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

Antoon v. Cleveland Clinic Found., Slip Opinion No. 2016-Ohio-7432.] 

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. 2016-OHIO-7432

ANTOON ET AL., APPELLEES, v. CLEVELAND CLINIC FOUNDATION ET AL.,

APPELLANTS. 

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

may be cited as Antoon v. Cleveland Clinic Found., Slip Opinion No. 

2016-Ohio-7432.] 

Statutes of repose—R.C. 2305.113(C) is constitutional even when applied to vested 

claims—Ruther v. Kaiser clarified—Judgment reversed and cause 

remanded.

(No. 2015-0467—Submitted April 5, 2016—Decided October 25, 2016.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 101373, 2015-Ohio-421. 

_____________________ 

O’CONNOR, C.J.

{¶ 1} In this appeal, we consider whether Ohio’s medical-malpractice 

statute of repose, R.C. 2305.113(C), applies to a cause of action that had vested for 

an act or omission allegedly constituting medical malpractice that took place more 
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2

than four years earlier. We hold that R.C. 2305.113(C) is a true statute of repose 

that applies to both vested and nonvested claims. Therefore, any medicalmalpractice action1

 must be filed within four years of the occurrence of the act or 

omission alleged to have caused a plaintiff’s injury. Appellees, David (“Antoon”) 

and Linda Antoon (collectively the “Antoons”), filed their lawsuit after the statute 

of repose expired. The complaint was not protected by R.C. 2305.19, Ohio’s saving 

statute, or 28 U.S.C. 1367, the tolling statute for state claims over which a federal 

court has supplemental jurisdiction because, as the Antoons admit in their merit 

brief to this court, the District Court “declined to exercise supplemental 

jurisdiction” over the malpractice claims. The District Court’s action resulted in 

the Antoons never having the medical malpractice claims pending in the federal 

court. Because neither the saving statute nor the tolling statute applies in this case, 

we decline to determine whether they extend the time for filing beyond the 

expiration of the statute of repose. We reverse the judgment of the Eighth District 

Court of Appeals, hold that the trial court appropriately dismissed the case pursuant 

to the motion by the appellants, Cleveland Clinic Foundation (doing business as the 

Cleveland Clinic), and Drs. Jihad Kaouk, Raj Goel, and Michael Lee (collectively, 

the “Clinic”)), and remand the cause to the trial court with instructions to enter 

judgment for the Clinic. 

RELEVANT BACKGROUND

The Alleged Malpractice 

{¶ 2} The facts are not in dispute. On January 8, 2008, David Antoon 

underwent a prostatectomy at the Clinic. Drs. Kaouk, Goel, and Lee were involved 

in treating Antoon or performing the operation. Antoon did not experience the 

 

1

 R.C. 2305.113 contains sections that explicitly extend the statute of repose for a plaintiff bringing 

a medical-malpractice claim under certain circumstances--for instance, when the injury involves a 

foreign object left in the body. R.C. 2305.113(D)(2). We recognize these important protections for 

plaintiffs, but we do not specifically address them, as they are not relevant to this case. 
January Term, 2016 

3

recovery he hoped for following surgery and spent nearly a year consulting with 

Dr. Kaouk and other Clinic practitioners regarding side effects of the surgery. 

December 11, 2008, was Antoon’s final appointment with Dr. Kaouk. 

The First State Court Complaint 

{¶ 3} On December 9, 2009, Antoon timely notified the Clinic, pursuant to 

R.C. 2305.113(B), that he would be bringing medical-malpractice claims against 

them within 180 days. On June 6, 2010, the Antoons filed a complaint in the 

Cuyahoga County Common Pleas Court alleging medical malpractice and 

derivative claims against the Clinic and the doctors who provided care to Antoon. 

On June 13, 2011, the Antoons dismissed their claims without prejudice. 

The Federal Claims 

{¶ 4} Both before and after dismissal of their state case, the Antoons, acting 

pro se, filed a variety of actions in federal court and with federal agencies relating 

to Antoon’s surgery. Relevant here is the qui tam action2

 that the Antoons filed 

without counsel in federal district court on January 31, 2012. The Antoons allege 

that the qui tam case, filed within one year of the dismissal of their common pleas 

court action, preserved their state claims pursuant to Ohio’s saving statute, R.C. 

