[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

McCarthy v. Lee, Slip Opinion No. 2023-Ohio-4696.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2023-OHIO-4696

MCCARTHY ET AL., APPELLANTS, v. LEE ET AL., APPELLEES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as McCarthy v. Lee, Slip Opinion No. 2023-Ohio-4696.]

Civil law—Statute of repose—R.C. 2305.113(C)(2)—When parents’ medicalnegligence claim extinguished by statute of repose, R.C. 2305.113(C)(2), 

children’s derivative loss-of-parental-consortium claim no longer exists—

Court of appeals’ judgment affirmed.

(No. 2022-0732—Submitted March 21, 2023—Decided December 28, 2023.)

APPEAL from the Court of Appeals for Franklin County,

No. 21AP-426, 2022-Ohio-1413.

__________________

DETERS, J.

{¶ 1} Ohio’s medical-claim statute of repose provides that a medical claim 

must be brought within four years of the act or omission that is the basis of the 

claim. Any action upon a medical claim brought outside that time frame is barred. 

R.C. 2305.113(C)(2). In this case, a husband and wife’s medical-negligence claim 
SUPREME COURT OF OHIO

2

against the wife’s medical providers was dismissed because it was barred by the 

statute of repose. The question here is whether their children’s claim for loss of 

parental consortium survives that dismissal. We conclude that it does not. Once 

the medical-negligence claim was extinguished by the statute of repose, the

children’s derivative claim no longer existed. We therefore affirm the Tenth 

District Court of Appeals’ judgment upholding the dismissal of the children’s 

claim.

BACKGROUND

{¶ 2} In 2010, Dr. Peter K. Lee began treating Kathleen McCarthy for rectal 

bleeding and related symptoms. After performing a colonoscopy during which no 

cancerous lesions were found, Dr. Lee diagnosed Kathleen with hemorrhoids. 

When Kathleen returned to Dr. Lee in 2015 for continued and worsening 

symptoms, his diagnosis remained unchanged. Two years later, Kathleen was 

diagnosed with stage-three colon cancer, which progressed to stage four.

{¶ 3} Kathleen and her husband, Brett McCarthy, filed a civil action against 

Dr. Lee and his associated medical practices and employees in October 2018 but 

dismissed the complaint voluntarily. See McCarthy v. Lee, Franklin C.P. No. 

18CV8403 (Jan. 22, 2019). In January 2020, the McCarthys refiled the complaint, 

alleging negligent care in the treatment of Kathleen’s condition. The defendants in 

that case moved for judgment on the pleadings, arguing that the McCarthys’ claim 

was barred by the statute of repose. The trial court agreed and dismissed the 

McCarthys’ complaint. See McCarthy v. Lee, Franklin C.P. No. 20CV554 (Feb. 

26, 2021).

{¶ 4} In April 2021, the McCarthys filed a civil action on behalf of their

three minor children against Dr. Lee and OhioHealth Physician Group, Inc. 

(collectively, “the medical providers”), alleging loss of consortium due to the

treatment of Kathleen’s condition. The medical providers moved to dismiss the 

claim arguing it could not “stand alone” because it was a derivative claim that arose 
January Term, 2023

3

from the McCarthys’ previously dismissed medical claim. The trial court granted 

the motion, concluding that because the McCarthys’ medical claim was barred by 

the statute of repose, the children had “no right to a cognizable claim under Ohio 

law.” McCarthy v. Lee, Franklin C.P. No. 21CV2643 (July 29, 2021).

{¶ 5} The McCarthys appealed to the Tenth District. The court of appeals 

rejected their argument that “because the medical claim statute of repose does not 

apply to a minor’s medical claim, [the children] should be permitted to proceed 

with their derivative loss of consortium claims.” 2022-Ohio-1413, ¶ 11. We 

accepted the McCarthys’ appeal to review whether a claim for loss of parental 

consortium can proceed if the principal claim is barred by the statute of repose. See

167 Ohio St.3d 1481, 2022-Ohio-2675, 192 N.E.3d 506.

ANALYSIS

The statute of repose

{¶ 6} R.C. 2305.113(C)(1) provides that “[e]xcept as to persons within the 

age of minority * * *[, n]o action upon a medical * * * claim shall be commenced 

more than four years after the occurrence of the act or omission constituting the 

alleged basis of the medical * * * claim.” Moreover, “[i]f an action upon a medical 

* * * claim is not commenced within four years after the occurrence of the act or 

omission constituting the alleged basis of the medical * * * claim, then any action 

upon that claim is barred.” R.C. 2305.113(C)(2). “R.C. 2305.113(C) does not bar 

a vested cause of action, but prevents a cause of action from vesting more than four 

years after the breach of the duty of care. Therefore, it is a true statute of repose.” 

Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 18.

{¶ 7} The statute’s application to the McCarthys’ medical-negligence claim 

is straightforward. The “act or omission” that was the basis of that claim occurred 

in 2015, when Dr. Lee treated Kathleen for the second time. The complaint in 

which the McCarthys asserted a medical claim was filed more than four years after 
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Dr. Lee’s treatment of Kathleen, and so, any action upon the claim was also barred 

by the statute of repose. See R.C. 2305.113(C)(2).

1

{¶ 8} The parties differ on how the medical-claim statute of repose applies 

to the children’s loss-of-consortium claim. Recall that R.C. 2305.113 is directed 

toward medical claims. A “[m]edical claim” is “any claim that is asserted in any 

civil action against a physician * * * that arises out of the medical diagnosis, care, 

or treatment of any person.” R.C. 2305.113(E)(3). Included in the definition of 

“medical claim” are “[d]erivative claims for relief that arise from the medical 

diagnosis, care, or treatment of a person.” R.C. 2305.113(E)(3)(a). And “derivative 

claims for relief,”

include, but are not limited to, claims of a parent, guardian, 

custodian, or spouse of an individual who was the subject of any 

medical diagnosis, care, or treatment * * * that arise from that 

diagnosis, care, treatment, or operation, and that seek the recovery 

of damages for * * * [l]oss of society, consortium, companionship, 

care, assistance, attention, protection, advice, guidance, counsel, 

instruction, training, or education, or any other intangible loss that 

was sustained by the parent, guardian, custodian, or spouse.

R.C. 2305.113(E)(7)(a).

{¶ 9} The McCarthys argue that because the definition of “derivative claims

for relief” explicitly refers to the claims of a parent, guardian, custodian, or spouse 

1. Shortly after the McCarthys filed their 2020 complaint, we decided in Wilson v. Durrani, 161 

Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, that the saving statute, R.C. 2305.19(A), could 

not be used to extend the medical-claim statute of repose. Thus, when the McCarthys voluntarily 

dismissed their 2018 complaint, the saving statute did not save their 2020 complaint from dismissal 

under the statute of repose.
January Term, 2023

5

but not to the claims of a child, their children’s loss-of-consortium claim is not a 

“medical claim” under the statute. But their argument ignores that derivative claims

include but are not limited to those claims listed in the statute. Other claims can be 

derivative claims, and the children’s loss-of-consortium claim arises from the 

diagnosis, care, and treatment of their mother.

{¶ 10} The medical providers acknowledge that the children’s loss-ofconsortium claim is a medical claim under R.C. 2305.113, but they maintain that 

the statute’s exception for the medical claims of minors applies only to principal, 

as opposed to derivative, claims. But the medical providers point to no language 

in the statute that makes such a distinction. Instead, under the plain language of the 

statute, because they are minors, the children’s derivative medical claim is itself 

excluded from application of the statute of repose. See R.C. 2305.113(C).

{¶ 11} Nonetheless, the medical providers’ argument suggests the question 

that must be answered in this case—a question not addressed by the statute: How 

does the extinguishment of a principal medical claim by operation of the statute of 

repose affect claims that are derived from that claim? The answer to the question 

lies in Ohio’s treatment of loss-of-consortium claims.

