[Cite as McCarthy v. Lee, 2022-Ohio-1033.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Kathleen McCarthy et al., :

Plaintiffs-Appellants, :

No. 21AP-105

v. : (C.P.C. No. 20CV-554)

Peter K. Lee, M.D. et al., : (ACCELERATED CALENDAR)

Defendants-Appellees. :

D E C I S I O N

Rendered on March 29, 2022 

On brief: Beausay & Nichols Law Firm, T. Jeffrey Beausay, 

and Sara C. Nichols, for appellants. Argued: T. Jeffrey 

Beausay.

On brief: Baker & Hostetler, LLP, John H. Burtch, and 

Allison R. Thomas, for appellees. Argued: John H. Burtch.

Current counsel for appellees: FisherBroyles, LLP, 

Robert B. Graziano, and Michael R. Traven.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Plaintiffs-appellants, Kathleen and Brett McCarthy, appeal the February 26, 

2021 decision and entry of the Franklin County Court of Common Pleas granting the 

motion for judgment on the pleadings filed by defendants-appellees, Peter K. Lee, M.D., 

OhioHealth Colon and Rectal Surgeons, and OhioHealth Physician Group. For the 

following reasons, we reverse in part and affirm in part.

I. Facts and Procedural History

{¶ 2} On January 21, 2020, appellants filed a complaint in the trial court. 

Appellants indicated in the complaint that this was a refiled case, with the original case 
No. 21AP-105 2

having been dismissed without prejudice on January 22, 2019. Appellants' complaint 

contained three causes of action including medical negligence, wrongful death, and loss of 

consortium. As stated in the complaint, appellants alleged that in October 2010, Kathleen 

McCarthy sought medical attention from her primary care physician due to issues including 

changes in the size of her stool, increasing gas, a drop in the location plane of the anal area, 

and blood and mucus in her stool. Kathleen's family doctor referred her to Dr. Lee for 

evaluation. 

{¶ 3} On October 19, 2010, Dr. Lee conducted a physical examination, anoscopy, 

and rigid sigmoidoscopy on Kathleen. As a result of the evaluation, Dr. Lee found Grade 1 

hemorrhoids and ordered a colonoscopy. On February 2, 2011, Kathleen underwent a 

colonoscopy, which found mildly enlarged internal hemorrhoids but no other 

abnormalities. Kathleen continued to experience symptoms but attributed her symptoms 

to her diet and age. 

{¶ 4} In early 2015, Kathleen became concerned due to an increase in the severity 

of her symptoms. As a result, Kathleen returned to Dr. Lee, who performed another 

anoscopy. Dr. Lee allegedly concluded that Kathleen's symptoms were caused by Grade 1 

hemorrhoids. Dr. Lee did not order another colonoscopy but, instead, recommended 

Kathleen increase her fiber and fluid intake. Dr. Lee also recommended a hemorrhoid 

repair procedure, which Kathleen declined.

{¶ 5} On November 18, 2016, Kathleen underwent a physical screening in 

connection with an application for insurance coverage. Upon learning that she had been 

denied coverage under the insurer's premiere rate based on her test results from the 

physical screening, Kathleen requested the specific results of the tests. In January 2017, 

Kathleen learned her test results revealed she had abnormally high AST and ALT liver 

enzyme levels. On February 2, 2017, Kathleen returned to her primary care physician who

ordered a liver ultrasound, which was performed on February 16, 2017. When the liver 

ultrasound failed to identify the cause of the abnormal liver enzyme levels, Kathleen's 

primary care physician referred Kathleen to Ohio Gastroenterology Group. 

{¶ 6} On March 6, 2017, Kathleen was examined by Dr. Kiran Bidari of Ohio 

Gastroenterology Group, who ordered an endoscopy and colonoscopy. On April 4, 2017, 
No. 21AP-105 3

Dr. David Wenzke performed the procedures, discovering a mass in Kathleen's colon. On 

April 12, 2017, Kathleen was informed that the mass in her colon was cancerous.

{¶ 7} On April 24, 2017, surgeons at Riverside Methodist Hospital performed a 

colectomy on Kathleen and removed an invasive, moderate to poorly differentiated 

adenocarcinoma tumor. However, at that point, cancer had already spread to Kathleen's 

lymph nodes. From June through December 2017, Kathleen received 12 rounds of 

chemotherapy. CT scans showed suspicious areas of possible metastases. On April 17, 

2018, a PET scan revealed further lymph node involvement.