2305.19(A). However, the Antoons’ qui tam lawsuit did not allege medical 

malpractice and did not seek damages. 

{¶ 5} On May 8, 2012, before the complaint was served, the Antoons, still 

acting pro se, amended their qui tam action. The amended complaint alleged that 

the Cleveland Clinic, its employees, and the manufacturer of equipment used during 

the surgery had violated the False Claims Act. On December 21, 2012, the 

defendants moved to dismiss the amended action. 

 

2

 A qui tam action allows whistleblowing private citizens to file suit under the False Claims Act, 31 

U.S.C. 3729, when they allege that a party is perpetrating fraud against the United States. 31 U.S.C. 

3729(a)(1). Whistleblowers may obtain a reward for bringing the fraud to the government’s 

attention. 31 U.S.C. 3730(d). 
SUPREME COURT OF OHIO

4

{¶ 6} On February 13, 2013, with the motion to dismiss pending, the 

Antoons, now having retained counsel, moved for leave to file a second amended 

complaint, which was attached to the filing. The offered second amended 

complaint named the Cleveland Clinic, manufacturing, and government 

defendants. It included the claims asserted in the two previous complaints but 

added state law medical-malpractice claims. On October 16, 2013, the district court 

denied leave and granted the defendants’ motion to dismiss the first amended 

complaint. That holding was affirmed on appeal. U.S. ex rel. Antoon v. Cleveland 

Clinic Found., 788 F.3d 605, 620 (6th Cir.2015). 

The Second State Court Complaint 

{¶ 7} Following dismissal of their complaint by the federal court, on 

November 14, 2013, the Antoons, through counsel, filed a complaint in the 

Cuyahoga County Court of Common Pleas alleging state malpractice claims. The 

Antoons argue that their complaint was timely pursuant to 28 U.S.C. 1367(d), 

which tolls the period of limitations for any state claim over which a federal court 

has supplementary jurisdiction if the claimant asserted the claim in a federal court 

case. The period of limitations “shall be tolled while the claim is pending and for 

a period of 30 days after it is dismissed unless State law provides for a longer tolling 

period.” 28 U.S.C. 1367(d).

{¶ 8} The Clinic moved to dismiss pursuant to Civ.R. 12(B)(6), asserting 

that the Antoons failed to state a claim upon which relief could be granted because 

both the statute of limitations and statute of repose applicable to their claims had 

expired. The trial court granted the motion, finding that “the case was filed outside 

the applicable statute of limitations and outside the one year allowed by the Ohio 

saving statutes. Further, this filing is also outside the statute of repose, R.C. 

2305.113(C) which requires that a medical claim be filed no more than four years 

after the alleged malpractice.” The trial court determined the federal tolling statute, 

28 U.S.C. 1367(d), applies only “to protect claims while pending in federal court.” 
January Term, 2016 

5

According to the trial court, because the Antoons’ motion to amend the complaint 

to add the malpractice claims was denied, the state claims were never pending and 

were not protected. 

{¶ 9} The Antoons appealed, and the Eighth District Court of Appeals 

reversed the trial court’s judgment. The appellate court relied on this court’s 

decision in Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 

291, syllabus, and concluded that once a claim has vested, the statute of repose can 

no longer operate to bar litigation. The appellate court’s opinion acknowledges that 

vesting had occurred by the time the Antoons filed their first lawsuit on the matter 

in 2010. 

The Discretionary Appeal 

{¶ 10} We granted the Clinic’s request for discretionary review to address 

a single proposition of law: 

Ohio’s medical malpractice statute of repose applies whenever the 

occurrence of the act or omission constituting the alleged medical 

malpractice takes place more than four years prior to when the 

lawsuit is filed. This statute of repose applies regardless of whether 

a cause of action has vested prior to the filing of a lawsuit. 

See Antoon v. Cleveland Clinic Found., 143 Ohio St.3d 1463, 2015-Ohio3733, 37 N.E.3d 1249. 