When a principal medical claim fails for substantive reasons, a derivative 

loss-of-consortium claim also fails

{¶ 12} The parties take different views of how Ohio treats loss-ofconsortium claims. The McCarthys contend that the general rule is that the claims 

are independent and stand on their own, no matter what happens with the principal 

claim. They assert that there is only one exception to this general rule—when the 

principal claim is not recognized as a cause of action in Ohio. See, e.g., Schiltz v. 

Meyer, 32 Ohio App.2d 221, 298 N.E.2d 587 (12th Dist.1971), aff’d, 29 Ohio St.2d 

169, 280 N.E.2d 925 (1972). The medical providers, on the other hand, argue that 

a loss-of-consortium claim is dependent on the existence of the underlying principal 
SUPREME COURT OF OHIO

6

claim: if the principal medical claim fails, the loss-of-consortium claim necessarily 

fails. The answer is somewhere in between.

{¶ 13} Ohio historically treated loss-of-consortium claims as independent, 

nonderivative claims. In Kraut v. Cleveland Ry. Co., 132 Ohio St. 125, 126, 5 

N.E.2d 324 (1936), this court considered whether “a judgment denying recovery in 

[a] wife’s action for personal injuries constitute[d] a bar to the husband’s action for 

loss of services.” The court pointed to a “practically * * * unbroken line of 

authority to the effect that an adjudication unfavorable to the wife in an action for 

personal injuries [was] no bar to an action by the husband for loss of services or 

consortium growing out of the same injuries.” Id. This court concluded that the 

husband’s action for loss of services was not derivative of his wife’s personal-injury 

claim, explaining that “the burden [was] on the plaintiff husband to prove that the 

alleged tort-feasor [was] guilty of negligence which directly contributed to his loss 

and damage.” Id. at 127. The wife’s contributory negligence would be a defense

against the husband’s claim for loss of services, but that determination would be

independent of any resolution of the wife’s personal-injury lawsuit. Id. The court 

noted that “in fact, the husband [could] bring his action whether or not the wife 

sue[d].” Id.

{¶ 14} In later cases, this court maintained the view that loss-of-consortium 

claims were independent of the principal claims on which they were based. For 

instance, in Corpman v. Boyer, 171 Ohio St. 233, 236-238, 169 N.E.2d 14 (1960), 

this court implicitly treated loss-of-consortium claims as standing independently of 

their underlying principal claims, holding that a longer limitations period applied 

to the loss-of-consortium claim than to the principal claim. And in Dean v. Angelas, 

24 Ohio St.2d 99, 104, 264 N.E.2d 911 (1970), this court determined that a wife’s 

loss-of-consortium claim could proceed despite the dismissal on statute-oflimitations grounds of her husband’s principal claim of assault and battery.
January Term, 2023

7

{¶ 15} Were Kraut, Corpman, and Dean the only cases to address the 

relationship between principal and derivative claims, the conclusion here would be 

simple: the children’s loss-of-consortium claim would be independent of their 

parents’ medical-negligence claim. And because the medical-claim statute of 

repose is tolled until the children reach the age of majority, the loss-of-consortium 

claim would remain viable despite the dismissal of the McCarthys’ medicalnegligence claim. But in more recent cases, this court has recognized that loss-ofconsortium claims are, to an extent, derivative of—and dependent on—the 

principal claims.

{¶ 16} In Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 84-87, 585 N.E.2d 384 

(1992), this court considered whether a husband’s release of liability made before 

he was injured in an auto race defeated his wife’s claim for loss of consortium. The 

court concluded that it did not, because the wife’s claim was “a separate and 

independent claim against [the] appellees for the damages she sustained as a result 

of [the] appellees’ conduct, and it [was] not a claim that her husband could 

effectively release.” Id. at 92. That conclusion harkens back to the decisions in 

Kraut, Corpman, and Dean. Nevertheless, in Bowen, the court also “recognize[d] 

that a claim for loss of consortium is derivative in that the claim is dependent upon 

the defendant’s having committed a legally cognizable tort upon the spouse who 

suffers bodily injury.” Id. at 92-93. Thus, we distinguished the result in Bowen

from that in Schiltz, 32 Ohio App.2d 221, 298 N.E.2d 587, aff’d, 29 Ohio St.2d 169, 

280 N.E.2d 925, in which a loss-of-consortium claim was barred because the 

underlying principal claim sounded in a cause of action that was not recognized in 

Ohio. See Bowen at 92-93; see also Fehrenbach v. O’Malley, 113 Ohio St.3d 18,

2007-Ohio-971, 862 N.E.2d 489, ¶ 11 (“Because the loss-of-consortium claim 

belongs not to the person suffering a physical injury but to another, it is 

independent, and while the claim may be ‘separate’ in the sense that it is a distinct 
SUPREME COURT OF OHIO

8

and individual claim, it is a derivative action, arising from the same occurrence that 

produced the alleged injury to the other familial party”).

{¶ 17} The throughline in these cases is that when a principal claim fails for 

substantive reasons, the derivative loss-of-consortium claim fails as well. So if, for 

example, a parent brings a loss-of-consortium claim based on her child’s medicalnegligence claim against a doctor and the doctor is found to be not liable, the 

parent’s claim would fail with the child’s claim. See Fehrenbach at ¶ 21 (“While 

the [parents’] claim [for loss of consortium] remains independent and separate in 

the sense that they alone control it, their claim is ‘joint and inseparable’ from [their 

child’s] claim because the [parents] cannot recover damages from defendants if 

defendants are found not to be liable for [the child’s] injury”); see also Grindell v. 

Huber, 28 Ohio St.2d 71, 75, 275 N.E.2d 614 (1971) (“Inasmuch as the parent’s 

action [for medical expenses] is derivative, a defendant, if he is not liable for the 

minor’s injuries, cannot be held accountable for the medical expenses arising 

therefrom”). But if the principal claim fails on nonsubstantive grounds—for 

instance, if the claim were barred by the statute of limitations—the loss-ofconsortium claim would survive (so long as it too was not barred by the same statute 

of limitations). See Corpman, 171 Ohio St. at 236-238, 169 N.E.2d 14; see also 

Perry v. Eagle-Picher Industries, Inc., 52 Ohio St.3d 168, 556 N.E.2d 484 (1990), 

paragraph one of the syllabus (“The dismissal of a decedent’s personal injury claim 

for failure to substitute the estate as a party plaintiff pursuant to Civ.R. 25 does not 

affect claims for loss of consortium or wrongful death which are joined in the same 

action as required by Civ.R. 19.1”).

{¶ 18} The McCarthys seize on this latter point and maintain that the 

medical-claim statute of repose operates like the statute of limitations in that it bars 

action on a claim after a certain period. Thus, they argue, because their medicalnegligence claim failed for nonsubstantive reasons, their children’s derivative claim 

for loss of parental consortium remains independently viable. The trouble with the 
January Term, 2023

9

McCarthys’ argument is that the statute of repose operates differently from the 

statute of limitations.

The statute of repose operates as a substantive bar

{¶ 19} While “[s]tatutes of limitations and statutes of repose share a 

common goal of limiting the time during which a putative wrongdoer must be 

prepared to defend a claim, * * * they operate differently and have distinct 

applications.” Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 

N.E.3d 448, ¶ 8, citing Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 

2016-Ohio-7432, 71 N.E.3d 974, ¶ 11. As this court has explained:

A statute of limitations establishes “a time limit for suing in 

a civil case, based on the date when the claim accrued (as when the 

injury occurred or was discovered).” Black’s Law Dictionary 1707 

(11th Ed.2019). A statute of limitations operates on the remedy, not 

on the existence of the cause of action itself. Mominee v. 