{¶ 8} On May 8, 2018, Kathleen had surgery to remove cancerous lymph nodes at 

the intersection of the aorta and right iliac artery and other cancerous masses. At the time 

of the filing of the complaint, Kathleen had incurable stage IV colon cancer and was 

continuing to receive chemotherapy. 

{¶ 9} Appellants alleged in their complaint that appellees fell below the accepted 

standard of care by failing to order a colonoscopy in 2015 when Kathleen experienced an 

increase in the severity of her symptoms and sought medical care from Dr. Lee. Appellants

further alleged appellees were negligent for failing to timely diagnose her colon cancer, 

resulting in the progression of the cancer to stage IV without treatment. As a result of 

appellees' alleged negligence, Kathleen experienced and would continue to experience pain, 

mental anguish, extreme emotional distress, medical costs and treatment, loss of income 

and earning capacity, and the loss of enjoyment of life and the ability to perform customary 

activities. Appellants stated in the complaint that they were necessarily raising a claim for 

wrongful death in light of defenses raised by appellees in the previously dismissed case 

relating to the statute of repose. 

{¶ 10} On the same date as the filing of the complaint, appellants also filed a motion 

pursuant to Civ.R. 10(D)(2) seeking an extension of time to file an affidavit of merit. On 

February 14, 2020, appellees filed an answer. 

{¶ 11} On June 16, 2020, the trial court granted appellants' unopposed January 21, 

2020 motion for extension of time to file an affidavit of merit. On July 30, 2020, appellants 

filed a second motion pursuant to Civ.R. 10(D)(2) for an extension of time to file an affidavit 

of merit. On August 12, 2020, appellees filed a memorandum in opposition to appellants' 

July 30, 2020 motion. On August 24, 2020, the trial court granted appellants' July 30, 
No. 21AP-105 4

2020 motion. On October 1, 2020, appellants filed an affidavit of merit in support of their 

complaint.

{¶ 12} On January 22, 2021, appellees filed a motion for judgment on the pleadings 

pursuant to Civ.R. 12(C). Appellees contended the claims in appellants' complaint were 

properly characterized as medical claims, and were, therefore, subject to the statute of 

repose under R.C. 2305.113(C). Appellees asserted that the statute of repose applied in this 

case to bar appellants' claims because the complaint was filed more than four years after 

the acts or omissions giving rise to the claims and the savings statute under R.C. 2305.19 

did not operate as an exception to the statute of repose.

{¶ 13} On January 28, 2021, appellants filed a motion to hold appellees' January 22, 

2021 motion for judgment on the pleadings in abeyance pending the outcome of 

reconsideration following the Supreme Court of Ohio's decision in Wilson v. Durrani, 164 

Ohio St.3d 419, 2020-Ohio-6827. On February 3, 2021, appellees filed a memorandum in 

opposition to appellants' January 28, 2021 motion to hold in abeyance. On February 5, 

2021, appellants filed a memorandum in opposition to appellees' motion for judgment on 

the pleadings. On February 26, 2021, the trial court filed a decision and entry denying 

appellants' January 28, 2021 motion to hold in abeyance and granting appellees' 

January 22, 2021 motion for judgment on the pleadings.

II. Assignment of Error

{¶ 14} Appellants appeal and assign the following sole error for our review:

The trial court erred in determining that the medical statute 

of repose (2305.113(C)) applies to wrongful death claims.

III. Analysis

{¶ 15} In their sole assignment of error, appellants argue the trial court incorrectly

applied the medical statute of repose under R.C. 2305.113(C) to their wrongful death claim 

in granting appellees' motion for judgment on the pleadings. 

A. Standard of Review

{¶ 16} Pursuant to Civ.R. 12(C), "[a]fter the pleadings are closed but within such 

time as not to delay the trial, any party may move for judgment on the pleadings." A court 

considering a motion under Civ.R. 12(C) must construe the material allegations in the 

complaint and all reasonable inferences to be drawn by the same in favor of the nonmoving 
No. 21AP-105 5

party as true. Ohio Manufacturers' Assn. v. Ohioans for Drug Price Relief Act, 147 Ohio 

St.3d 42, 2016-Ohio-3038, ¶ 10. Viewing the allegations in such light, the court may only 

grant a motion under Civ.R. 12(C) where it finds no material factual issues exist and the 

movant is entitled to judgment as a matter of law. Hinkle v. L Brands, Inc. World 

Headquarters, 10th Dist. No. 21AP-80, 2021-Ohio-4187, ¶ 9. Thus, a motion under 

Civ.R. 12(C) " 'tests the allegations of the complaint and presents a question of law.' " 

Jackson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 19AP-621, 2020-Ohio-1518, ¶ 11, 

quoting Zhelezny v. Olesh, 10th Dist. No. 12AP-681, 2013-Ohio-4337, ¶ 9. See Lytal v. 

