December 11, 2015, then refiled in

Hamilton County in December 2015. Defendants moved for judgment on the pleadings

in both refiled cases, arguing that R.C. 2305.113(C)’s statute of repose barred their

refiled claims because they arose from surgeries that were performed more than four

years before plaintiffs refiled. The trial court granted defendants’ motion.

{¶ 18} Plaintiffs appealed the trial court judgment, arguing that the Ohio saving

statute permitted them to refile their claims within one year after the voluntary dismissals.

The First District Court of Appeals agreed and reversed the trial court judgment. It held

10. that plaintiffs had timely refiled their claims under the saving statute, so the statute of

repose did not bar their refiled claims.

{¶ 19} Defendants appealed to the Ohio Supreme Court. The court accepted their

appeal to address “whether the saving statute permits the refiling of actions beyond the

expiration of the medical statute of repose.” Wilson v. Durrani, 157 Ohio St.3d 1562,

2020-Ohio-313, 138 N.E.3d 1152. As described by the court, the question presented on

appeal required it to consider “the interplay between three distinct types of statutes: (1)

statutes of limitations, (2) statutes of repose, and (3) saving statutes.” Wilson, 164 Ohio

St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, at ¶ 7.

{¶ 20} The court explained that “[a] statute of limitations establishes ‘a time limit

for suing in a civil case, based on the date when the claim accrued (as when the injury

occurred or was discovered).’” Id. at ¶ 9, quoting Black’s Law Dictionary 1707 (11th

Ed.2019). A “[s]tatute[] of limitations emphasize[s] plaintiffs’ duty to diligently

prosecute known claims.” Id. at ¶ 10, citing CTS Corp. v. Waldburger, 573 U.S. 1, 8, 134

S.Ct. 2175, 189 L.Ed.2d 62 (2014). It “operates on the remedy, not on the existence of

the cause of action itself.” Id., citing Mominee v. Scherbarth, 28 Ohio St.3d 270, 290,

503 N.E.2d 717 (1986), fn. 17 (Douglas, J., concurring).

{¶ 21} The court explained that a statute of repose “bars ‘any suit that is brought

after a specified time since the defendant acted * * * even if this period ends before the

plaintiff has suffered a resulting injury.’” Id. at ¶ 9, quoting Black’s at 1707. A

“[s]tatute[] of repose * * * emphasize[s] defendants’ entitlement to be free from liability

11. after a legislatively determined time.” Id. at ¶ 10, citing CTS Corp. at 9. It bars the claim

itself. Id., citing Treese v. Delaware, 95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th

Dist.1994).

{¶ 22} Finally, the court explained, a saving statute extends the time in which a

plaintiff may file an action. Generally, it “provide[s] that ‘where an action timely begun

fails in some manner described in the statute, other than on the merits, another action may

be brought within a stated period from such failure.’” Id. at ¶ 9, quoting Annotation, 6

A.L.R.3d 1043 (1966). A saving statute “acts as an exception to the general bar of the

statute of limitations.” Id., citing Chadwick v. Barba Lou, Inc., 69 Ohio St.2d 222, 232,

431 N.E.2d 660 (1982) (Krupansky, J., concurring in part and dissenting in part).

{¶ 23} The parties in Wilson agreed that plaintiffs’ claims were “medical claims”

as defined in R.C. 2305.113(E)(3). R.C. 2305.113(A) establishes a one-year statute of

limitations for medical claims; R.C. 2305.113(C) establishes a four-year statute of repose.

The court described R.C. 2305.113(C) as “a ‘true statute of repose that applies to both

vested and nonvested claims. Therefore, any medical-malpractice action must be filed

within four years of the occurrence of the act or omission alleged to have caused a

plaintiff’s injury.’” Id. at ¶ 16, quoting Antoon v. Cleveland Clinic. Found., 148 Ohio

St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 1.

{¶ 24} The court identified the saving statute relevant to the action as R.C.

2305.19(A). It emphasized that R.C. 2305.19(A) does not operate as a statute of

limitations, nor does it operate to toll the statute of limitations. Id. at ¶ 18. “Rather,” the

12. court explained, “it provides a plaintiff with a limited period of time in which to refile a

dismissed claim by commencing a new action that would otherwise be barred by the

statute of limitations.” (Citations omitted.) Id.

{¶ 25} The court observed that under R.C. 2305.113(C), plaintiffs were required to

have filed their medical claims “within four years of the occurrence of the acts or

omissions that allegedly caused their injuries.” Id. at ¶ 19. It recognized that the

plaintiffs’ original complaints were filed within four years, but were voluntarily

dismissed without prejudice. The court explained that when a complaint is

dismissed without prejudice, “the action ‘is deemed to never have existed.’” Id. at ¶ 20,

quoting Antoon at ¶ 24, citing De Ville Photography, Inc. v. Bowers, 169 Ohio St. 267,

272, 159 N.E.2d 443 (1959). The initial filing of a medical claim does not “indefinitely

suspend[] the running of the statute of repose, regardless of a subsequent dismissal

without prejudice.” Id. at ¶ 21, citing Antoon at id. Rather, for purposes of the statute of

repose, the malpractice action commences only when the refiled claim is filed. Thus,

unless the saving statute operates as an exception to the statute of repose, plaintiffs’

refiled claims would be time-barred because they were not filed within four years of the

occurrence of the acts or omissions that caused their injuries.

{¶ 26} Plaintiffs argued that because they voluntarily dismissed their claims under

Civ.R. 41(A)(1)(a), they were entitled to refile their claims within one year under R.C.