Scherbarth, 28 Ohio St.3d 270, 290, 503 N.E.2d 717 (1986), fn. 17 

(Douglas, J., concurring). A statute of repose, on the other hand, 

bars “any suit that is brought after a specified time since the 

defendant acted * * * even if this period ends before the plaintiff has 

suffered a resulting injury.” Black’s Law Dictionary at 1707. A 

statute of repose bars the claim—the right of action—itself. Treese 

v. Delaware, 95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th 

Dist.1994).

Id. at ¶ 9. Put another way, “[u]nlike a true statute of limitations, which limits the 

time in which a plaintiff may bring suit after the cause of action accrues, a statute 

of repose * * * potentially bars a plaintiff’s suit before the cause of action arises.” 
SUPREME COURT OF OHIO

10

(Emphasis sic.) Sedar v. Knowlton Constr. Co., 49 Ohio St.3d 193, 195, 551 

N.E.2d 938 (1990), overruled on other grounds by Brennaman v. R.M.I. Co., 70 

Ohio St.3d 460, 639 N.E.2d 425 (1994), superseded by statute as stated in New 

Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 

157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482.

{¶ 20} The dissenting opinion protests that this court erred in Wilson when 

it “restated Justice Douglas’s dictum out of context.” Dissenting opinion, ¶ 42. But 

regardless of Justice Douglas’s feelings about statutes of repose, even he 

acknowledged the distinct function of a statute of repose “as an absolute bar to a 

cause of action ever arising.” (Emphasis added.) Mominee at 290, fn. 17 (Douglas, 

J., concurring). And in any event, the constitutionality of statutes of repose has 

been well settled by this court, see Antoon at ¶ 18 (collecting cases), and is not at 

issue in this case.

{¶ 21} Lest the reader be concerned after reading the dissenting opinion that 

this court has spun the distinction between statutes of repose and statutes of 

limitations out of whole cloth, it is worth noting that courts—including the United 

States Supreme Court—have recognized the difference for over 40 years. See 

Antoon at ¶ 11, citing CTS Corp. v. Waldburger, 573 U.S. 1, 13, 134 S.Ct. 2175, 

189 L.Ed.2d 62 (2014), superseded by statute on other grounds as stated in Zyda 

v. Four Seasons Hotels & Resorts, 371 F.Supp.3d 803, 806 (Haw.2019); see also 

Norfolk School Bd. v. United States Gypsum Co., 234 Va. 32, 37 (1987), quoting 

Stevenson, Products Liability and the Virginia Statute of Limitations—A Call for 

the Legislative Rescue Squad, 16 U.Rich.L.Rev. 323, 334 (1982), fn. 38

(distinguishing a statute of repose’s “ ‘substantive definition of rights’ ” from a 

statute of limitations’ procedural limitation); Cheswold Volunteer Fire Co. v. 

Lambertson Constr. Co., 489 A.2d 413, 421 (Del.1985) (“While the running of a 

statute of limitations will nullify a party’s remedy, the running of a statute of repose 

will extinguish both the remedy and the right. The statute of limitations is therefore 
January Term, 2023

11

a procedural mechanism, which may be waived. On the other hand, the statute of 

repose is a substantive provision which may not be waived because the time limit 

expressly qualifies the right which the statute creates”).

{¶ 22} The statute of repose, then, operates as a substantive bar to a claim. 

The claim—not just the remedy—is extinguished.2 And when a principal claim is 

extinguished, no other claim derived from it can exist. Here, by operation of the 

statute of repose, the McCarthys’ medical-negligence claim was no longer legally 

cognizable. As a result, their children’s loss-of-consortium claim is not viable.

{¶ 23} In enacting R.C. 2305.113(C), the General Assembly chose to limit 

the time for which medical claims are considered legally cognizable to a period of 

four years from the occurrence of the act or omission giving rise to the claim. After 

the expiration of that time, the McCarthys had no cause of action. It thus follows 

that the children’s derivative claim no longer exists.

CONCLUSION

{¶ 24} Although the children’s loss-of-consortium claim was not barred by 

the statute of repose, it cannot exist when the principal claim on which it was based 

has been extinguished under the statute of repose. The children’s derivative claim 

was properly dismissed. We therefore affirm the judgment of the Tenth District 

Court of Appeals.

Judgment affirmed.

KENNEDY, C.J., and FISCHER and DEWINE, JJ., concur.

BRUNNER, J., dissents, with an opinion joined by DONNELLY and STEWART, 

JJ.

_________________

2. The dissenting opinion’s paraphrase of our holding is a bit off. The statute of repose bars the 

parents’ claims—not those of the children. But because the parents’ claims have been extinguished, 

the children’s derivative claim no longer exists.
SUPREME COURT OF OHIO

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BRUNNER, J., dissenting.

I. INTRODUCTION

{¶ 25} In this case, appellants, Kathleen (deceased) and Brett McCarthy, 

filed suit against appellees, Dr. Peter K. Lee and OhioHealth Physician Group, Inc. 

(collectively, “the medical providers”), on behalf of their children for loss of 

parental consortium caused by the medical providers’ alleged medical negligence 

that ultimately resulted in Kathleen’s death. In affirming the Tenth District Court 

of Appeals’ decision dismissing the children’s loss-of-consortium claims, the 

majority opinion posits that the medical-claim statute of repose does not merely 

“bar[]” the “commence[ment]” of the children’s claims (as the statute reads), but 

actually extinguishes them so that “the children’s derivative claim[s] no longer 

exist[].” Compare majority opinion, ¶ 1 and ¶ 22, fn.2, with R.C. 2305.113(C). 

This is a legal fiction. The doctor is still alleged to have acted negligently and 

caused the children’s mother’s death. To say that the children’s claims are 

extinguished ignores the fact that the children remain without a mother, whose love 

and care throughout their years to adulthood is what has actually been extinguished.

{¶ 26} Despite the characterization made in the majority opinion, the 

children’s claims continue to exist even if they are barred. To state that the 

children’s claims do not exist as a rationale for the majority’s decision and to base 

that statement on an unsupported, out-of-context footnote extracted from a 40-yearold concurrence by a justice who argued that the statute of repose is unconstitutional 

puts into question the substance and tenor of this court’s majority opinion. We 

should not contort that dictum to deny any party, especially children, their day in 

court.

{¶ 27} Moreover, the statute of repose would, by its own text, not bar the 

children’s claims, because the claims of minors are specifically statutorily 

exempted from its reach. Had the children’s claims been brought in the underlying 

suit for medical malpractice and wrongful death (as we have previously stated they 
January Term, 2023

13

should be), their claims would not be barred. In exercising jurisdiction in this case, 

and now issuing a legal opinion in these highly fact-specific circumstances, a 

majority of this court not only reviews the children’s loss-of-parental-consortium 

claims in an inappropriate procedural posture, but it also gratuitously extinguishes 

these claims in doing so. This hazards the appearance of an over-eagerness of this 

court to substantively settle an issue because of a failure of procedure, denying 

future parties substantive review when no procedural deficiencies may exist. In 

this posture, accepting jurisdiction over the case and deciding this appeal is highly 

improvident and places the court in a biased light. For these reasons, I respectfully 

dissent.