Crawl for Cancer, Inc., 10th Dist. No. 17AP-771, 2018-Ohio-2017, ¶ 8, citing State ex rel. 

Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996), citing Peterson v. 

Teodosio, 34 Ohio St.2d 161, 166 (1973) (stating that a court is permitted to consider both 

the complaint and answer in resolving the question of law presented by a Civ.R. 12(C) 

motion). 

{¶ 17} As a trial court's decision on a motion under Civ.R. 12(C) turns on the 

resolution of a question of law, we apply a de novo standard of review on appeal. Rayess v. 

Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 

¶ 18; Welther v. Plageman, 10th Dist. No. 19AP-774, 2021-Ohio-713, ¶ 6. De novo appellate 

review means the court of appeals conducts an independent review, without deference to 

the trial court's decision. Bayview Loan Servicing, L.L.C. v. Humphreys, 10th Dist. No. 

20AP-396, 2021-Ohio-4324, ¶ 18, citing Wiltshire Capital Partners v. Reflections II, Inc., 

10th Dist. No. 19AP-415, 2020-Ohio-3468, ¶ 12.

B. Applicable Law

{¶ 18} This case involves issues arising from the interaction of statutes of limitation, 

statutes of repose, and the savings statute with claims for wrongful death and medical 

malpractice. Our court recently addressed these issues in a similar case involving the 

application of the statute of repose for medical claims to claims for wrongful death and 

medical malpractice. Everhart v. Coshocton Cty. Mem. Hosp., 10th Dist. No. 21AP-74, 

2022-Ohio-629. Before turning to our resolution of that case and its application to the facts 

before us, we briefly review the applicable statutory provisions and caselaw.

1. Distinctions Between Claims for Wrongful Death and Medical 

Malpractice
No. 21AP-105 6

{¶ 19} "The wrongful death action is a special statutory action which does not exist 

at common law." Klema v. St. Elizabeth's Hosp. of Youngstown, 170 Ohio St. 519, 524

(1960). Wrongful death claims are governed by R.C. Chapter 2125. R.C. 2125.01, which 

defines actions for wrongful death, provides in pertinent part: 

When the death of a person is caused by wrongful act, neglect, 

or default which would have entitled the party injured to 

maintain an action and recover damages if death had not 

ensued, the person who would have been liable if death had not 

ensued, or the administrator or executor of the estate of such 

person, as such administrator or executor, shall be liable to an 

action for damages, notwithstanding the death of the person 

injured and although the death was caused under 

circumstances which make it aggravated murder, murder, or 

manslaughter. 

In order to establish a wrongful death claim based on a theory of negligence, a plaintiff must 

demonstrate: " '(1) the existence of a duty owing to plaintiff's decedent, i.e., the duty to 

exercise ordinary care, (2) a breach of that duty, and (3) proximate causation between the 

breach of duty and the death.' " Amoako-Okyere v. Church of the Messiah United Methodist 

Church, 89 Ohio App.3d 17, 2015-Ohio-3841, ¶ 35 (10th Dist.), quoting Bennison v. 

Stillpass Transit Co., 5 Ohio St.2d 122 (1966), paragraph one of the syllabus.

