Ohio Supreme Court: Medical malpractice suit against Cleveland Clinic barred by statute of limitations

By John Breslin | Sep 3, 2018

Cleveland Clinic   clevelandclinic.org

COLUMBUS, Ohio (Legal Newsline) – A medical malpractice suit originally filed in federal court in Indiana is barred by the statute of limitations from being pursued in Ohio, Ohio's Supreme Court has ruled.

The court was considering whether state statutes allow a suit filed in a foreign jurisdiction and dismissed before its merits are even argued to be recommenced in Ohio.

Indiana resident Pamela Portee alleged negligent conduct by two doctors at the Cleveland, Ohio where she was admitted for elbow surgery in 2012. She claimed the conduct resulted in the severance of a nerve and that she needed further surgery.

She sued the Cleveland Clinic Foundation and Drs. Peter J. Evans and Nathan Everding in 2013, originally filing in the U.S. District Court for the Southern District of Indiana over allegations of medical malpractice. It was dismissed in July 2014 for lack of personal jurisdiction.

Portee refiled an identical action in 2015 in the Cuyahoga County Common Pleas Court. The hospital and other defendants were granted summary judgment as the court ruled that the one-year statute of limitations on medical malpractice suits halted the action.

If the suit had been filed in Ohio, then the refiling within one year of its original dismissal would have been timely, according to the trial court. Because it was originally filed in a foreign jurisdiction, the applicable "savings statute" does not apply, the trial court concluded.

The 8th District Court of Appeals reversed the judgment and remanded the action back to the trial court. It found that a case can be refiled within one year of an action failing and the law "does not specify in which court an action must be commenced for the savings statute to apply," according to the Supreme Court.

In a 6-1 opinion decided Aug. 16 and authored by Justice Terrence O'Donnell, the Supreme Court reversed the appeals court decision.

"We conclude that the Ohio savings statute does not apply to a federal or state court action commenced in another state that fails otherwise than upon the merits," O'Donnell wrote. "Thus, the attempted recommencement in an Ohio state court is barred by the applicable statute of limitations, and therefore we reverse the judgment of the appellate court."

Because the action was begun in a federal court in Indiana, the relevant Ohio statute that allows for refiling after a previous dismissal does not apply, the court found.

In a lone dissent, Justice Sharon Kennedy wrote that the statute under consideration needed a fresh review because its "plain language" states that it applies to "any action that is commenced or attempted to be commenced."

Therefore, Kennedy argued, it applies to "an action commenced or attempted to be commenced in another state, whether in state or federal court."

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