II. ANALYSIS

A. Standard of Review and Issue Presented

{¶ 28} This court has clearly set out the standard of review for cases such 

as this:

We review de novo a decision granting a motion to dismiss 

under Civ.R. 12(B)(6). Alford v. Collins-McGregor Operating Co., 

152 Ohio St.3d 303, 2018-Ohio-8, 95 N.E.3d 382, ¶ 10. In 

conducting this review, we accept as true the factual allegations in 

the complaint. Id. “[T]hose allegations and any reasonable 

inferences drawn from them must be construed in the nonmoving 

party’s favor.” Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio 

St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. To grant a 

motion to dismiss, “it must appear beyond doubt that the plaintiff 

can prove no set of facts in support of the claim that would entitle 

the plaintiff to the relief sought.” Id.
SUPREME COURT OF OHIO

14

Valentine v. Cedar Fair, L.P., 169 Ohio St.3d 181, 2022-Ohio-3710, 202 N.E.3d 

704, ¶ 12. Additionally, “ ‘[i]n ascertaining the plain meaning of the statute, the 

court must look to the particular statutory language at issue, as well as the language 

and design of the statute as a whole.’ ” State v. Turner, 163 Ohio St.3d 421, 2020-

Ohio-6773, 170 N.E.3d 842, ¶ 18, quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 

281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). Questions of statutory 

interpretation are reviewed de novo. State v. Pountney, 152 Ohio St.3d 474, 2018-

Ohio-22, 97 N.E.3d 478, ¶ 20.

{¶ 29} In this case, for the purposes of the medical providers’ motion to 

dismiss under Civ.R. 12(B)(6), it is undisputed that in 2011, Kathleen underwent a 

colonoscopy by Dr. Lee as a diagnostic measure for rectal bleeding and mucous in 

her stool and that Dr. Lee reported that the colonoscopy was normal except for the 

detection of internal hemorrhoids. In April 2015, she returned to Dr. Lee because 

of worsening symptoms, and Dr. Lee again diagnosed hemorrhoids, but he did not 

discuss other possible causes of Kathleen’s symptoms or recommend any followup to rule out other conditions such as cancer. It is also undisputed that in 2017 

Kathleen was diagnosed with irreversible and terminal colon cancer. She, along 

with her husband Brett, initially brought claims on October 5, 2018, against the 

medical providers for medical malpractice relating to Dr. Lee’s treatment of 

Kathleen and on behalf of Kathleen’s estate, Brett, and the married couple’s three 

children for anticipatory wrongful death and loss of consortium, but they dismissed 

the action on January 22, 2019, and refiled it within a year—on January 21, 2020. 

Due to the application of our decision in Wilson v. Durrani, 164 Ohio St.3d 419, 

2020-Ohio-6827, 173 N.E.3d 448, ¶ 38 (holding that the saving statute does not 

extend to the statute of repose), the refiled suit was dismissed by the trial court as 

having been filed beyond the statute of repose, and that dismissal was affirmed on 

appeal as to the medical-malpractice claim; however, the Tenth District reversed 

the trial court’s dismissal of the wrongful-death claim, finding that the claim was 
January Term, 2023

15

not barred by the medical-claim statute of repose. See McCarthy v. Lee, __ Ohio 

St.3d __, 2023-Ohio-4699, __ N.E.3d __; McCarthy v. Lee, 10th Dist. Franklin No. 

21AP-105, 2022-Ohio-1033, ¶ 2-13, 33-34.

{¶ 30} Slightly more than a year and three months after refiling the action 

on January 21, 2020, the McCarthys filed on April 28, 2021, an action against the 

medical providers on behalf of their children for derivative claims relating to 

increased care, loss of parental consortium, and emotional distress—all caused by 

the sickness and loss of their mother. The question in this appeal is whether the 

April 2021 action filed by the McCarthys on behalf of their children for losses 

caused to them by their mother’s misdiagnosis, decline, and death was timely and 

properly filed or whether it was barred due to the failure of the medical and 

wrongful-death claims in the January 2020 action by operation of the statute of 

repose.

B. What Primary Claims Underlie the Children’s

Loss-of-Parental-Consortium Claims

{¶ 31} The parties in this case focus on whether dismissal of the primary 

claims extinguishes derivative claims. Before exploring that question, there is a 

preliminary issue to be addressed: What are the primary claims from which the 

children’s loss-of-consortium claims derive?

{¶ 32} In most cases, a plaintiff who alleges to have been injured by medical 

negligence brings a claim for malpractice, and the plaintiff’s family members seek 

compensation for loss of consortium occasioned by the medical malpractice if the 

malpractice claim is proved. If, during the pendency of the malpractice action, the 

plaintiff dies, the plaintiff’s estate is substituted for that plaintiff and a wrongfuldeath claim is brought on behalf of the decedent’s heirs. See R.C. 2125.01 and 

2125.02(A), (B). At that point, the loss-of-consortium claims by the family 

members are still derivative of the same single course of negligence underlying 

both the medical-malpractice and now the wrongful-death claims. But insofar as 
SUPREME COURT OF OHIO

16

the family members bringing the loss-of-consortium claims seek compensation 

both for the loss occasioned by the decedent’s sickness and the loss occasioned by 

the decedent’s death, the loss-of-consortium claims are derivative of both the 

original medical-malpractice claim and the wrongful-death claim.3

{¶ 33} In this case, the McCarthys brought claims on October 5, 2018, for 

medical malpractice and for the anticipatory wrongful death of Kathleen (in light 

of the fact that Kathleen’s condition was known to be terminal and apparently to 

avoid potential application of the statute of repose4); Brett’s claims included loss of 

consortium.5 The parties dismissed the initial suit in January 2019 and refiled a 

virtually identical suit in January 2020 pursuant to the saving statute, R.C. 

2305.19(A). But because of our ruling in Wilson, 164 Ohio St.3d 419, 2020-Ohio6827, 173 N.E.3d 448, at ¶ 38 (holding that the saving statute does not extend the 

statute of repose), the refiled suit was dismissed in its entirety by the trial court for 

being filed beyond the statute of repose. The McCarthys appealed the trial court’s 

dismissal of their 2020 action, see McCarthy, 2022-Ohio-1033, at ¶ 2-13, and while 

that appeal was pending, they filed a separate lawsuit on behalf of their minor 

children solely for loss of parental consortium. The appellate court affirmed the 

3. While claims for wrongful death and loss of consortium overlap, they are not identical. A claim 

for loss of consortium has been recognized at common law for many years. See Clouston v. 

Remlinger Oldsmobile Cadillac, 22 Ohio St.2d 65, 258 N.E.2d 230 (1970), paragraph two of the 

syllabus. An action for wrongful death is statutory in origin and sets forth a presumption of damages 

and limits on who may recover. R.C. 2125.02(A); see also Taylor v. Ernst & Young, L.L.P., 130 

Ohio St.3d 411, 2011-Ohio-5262, 958 N.E.2d 1203, ¶ 52.

4. See, e.g., Mercer v. Keane, 2021-Ohio-1576, 172 N.E.3d 1101, ¶ 5-7, 43 (5th Dist.) (holding that 

when an estate was substituted as the complainant after a medical-malpractice plaintiff’s death and 

attempted to assert a wrongful-death claim seven years and four months after the alleged act or 

omission that gave rise to the claim, such claim was barred by the statute of repose).

5. Spousal consortium, which is not statutorily defined, has long been defined by this court as “the 

conjugal fellowship of husband and wife, and the right of each to the company, co-operation and 

aid of the other in every conjugal relation.” Flandermeyer v. Cooper, 85 Ohio St. 327, 340-341, 98

N.E. 102 (1912).
January Term, 2023

17

trial court’s dismissal of the McCarthys’ medical-malpractice claim and that claim 

was not further appealed. McCarthy, 2022-Ohio-1033, at ¶ 2-13, 33-34. This court 

ultimately affirmed the trial court’s dismissal of the parents’ wrongful-death claim. 

McCarthy, __ Ohio St.3d __, 2023-Ohio-4699, __ N.E.3d __.

{¶ 34} Though the children’s mother was alive when their 2021 action for 

loss of parental consortium was filed, it is undisputed that she passed away on 

December 2, 2022. As heirs their claims are derivative of the wrongful conduct 

that prematurely caused their mother’s permanent absence from their lives. At no 

time have these children reached majority and at no time have their claims expired, 

even under a statute of repose. These claims have existed since the alleged 

malpractice occurred, they still exist, and the statute of repose does not apply to the 

children’s claims, because of their status as minors.