2305.19(A). Defendants conceded that the saving statute acts as an exception to a

13. statute-of-limitations defense to plaintiff’s refiled claims, but they insisted that it does not

serve as an exception to the statute of repose.

{¶ 27} The court sided with defendants. It stressed that R.C. 2305.113(C) means

what it says; that is, “[i]f a lawsuit bringing a medical * * * claim is not commenced

within four years after the occurrence of the act or omission constituting the basis for the

claim, then any action upon that claim is barred.’” Id. at ¶ 24, quoting Antoon at ¶ 23.

{¶ 28} Plaintiffs argued that for purposes of the statute of repose, when they

refiled their claims within one year of voluntarily dismissing them, the new

complaints “related back” to the dates they initially filed their original complaints. The

court disagreed. It acknowledged that in Frysinger v. Leech, 32 Ohio St.3d 38, 512

N.E.2d 337 (1987), the court observed that “[w]here R.C. 2305.19 applies, the date for

filing the new action relates back to the filing date for the preceding action for limitations

purposes.” (Emphasis added.) Id. at ¶ 26, citing Lewis v. Connor, 21 Ohio St.3d 1, 4,

487 N.E.2d 285 (1985); Reese v. Ohio State Univ. Hosp., 6 Ohio St.3d 162, 163-164, 451

N.E.2d 1196 (1983). But it characterized the “relation back” statement as dicta. It

explained that the saving statute operates to “to give a plaintiff a limited period of time in

which to file a dismissed claim that would otherwise be time-barred,” thereby permitting

the refiling of an action beyond the statute of limitations. Id. at ¶ 28. It clarified that “the

saving statute anticipates the commencement of a new action”—“not the reactivation of

the prior action”—and emphasized that the saving statute “says nothing about the new

action relating back to the filing date of the prior action.” Id.

14. {¶ 29} The court reasoned that because of the different purposes served by statutes

of limitations and statutes of repose, “exceptions to a statute of repose require ‘a

particular indication that the legislature did not intend the statute to provide complete

repose but instead anticipated the extension of the statutory period under certain

circumstances,’ as when the statute of repose itself contains an express exception.” Id. at

¶ 29. It observed that the legislature incorporated into R.C. 2305.113(C) two express

exceptions to the statute of repose: (1) it tolled the statute of repose “‘as to persons

within the age of minority or of unsound mind as provided in’ R.C. 2305.16”; and (2)

under subsections (D)(1) and (2), it extended the four-year repose period for claims that

accrue in the last year of the repose period and those based upon a foreign object left in a

patient’s body. Id., citing R.C. 2305.113(C) and (D). The court refused to read into the

statute an exception for application of the saving statute and found that “R.C.

2305.113(C) clearly and unambiguously prohibits the commencement of any action upon

a medical claim more than four years after the act or omission upon which the claim is

based.” Id.

{¶ 30} As additional justification for the result it reached, the court observed that

R.C. 2305.10(C) (which imposes a ten-year statute of repose for product-liability claims)

expressly states that it applies “[e]xcept as otherwise provided in” R.C. 2305.19, the

saving statute. Neither R.C. 2305.113(C) nor R.C. 2305.131 (which created a statute of

repose for certain construction-defect claims) include this express exception to the statute

of repose, therefore, the court reasoned, it can be inferred that the legislature knows how

15. to carve out such an exception when it intends to do so. Thus, “without an express

indication to the contrary, the saving statute would not override the statutes of repose.”

Id. at ¶ 31.

{¶ 31} In sum, the court concluded that “R.C. 2305.113(C) is a true statute of

repose that, except as expressly stated in R.C. 2305.113(C) and (D), clearly and

unambiguously precludes the commencement of a medical claim more than four years

after the occurrence of the alleged act or omission that forms the basis of the claim,” even

as to a claim “that has previously failed otherwise than on the merits in a prior action.”

Id. at ¶ 38. “Had the General Assembly intended the saving statute to provide an

extension of the medical statute of repose, it would have expressly said so in R.C.

2305.113(C), as it did in R.C. 2305.10(C), the statute of repose that governs product-

liability claims.” Id.1

1 Following the Ohio Supreme Court’s decision, plaintiffs moved for reconsideration of the court’s ultimate conclusion that the medical-claim statute of repose barred their refiled actions. In addition to challenging the court’s rationale for its decision, plaintiffs also argued that the statute of repose had not expired on their refiled actions because Ohio’s tolling statute, R.C. 2305.15, operated to toll the action because while out on criminal bond, Dr. Durrani had fled to his native Pakistan in December 2013, in order to avoid federal criminal prosecution. The Ohio Supreme Court granted plaintiffs’ motion, in part, and remanded the matter to the court of appeals “solely to consider whether the repose period was tolled under R.C. 2305.15(A).” Wilson v. Durrani, 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 580.

On remand, the First District determined that “the repose period in R.C. 2305.113(C) may be tolled in accordance with R.C. 2305.15(A).” Wilson v. Durrani, 1st Dist. Hamilton No. C-180196, 2021-Ohio-3226, ¶ 1. It found that the repose period was, in fact, tolled when Durrani fled the country in 2013, therefore, the statute of repose did not bar plaintiffs’ claims against Durrani.

16. D. Analysis

{¶ 32} Wilson involved a medical claim involving a non-fatal injury to the patient.

Davis has conceded that his medical claim and loss-of-consortium claim are barred under

Wilson. This appeal concerns only Davis’s wrongful-death claim.

{¶ 33} Appellees insist that Davis’s wrongful death claim is a “medical claim.”