ANALYSIS

Statutes of Limitations and Statutes of Repose 

{¶ 11} Statutes of repose and statutes of limitation have distinct 

applications, though they are occasionally used interchangeably. Both share a 

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

to defend a claim. See CTS Corp. v. Waldburger, __ U.S. __, 134 S.Ct. 2175, 2182, 
SUPREME COURT OF OHIO

6

189 L.Ed.2d 62 (2014). The differences between statutes of repose and statutes of 

limitation have been recognized for nearly 40 years. Id. at 2186. 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 1636 (10th Ed.2014). A statute of repose 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.” Id. at 1637. 

{¶ 12} Our decision today is also informed by the robust heritage of 

decisions from courts and legislatures sharing the common beliefs that plaintiffs 

should litigate their claims as swiftly as possible and that defendants should not 

face potential liability indefinitely. We begin with a brief discussion of statutes of 

repose and limitation to provide context. 

{¶ 13} Statutes of repose have a long history in Western legal tradition. One 

of the first statutes of repose in England, the country from which our legal system 

descended, appeared in the Limitation Act (1623), 21 James I, Chapter 16. 

Parliament enacted the statute for the purposes of “quieting * * * men’s estates and 

avoiding * * * suits.” Id.

{¶ 14} The Limitation Act set forth deadlines for bringing a variety of 

actions. The English Parliament fixed the time periods either to the end of the 

parliamentary session or the occurrence of the cause of action. Id. For instance, a 

plaintiff had to bring an “action upon the case for words,” a suit similar to a presentday slander claim, “within one year after the end of this present session of 

Parliament, or within two years next after the words spoken, and not after.” Id.

{¶ 15} Similarly, statutes of repose and limitations have long played a role 

in the legal systems of this country. In 1828, the United States Supreme Court 

acknowledged the benefits of statutes of repose and limitations, stating that it 

wished a statute of limitations, “instead of being viewed in an unfavourable light, 

as an unjust and discreditable defence, * * * had received such support, as would 
January Term, 2016 

7

have made it, what it was intended to be, emphatically, a statute of repose.” Bell v. 

Morrison, 26 U.S. 351, 360, 7 L.Ed. 174 (1828). In Bell, the court referred to a 

statute of limitations but, by modern standards, the law at issue was a statute of 

repose. The court recognized the statute as “a wise and beneficial law” that 

“afford[ed] security against stale demands, after the true state of the transaction 

may have been forgotten, or be incapable of explanation, by reason of the death or 

removal of witnesses.” Id. The high court observed: “It has a manifest tendency to 

produce speedy settlements of accounts, and to suppress those prejudices which 

may rise up at a distance of time, and baffle every honest effort to counteract or 

overcome them.” Id. 

{¶ 16} Almost a hundred years ago, the United States Supreme Court held 

that a defendant may have a property interest in the protection offered by a statute 

of limitations that cannot be “deprive[d] * * * without due process of law.” William 

Danzer & Co., Inc. v. Gulf & Ship Island RR. Co., 268 U.S. 633, 637, 45 S.Ct. 612, 

69 L.Ed. 1126 (1925). In a more recent case, the court recognized that a statute 

of repose is a legislative judgment that defendants should be free from liability after 

a determined amount of time, measured from the date of the defendant’s last 

culpable act. CTS Corp., __ U.S. __, 134 S.Ct. at 2182-2183, 189 L.Ed.2d 62. 

{¶ 17} This court has also undertaken a review of statutes of repose and 

limitations on numerous occasions. In one early examination, we held, “Our statute 

of limitations fixes a period in which every action, according to its class, must be 

commenced. It is a statute of repose, and not of presumption; and, unless the suit 

is commenced in the time limited, cannot be maintained. It is said to be barred.” 

Kerper v. Wood, 48 Ohio St. 613, 620, 29 N.E. 501 (1891). Shortly thereafter, this 

court explained its role in enforcing such laws: 

It is not the province of the courts to make exceptions to meet cases 

not provided for by the legislature. It is no longer the habit of courts 
SUPREME COURT OF OHIO

8

to view with disfavor the plea of the statutes of limitations. Being 

statutes of repose, designed to secure the peace of society, and 

protect the individual from being prosecuted upon stale claims, they 

are to be construed in the spirit of their enactment. 