{¶ 20} Unlike claims for wrongful death, which are statutory in nature, " '[m]edical 

malpractice claims have long been recognized at common law.' " Stuck v. Miami Valley 

Hosp., 2d Dist. No. 28233, 2020-Ohio-305, ¶ 14, quoting LaValley v. Riverside Methodist 

Hosp., 10th Dist. No. 77AP-103 (Sept. 29, 1977). See Thompson v. Community Mental 

Health Ctrs. of Warren Cty., 71 Ohio St.3d 194, 195 (1994); Chilton-Clark v. Fishel, 10th 

Dist. No. 16AP-76, 2016-Ohio-7135, ¶ 9, fn. 1. Similar to the requirements for a wrongful 

death claim based on negligence, in order to establish a claim for medical malpractice, a 

plaintiff must demonstrate: "(1) the existence of a standard of care recognized within the 

medical community, (2) the breach of that standard of care by defendant, and (3) proximate 

cause between the breach of the standard of care and the injury." Jenkins v. Karl HC, LLC, 

10th Dist. No. 19AP-572, 2020-Ohio-1137, ¶ 11, citing Adams v. Kurz, 10th Dist. No. 09AP1081, 2010-Ohio-2776, ¶ 11, citing Williams v. Lo, 10th Dist. No. 07AP-949, 2008-Ohio2804, ¶ 11. 
No. 21AP-105 7

{¶ 21} The Supreme Court, recognizing the distinctions between actions for medical 

malpractice and wrongful death, has stated:

Although originating in the same wrongful act or neglect, the 

two claims are quite distinct, no part of either being embraced 

in the other. One is for the wrong to the injured person and is 

confined to his personal loss and suffering before he died, while 

the other is for the wrong to the beneficiaries and is confined to 

their pecuniary loss through his death. One begins where the 

other ends, and a recovery upon both in the same action is not 

a double recovery for a single wrong but a single recovery for a 

double wrong.

Klema at 521, quoting St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U.S. 648, 

658 (1915). See Koler v. St. Joseph Hosp., 69 Ohio St.2d 477, 479 (1982). Furthermore, 

the Supreme Court has held that the statute authorizing an action for wrongful death 

"creates a new cause or right of action distinct and apart from the right of action which the 

injured person might have had and upon the existence of which such new right is 

conditioned." Karr v. Sixt, 146 Ohio St. 527 (1946), paragraph one of the syllabus.

2. Statutes of Limitations, Statutes of Repose, and Saving Statutes

{¶ 22} "Statutes 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, 

but they operate differently and have distinct applications." Wilson at ¶ 8, citing Antoon v. 

Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, ¶ 11, citing CTS Corp. v. 

Waldburger, 573 U.S. 1, 7 (2014). See Mominee v. Scherbarth, 28 Ohio St.3d 270, 290 

(1986), fn. 17. Statutes of limitations set forth " '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).' "

Wilson at ¶ 9, quoting Black's Law Dictionary 1707 (11th Ed.2019). Statutes of limitation 

are designed to encourage a plaintiff's diligent prosecution of known claims. Id. at ¶ 10, 

citing CTS Corp at 8, citing Black's Law Dictionary 1546 (9th Ed.2009). 

{¶ 23} On the other hand, statutes of repose bar " '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.' " Wilson at ¶ 9, quoting Black's Law Dictionary 1707 (11th 

Ed.2019). Statutes of repose are designed to entitle a defendant to be free from fear of 

prosecution of a claim following a period of time prescribed by the legislature. See id. at 

¶ 10, citing California Pub. Emps. Retirement Sys. v. ANZ Secs., Inc., ___U.S.___, 137 
No. 21AP-105 8

S.Ct. 2042, 2049 (2017); Antoon at ¶ 18, quoting Ruther v. Kaiser, 134 Ohio St.3d 408, 

2012-Ohio-5686, ¶ 19 (stating that " '[t]he statute of repose exists to give medical providers 

certainty with respect to the time within which a claim can be brought and a time after 

which they may be free from the fear of litigation' ").

{¶ 24} Unlike statutes of limitation and statutes of repose, savings statutes are 

designed to extend the time for a plaintiff to file an action. "Generally, a saving statute will 

provide that 'where an action timely begun fails in some manner described in the statute, 

other than on the merits, another action may be brought within a stated period from such 

failure.' " Wilson at ¶ 11, quoting Annotation, 6 A.L.R.3d 1043 (1966). Saving statutes are 

remedial in nature and "are intended to provide a litigant an adjudication on the merits."

Id., citing Wasyk v. Trent, 174 Ohio St. 525, 528 (1963).

{¶ 25} Having set forth the general principles underlying statutes of limitations, 

statutes of repose, and savings statutes, we turn to the specific statutory provisions at issue 

in this appeal. R.C. 2125.02(D), which sets forth the statute of limitations for wrongful 

death claims, provides that "a civil action for wrongful death shall be commenced within 

two years after the decedent's death," subject to certain specified exceptions. R.C. 