Accordingly, they argue, it is subject to the four-year medical-claim statute of repose set

forth in R.C. 2305.113(C). They maintain that the only exceptions to the four-year

repose period are set forth in R.C. 2305.113(C) itself, and there is no logical or legal

support for treating a wrongful-death claim constituting a medical claim differently than a

survival claim for purposes of the statute of repose. To hold otherwise, they contend,

would circumvent the purpose of the statute of repose.

{¶ 34} Davis argues that whether his claim is deemed to be a “medical claim” is

“not determinative of the applicability of the wrongful death savings clause.” He

emphasizes that Ohio has afforded special protections to wrongful death claimants that

are not afforded to non-fatal bodily injury claimants. For example, the Ohio Constitution,

Article I, Section 19(a) provides that the amount of compensation for a wrongful-death

claim may not be limited by law. Moreover, the two claims have different statutes of

limitation. Davis points out that the Ohio Supreme Court itself has acknowledged the

distinct nature of such claims. See e.g., Koler v. St. Joseph Hosp., 69 Ohio St.2d 477,

17. 432 N.E.2d 821 (1982), and Klema v. St. Elizabeth’s Hosp. of Youngstown, 170 Ohio St.

519, 524, 166 N.E.2d 765 (1960).

{¶ 35} Davis emphasizes that unlike the medical-claim statute, the wrongful-death

statute contains its own saving clause—R.C. 2125.04. He insists that “the legislature’s

inclusion of a saving clause in the wrongful death statute indicates that it intended to

protect the rights of wrongful death plaintiffs apart from any other statutory provision.”

Davis maintains that to affirm the trial court decision would require us to carve out an

exception to the clear and unambiguous statutory language of the wrongful-death statute

and create different classes of wrongful-death victims—medical-malpractice victims and

everyone else.

{¶ 36} Appellees acknowledge that the Wrongful Death Act contains its own

saving statute, R.C. 2125.04, but they insist that the language of that statute is virtually

identical to the language in the general saving statute contained in R.C. 2305.19. They

emphasize that under either statute, the first-filed complaint is a legal nullity, and the

parties are left as though no action had been brought at all. They claim that under either

statute, the statute of repose is an absolute bar to all medical claims filed more than four

years after the alleged negligence.2

2 The dissent suggests that because Davis cited R.C. 2305.19 when he refiled his complaint, he “made no attempt to seek protection under R.C. 2125.04 for the timing of his filing.” As the Ohio Supreme Court acknowledged in Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 10, if the claim at issue is one for wrongful death, the more specific wrongful-death saving statute, R.C. 2125.04, applies. It is axiomatic that a party cannot limit the applicability of

18. {¶ 37} Finally, appellees urge us to hold consistently with Wilson, 164 Ohio St.3d.

419, 2020-Ohio-6827, 173 N.E.3d 448 (which did not involve a wrongful-death claim),

and with other Ohio appellate districts that have concluded that wrongful-death claims

are subject to the four-year medical-claim statute of repose. See Smith v. Wyandot Mem.

Hosp., 2018-Ohio-2441, 114 N.E.3d 1224 (3d Dist.), and Mercer v. Keane, 2021-Ohio-

1576, 172 N.E.3d 1101 (5th Dist.), appeal not allowed, 164 Ohio St.3d 1420, 2021-Ohio-

2923, 172 N.E.3d 1047; Martin v. Taylor, 11th Dist. Lake No. 2021-L-046, 2021-Ohio-

4614 (decided after this case was submitted). Davis responds that these cases did not

deal with the situation presented here, where “a wrongful death case was timely filed to

begin with, then was dismissed and refiled under the wrongful death savings statute, but

more than four years after the original injury.”

a statute by citing the wrong one. Moreover, the distinction between R.C. 2305.19(A) and 2125.04 mattered in Eppley because when Eppley was decided, R.C. 2125.04 “granted a plaintiff an additional year in which to refile an action dismissed without prejudice only if dismissal occurred after the original statute of limitations had run.” Id. at ¶ 8. R.C. 2305.19(A) had been amended in 2004 to remove that limitation, which the court referred to as “the malpractice trap”; R.C. 2125.04 had not been similarly amended. Id. The dismissal in Eppley did not occur after the original statute of limitations had run, therefore, plaintiff’s claim would be saved only under R.C. 2305.19(A)—not under R.C. 2125.04. Importantly, the legislature removed the malpractice trap from R.C. 2125.04 when it amended the statute in 2010, so it makes little difference here which saving statute applies. Regardless, the result in this case does not depend upon which savings statute applies (although it is clear from the complaint that Davis asserted both medical and wrongful-death claims, so under Eppley, R.C. 2125.04 must apply to the wrongful- death claim). The result depends upon whether the medical-claim statute of repose, R.C. 2305.113(C), applies to wrongful-death claims predicated upon medical negligence.

19. {¶ 38} R.C. 2305.113(E)(3) defines “medical claim” to mean “any claim that is

asserted in any civil action against a physician [or] * * * hospital * * *, against any

employee or agent of a physician [or] * * * hospital * * *, or against a licensed practical

nurse, registered nurse, advanced practice registered nurse, physical therapist, [or]

physician assistant * * *, and that arises out of the medical diagnosis, care, or treatment

of any person.” “Medical claim” includes, inter alia, “[d]erivative claims for relief that

arise from the medical diagnosis, care, or treatment of a person.” R.C.

2305.113(E)(3)(a). A wrongful-death claim “is not a derivative action, but rather is an

independent cause of action.” Dougherty v. Fecsik, 116 Ohio App.3d 456, 458, 688

N.E.2d 555 (8th Dist.1996), citing Thompson v. Wing, 70 Ohio St.3d 176, 637 N.E.2d

917 (1994).