Townsend v. Eichelberger, 51 Ohio St. 213, 216, 38 N.E. 207 (1894). 

{¶ 18} More recently, this court has continued to uphold the 

constitutionality of statutes of repose in some circumstances. See Ruther, 134 Ohio 

St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, syllabus; Groch v. Gen. Motors 

Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, paragraph two of the 

syllabus; Opalko v. Marymount Hosp., Inc., 9 Ohio St.3d 63, 65, 458 N.E.2d 847 

(1984). Specifically, we have recognized that statutes of repose do not 

automatically violate the Ohio Constitution’s right-to-remedy provision, Article I, 

Section 16, because that right “ ‘applies only to existing, vested rights, and it is state 

law which determines what injuries are recognized and what remedies are 

available.’ ” Groch at ¶ 150, quoting Sedar v. Knowlton Constr. Co., 49 Ohio St.3d 

193, 202, 551 N.E.2d 938 (1990). And we, like the United States Supreme Court, 

have respected the public-policy choices embodied in statutes of repose: 

Many policy reasons support this legislation. Just as a 

plaintiff is entitled to a meaningful time and opportunity to pursue a 

claim, a defendant is entitled to a reasonable time after which he or 

she can be assured that a defense will not have to be mounted for 

actions occurring years before. The 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. 
January Term, 2016 

9

 Forcing medical providers to defend against medical claims 

that occurred 10, 20, or 50 years before presents a host of litigation 

concerns, including the risk that evidence is unavailable through the 

death or unknown whereabouts of witnesses, the possibility that 

pertinent documents were not retained, the likelihood that evidence 

would be untrustworthy due to faded memories, the potential that 

technology may have changed to create a different and more 

stringent standard of care not applicable to the earlier time, the risk 

that the medical providers’ financial circumstances may have 

changed—i.e., that practitioners have retired and no longer carry 

liability insurance, the possibility that a practitioner’s insurer has 

become insolvent, and the risk that the institutional medical provider 

may have closed. 

Responding to these concerns, the General Assembly made 

a policy decision to grant Ohio medical providers the right to be free 

from litigation based on alleged acts of medical negligence 

occurring outside a specified time period. 

Ruther, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 19-21. 

{¶ 19} Therefore, this court and the United States Supreme Court agree that 

statutes of repose are to be read as enacted and not with an intent to circumvent 

legislatively imposed time limitations. While mindful of Ohioans’ constitutional 

right to a remedy, we undertake our review cognizant that a statute of repose is not 

an unjust and discreditable defense but rather, a law designed to secure fairness to 

all parties. 

Ohio’s Medical-Malpractice Statute of Repose 

{¶ 20} The Clinic asks us to apply Ohio’s medical-malpractice statute of 

repose to the Antoons’ claim, which accrued and vested within the four-year 
SUPREME COURT OF OHIO

10 

statute-of-repose period. “The paramount goal in the interpretation or construction 

of a statute is to ascertain and give effect to the legislature’s intent in enacting the 

statute.” Brooks v. Ohio State Univ., 111 Ohio App.3d 342, 349, 676 N.E.2d 162 

(10th Dist.1996). To determine legislative intent, we must first examine the plain 

language of the statute. State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 

81, 676 N.E.2d 519 (1997). “[W]e must apply a statute as it is written when its 

meaning is unambiguous and definite.” Portage Cty. Bd. of Commrs. v. Akron, 109 

Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese 

v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 

(1996). “An unambiguous statute must be applied in a manner consistent with the 

plain meaning of the statutory language * * *.” State ex rel. Burrows, 78 Ohio 

St.3d at 81. 

{¶ 21} R.C. 2305.113(C) provides that the time for bringing a medicalmalpractice complaint has an absolute limit: 

(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. 

