Fehrenbach v. O'Malley

862 N.E.2d 489, 113 Ohio St. 3d 18
CourtOhio Supreme Court
DecidedMarch 21, 2007
DocketNos. 2005-2283 and 2005-2301
StatusPublished
Cited by13 cases

This text of 862 N.E.2d 489 (Fehrenbach v. O'Malley) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fehrenbach v. O'Malley, 862 N.E.2d 489, 113 Ohio St. 3d 18 (Ohio 2007).

Opinion

Moyer, CJ.

{¶ 1} On this appeal we are asked to answer the following question, certified to this court as a conflict by the First Appellate District: “Whether the provisions of R.C. 2305.16, which toll a statute of limitations for a minor child’s negligence claim, inure to the benefit of parents bringing derivative claims for loss of consortium and medical expenses by also tolling the statute of limitations for those claims.”

A

{¶ 2} The minor child, Tara Fehrenbach, suffered permanent injuries as a result of bacterial meningitis. Tara’s parents, appellees Gina and Thomas Fehrenbach (“Fehrenbachs”) eventually sued appellants, Tara’s pediatrician Kathryn O’Malley, M.D., and O’Malley’s employer, Suburban Pediatric Associates (collectively, “Dr. O’Malley”), alleging medical negligence in failing to correctly diagnosis and treat the meningitis. The Fehrenbachs sued both as Tara’s guardian and in their own right for loss of consortium and other claims. They do not dispute that the accrual date for Tara’s injuries was not later than December 1991.

{¶ 3} The Fehrenbachs filed their complaint in January 1997, over five years after their claims accrued. Upon Dr. O’Malley’s motion for partial summary judgment, the trial court found that the claims for loss of consortium and medical expenses were barred by the statute of limitations and entered judgment on these claims for O’Malley. After a jury trial on the other issues, the Fehrenbachs appealed the summary judgment in conjunction with other alleged errors. The court of appeals reversed the judgment of the trial court and held that “the interests of Tara and her parents were ‘joint and inseparable’ ” and that “the tolling provisions of R.C. 2305.16 inure to the benefit of parents pursuing a claim for loss of consortium and medical expenses.” Fehrenbach v. O’Malley, 164 Ohio App.3d 80, 2005-Ohio-5554, 841 N.E.2d 350, ¶ 66 and 70.

{¶ 4} We accepted Dr. O’Malley’s discretionary appeal and recognized that a conflict exists on the issue certified by the First District Court of Appeals.

B

{¶ 5} R.C. 2305.113(A) requires an action alleging medical malpractice to be filed within one year after the cause of action accrued. The limitations period is tolled during the plaintiffs minority. R.C. 2305.16. There is no question that [20]*20Tara may assert the tolling provision. The tolling provision also states that “[w]hen the interests of two or more parties are joint and inseparable, the disability of one shall inure to the benefit of all.” R.C. 2305.16. The Fehrenbachs argue that because their claim arises out of the same transaction or occurrence as the claim of Tara, her claim and their claims are joint and inseparable, and they, like Tara, should be able to take advantage of the tolling provision. Dr. O’Malley counters that in Ohio, loss of consortium is a recognized as a separate and distinct claim, and therefore the Fehrenbachs’ claim is time-barred under Grindell v. Huber (1971), 28 Ohio St.2d 71, 57 O.O.2d 259, 275 N.E.2d 614, paragraph one of the syllabus.

C

{¶ 6} We begin our analysis by reviewing the nature of a parent’s loss-of-consortium claim. In Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 617 N.E.2d 1052, paragraph one of the syllabus, this court held, “A parent may recover damages, in a derivative action against a third-party tortfeasor who intentionally or negligently causes physical injury to the parent’s minor child, for loss of filial consortium. Consortium includes services, society, companionship, comfort, love and solace.” Previous to that holding, we had limited a parent’s recovery to loss of services and medical expenses, recognizing the claims as separate and distinct from the child’s claim for injury. We held: “ ‘Where a defendant negligently causes injury to á minor child, that single wrong gives rise to two separate and distinct causes of action: an action by the minor child for his personal injuries and a derivative action in favor of the parents of the child for the loss of his services and his medical expenses.’ ” Grindell v. Huber, 28 Ohio St.2d at 74, 57 O.O.2d 259, 275 N.E.2d 614, quoting Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10, paragraph three of the syllabus.

{¶ 7} Gallimore also recognized a minor child’s right to an action for loss of consortium for an injury to a parent. Id. at paragraph two of the syllabus. We were later asked to address whether a minor child’s claim for parental loss of consortium should be joined with the parent’s claim for damages caused by the injury and whether the filing of the minor child’s claim was outside the statute of limitations because it had not originally been joined with the parent’s claim. We held:

{¶ 8} “ ‘ “This problem has been dealt with in other jurisdictions by requiring joinder of all minors’ consortium claims with the injured parent’s claim whenever feasible. * * * We believe that this is a sensible solution to the problem and hold that a child’s loss of parental consortium claim must be joined with the [21]*21injured parent’s claim whenever feasible.” ’ (Emphasis added.) Id. [High v. Howard (1992), 64 Ohio St.3d 82] at 94-95, 592 N.E.2d [818 (Resnick, J., dissenting), quoting Farley v. Progressive Cas. Ins. Co. (Feb. 21, 1992), Lucas App. No. L-90-323, 1992 WL 32111],

{¶ 9} “We find nothing in the record before us to show that joinder of [the minor child’s] cause of action for loss of parental consortium to her mother’s cause of action is not just and feasible. Moreover, since the statute of limitations for [the child’s] independent cause of action for loss of parental consortium is majority plus four years (see R.C. 2305.09), there is no statute-of-limitations problem.” (Emphasis sic.) Coleman v. Sandoz Pharmaceuticals Corp. (1996), 74 Ohio St.3d 492, 494, 660 N.E.2d 424.

{¶ 10} We observed that requiring a minor child to join with the parent in asserting a loss-of-parental-consortium claim would limit the possibility of multiple cases and divergent outcomes. Id. at 493-494, 660 N.E.2d 424. We also recognized that the minor child’s claim was independent of the parent’s claim, thereby allowing the minor child to take advantage of the tolling provisions. Id. at 494, 660 N.E.2d 424.

{¶ 11} The independent nature of the loss-of-consortium claim is based on control and ownership of the claim. In determining whether a husband’s waiver of his claim terminated a wife’s loss-of-consortium claim, we held, “The right is her separate and personal right arising from the damages she sustains as a result of the tortfeasor’s conduct. The right of the wife to maintain an action for loss of consortium occasioned by her husband’s injury is a cause of action which belongs to her and which does not belong to her husband.” Bowen v. Kil-Kare, Inc.

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Cite This Page — Counsel Stack

Bluebook (online)
862 N.E.2d 489, 113 Ohio St. 3d 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fehrenbach-v-omalley-ohio-2007.