{¶ 39} In Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d

291—which specifically did not address the applicability of the medical-claim statute of

repose to wrongful-death claims (see ¶ 6, “the wrongful-death action is not before us”)—

the Ohio Supreme Court summarized the policy reasons that support the statute of repose

for medical claims. For one, it explained, “the statute of repose exists to give medical

providers certainty with respect to the time within which a claim can be brought and a

time after which they may be free from the fear of litigation.” Id. at ¶ 19. Additionally, it

observed:

Forcing medical providers to defend against medical claims that

occurred 10, 20, or 50 years before presents a host of litigation concerns,

20. including the risk that evidence is unavailable through the death or

unknown whereabouts of witnesses, the possibility that pertinent

documents were not retained, the likelihood that evidence would be

untrustworthy due to faded memories, the potential that technology may

have changed to create a different and more stringent standard of care not

applicable to the earlier time, the risk that the medical providers' financial

circumstances may have changed—i.e., that practitioners have retired and

no longer carry liability insurance, the possibility that a practitioner’s

insurer has become insolvent, and the risk that the institutional medical

provider may have closed. Id. at ¶ 20.

{¶ 40} But Davis correctly points out that wrongful-death claims—even those

premised on negligent medical care—are treated differently than medical claims for non-

fatal injuries.

{¶ 41} A “wrongful death action is a special statutory action which does not exist

at common law.” Klema, 170 Ohio St. at 524, 166 N.E.2d 765. While a wrongful-death

claim and the underlying injury claim originate from the same wrongful act, the two

claims are entirely distinct. Id. at 521, citing St. Louis, Iron Mountain & Southern Ry.

Co. v. Craft, 237 U.S. 648, 658, 35 S.Ct. 704, 59 L.Ed. 1160 (1915). The underlying

injury claim “is for the wrong to the injured person”; the wrongful death claim “is for the

wrong to the beneficiaries * * *.” Id., quoting id. “One begins where the other ends * *

*.” Id., quoting id.

21. {¶ 42} In Klema, the Supreme Court of Ohio considered whether the statute of

limitations for medical malpractice, former R.C. 2305.11, applied to wrongful-death

claims predicated upon medical malpractice. At that time, the relevant statute of

limitations for wrongful-death claims, R.C. 2125.02, stated “[e]xcept as otherwise

provided by law, every such action must be commenced within two years after the death

of such deceased person * * *.” (Emphasis added.) The court considered whether

“except as otherwise provided by law,” as stated in R.C. 2125.02, could refer to the one-

year limitation period of former R.C. 2305.11. The court explained that because

wrongful-death actions are special statutory actions—which did not exist before the

General Assembly enacted the wrongful death statute in 1851—“the phrase, ‘except as

otherwise provided by law,’ can only relate to other provisions relating to death.” Id. at

524. That is, it “necessarily relate[d]” to only other limitations provisions that are

“contained in the wrongful death statute itself”—which, at that time, were limited to a

statute regarding the enforcement of wrongful-death actions created by the laws of

another state, and the wrongful-death saving statute. Id. at 524. Thus, the court

concluded that the statute of limitations period for medical-malpractice actions, former

R.C. 2305.11, was inapplicable to wrongful-death claims predicated upon medical

malpractice.

{¶ 43} As this court has recognized, consistent with Klema, “R.C. 2125.01 et seq.

creates, defines, and limits [a wrongful-death] action.” Ottney v. Sheen, 6th Dist.

Sandusky No. C.A. S-86-6, 1986 WL 15056, *6 (Dec. 31, 1986), citing Collins v. Yanity,

22. 14 Ohio St. 2d 202, 207, 237 N.E.2d 611 (1968). The question, therefore, is whether

wrongful-death claims—created, defined and limited by R.C. 2125.01 et seq.—are

subject to the medical-claim statute of repose. Three Ohio cases have held that they are:

Smith, 2018-Ohio-2441, 114 N.E.3d 1224; Mercer, 2021-Ohio-1576, 172 N.E.3d 1101;

and Martin, 11th Dist. Lake No. 2021-L-046, 2021-Ohio-4614.

{¶ 44} In Smith, the decedent died on July 22, 2015, and on July 21, 2017, his

estate filed a wrongful death action against a number of medical providers. The alleged

acts of medical malpractice occurred in 2004. On motions to dismiss or for summary

judgment, filed by the various medical providers, the trial court dismissed the estate’s

claims. It concluded that the wrongful-death action asserted medical claims and those

claims were barred by Ohio’s four-year medical-malpractice statute of repose.

{¶ 45} On appeal, the estate argued that the trial court erred in applying the

medical-malpractice statute of repose to bar a wrongful death action filed under R.C.

2125.01. However, the court of appeals looked to the legislature’s concerns about “the

distress posed to Ohio’s healthcare industry caused by growing medical-malpractice

litigation”—articulated when the General Assembly recodified R.C. 2305.113. Id. at ¶

21. It also considered the Ohio Supreme Court’s admonition in Antoon, 148 Ohio St.3d

483, 2016-Ohio-7432, 71 N.E.3d 974, at ¶ 19, that “statutes of repose are to be read as

enacted” and “[i]f a lawsuit bringing a medical * * * claim is not commenced within four

years after the occurrence of the act or omission constituting the basis for the claim, then

any action on that claim is barred.” (Emphasis added.) Smith at ¶ 23. It concluded that

23. “wrongful-death actions fall within the scope of ‘any action’ and are subject to the time

restraints” of the four-year medical-claim statute of repose. Id. at ¶ 22.

{¶ 46} The appellate court also specifically considered the estate’s argument that

Ohio’s medical-claim statute of repose does not apply to wrongful-death actions because

a wrongful-death action is subject to its own statute of limitations under R.C.