{¶ 22} In Ruther, we held that R.C. 2305.113(C) is “a true statute of 

repose.” 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 18. We 

explained that “[t]he statute of repose exists to give medical providers certainty 
January Term, 2016 

11 

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,” id. at ¶ 19, and emphasized that “if 

the General Assembly cannot legislate a statute of repose, medical providers are 

left with the possibility of unlimited liability indefinitely,” id. at ¶ 29. 

{¶ 23} Today, we affirm that R.C. 2305.113(C) is a statute of repose 

because the time for bringing a suit under the section begins running from the 

occurrence of the act or omission constituting the alleged basis of the claim. And 

we find that the plain language of the statute is clear, unambiguous, and means what 

it says. If a lawsuit bringing a medical, dental, optometric, or chiropractic claim is 

not commenced within four years after the occurrence of the act or omission 

constituting the basis for the claim, then any action on that claim is barred. 

{¶ 24} We reject the Antoons’ assertion that filing then dismissing a claim 

will indefinitely suspend the statute of repose by “commencing” the suit on the date 

of the first filing. The law is clear that once a complaint has been dismissed without 

prejudice, legally, that action is deemed to never have existed. DeVille 

Photography, Inc. v. Bowers, 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959). 

Accordingly, in this case, no action on the medical-malpractice claims 

“commenced” until the second state court complaint was filed in November 2013. 

By that time, more than four years had passed since the act or omission constituting 

the alleged basis of the medical claim. Because the action was plainly commenced 

outside the four-year statute-of-repose period, the trial court correctly granted the 

Clinic’s motion to dismiss. 

Distinguishing Ruther

{¶ 25} The appellate court cited Ruther in holding that because the 

Antoons’ malpractice claim had vested, the timeliness of either complaint depends 

on “the statute of limitations and any tolling provisions.” 2015-Ohio-421, ¶ 10. The 

Antoons similarly quoted Ruther’s holding that the “medical-malpractice statute of 

repose found in R.C. 2305.113(C) does not extinguish a vested right and thus does 
SUPREME COURT OF OHIO

12 

not violate the Ohio Constitution, Article I, Section 16,” to support their argument 

that this court must necessarily overturn that case in order to find that the statute 

can extinguish a vested right. Not so. 

{¶ 26} Both the Antoons in their argument and the Eighth District Court of 

Appeals in its analysis rely on an impermissibly narrow reading of Ruther. The 

circumstance in Ruther, involving an unvested cause of action, was central to our 

holding in that case. The appellant in Ruther had made an as-applied constitutional 

challenge to R.C. 2305.113(C) regarding a claim that had not vested before the 

expiration of the statute of repose. In that circumstance, it was reasonable for the 

court to refer to the statute as “not extinguish[ing] a vested right.” Ruther, 134 

Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, syllabus. The facts in the 

Antoons’ case are materially divergent from those presented in Ruther, and while 

today we clarify Ruther, our holding in this case is consistent with our holdings 

therein, finding that the statute of repose does not violate the Ohio Constitution: 

“A plain reading of Article I, Section 16 reveals that it does not provide for remedies 

without limitation * * *. [T]he right-to-remedy clause provides that the court shall 

be open for those to seek remedy ‘by due course of law.’ (Emphasis added.) Article 

I, Section 16 does not prevent the General Assembly from defining a cause of 

action.” Id. at ¶ 12. We observed, “[T]he General Assembly has the right to * * * 

plac[e] a time limit after which an injury is no longer a legal injury.” Id. at ¶ 14. 

These findings support the constitutionality of the medical-malpractice statute of 

repose and our determination that our holding today does not conflict with Ruther. 

Because consideration of a vested claim was not before us in Ruther, our discussion 

of vested causes of action was made solely in the context of addressing a claim that 

accrued after the statute of repose had expired. That is not the situation here. 

The Antoons’ Constitutional Challenge 

{¶ 27} Relying on Ruther’s syllabus, the Antoons assert that if R.C. 