C. Indirect Application of the Statute of Repose Based on Failure of Primary 

Claims

{¶ 35} Assuming arguendo that both primary claims—medical malpractice 

and wrongful death—were properly dismissed under the statute of repose (see

Everhart v. Coshocton Cty. Mem. Hosp., __ Ohio St.3d __, 2023-Ohio-4670, __ 

N.E.3d __, ¶ 84-122, (Brunner, J., dissenting)), the next question is whether 

dismissal of those claims extinguished the children’s loss-of-parental-consortium 

claims. Underlying arguments on both sides of that issue is the question of what is 

“derivative” in the context of loss of consortium:

Ohio common law recognizes that when one spouse is 

injured, the other spouse is also damaged and may assert his or her 

own cause of action against the tort-feasor for those damages—i.e., 

a claim for loss of consortium. Clouston v. Remlinger Oldsmobile 

Cadillac, Inc. (1970), 22 Ohio St.2d 65, 74, 51 O.O.2d 96, 101-102, 

258 N.E.2d 230, 235. “Consortium consists of society, services, 
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sexual relations and conjugal affection which includes 

companionship, comfort, love and solace.” Id., paragraph three of 

the syllabus. Even though a loss of consortium claim is derivative 

in that it is dependent upon the defendant’s having committed a 

legally cognizable tort upon the spouse who suffers bodily injury, 

Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 93, 585 N.E.2d 

384, 392, it is nonetheless legally separate and independent from the 

claim of the spouse who suffered the bodily injury. Id.

Schaefer v. Allstate Ins. Co., 76 Ohio St.3d 553, 557, 668 N.E.2d 913 (1996). But 

see Cross v. Cincinnati Ins. Co., 4th Dist. Adams No. 02CA758, 2004-Ohio-328, 

¶ 24-26 (noting that Schaefer was superseded by statute on issue of insurancecoverage limits). Notwithstanding later developments in the law of insurance 

contracts, Schaefer’s general statements about the derivative-yet-independent 

nature of loss-of-consortium claims remain in the caselaw, having their own 

application to children’s loss-of-parental-consortium claims.

{¶ 36} There are many cases in which this court has recognized that when 

a legally cognizable tort cannot be or has not been proved, both the primary and

derivative claims fail. See, e.g., Grindell v. Huber, 28 Ohio St.2d 71, 275 N.E.2d 

614 (1971), paragraphs one and two of the syllabus (when a motorist—named at 

fault in child’s personal-injury suit—was cleared of fault for hitting the child, the 

parent’s derivative loss-of-consortium claim also failed). Civ.R. 19.1 and decisions 

such as Coleman v. Sandoz Pharmaceuticals Corp., 74 Ohio St.3d 492, 660 N.E.2d 

424 (1996), make clear that loss-of-consortium claims should be brought, when 

feasible, with the underlying claim. See Coleman at 494, quoting High v. Howard, 

64 Ohio St.3d 82, 94-95, 592 N.E.2d 818 (1992) (Resnick, J., dissenting) (holding 

that “ ‘a child’s loss of parental consortium claim must be joined with the injured 

parent’s claim whenever feasible’ ” [emphasis deleted and punctuation 
January Term, 2023

19

harmonized]). Few cases involve the issue of when a separate loss-of-consortium 

claim survives the procedural rejection of an underlying claim. One such case 

involved a statute-of-limitations-barred primary claim filed by a husband for 

battery against his attacker, which left intact his wife’s claim for loss of consortium 

(which had a longer statute of limitations). Dean v. Angelas, 24 Ohio St.2d 99, 101, 

104, 264 N.E.2d 911 (1970). In another case, we held that a husband’s signed 

release barring his own recovery for injuries he sustained during a race due to 

alleged negligence by the racetrack proprietor did not bar his wife’s and children’s 

loss-of-consortium claims, because they had not signed a release of their claims. 

Bowen at 90-93. In these cases, had there been a finding that the defendant did not

commit a tort in the primary claim, a derivative loss-of-consortium claim would not 

have survived. Schaefer at 557. But because the claims were barred for reasons 

unrelated to the question of the tortfeasor’s fault, the derivative claims survived. 

Here, although the process of proving negligence of the defendants was cut short 

by the procedural bar of the statute of repose for their parents, the children’s 

derivative loss-of-parental-consortium claims should have survived.

{¶ 37} Contradicting this principle, the majority opinion ignores the 

procedural posture of the 2018 and 2020 actions and posits that the children’s 

separately filed claims for loss of parental consortium stemming from the missed 

diagnosis and later death of their mother also do not survive the dismissal of their 

parents’ claims, even though their parents’ claims did not fail on the merits. But 

for this court’s recent decision in Everhart, Brett would have been entitled to bring 

a wrongful-death claim after Kathleen’s death, even if no medical claims had been 

filed while she was living. The fact that the children’s parents’ anticipatory 

wrongful-death and related loss-of-consortium claims were filed in the event of the 

statute of repose’s application does not change the nature of the children’s claims, 

nor should it extinguish them, as they remain minors to this day and their claims 

differ from their parents’ claims. The majority opinion’s conclusion that “[o]nce 
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the medical-negligence claim was extinguished by the statute of repose, the 

children’s derivative claim no longer existed,” majority opinion at ¶ 1, wrongly 

diverges from the principle that a loss-of-consortium claim is “legally separate and 

independent from the claim of the [parent] who suffered the bodily injury,” 

Schaefer at 557.

{¶ 38} Though the majority opinion cites Wilson, 164 Ohio St.3d 419, 

2020-Ohio-6827, 173 N.E.3d 448, for its view that the children’s claims cease to 

exist, that application contorts Mominee v. Scherbarth, 28 Ohio St.3d 270, 290, 503 

N.E.2d 717 (1986), fn. 17 (Douglas, J., concurring), to reach a holding entirely 

opposite to the view expressed in Justice Douglas’s concurring opinion. In Wilson,

we stated the following:

A statute of limitations operates on the remedy, not on the 

existence of the cause of action itself. Mominee v. Scherbarth, 28 

Ohio St.3d 270, 290, 503 N.E.2d 717 (1986), fn. 17 (Douglas, J., 

concurring). A statute of repose, on the other hand, bars “any suit 

that is brought after a specified time since the defendant acted * * * 

even if this period ends before the plaintiff has suffered a resulting 

injury.” Black’s[Law Dictionary] at 1707 [11th Ed.2019]. A statute 

of repose bars the claim—the right of action—itself. Treese v. 

Delaware, 95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th 

Dist.[1994]).

Wilson at ¶ 9. Critical to this quote, as used in the majority opinion, is the out-ofcontext citation to a footnote written by Justice Douglas in Mominee in which the 

justice opined that the medical-claim statute of repose is wholly unconstitutional. 

Using this footnote from Mominee to support the conclusion drawn in Wilson
January Term, 2023

21

should not suffice for nor be compounded by the broad-sweeping conclusion of the 

majority denying relief to the McCarthys.

{¶ 39} In Mominee, this court held that a medical-claim statute of repose 

(then under R.C. 2305.11(B)) was unconstitutional as applied to minors because it 

violated the right-to-remedy provision of the Ohio Constitution. Mominee at 

syllabus. That constitutional provision provides, “All courts shall be open, and 

every person, for an injury done him in his land, goods, person, or reputation, shall 

have remedy by due course of law, and shall have justice administered without 

denial or delay.” Ohio Constitution, Article I, Section 16. Justice Douglas 

concurred in this court’s holding in Mominee but noted that he would have held the 

medical-claim statute of repose to be unconstitutional as applied to any claimant; 

he observed in a footnote in his separate opinion:

Some confusion arises as to terminology between a statute 

of limitations and one of repose. This confusion necessarily affects 

the ultimate result herein. A true statute of limitations works on the 

remedy rather than the right and governs the time within which a 

legal proceeding must be instituted after a cause of action accrues

(is discovered). A statute of repose is not a true statute of 

limitations, but rather is an absolute bar to a cause of action ever 

arising. R.C. 2305.11(B) is a statute of repose.