2125.02(D)(1). The court rejected this argument because of the different purposes served

by statutes of limitations and statutes of repose. To bolster its conclusion, the court noted

that other statutory provisions relating to medical claims are applicable to wrongful-death

claims. In particular, it observed that affidavits of merit are required to support a

wrongful-death action based on a medical claim. Because the estate’s wrongful-death

action asserted a medical claim, and because there was no dispute that the alleged acts of

negligence occurred in 2004 and the wrongful-death action was not filed until 2017, the

court held that the estate’s wrongful-death action was barred by the statute of repose.

{¶ 47} In Mercer, 2021-Ohio-1576, 172 N.E.3d 1101, the patient was diagnosed

with sacral chordoma on May 12, 2015. The patient and his spouse brought a medical-

malpractice action on August 19, 2016, after learning that the mass on the patient’s

sacrum had been visible in a December 12, 2012 MRI. By the time it was diagnosed in

2015, the patient was no longer a surgical candidate. The patient died on February 29,

2020, and his estate filed an amended complaint on May 1, 2020, converting the medical-

malpractice claim to one for wrongful death—seven years and four months after the

conduct giving rise to the claim.

24. {¶ 48} Defendants moved for partial summary judgment and for judgment on the

pleadings on the basis that plaintiffs’ wrongful-death claim was barred by the four-year

statute of repose under R.C. 2305.113(C). The trial court granted their motions. It found

that the wrongful-death claim was a medical claim, and because the claim was filed more

than four years after the conduct giving rise to the claim, plaintiffs’ action was barred by

the medical-claim statute of repose.

{¶ 49} On appeal, the court explained the distinction between statutes of

limitations and statutes of repose. It acknowledged the policy reasons supporting the

medical-claim statute of repose. It summarized the Ohio Supreme Court’s decision in

Wilson, 164 Ohio App.3d. 419, 2020-Ohio-6827, 173 N.E.3d 448. And it recognized that

a claim for wrongful death is an independent cause of action governed by R.C. Chapter

2125. The court found that the original medical-malpractice claim had been timely-filed

because it was filed before the expiration of the medical-claim statute of repose. But it

found that the timely filing of the medical-malpractice claim did not suspend the running

of the statute of repose for purposes of the “new and independent action” for wrongful-

death. Id. at ¶ 17. Relying on Wilson, Antoon, 148 Ohio St.3d 483, 2016-Ohio-7432, 71

N.E.3d 974, at ¶ 24 (rejecting plaintiffs’ argument that “filing then dismissing a claim

will indefinitely suspend the statute of repose by ‘commencing’ the suit on the date of the

first filing”), and Smith, 2018-Ohio-2441, 114 N.E.3d 1224, it concluded that the

amended complaint for wrongful death was subject to the four-year medical-claim statute

of repose, and was not filed before that statute of repose expired.

25. {¶ 50} And most recently in Martin, 11th Dist. Lake No. 2021-L-046, 2021-Ohio-

4614, the patient and her husband brought an action for medical malpractice on January

14, 2016, in connection with the defendants’ failure to diagnose her lung cancer during

various examinations that occurred between 2011 and 2014, delaying her diagnosis until

October of 2014. On May 11, 2017, plaintiffs voluntarily dismissed their complaint. The

patient died on September 2, 2017. On May 10, 2018, her husband refiled the medical-

malpractice claim, along with a wrongful-death claim.

{¶ 51} Defendants moved for summary judgment on both claims on the basis that

they were time-barred under the four-year medical-claim statute of repose because the

acts and omissions constituting the basis of the claims occurred before May 10, 2014.

The plaintiff responded that the saving statute in R.C. 2305.19(A) applied to both the

statute of limitations and the statute of repose, the defendants’ negligent conduct

continued between May 10, 2014, and October 2014, a wrongful-death claim is not a

“medical claim” for purposes of the statute of repose, and the application of the statute of

repose to bar a wrongful-death claim violates due process.

{¶ 52} Similar to the present case, while the matter was initially pending in the

trial court, Wilson had not been decided by the Ohio Supreme Court. After that decision

was released, defendants filed renewed motions for summary judgment. Plaintiff

opposed the motion on the basis that motions for reconsideration were pending in Wilson,

Wilson should be applied only prospectively, and application of the statute of repose to

his wrongful-death claim would violate due process. He also requested additional time

26. under Civ.R. 56(F) to obtain and present evidence or additional discovery relative to the

period between May 10, 2014, and October 2014.

{¶ 53} The trial court in Martin granted the renewed motions for summary

judgment in favor of defendants and dismissed both the medical-malpractice and

wrongful-death claims. Plaintiff moved for reconsideration, then moved for relief from

judgment based on revised opinions from his medical experts that would expand the

period of time within which a diagnosis of the patient’s lung cancer would have resulted

in a greather-than-50-percent probability of survival. The trial court denied his motions.

{¶ 54} On appeal, plaintiff argued, inter alia, that “the trial court erred in applying

the medical claims Statute of Repose to Plaintiff’s wrongful death claim because it is not

a ‘medical claim’ subject to that Statute of Repose.” Id. at ¶ 6. He argued that “because

the statutes of limitations for medical claims and wrongful death claims are contained in

different statutory sections, a wrongful death claim is not a ‘medical claim’ to which the

statute of repose would apply.” Id. at ¶ 44.