2305.113(C) extinguishes a vested right, then it violates the Ohio Constitution’s 
January Term, 2016 

13 

right to remedy. The right-to-remedy clause 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 * * *.” Article 1, Section 16, Ohio 

Constitution. It is well settled that “there is no property or vested right in any of 

the rules of the common law,” so a vested right to a remedy devolves only from the 

legislature. Leis v. Cleveland Ry. Co., 101 Ohio St. 162, 128 N.E. 73 (1920), 

syllabus. Consequently, the right to a remedy protects only those causes of action 

that the General Assembly identifies and for the period of time it determines. 

Ruther, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, at ¶ 12. 

{¶ 28} A medical-malpractice claim vests “when a patient discovers or in 

the exercise of reasonable care and diligence should have discovered the resulting 

injury.” Ruther at ¶ 17. This court has defined a vested right as one that is “fixed, 

settled, absolute, and not contingent upon anything.” Rehor v. Case W. Res. Univ., 

43 Ohio St.2d 224, 229, 331 N.E.2d 416 (1975). But this court has, in multiple 

cases, recognized that a party need not be granted an unlimited amount of time to 

bring a vested cause of action, but must receive only a “reasonable” amount of time 

in order for a law to pass constitutional muster. Taylor v. First Resolution Invest. 

Corp., __ Ohio St.3d __, 2016-Ohio-3444, __ N.E.2d __, ¶ 57; Oaktree 

Condominium Assn., Inc. v. Hallmark Bldg. Co., 139 Ohio St.3d 264, 2014-Ohio1937, 11 N.E.3d 266, ¶ 1; Cook v. Matvejs, 56 Ohio St.2d 234, 237, 383 N.E.2d 

601 (1978). See also Gregory v. Flowers, 32 Ohio St.2d 48, 54, 290 N.E.2d 181 

(1972) (“On the theory that a right to sue once existing becomes a vested right, and 

cannot be taken away altogether, it does not conclusively follow that the time within 

which the right may be asserted and maintained may not be limited to a shorter 

period than that which prevailed at the time the right arose, provided such limitation 

still leaves the claimant a reasonable time within which to enforce the right”). 

{¶ 29} For the statute to be constitutional, the General Assembly must have 

a rational basis for determining the period of time during which a party may bring 
SUPREME COURT OF OHIO

14 

suit based on a vested cause of action. Ruther at ¶ 21. The presumption in favor 

of constitutionality is strong. “[E]nactments of the General Assembly [are] 

constitutional unless such enactments are clearly unconstitutional beyond a 

reasonable doubt.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 147, 

128 N.E.2d 59 (1955). The statute here, in compliance with the right-to-remedy 

clause, does not “completely foreclose a cause of action for injured plaintiffs or 

otherwise eliminate their ability to receive a meaningful remedy.” Flagstar Bank, 

F.S.B. v. Airline Union’s Mtge. Co., 128 Ohio St.3d 529, 2011-Ohio-1961, 947 

N.E.2d 672, ¶ 29. Accordingly, R.C. 2305.113(C) is constitutional both when it 

extinguishes a vested and a nonvested cause of action.

Ohio’s Saving Statute and 28 U.S.C. 1367 

{¶ 30} We do not decide today whether Ohio’s saving statute, R.C. 2305.19, 

or the federal tolling statute, 28 U.S.C. 1367, properly invoked, may allow actions 

to survive beyond expiration of the statute of repose. 

{¶ 31} The Ohio saving statute applies only if a party files a substantially 

similar action within one year of the dismissal without prejudice. Children’s Hosp. 

v. Ohio Dept. of Pub. Welfare, 69 Ohio St.2d 523, 525, 433 N.E.2d 187 (1982) 

(“The savings statute applies when the original suit and the new action are 

substantially the same”); R.C. 2305.19(A). In this case, although the federal qui 

tam action was filed approximately seven months after the state claim was 

dismissed, it was pleaded solely as a qui tam action and included more than a dozen 

additional parties. Moreover, as the Antoons acknowledge, the complaints filed in 

federal court did not expressly assert malpractice claims. Therefore, they were not 

“substantially the same” as the state court action, and the saving statute is 

inapplicable. 