(Emphasis sic.) Mominee at 290, fn. 17 (Douglas, J., concurring). Today, a 

majority of this court indirectly bases its holding on a footnote in a concurring 

opinion from nearly 40 years ago rather than on the text of the statute and caselaw 

established by a majority of this court after that concurring opinion was written.
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{¶ 40} In Mominee, Justice Douglas described his constitutional 

repugnance6for the statute of repose, characterizing it as “an absolute bar to a cause 

of action ever arising.” Id. The majority opinion today turns his observation on its 

head, misusing it in completely the opposite context to decimate the bedrock rights 

of access to the courts for children, holding that the medical-claim statute of repose 

bars even their derivative claims (despite the fact that the text of R.C. 2305.16 and 

2305.113(C) specifically exempts claims of minors from the reach of R.C. 

2305.113). The majority opinion of this court departs from all textual and factual 

bases and proclaims that the medical-claim statute of repose does not merely 

“bar[]” the “commence[ment]” of children’s claims for loss of parental consortium 

(as R.C. 2305.113(C)(2) provides) but renders them nonexistent. It is disappointing 

that such unnecessary, illogical, and farcical verve would inform the holding of this 

court’s majority opinion today. As former United States Vice-president Hubert 

Humphrey once said, “the moral test of government is how that government treats 

those who are in the dawn of life, the children; those who are in the twilight of life, 

the elderly; and those who are in the shadows of life—the sick, the needy and the 

handicapped.” 123 Congressional Record 37287 (1977).

{¶ 41} This court should rely on the text of the medical-claim statute of 

repose, which provides that “[n]o action * * * shall be commenced more than four 

6. This view was part of Ohio’s caselaw for many years. See Hardy v. VerMeulen, 32 Ohio St.3d 

45, 512 N.E.2d 626 (1987), syllabus (holding the medical-claim statute of repose unconstitutional); 

Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 466-467, 639 N.E.2d 425 (1994), and paragraph two 

of the syllabus (holding that a statute of repose for tort actions arising from defective or unsafe 

conditions of real-property improvements, which terminated a tortfeasor’s liability before claims 

accrued, violated the right-to-remedy provision of the Ohio Constitution), opinion amended, 71 

Ohio St.3d 1211, 643 N.E.2d 138 (1994) (clarifying last sentence of majority opinion); Burgess v. 

Eli Lilly & Co., 66 Ohio St.3d 59, 60-63, 609 N.E.2d 140 (1993), and paragraphs one and two of 

the syllabus (holding that a statute of limitations that deemed actions to have accrued before they 

could be filed with a realistic chance of surviving a motion to dismiss violated the right-to-remedy 

provision of the Ohio Constitution). But see Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio5686, 983 N.E.2d 291, syllabus (overruling Hardy and upholding medical-claim statute of repose 

as constitutional).
January Term, 2023

23

years after the occurrence of the act or omission constituting the alleged basis of 

the * * * claim” and that “[i]f an action * * * is not commenced within four years 

after the occurrence of the act or omission constituting the alleged basis of the * * * 

claim, then, any action upon that claim is barred,” R.C. 2305.113(C). In short, the 

statute does not differentiate “repose” from other limitations periods or even use 

the term “repose.” It refers only to claims being “barred” or prohibited from being 

“commenced”; it never suggests that claims cease to exist.

{¶ 42} Today, a majority of this court oversteps its judicial role and decrees 

policy when it divines that the McCarthy children’s loss-of-parental-consortium 

claims are nonexistent. The children’s claims are real, and those claims will not go 

away no matter how we characterize them. Today’s decision is a classic example 

of figuring out how to get to a desired result, even if it involves finding a 40-yearold footnote from a nonmajority opinion, stripping it from its context, and recasting 

it to fit an inapposite purpose. In this case, the children’s loss-of-parentalconsortium claims are straightforward: they claim that the doctor erred, their 

mother died because of it, and they suffer because of her absence. While there may 

be a procedural bar (or not), their claims do exist. Moreover, it’s an affront to the 

work and dedication of a former member of this court who would never have 

countenanced the majority opinion’s view and who, in fact, favored striking down 

the statute of repose as wholly unconstitutional. See Hardy v. VerMeulen, 32 Ohio 

St.3d 45, 50, 512 N.E.2d 626 (1987) (Douglas, J., concurring). We erred in Wilson

when we restated Justice Douglas’s dictum out of context, and we should not now 

give that dictum the legs to carry the law in a direction never intended by its words, 

especially to harm some of the weakest members of our society—children. See 

Wilson, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, at ¶ 9.

D. Statute of Repose: Direct Application

{¶ 43} The majority’s rationale for its holding—that the children’s 

derivative claims are barred by the procedural failure of the primary claims—also 
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conveniently avoids the question whether the medical-claim statute of repose 

applies directly to bar the children’s claims. R.C. 2305.113 sets forth a one-year 

statute of limitations and a four-year statute of repose for medical claims:

(A) Except as otherwise provided in [R.C. 2305.113], an 

action upon a medical, dental, optometric, or chiropractic claim shall 

be commenced within one year after the cause of action accrued.

(B)(1) If prior to the expiration of the one-year period 

specified in [R.C. 2305.113(A)], a claimant who allegedly possesses 

a medical, dental, optometric, or chiropractic claim gives to the 

person who is the subject of that claim written notice that the 

claimant is considering bringing an action upon that claim, that 

action may be commenced against the person notified at any time 

within one hundred eighty days after the notice is so given.

* * *

(C) Except as to persons within the age of minority or of 

unsound mind as provided by section 2305.16 of the Revised Code, 

and except as provided in [R.C. 2305.113(D)], both of the following 

apply:

(1) No action upon a medical, dental, optometric, or 

chiropractic claim shall be commenced more than four years after 

the occurrence of the act or omission constituting the alleged basis 

of the medical, dental, optometric, or chiropractic claim.

(2) If an action upon a medical, dental, optometric, or 

chiropractic claim is not commenced within four years after the 

occurrence of the act or omission constituting the alleged basis of 

the medical, dental, optometric, or chiropractic claim, then, any 

action upon that claim is barred.
January Term, 2023

25

(D)(1) If a person making a medical claim, dental claim, 

optometric claim, or chiropractic claim, in the exercise of reasonable 

care and diligence, could not have discovered the injury resulting 

from the act or omission constituting the alleged basis of the claim 

within three years after the occurrence of the act or omission, but, in 

the exercise of reasonable care and diligence, discovers the injury 

resulting from that act or omission before the expiration of the fouryear period specified in [R.C. 2305.113(C)(1)], the person may 

commence an action upon the claim not later than one year after the 

person discovers the injury resulting from that act or omission.

(2) If the alleged basis of a medical claim, dental claim, 

optometric claim, or chiropractic claim is the occurrence of an act 

or omission that involves a foreign object that is left in the body of 

the person making the claim, the person may commence an action 

upon the claim not later than one year after the person discovered 

the foreign object or not later than one year after the person, with 

reasonable care and diligence, should have discovered the foreign 

object.