{¶ 55} The appellate court looked to the definition of “medical claim” contained in

R.C. 2305.113(E)(3). It determined that there was no dispute that plaintiff’s wrongful-

death claim was based on the “medical diagnosis, care, or treatment” of his wife. Id. at ¶

46. It concluded that “[a]lthough the wrongful death claim is subject to a different

statute of limitations, it does not follow that [it] is not a ‘medical claim’ for purposes of

the statute of repose.” Id. It pointed to its own decision in Wilson v. Mercy Health, 11th

Dist. Trumbull No. 2021-T-0004, 2021-Ohio-2470, ¶ 33, where it held that a wrongful

27. death claim predicated on negligent medical care is a medical claim for purposes of the

Civ.R. 10(D)(2) affidavit-of-merit requirement.

{¶ 56} In sum, Smith, 2018-Ohio-2441, 114 N.E.3d 1224, Mercer, 2021-Ohio-

1576, 172 N.E.3d 1101, and Martin all held that the medical-claim statute of repose

applies to wrongful-death claims that arise from negligent medical care. But we disagree

with these cases for several reasons.

{¶ 57} First, R.C. 2305.113(A) provides that “except as otherwise provided in this

section, an action upon a medical * * * claim shall be commenced within one year after

the cause of action accrued.” (Emphasis added.) The four-year medical-claim statute of

repose is among the exceptions provided in R.C. 2305.113. No exception is recognized

within R.C. 2305.113 for medical negligence resulting in death, yet it is well-established

that a wrongful-death claim premised on medical malpractice is governed by the two-year

statute of limitations set forth in R.C. 2125.02(D)(1)—not R.C. 2305.113(A). See Erwin

v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 27; Mardis v.

Meadow Wood Nursing Home, 12th Dist. Brown No. CA2010-04-007, 2010-Ohio-4800,

¶ 20; Brosse v. Cumming, 20 Ohio App.3d 260, 263, 485 N.E.2d 803 (8th Dist.1984);

Evans v. S. Ohio Med. Ctr., 103 Ohio App.3d 250, 254, 659 N.E.2d 326 (4th Dist.1995).

If a wrongful-death claim is not subject to the statute of limitations in R.C. 2305.113(A),

we see no reason that it would be subject to the other limitations periods set forth in that

statute.

28. {¶ 58} Second, if (as we recognized in Ottney, 6th Dist. Sandusky No. C.A. S-86-

6, 1986 WL 15056, at *6), “R.C. 2125.01 et seq. creates, defines, and limits” wrongful-

death actions, it follows that the only time limitations applicable to wrongful-death

claims are those contained in the Wrongful Death Act itself. R.C. 2125.02(D)(1) states

that “except as provided in division (D)(2),” a wrongful-death claim must be commenced

within two years after the decedent’s death. (Emphasis added.) In other words, the only

exceptions to the limitations period are provided in (D)(2). R.C. 2125.02(D)(2)(a) creates

a ten-year statute of repose for wrongful-death actions involving product-liability claims

(subject to certain exceptions further described in division (D)(2)). No similar repose

period is established for wrongful-death actions involving medical claims. If the

legislature had intended to impose a repose-period for wrongful-death actions involving

claims of medical malpractice, it could have done so in the same manner that it did for

wrongful-death actions involving claims of product liability.

{¶ 59} Importantly, R.C. 2305.10 contains a separate—but substantially similar—

provision creating the same repose period for actions for non-fatal product-liability

claims. R.C. 2305.10(C)(1) broadly states that, subject to certain exceptions, “no cause

of action based on a product liability claim shall accrue against the manufacturer or

supplier of a product later than ten years from the [initial delivery of the product.]” In

this respect, the breadth of the product-liability statute of repose is similar to the breadth

of the medical-claim statute of repose. That is, R.C. 2305.113(C) broadly states that,

subject to certain exceptions, “[n]o action upon a medical * * * claim shall be

29. commenced more than four years after the occurrence of the act or omission constituting

the alleged basis of the medical * * * claim.” Despite the unambiguously-broad nature of

both statutes of repose, the legislature found it necessary to restate the product-liability

statute of repose—but not the medical-claim statute of repose—within the Wrongful

Death Act, thereby creating a statute of repose specifically applicable to wrongful-death

actions. We must assume that if the medical-claim statute of repose was intended to

apply to wrongful-death actions based upon medical claims, the legislature would have

included it within the Wrongful Death Act, as it did for wrongful-death actions based

upon product-liability claims. Indeed, if we were to interpret the medical-claim statute of

repose as nonetheless applicable to wrongful-death claims even though it is not included

within the Wrongful Death Act, we would render R.C. 2125.02(D)(2)(a) redundant,

meaningless, or superfluous—which is an interpretation we must avoid under well-

established rules of statutory construction. See State v. Pettus, 163 Ohio St.3d 55, 2020-

Ohio-4836, 168 N.E.3d 406, ¶ 14; D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. Of Health, 96

Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 26.

{¶ 60} Further to this point, we are aware of two statutes applicable to wrongful-

death claims that exist outside the Wrongful Death Act itself—R.C. 2305.131(A)(1) and

R.C. 2305.101(A). R.C. 2305.131(A)(1) establishes a ten-year statute of repose for

actions for wrongful death that arise out of a defective and unsafe condition of an

improvement to real property. But this provision expressly states that “[n]otwithstanding

an otherwise applicable period of limitations specified * * * in section 2125.02 of the

30. Revised Code * * *, no cause of action to recover damages for bodily injury, an injury to

real or personal property, or wrongful death that arises out of a defective and unsafe

condition of an improvement to real property * * * shall accrue * * * later than ten years

from the date of substantial completion of such improvement.” (Emphasis added.)

