Professional Malpractice

Medical Malpractice Claim: The Running Clock

What is Medical Malpractice?

Medical professionals are expected to have a certain level of expertise and standards when treating patients, which means that people put a lot of trust in their medical professionals. Sometimes however, a medical professional will not provide the standard of care that is expected of them. When medical professionals breach the standard of care by deviating from the quality of care expected from medical professionals in a similar situation, this is considered medical malpractice.

There are several things that a medical professional could do/fail to do, that can be considered medical malpractice:

  • Improper treatment – If a medical professional chooses a treatment that is not appropriate for a condition, or does not correctly administer a treatment
  • Failure to diagnose – If an illness is incorrectly diagnosed, and the incorrect diagnosis causes a distressful outcome, this could be medical malpractice. An example is a disease not being diagnosed, such as diabetes, and the lack of treatment leads to a procedure caused by a lack of treatment, such as an amputation.
  • Failure to warn patient of known risks – Patients are expected to have informed consent about all treatments and procedures, if a medical professional does not inform a patient of the possible risks, that could be medical malpractice

The Basics of Medical Malpractice Claim

There are basic requirements that must be met in order to prove that medical malpractice occurred:

  • A doctor patient relationship existed: There has to be proof that the patient and medical professional had a treatment agreement
  • The doctor was negligent: There must be proof that the doctor was negligent in providing treatment or diagnosis to the patient
  • A doctor’s negligence caused injury: The negligence of the doctor more likely than not lead directly to the injury
  • The injury caused specific damages: The injury had to have caused the patient specific types of damages, such as physical pain, mental anguish, additional medical bills, and a lost ability to work/earn money

It is up to the plaintiff to prove these items, so it is advisable for victims to save all records.

Time Frame for Filing a Medical Malpractice Claim

Under Ohio law, victims of medical malpractice are restricted to a one-year statute of limitations to file a lawsuit.1 The one-year statute of limitations begins once:

  • The medical malpractice occurred
  • The medical malpractice may reasonably be discovered
  • The doctor-patient relationship ends

However, the Ohio Savings Statute protects plaintiffs from the statute of limitations.2 Decided in the case Moore v. Mount Caramel Health Systems, the savings statute allows a plaintiff who files a claim within the statute of limitations, but then dismisses the complaint to re-file the claim within a year of the original filing, however this safety net does not apply to every situation.

The recent Ohio Supreme Court case Wilson v. Durrani denied application of the savings statute when both the statute of limitations and statute of repose have expired.5 The Ohio Statute of Repose establishes a four-year limit to bring forth a medical malpractice claim.4 Generally, a statute of repose is a statute that relinquishes particular legal rights provided there is no action within a specified time period. In other words, the right to start a lawsuit is lost after the time period expires. The statute of limitations is meant to encourage the prosecution of known claims, while the statute of repose is designed to release the defendant from liability after a legislatively determined time period.

The Wilson majority interpreted the clear and unambiguous language in the statute of repose as the Ohio legislature had written and determined that failure to start a medical claim within four years of the medical malpractice will bar the lawsuit. An exception to the statute of repose requires a particular indication that the legislature did not intend the statute to provide complete repose, but instead anticipated an extension of the statutory period under certain circumstances, as when the statute of repose itself contains an express exception. The Ohio legislature incorporated two express exceptions. First, the time period is stopped for persons within the age of minority or of unsound mind. Second, the time period is extended for claims that accrue in the last year of the repose period, or claims based upon a foreign object left in a patient’s body. Accordingly, the absence of an express exception for the saving statute does not permit an interpretation of the law to the contrary.

The Wilson decision provides notice to plaintiffs and confirms the state law as written. Those who fall victim to medical malpractice need to be conscientious of the Ohio’s time restrictions for filing a medical malpractice lawsuit. Unless the express exceptions apply, the statute of repose prohibits the start of a medical malpractice lawsuit more than four years after its occurrence.

Alternative Options for Remedying Medical Malpractice

A second remedy is filing a disciplinary complaint.  Disciplinary complaints are investigated by the State Medical Board (SMB). The SMB is concerned with a wider range of behaviors than those in Medical Malpractice suits:

  • Improper dispensing of drugs
  • Failure to conform to minimum standards of care
  • Sexual misconduct
  • Fraud and deceptive advertising
  • Violating the code of ethics
  • Practicing medicine without a license, or out of the scope of a license

If the SMB finds a complaint to be well founded, the medical professional that was the target of the complaint can receive disciplinary action ranging from a fine to a revocation of the medical professional’s license.  It is important to note that disciplinary action does not compensate the victim of malpractice.

Being the victim of medical malpractice can be a scary time, especially because medical professionals are usually people that are entrusted with the health and safety of their patience, and are expected to do their jobs well. It is advisable for victims of malpractice to reach out to a lawyer, to have someone knowledgeable to lean on during a difficult time.

[1] O.R.C. 2305.113(A)
[2] O.R.C. 2305.19(A)
[3] O.R.C. 2305.113(C)
[4] O.R.C. 2305.131
[5] Wilson v. Durrani, Slip Opinion No. 2020-Ohio-6827
[6] Moore v. Mount Caramel Health Systems, 2018-Ohio-1233


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