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Can I Sue Whenever I Decide?

July 29, 2020 in General


Most of us have heard news stories where prominent figures could not be charged with a crime because the conduct in question happened too long ago.  The statute of limitations had “expired.”  In Ohio, many felony crimes have a 6-year limit, for some more serious crimes it is 20 years (there is no limit for murder). 

Statutes of limitations exist in civil cases as well and operate in a similar fashion.  In Ohio, the statute of limitations for medical claims is one year from one of two starting points.  For non-medical personal injury claims the statute of limitations is two years.

Interestingly, the only criminal statute of limitations shorter than the civil one that applies to medical negligence claims is for minor misdemeanors.  That means a patient who suffers a serious, even catastrophic injury that should not have occurred has less time to sue the responsible healthcare provider than the city has to charge someone with petty theft or trespassing.


The first is when some noteworthy event causes you to believe (i.e. – discover) that you may have been injured by improper medical care, or a court says an average person would have reached that conclusion.  This is known as the “discovery rule”.  The second is when the doctor or healthcare provider who caused the injury stops treating you for that condition. This is commonly referred to as the “termination rule”, a reference to the fact that the physician-patient relationship (for the injury in question) has ended.  Oftentimes those dates are not far apart, but at least the law provides that whichever one extends the date out farther is the one that applies. 


There are some methods to extend the deadline built into the statute of limitations rules.  One such device is called a “180-day letter”.  Before the statute of limitations expires, a patient can give a doctor or other provider a certified letter with certain language in it telling the provider that the patient is considering suing.  That enables the patient to file his or her Complaint within 180 days of the provider’s receipt of that letter.


Next, there are certain situations where the statute is “tolled.”  Essentially, the hold button is pressed and the statute of limitations either does not start or is stopped.  For example, in situations where the patient is a minor, the statute of limitations does not start running until his or her 18th birthday.  In medical cases involving injuries to a child at birth, a medical claim on the child’s behalf can be filed up until her or his 19th birthday.  Claims on behalf of the child’s parents also get the benefit of the tolling of the statute.

This same tolling applies to persons who are of “unsound mind”.  The one-year statute of limitations does not start until that condition no longer exists, and stops if that condition develops while the statute is running.

Tolling also occurs in the exceedingly rare instance in which, for some reason, a provider absconds or conceals himself or herself.  However, that same tolling provision has a far more common application, in that the time stops running for potential defendants while they are temporarily out of State for personal reasons, such as vacation.


A distinct and separate statute of limitations applies to wrongful death claims.  Where a claim alleges that a patient died as a result of improper care, the applicable statute of limitations is two years from the date of death.  No real exceptions or tolling provisions impact this statute.  In situations where a Complaint includes both a wrongful death claim and a medical claim for injuries prior to death, the 2-year statute does not override the 1-year statute.  Each continues to apply to its respective claim.


Now, a bit of a twist, or a separate lane on the same highway.   A significant issue being intensely debated at this time is a provision in Ohio law referred to as the Statute of Repose.  While the Statute of Limitations and the Statute of Repose do similar things, they are different.  This law specifies that no Complaint for a medical claim can be filed more than four years after the date of the event that is the basis for the claim.   With a couple of exceptions, if it happened over four years ago, regardless of whether a patient has even realized an error occurred, a Complaint is barred, period.

The same tolling for minors and patients of unsound mind do apply to this Statute as well. 

The primary exception to this mandate: if the claim is that a foreign body was improperly left in a patient this Statute does not operate.  Second, although more of an extension than an exception, if the patient “discovers” (or reasonably should discover) the injury after the 3-year mark from the event but before the 4-year deadline, rather than whatever part of a year is left, the patient gets a year from the discovery date to avoid the Statute of Repose bar.


There is little question that the deadlines for filing medical claims are some of the shortest in existence, so prompt action is important.  Also, there are nuances in each of these statutes that a knowledgeable and experienced attorney would appreciate that may slip by a patient or family member attempting DIY calculations.  If you are uncertain about the impact of these statutes, consulting an attorney would be a very reasonable course.


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