Similarly, R.C. 2305.101(A), applicable to claims for bodily injury or wrongful death

caused by the Dalkon Shield intrauterine device, provides a specific limitation period for

those claims “[n]otwithstanding the limitations provided for in section[] 2125.02 * * * of

the Revised Code.” (Emphasis added.) When enacting R.C. 2305.131(A)(1) and R.C.

2305.101(A), the legislature included express language within those statutes to clarify

that it was creating repose periods for wrongful-death claims that run counter to the

limitations periods that are otherwise set forth in the Wrongful Death Act—making it

clear that the legislature knows how to carve out such exceptions. There is no similar

language within R.C. 2305.113(C) to indicate that the legislature was enacting a statute of

repose for wrongful-death actions based upon medical claims that would apply

“notwithstanding the limitations provided for in section 2125.02.”

{¶ 61} Third, our recognition of the wrongful-death claim as an action that is

independent of a medical-malpractice claim leads us to a different conclusion that that

reached in Mercer, 2021-Ohio-1576, 172 N.E.3d 1101. Mercer reasoned that the

separateness of a wrongful-death claim illustrated that the amended complaint—though

filed as part of the properly-filed medical-malpractice action—must be treated as a new

action, one that was barred because it was filed outside the four-year medical-claim

31. statute of repose. It is our view, however, that the separateness of the wrongful-death

claim means something different—i.e., that it is not subject to the medical-claim statute

of repose at all.

{¶ 62} Finally, we disagree that because courts have held that the Civ.R. 10(D)(2)

affidavit-of-merit requirement applies to wrongful-death claims arising from medical

negligence, this dictates the conclusion that the medical-claim statute of repose is also

applicable. Certainly, numerous Ohio appellate districts have held that wrongful-death

claims that arise from “the medical diagnosis, care, or treatment of any person,” are

subject to the Civ.R. 10(D)(2) affidavit requirement. See e.g., Wilson v. Mercy Health,

11th Dist. Trumbull No. 2021-T-0004, 2021-Ohio-2470, ¶ 33; Wick v. Lorain Manor,

Inc., 9th Dist. Lorain No. 12CA010324, 2014-Ohio-4329, ¶ 18; Flynn v. Cleveland Clinic

Health Sys.-E., 8th Dist. Cuyahoga No. 105720, 2018-Ohio-585, ¶ 4. But the Civ.R.

10(D)(2) affidavit-of-merit requirement is a procedural rule. Oglesby v. Consol. Rail

Corp., 6th Dist. Erie No. E-08-055, 2009-Ohio-1744, ¶ 24. We see a distinction between

applying Civ.R. 10(D)(2) to all claims, including wrongful-death claims, arising from

“the medical diagnosis, care, or treatment of any person,” and applying R.C. 2305.113’s

limitations periods to those claims—particularly given that courts do not apply R.C.

2305.113(A) to wrongful-death claims.

{¶ 63} In sum, we conclude that the four-year medical-claim statute of repose is

not applicable to wrongful-death actions predicated on negligent medical care. To the

32. extent that other courts have held otherwise, we disagree with those cases. Accordingly,

we find Davis’s assignment of error well-taken.

{¶ 64} Under Article IV, Section 3(B)(4) of the Ohio Constitution, “[w]henever

the judges of a court of appeals find that a judgment upon which they have agreed is

in conflict with a judgment pronounced upon the same question by any other court of

appeals of the state, the judges shall certify the record of the case to the supreme court for

review and final determination.”

{¶ 65} In order to qualify for certification to the Supreme Court of Ohio pursuant

to Section 3(B)(4), Article IV of the Ohio Constitution, a case must meet the following

three conditions:

First, the certifying court must find that its judgment is in conflict

with the judgment of a court of appeals of another district and the asserted

conflict must be “upon the same question.” Second, the alleged conflict

must be on a rule of law-not facts. Third, the journal entry or opinion of the

certifying court must clearly set forth the rule of law which the certifying

court contends is in conflict with the judgment on the same question by

other district courts of appeals. Whitelock v. Gilbane Bldg. Co., 66 Ohio

St.3d 594, 596, 613 N.E.2d 1032 (1993).

{¶ 66} We find that our holding today is in conflict with the Third District’s

decision in Smith 2018-Ohio-2441, 114 N.E.3d 1224; the Fifth District’s decision in

Mercer, 2021-Ohio-1576, 172 N.E.3d 1101; and the Eleventh District’s decision in

33. Martin, 11th Dist. Lake No. 2021-L-046, 2021-Ohio-4614. Accordingly we certify the

record in this case for review and final determination to the Supreme Court of Ohio on

the following issue:

Is the four-year medical-claim statute of repose set forth in R.C.

2305.113(C) inapplicable to wrongful-death actions predicated on negligent

medical care?

{¶ 67} The parties are directed to S.Ct.Prac.R. 5.03 and S.Ct.Prac.R. 8.01 for

guidance.3

III. Conclusion

{¶ 68} A wrongful-death action is a special statutory action subject to the

provisions contained within the wrongful-death statutes themselves. The Wrongful

Death Act contains no statute of repose applicable to actions predicated on claims of

medical negligence—the only statute of repose contained in the Wrongful Death Act

pertains to actions arising from product-liability claims. Moreover, unlike other statutory

provisions such as R.C. 2305.131(A)(1) and R.C. 2305.101(A), R.C. 2305.113(C) does

not expressly state that “notwithstanding R.C 2125.02,” the four-year medical-claim

3 While the draft of the majority decision was circulating among the assigned panel, the Tenth District released decisions in Everhart v. Coshocton Cty. Memorial Hosp., -- N.E.3d --, 2022-Ohio-629 (10th Dist.) and McCarthy v. Lee, 10th Dist. Franklin No. 21AP-105, 2022-Ohio-1033. The Tenth District addressed the same issue considered in this decision—whether the trial court erred when it applied the statute of repose for medical claims to a statutory wrongful-death claim—and reached the same conclusion as the majority of this court. It employed a substantially similar analysis in concluding that the medical-claim statute of repose is inapplicable to a wrongful-death action arising from a medical claim.