2125.02(D)(1).

{¶ 26} R.C. 2305.113(A), which sets forth the statute of limitations for medical 

malpractice claims, provides in pertinent part that "an action upon a medical, dental, 

optometric, or chiropractic claim shall be commenced within one year after the cause of 

action accrued." R.C. 2305.113(C), which sets forth the statute of repose for medical 

malpractice claims, provides the following: 

(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.

{¶ 27} As used in R.C. 2305.113, the term "medical claim" is defined as:
No. 21AP-105 9

[A]ny 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.

R.C. 2305.113(E)(3). The statute further provides that a "medical claim" includes the 

following: 

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

diagnosis, care, or treatment of a person;

* * *

(c) Claims that arise out of the medical diagnosis, care, or 

treatment of any person or claims that arise out of the plan of 

care prepared for a resident of a home and to which both types 

of claims either of the following applies:

(i) The claim results from acts or omissions in providing 

medical care.

(ii) The claim results from the hiring, training, supervision, 

retention, or termination of caregivers providing medical 

diagnosis, care, or treatment.

R.C. 2305.113(E)(3). R.C. 2305.113(E)(7) provides that "derivative claims for relief" 

include, but are not limited to, the following:

[C]laims 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, 
No. 21AP-105 10

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.

{¶ 28} Ohio's savings statute, R.C. 2305.19, provides in pertinent part:

In any action that is commenced or attempted to be 

commenced * * *, if the plaintiff fails otherwise than upon the 

merits, the plaintiff * * * may commence a new action within 

one year after the * * * plaintiff's failure otherwise than upon 

the merits or within the period of the original applicable statute 

of limitations, whichever occurs later.

Thus, if the action fails other than on the merits, "the savings statute 'may be used only once 

to invoke an additional one-year time period in which to refile an action.' " Brownfield v. 

Krupman, 10th Dist. No. 14AP-294, 2015-Ohio-1966, ¶ 10, quoting Boggs v. Baum, 10th 

Dist. No. 10AP-864, 2011-Ohio-2489, ¶ 30, citing Hancock v. Kroger Co., 103 Ohio App.3d 

266, 269 (10th Dist.1995).

C. Analysis

{¶ 29} Here, appellants raise two arguments related to their claims for medical 

malpractice and wrongful death. With regard to their claim for medical malpractice, 

appellants argue the statute of repose is not a bar to the refiling of their medical malpractice 

claim under the savings statute. Appellants acknowledge that the Supreme Court in Wilson

recently reached the opposite conclusion regarding the interaction between the statute of 

repose and the savings statute.

{¶ 30} Appellants did not set forth an assignment of error with regard to the medical 

malpractice claim, therefore we address the argument only to observe that Wilson would 

dispose of the same. In Wilson, the plaintiffs initially filed medical malpractice complaints 

within four years of the alleged malpractice, but voluntarily dismissed such complaints

before refiling them in another county. The plaintiffs contended that, having voluntarily 

dismissed their claims pursuant to Civ.R. 41(A) and having thus failed otherwise than on 

the merits, they were entitled pursuant to R.C. 2305.19(A) to refile such claims within one 

year. The Supreme Court accepted review of the case to determine whether the savings 

statute operated as an exception to the statute of repose for medical claims. In considering 

this question, the Supreme Court stated that "exceptions to a statute of repose require 'a 
No. 21AP-105 11

particular indication that the legislature did not intend the statute to provide complete 

repose but instead anticipated the extension of the statutory period under certain 

circumstances,' as when the statute of repose itself contains an express exception." Wilson 

at ¶ 29, quoting California Pub. Emps. Retirement Sys. at 2050. Based on the "absence of 

an express incorporation of the Ohio saving statute as an exception in the medical statute 

of repose, the General Assembly's express incorporation of the savings statute as an 

exception to another statute of repose in R.C. Chapter 2305, and the general character of 

statutes of repose as providing an absolute temporal limit on a defendant's potential 

liability," the court found that the savings statute was not an exception to the bar on claims 

imposed by the statute of repose. Wilson at ¶ 37. The court held that "[e]xpiration of the 

statute of repose precludes the commencement, pursuant to the saving statute, of a claim 

that has previously failed otherwise than on the merits in a prior action." Id. at ¶ 38. As a 

result, the court concluded the plaintiffs' claims were barred by the statute of repose for 

medical claims pursuant to R.C. 2305.113(C).