{¶ 32} The federal tolling statute that the Antoons seek to invoke applies 

only to state-law claims over which a federal court has exercised supplemental 

jurisdiction. 28 U.S.C. 1367. In the Antoons’ case, the federal court declined to 
January Term, 2016 

15 

exercise supplemental jurisdiction over the malpractice claims asserted in the 

proposed second amended complaint. Therefore, the medical-malpractice claims 

were never “pending” in federal court, so the tolling statute is also inapplicable.3 

28 U.S.C. 1367. 

CONCLUSION

{¶ 33} Our role in reviewing a statute is not to express agreement or 

disagreement with the public policy that led to its enactment. “The only judicial 

inquiry into the constitutionality of a statute involves the question of legislative 

power, not legislative wisdom.” State ex rel. Bowman v. Allen Cty. Bd. of Commrs., 

124 Ohio St. 174, 196, 177 N.E. 271 (1931). 

{¶ 34} We hold that Ohio’s medical-malpractice statute of repose, R.C.

2305.113(C), is constitutional even to the extent that it prohibits bringing suit on a 

cause of action that has vested. Significant public-policy considerations support 

granting repose to defendants, and the General Assembly has determined that four 

years is a reasonable length of time to bring a medical-malpractice claim. 

{¶ 35} Accordingly, R.C. 2305.113(C) is a true statute of repose that applies 

to both vested and nonvested claims. The Antoons brought their accrued claims 

more than four years after the alleged malpractice; the claims were therefore barred 

by the statute of repose. We reverse the judgment of the court of appeals and 

remand the cause to the trial court to enter judgment for the Clinic. 

Judgment reversed, 

 and cause remanded. 

O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur. 

 

3

 The Antoons’ reference to Singleton v. Pittsburgh Bd. of Edn., W.D.Pa. No. 2:11-cv-1431, 2012 

WL 4068381 (Aug. 24, 2012), is unavailing. In that case, the federal magistrate recommended 

dismissal of all claims against a certain defendant, including state claims, but those claims were 

actually pending before the court prior to dismissal. Id. at *12-14. Here, because the district court 

denied the Antoons leave to amend their complaint a second time and the medical-malpractice 

claims were not raised in the original or first amended complaints, the federal court never had 

supplemental jurisdiction over those claims. 
SUPREME COURT OF OHIO

16 

PFEIFER, J., concurs in judgment only, with an opinion. 

O’NEILL, J., not participating. 

_________________ 

PFEIFER, J., concurring in judgment only. 

{¶ 36} All the glories of statutes of repose as described by the majority 

opinion point in one direction: toward protecting people who harm the despised 

proletariat, who are daring to remedy the wrong done them. Our original 

Constitution took a different stance. Even before Ohio’s statehood, the 

Constitutional Convention of 1802 guaranteed the right to a remedy for the portion 

of the Northwest Territory that would become Ohio. Article VIII, Section 7, 

Constitution of 1802. Phillips, The Constitutional Right to a Remedy, 78 

N.Y.U.L.Rev. 1309, 1316 (2003), fn. 30. See also E.W. Scripps Co. v. Fulton, 100 

Ohio App.157, 171, 125 N.E.2d 896 (1955) (Hurd, J. concurring). Today, Article 

I, Section 16 of the Ohio Constitution still guarantees that “every person, for an 

injury done him * * * shall have remedy by due course of law.” What once was a 

mighty constitutional oak is left to wither and die at the whim of the General 

Assembly. 

{¶ 37} This case is quite simple. The complaint was filed too late by pro se 

plaintiffs. They attempted to avail themselves of Ohio’s saving statute, R.C. 

2305.19(A), but that attempt was ill considered because the federal action relied 

upon did not allege medical malpractice or seek damages. We should have reversed 

the judgment of the court of appeals summarily and the story should have ended. 

Alas, this court saw an opportunity to further assault the fundamental constitutional 

right to a remedy. 

{¶ 38} The majority opinion lauds statutes of repose for having “a long 

history in Western legal tradition.” Majority opinion at ¶ 13. Fair enough—so did 

slavery. 
January Term, 2016 

17 

{¶ 39} Access to courts and the opportunity to redress a wrong have long 

been sacrosanct in Ohio. See Article VIII, Section 7, 1802 Constitution and Article 

I, Section 16, 1851 Ohio Constitution. These constitutional rights have been under 

assault for decades—since at least the 1970s, when the General Assembly enacted 

former R.C. 2305.11, 1975 Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, 2809, 

2810-2811. This statute prohibited minors from bringing medical-malpractice 

claims more than four years after the negligent act occurred, even if they had not 

yet reached the age at which the law allowed them to bring suit. Mominee v. 