34. statute of repose applies to wrongful-death claims premised on medical malpractice.

Accordingly, because Davis’s wrongful-death claim was timely-filed in the first place,

dismissed without prejudice under Civ.R. 41(A)(1), and refiled within the time allowed

under the saving statute set forth in R.C. 2125.04, the trial court erred when it dismissed

Davis’s wrongful-death claim as barred by the four-year medical-claim statute of repose.

{¶ 69} We reverse the April 22, 2021 judgment of the Lucas County Court of

Common Pleas and sua sponte certify the record in this case for review and final

determination to the Supreme Court of Ohio on the issue of whether the four-year

medical-claim statute of repose set forth in R.C. 2305.113(C) is inapplicable to wrongful-

death actions predicated on negligent medical care. Appellees are ordered to pay the

costs of this appeal under App.R. 24.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, J. CONCUR. ____________________________ JUDGE

Thomas J. Osowik, J. DISSENTS, IN PART, AND CONCURS, IN PART.

35. OSOWIK, J.

{¶ 70} I agree with the majority opinion that the narrow question before us is

whether the R.C. 2305.113(C) medical-claim statute of repose applies to R.C. 2125.01

wrongful-death claims predicated upon medical negligence.

{¶ 71} Three Ohio appellate courts have found Ohio’s medical malpractice statute

of repose precludes a wrongful death action if the case is derived from a medical claim.

See Smith v. Wyandot Mem. Hosp., 2018-Ohio-2441, 114 N.E.3d 1224 (3d Dist.);

Fletcher v. Univ. Hosps. of Cleveland, 172 Ohio App.3d 153, 2007-Ohio-2778, 873

N.E.2d 365 (8th Dist.), rev’d on other grounds, 120 Ohio St.3d 167, 2008-Ohio-5379,

897 N.E.2d 147; Mercer v. Keane, 2021-Ohio-1576, 172 N.E.3d 1101 (5th Dist.). I agree

with the opinions of these districts and would affirm the judgment of the trial court in this

case.

{¶ 72} The Supreme Court of Ohio has also provided some insight in Wilson v.

Durrani where it held:

R.C. 2305.113(C) is a true statute of repose that, except as expressly

stated in R.C. 2305.113(C) and (D), clearly and unambiguously precludes

the commencement of a medical claim more than four years after the

occurrence of the alleged act or omission that forms the basis of the claim.

Expiration of the statute of repose precludes the commencement, pursuant

to the saving statute, of a claim that has previously failed otherwise than on

the merits in a prior action. Had the General Assembly intended the saving

36. statute to provide an extension of the medical statute of repose, it would

have expressly said so in R.C. 2305.113(C), as it did in R.C. 2305.10(C),

the statute of repose that governs product-liability claims.

Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, ¶ 38,

reconsideration granted on an issue not raised here, 161 Ohio St.3d 1453, 2021-Ohio-

534, 163 N.E.3d 580.

{¶ 73} Appellants’ August 15, 2018 complaint alleges: (1) the medical negligence

of the defendants arose from a medical procedure on the decedent on November 4, 2013,

(2) the decedent died on April 4, 2014 as a result of the negligent medical care received

on November 4, 2013, and (3) “This case was originally filed on May 4, 2015, dismissed

as to these defendants on August 21, 2017, and is refiled pursuant to R.C. 2305.19, the

savings statute.” (Emphasis added.) Prior to the filing of the August 15, 2018 complaint,

appellants were without any causes of action against appellees, as if no claims had ever

been made. Wilson at ¶ 20; Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483,

2016-Ohio-7432, 71 N.E.3d 974, ¶ 24.

{¶ 74} Despite appellants’ attempt to recast this case as a purely wrongful-death

claim subject only to the wrongful-death savings statute under R.C. 2125.04, the record

shows their August 15, 2018 complaint made no attempt to seek protection under R.C.

2125.04 for the timing of its filing. App.R. 9(A)(1). Appellants clearly chose to refile

their complaint only pursuant to R.C. 2305.19, and by doing so appellants concede their

allegations for wrongful death are “medical claims” as defined by R.C. 2305.113(E)(3).

37. {¶ 75} I would affirm the judgment of the trial court in this case. The act from

which the four-year medical statute of repose runs is the November 4, 2013 surgery,

which makes the August 15, 2018 complaint untimely. Without the November 4, 2013

medical procedure, there is no intervening act to create the independent cause alleged for

the decedent’s death on April 4, 2014. A material element of a wrongful death claim for

which appellants have the burden to prove is, “the death of a person * * * caused by

wrongful act, neglect, or default which would have entitled the party injured to maintain

an action and recover damages if death had not ensued, * * *.” R.C. 2125.01. “A

wrongful death claim is not triggered merely by the death of a person, but by ‘the death

of a person * * * caused by wrongful act.’” (Emphasis sic.) Collins v. Sotka, 81 Ohio

St.3d 506, 509, 692 N.E.2d 581 (1998), quoting former R.C. 2125.01(A)(1), now R.C.

2125.01.

{¶ 76} For those reasons, my opinion diverges from the majority and I would

respectfully dissent. However, since the majority opinion conflicts with the opinions of

the Third, Fifth and Eighth Districts, I would agree that this case be certified to the Ohio

Supreme Court for resolution of that conflict.

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

38.