(3) A person who commences an action upon a medical 

claim, dental claim, optometric claim, or chiropractic claim under 

the circumstances described in [R.C. 2305.113(D)(1) or (2)] has the 

affirmative burden of proving, by clear and convincing evidence, 

that the person, with reasonable care and diligence, could not have 

discovered the injury resulting from the act or omission constituting 

the alleged basis of the claim within the three-year period described 

in [R.C. 2305.113(D)(1)] or within the one-year period described in 

[R.C. 2305.113(D)(2)], whichever is applicable.
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R.C. 2305.113(A) through (D). This appeal presents no issue regarding the 

applicability of the one-year statute-of-limitation period. At this juncture, the 

questions concern only the statute of repose. Based on the allegations in the 

complaint, Dr. Lee’s last act of alleged malpractice was in misdiagnosing Kathleen 

in April 2015. Since the children’s action for loss of parental consortium was not 

filed until approximately six years later, in April 2021, if the medical-claim statute 

of repose applies to their claims, and if no exception operates against its application, 

this suit would be barred by the four-year statute of repose. Thus, the first issue is 

whether the medical-claim statute of repose applies to the children’s derivative 

claims.

{¶ 44} Ohio law defines “medical claim” broadly:

(E) As used in this section:

* * *

(3) “Medical claim” means any claim that is asserted in any 

civil action against a physician, podiatrist, hospital, home, or 

residential facility, against any employee or agent of a physician, 

podiatrist, hospital, home, or residential facility, or against a 

licensed practical nurse, registered nurse, advanced practice 

registered nurse, physical therapist, physician assistant, emergency 

medical technician-basic, emergency medical technicianintermediate, or emergency medical technician-paramedic, and that 

arises out of the medical diagnosis, care, or treatment of any person. 

“Medical claim” includes the following:

(a) Derivative claims for relief that arise from the medical 

diagnosis, care, or treatment of a person[.]

* * *
January Term, 2023

27

(7) “Derivative claims for relief” include, but are not limited 

to, claims of a parent, guardian, custodian, or spouse of an individual 

who was the subject of any medical diagnosis, care, or treatment, 

dental diagnosis, care, or treatment, dental operation, optometric 

diagnosis, care, or treatment, or chiropractic diagnosis, care, or 

treatment, that arise from that diagnosis, care, treatment, or 

operation, and that seek the recovery of damages for any of the 

following:

(a) Loss of society, consortium, companionship, care, 

assistance, attention, protection, advice, guidance, counsel, 

instruction, training, or education, or any other intangible loss that 

was sustained by the parent, guardian, custodian, or spouse;

(b) Expenditures of the parent, guardian, custodian, or 

spouse for medical, dental, optometric, or chiropractic care or 

treatment, for rehabilitation services, or for other care, treatment, 

services, products, or accommodations provided to the individual 

who was the subject of the medical diagnosis, care, or treatment, the 

dental diagnosis, care, or treatment, the dental operation, the 

optometric diagnosis, care, or treatment, or the chiropractic 

diagnosis, care, or treatment.

R.C. 2305.113(E)(3) and (7). The language of these statutory divisions is broad 

enough to encompass the children’s loss-of-consortium claims. The definition of 

“medical claim” expressly includes derivative claims for relief, including loss-ofconsortium and intangible-loss claims. R.C. 2305.113(E)(3)(a), (E)(7)(a). True, 

the children’s claims are not “claims of a parent, guardian, custodian, or spouse,” 

R.C. 2305.113(E)(7)(a), but R.C. 2305.113(E)(7) expressly states that such listing 

is nonexclusive—i.e., that it “include[s], but [is] not limited to,” the listed claim 
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28

types. Arguably, some ambiguity exists given that R.C. 2305.113(E)(7)(a) also 

limits the claim types to losses “sustained by the parent, guardian, custodian, or 

spouse.” However, subdivision (a) is a part of R.C. 2305.113(E)(7), and the entirety 

of division (E)(7) is stated in its preamble to be nonexclusive: “ ‘Derivative claims 

for relief’ include, but are not limited to [several enumerated claim types when 

brought by caregivers of the injured individual].” R.C. 2305.113(E)(7). 

Notwithstanding the nuances of the statutory language, it is fair to read R.C. 

2305.113(E)(7) in its entirety as including a nonexclusive listing of who may bring 

derivative claims for relief.

{¶ 45} By the medical-claim statute of repose’s plain terms, it should apply 

to the children’s derivative loss-of-parental-consortium claims. But then, an 

exception operates to remove the children’s derivative claims from the purview of 

the statute of repose. As mentioned, the statute of repose at issue here applies to 

medical claims “[e]xcept as to persons within the age of minority * * * as provided 

by section 2305.16 of the Revised Code,” R.C. 2305.113(C). R.C. 2305.16 

provides, in part:

Unless otherwise provided in sections 1302.98, 1304.35, and 

2305.04 to 2305.14 of the Revised Code, if a person entitled to bring 

any action mentioned in those sections, unless for penalty or 

forfeiture, is, at the time the cause of action accrues, within the age 

of minority or of unsound mind, the person may bring it within the 

respective times limited by those sections, after the disability is 

removed. When 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 statutory sections listed—R.C. 1302.98, 1304.35, and 2305.04 

to 2305.14—are all statutes of limitations and repose. The range of statutes listed 
January Term, 2023

29

from R.C. 2305.04 to 2305.14 includes R.C. 2305.113. Thus, R.C. 2305.16 

operates unless “otherwise provided” in R.C. 2305.113, such that the “age of 

minority” referred to in R.C. 2305.113(C) becomes an exception, excluding claims 

of minors from the medical-claim statute of repose.

{¶ 46} According to the complaint, all three of the McCarthy children were 

minors at the time of filing, April 28, 2021, and therefore could not have been 

anything but minors when their claims accrued prior to April 28, 2021. Thus, the 

children’s loss-of-parental-consortium claims, while covered by the medical-claim 

statute of repose in R.C. 2305.113(C), could have been brought “within the 

respective times limited by [that] section[], after the disability [was] removed.” 

R.C. 2305.16. Since the children were still minors when the complaint was filed 

on April 28, 2021, by the plain language of R.C. 2305.16 and 2305.113, their claims 

were timely filed within the statute of repose. Statutorily, the children’s claims are 

not barred.

E. The Posture of this Case Renders It Unsuitable for Review

{¶ 47} Although Civ.R. 19.1 does not require compulsory joinder of 

children’s loss-of-parental-consortium claims with underlying claims, we have 

previously held that “ ‘a child’s loss of parental consortium claim must be joined 

with the injured parent’s claim whenever feasible.’ ” (Emphasis deleted and 

punctuation harmonized.) Coleman, 74 Ohio St.3d at 494, 660 N.E.2d 424, quoting 

High, 64 Ohio St.3d at 94-95, 592 N.E.2d 818 (Resnick, J., dissenting). That was 

not done in this case, resulting in a unique procedural history in which the children’s 

claims were brought by separate suit after the procedural failure of their parents’ 

tort claim for malpractice and wrongful death.

{¶ 48} This court has held, in at least one context, that the interests of 

derivative claimants are “ ‘joint and inseparable’ ” with primary claimants. 

Fehrenbach v. O’Malley, 113 Ohio St.3d 18, 2007-Ohio-971, 862 N.E.2d 489, 

syllabus, quoting R.C. 2305.16. In Fehrenbach, we held that the limitations period 
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30

for loss-of-consortium claims by parents of a child injured by medical negligence 

were tolled by operation of R.C. 2305.16 during the child’s minority because the 

derivative loss-of-consortium claims and the underlying medical claims were 

“ ‘joint and inseparable.’ ” Fehrenbach at syllabus, quoting R.C. 2305.16. Since 

the claims of parents for loss of consortium of their children are joint with and 

inseparable from their injured children’s medical claims, it stands to reason that 

claims of children for loss of consortium would also be joint with and inseparable 

from their injured parents’ medical claims. Moreover, R.C. 2305.16 provides, 

“When the interests of two or more parties are joint and inseparable, the disability 

of one shall inure to the benefit of all.” Since a derivative claim—like a loss-ofconsortium claim—is joint with and inseparable from the underlying medical claim 

according to the holding in Fehrenbach and “the disability of one shall inure to the 

benefit of all” under R.C. 2305.16, not only are the children’s loss-of-parental 

consortium claims not extinguished by the statute of repose, the McCarthys’ 

medical and wrongful-death claims should not have been extinguished either. And 

had the children’s claims been brought in the original suit (as strongly encouraged 

by Coleman) and this argument raised under Fehrenbach, none of the primary 

claims or the children’s derivative loss-of-parental-consortium claims would have 

been subject to the statute of repose.

