Back to Basics - Med Mal in Ohio

I figure my first post should be about the basics of a medical malpractice claim, that way readers have a strong foundation for understanding everything I talk about. I’ll be focusing on medical malpractice in Ohio, but as I become licensed in additional states I’ll likely write about the intricacies of the law between jurisdictions.

THE NECESSARY ELEMENTS

Medical malpractice is just a specific type of tort. In order to bring a tort claim, a plaintiff must prove four elements: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached said duty, (3) an injury occurred, and (4) the injury was caused by the breach.

In medical malpractice, these elements are applied specifically to healthcare providers. For example, a surgeon owes a certain standard of care to his patients when he operates on them. An extreme breach of the standard of care could be that the surgeon leaves a sponge inside the patient. The sponge could cause infection (i.e., the injury), which was proximately caused by the surgeon’s breach. At this point, the patient has a viable medical malpractice claim against his surgeon.

However, a plaintiff is required to prove all four elements. If the plaintiff cannot prove the surgeon even owed him a duty, then his claim will fail. Typically, medical malpractice cases come down to whether the healthcare professional adhered to the standard of care (element #2).

STATUTE OF LIMITATIONS

In Ohio, the statute of limitations for a standard medical malpractice claim is one year after the cause of action accrues. (Ohio Rev. Code 2305.113(A)). If the medical malpractice results in death, then the plaintiff will have two years to bring a claim on behalf of the decedent and the next of kin. (Ohio Rev. Code 2125.02(F)(1)). Finally, in cases where an injury can’t be discovered until later, the plaintiff could have four years to bring their claim. (Ohio Rev. Code 2305.113(D)(1)). This last example is known as Ohio’s statute of repose, and is subject to some debate in the defense space. I plan to cover this discussion in a later post.

One issue that often arises is when the statute of limitations begins to run. Ohio courts have stated the statute of limitations will begin to run either (1) when the physician-patient relationship ends or (2) when the patient discovers the alleged malpractice and/or injury, whichever is later.

AFFIDAVITS OF MERIT

Finally, when a plaintiff files a medical malpractice claim in Ohio, they must also file an Affidavit of Merit with the complaint pursuant to Ohio Civ.R. 10(D)(2).

An Affidavit of Merit is written by an expert who has reviewed the plaintiff’s case and vouches that the defendant healthcare provider(s) deviated from the standard of care, and the breach caused the plaintiff’s injuries. Under Civ.R. 10(D)(2), the Affidavit of Merit must include:

(1) a statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint;

(2) a statement that the affiant is familiar with the applicable standard of care; and

(3) the opinion the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.”

If plaintiff’s affidavit fails to meet any of these elements or plaintiff fails to submit an affidavit at all, the court may throw out the case (without prejudice). Essentially, the rule is in place to keep plaintiffs from filing frivolous medical malpractice lawsuits.

AND THAT’S JUST THE BEGINNING

Once a plaintiff believes they have all four elements, they are in the statute of limitations, and they have an Affidavit of Merit, then the plaintiff will file their complaint. It is then the defense attorneys’ job to disprove any one of these assertions, whether showing that one of the elements is not met, the plaintiff has filed outside of the statute of limitations, or the Affidavit of Merit is insufficient.

But that is just the beginning. The defense of a medical malpractice case can go for years before ever making it to court. I plan on going more in-depth on these above topics as well as other areas of a medical malpractice case. Hopefully you (and I) learn something about the crazy world of medical malpractice defense through my content.