{¶ 31} As appellants acknowledge, notwithstanding their arguments regarding the 

Supreme Court's holding in Wilson, we are bound to follow the precedent of the Supreme 

Court of Ohio. See generally In re C.J., 10th Dist. No. 16AP-891, 2018-Ohio-931, ¶ 77; In 

re W.W.E., 10th Dist. No. 15AP-167, 2016-Ohio-4552, ¶ 34; Coniglio v. State Med. Bd. of 

Ohio, 10th Dist. No. 07AP-298, 2007-Ohio-5018, ¶ 8. As a result, we would not find the 

trial court erred in dismissing appellants' medical malpractice claim pursuant to Civ.R. 

12(C) because no material factual issues existed and appellees were entitled to judgment as 

a matter of law. 

{¶ 32} Next, appellants argue that claims for medical malpractice and wrongful 

death are distinct and, as such, the statute of repose applies only to their claim for medical 

malpractice, not their claim for wrongful death. We recently resolved this question in our 

decision in Everhart. In that case, the trial court granted a motion for judgment on the 

pleadings because it found the plaintiff's wrongful death claim was a medical claim under 

R.C. 2305.113(E) and, consequently, was barred by the statute of repose. Reviewing the 

history of and differences between claims for wrongful death and medical malpractice, we 

found that a claim for "wrongful death is a separate and unique cause of action from other 

claims." Everhart at ¶ 16. We noted that R.C. 2125.02, which governs limitations on 
No. 21AP-105 12

wrongful death claims, did not provide a statute of repose for a wrongful death arising out 

of a medical claim. In discussing whether the statute of repose for medical claims in R.C. 

2305.113(C) applied to a medical wrongful death claim, we noted that "[t]here is not a single 

reference to wrongful death in R.C. 2305.113." Id. at ¶ 25. Applying statutory canons of 

construction, we found the absence of reference to wrongful death in R.C. 2305.113 to be 

crucially important given the extensive list of claims included under "derivative claims for 

relief" pursuant to R.C. 2305.113(E)(7). Acknowledging the Supreme Court's holding in 

Wilson, we noted the court's holding was specific to the application of the savings statute 

to medical malpractice claims and had not been expanded to include Ohio's wrongful death 

statute. As a result, we held that the statute of repose for medical claims under R.C. 

2305.113(C) did not apply to claims for wrongful death under R.C. Chapter 2125 and, 

therefore, concluded the trial court erred in finding the plaintiff was barred from pursuing 

her wrongful death claim. Id. at ¶ 51. Compare Smith v. Wyandot Mem. Hosp., 3d Dist. 

No. 16-17-07, 2018-Ohio-2441, ¶ 32 (finding trial court did not err in dismissing estate's

wrongful death action for failing to state a claim for which relief can be granted because the 

action was not filed within period provided by statute of repose for medical claims).

{¶ 33} In this case, the trial court found appellants' claims, including appellants' 

wrongful death claim, were medical claims as defined by R.C. 2305.113(E)(3). Therefore, 

the trial court found the statute of repose for medical claims under R.C. 2305.113(C) applied 

to bar appellants' wrongful death claim. Consistent with our decision in Everhart, we find 

that wrongful death claims under R.C. Chapter 2125 are not medical claims within the 

meaning of R.C. 2305.113. Everhart at ¶ 51. Therefore, we find the trial court erred in its 

February 26, 2021 decision and entry insofar as it applied the statute of repose for medical 

claims to appellants' wrongful death claim. 

{¶ 34} Having found that appellants' claim for wrongful death is not barred by the 

medical claim statute of repose, on remand, we instruct the trial court to vacate that portion 

of its February 26, 2021 decision and entry which dismissed appellants' wrongful death 

claim pursuant to Civ.R. 12(C) on grounds of failure to comply with the statute of repose. 

{¶ 35} Accordingly, we sustain appellants' sole assignment of error.
No. 21AP-105 13

IV. Conclusion

{¶ 36} Having sustained appellants' sole assignment of error, we affirm in part and 

reverse in part the February 26, 2021 decision and entry granting appellees' motion for 

judgment on the pleadings, and remand this matter to the Franklin County Court of 

Common Pleas for proceedings consistent with law and this decision. 

Judgment affirmed in part;

reversed in part; and

cause remanded.

 

KLATT and MENTEL, JJ., concur.