{¶ 49} Regardless, the procedural posture of this case is that the family’s 

claims were not brought together in one action. The trial court granted judgment 

on the pleadings in favor of the medical providers on the McCarthys’ medicalmalpractice and wrongful-death claims for being beyond the statute of repose, and 

the McCarthys did not appeal the medical-malpractice determination to this court 

and have not been successful in challenging the determination as to the wrongfuldeath claim on appeal. McCarthy, 2022-Ohio-1033, at ¶ 13-14; McCarthy, __ Ohio 

St.3d __, 2023-Ohio-4699, __ N.E.3d __. And this has created consequences.

{¶ 50} We have previously explained:
January Term, 2023

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The doctrine of res judicata involves both claim preclusion 

(historically called estoppel by judgment in Ohio) and issue 

preclusion (traditionally known as collateral estoppel). Grava v. 

Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d 226 (1995), 

citing Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 254 N.E.2d 

10 (1969), and Krahn v. Kinney, 43 Ohio St.3d 103, 107, 538 N.E.2d 

1058 (1989). With regard to claim preclusion, a final judgment or 

decree rendered on the merits by a court of competent jurisdiction is 

a complete bar to any subsequent action on the same claim between 

the same parties or those in privity with them. Id., citing Norwood 

v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph one 

of the syllabus, and Whitehead, paragraph one of the syllabus. 

Moreover, an existing final judgment or decree between the parties 

is conclusive as to all claims that were or might have been litigated 

in a first lawsuit. Id. at 382, citing Natl. Amusements, Inc. v. 

Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178 (1990).

Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, 43 N.E.3d 385, ¶ 7. In 

contrast with claim preclusion,

“[t]he doctrine of issue preclusion, also known as collateral 

estoppel, holds that a fact or a point that was actually and directly at 

issue in a previous action, and was passed upon and determined by 

a court of competent jurisdiction, may not be drawn into question in 

a subsequent action between the same parties or their privies, 

whether the cause of action in the two actions be identical or 

different.”
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State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 97 Ohio St.3d 269, 

2002-Ohio-6322, 779 N.E.2d 216, ¶ 16, quoting Fort Frye Teachers Assn., 

OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395, 692 N.E.2d 140 

(1998), and citing Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), 

paragraph three of the syllabus.

{¶ 51} The McCarthys’ claims for medical malpractice and wrongful death 

were fully litigated and directly determined in another action. But it would appear 

that those claims should not have been foreclosed by the statute of repose, because 

the children’s loss-of-consortium claims were “joint and inseparable” with their 

parents’ claims. R.C. 2305.16. And this is further so because R.C. 2305.16 

provides that “the disability of one shall inure to the benefit of all.” However, the 

fact of the matter is that the children’s derivative claims were separately brought 

from their parents’ claims, which were then held to be barred by the statute of 

repose. The unfortunate consequence is that res judicata now applies for their 

parents’ medical related claims.

{¶ 52} In short, the fact that the McCarthy family litigated the underlying 

claims separately from the children’s loss-of-parental-consortium claims has 

resulted in a predicament in which the medical claim and wrongful-death claims, 

having been foreclosed, rightly or wrongly, place the children’s claims in the 

posture of res judicata. Thus, the only real question to resolve is whether the prior 

nonmerits dismissal of the underlying medical malpractice and wrongful-death 

claims extinguishes the children’s claims when brought separately. The majority 

concludes that it does. For the reasons expressed above, I disagree. But I would 

go further and hold that this appeal should not have been accepted in the first 

instance, because of its highly unique factual posture, rendering the matter unlikely 

to occur frequently and perhaps amounting to error correction rather than 

substantively developing the body of law for the purposes of public importance in 
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33

this legal genre. See Ohio Constitution, Article IV, Section 2(B)(2)(e); 

S.Ct.Pract.R. 5.02. Today, I fear that by issuing this decision we harm the rights of 

children in the future who seek to be made whole because of the medically caused 

wrongful deaths of one or more of their parents.

III. CONCLUSION

{¶ 53} Despite precedent indicating that loss-of-consortium and medical 

claims should be filed in the same action, the McCarthy family litigated this case 

as two separate cases—one for the medical-malpractice and wrongful-death claims 

and the other for the children’s derivative loss-of-parental-consortium claims. Had 

the claims been brought in one action as they should have been, R.C. 2305.16 would 

have preserved both the derivative and underlying claims because the children’s 

claims would have been preserved by their status as minors and the statutory 

inseparability of those claims from the underlying claim, see R.C. 2305.16, would 

have made impossible a holding against saving the latter from extinguishment by 

the statute of repose. This unusual posture and the fact that the parties appear not 

to have fully appreciated the import of the flaw in the structuring of these actions 

suggests to me that we should dismiss this case as having been improvidently 

accepted.

{¶ 54} If I were to consider the merits as the majority does, I would find 

that the children’s claims survive. The medical-claim statute of repose specifically 

exempts claims by minors from its reach, and caselaw from this court indicates that 

loss-of-consortium claims are derivative in the sense that they rely on the same 

proof of tortious wrongdoing by the defendant, but they are independent insofar as 

procedural bars applicable to the primary claim are not automatically applicable to 

the derivative claim. In short, because the McCarthys’ medical and wrongful-death

claims did not fail on the merits, the children’s derivative claims are not 

extinguished.
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{¶ 55} The majority’s decision to the contrary relies solely on its 

supposition that the medical-claim statute of repose does not merely “bar[]” the 

“commence[ment]” of the claim (as R.C. 2305.113(C) says) but actually 

extinguishes the children’s loss-of-parental-consortium claims, rendering them 

nonexistent. This is plainly contrary to legal and practical reality. The doctor still 

allegedly erred, the children’s mother’s life is extinguished, and her children still 

suffer as a consequence. Regardless of the procedural questions, the children’s 

claims do exist. That the majority opinion finds otherwise avoids the fact that the 

medical-claim statute of repose specifically exempts the claims of minors from its 

purview. On its sojourn from this statutory reality, the majority opinion on its most 

basic level denies Kathleen’s children their day in court. And all of this is based 

on an unsupported musing in a footnote in a 40-year-old concurrence by a justice 

who advocated striking down the statute of repose as wholly unconstitutional and 

who would not have countenanced today’s result. The majority’s decision today is 

legally unsound and patently unjust. Accordingly, I dissent.

DONNELLY and STEWART, JJ., concur in the foregoing opinion.

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Beausay & Nichols Law Firm, T. Jeffrey Beausay, and Sara C. Nichols, for 

appellants.

FisherBroyels, L.L.P, Michael R. Traven, and Robert B. Graziano, for 

appellees.

Bonezzi, Switzer, Polito & Hupp Co., L.P.A., Paul W. McCartney, and 

Diane L. Feigi, urging affirmance for amicus curiae Ohio Association of Civil Trial 

Attorneys.

Bricker Graydon, L.L.P., Anne Marie Sferra, and Christopher P. Gordon, 

urging affirmance for amici curiae Ohio Hospital Association, Ohio State Medical 

Association, and Ohio Osteopathic Association.

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