Scherbarth, 28 Ohio St.3d 270, 273, 503 N.E.2d 717 (1986). 

{¶ 40} Mominee involved a statute of repose, like today’s case. In that case, 

this court rightly concluded that the Ohio Constitution as ratified by the people of 

Ohio trumped a contrary statute. Id. at syllabus. The court today allows the statute 

of repose to swallow the right-to-a-remedy clause. This should not surprise anyone 

who has been paying attention. The previously inviolate right to a jury trial of 

Article VIII, Section 8 of the1802 Constitution, now part of Article I, Section 5 of 

the Ohio Constitution, has likewise been eviscerated. See Arbino v. Johnson & 

Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 163-174 

(Pfeifer, J., dissenting). 

{¶ 41} Mominee was seminal and rightly repudiated a statute of repose. 

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

two of the syllabus, also repudiated a statute of repose. So did State ex rel. Ohio 

Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 475-476, 715 N.E.2d 

1062 (1999). These cases remain good law or, in any event, they have not been 

overruled. Nevertheless, the court today rebukes the holdings and reasoning of 

these cases without so much as a passing reference. 

{¶ 42} I have written extensively about statutes of repose and how they 

undermine constitutional protections. Groch v. Gen. Motors Corp., 117 Ohio St.3d 

192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 227-246 (Pfeifer, J., concurring in part and 
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18 

dissenting part). Instead of restating the obvious, I have decided to quote 

extensively from Mominee. That case is so relevant in substance and significance 

that despite having been written 30 years ago, the concurring opinion still resonates: 

Section 16, Article I of the Ohio Constitution states: “[a]ll 

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 * * *.” 

Having roots in the Magna Carta, “access to the courts” 

provisions, found in many state constitutions, were designed to 

place some limitation on governmental power. As early as 1882 

in Lafferty v. Shinn (1882), 38 Ohio St. 46, 48, this court said “[t]hat 

‘all courts shall be open, and every person for an injury done him in 

his lands, goods, person or reputation, shall have remedy by due 

course of law,’ is ordained in the constitution (art. 1, § 16); and it is 

not within the power of the legislature to abridge the period within 

which an existing right may be so asserted as that there shall not 

remain a reasonable time within which an action may be 

commenced. * * * ” (Emphasis added.) 

* * * 

The effect of a statute of repose, at least in the medical 

malpractice area, is to reduce the doctor’s exposure to liability by 

granting to him immunity from suit after the limitations period has 

run. Such protection may be justified on strong claims of public 

policy, and, therefore, not constitutionally infirm under either the 

equal protection or due process clauses. See, generally, Redish, 

Legislative Response to the Medical Malpractice Insurance Crisis: 

Constitutional Implications (1977), 55 Tex.L.Rev. 759. The same 
January Term, 2016 

19 

would not hold true, however, when measured against the “accessto-the-courts” provision of Section 16, Article I of the Ohio 

Constitution. 

It will be argued that in striking down this statute of repose, 

we will be usurping the prerogatives of the legislature and that no 

statute of limitations will be safe from our review. Nothing could 

be further from the truth. The establishment of time limitations on 

various causes of action is a policy matter within the particular 

purview and competence of the legislature, but any such legislation 

must fall if it interferes with a person’s constitutionally guaranteed 

right of access to the courts when that person is asserting a right of 

action arising at common law. 

The action for negligence, upon which today’s medical 

malpractice actions are founded, was well-established in the 

common law (trespass of the case). Where a right or action existed 

at common law at the time the Constitution was adopted, that right 

is constitutionally protected, by the access-to-the-courts provision, 

from subsequent legislative action which abrogates or impairs that 

right without affording a reasonable substitute. See, 

generally, Gentile v. Altermatt (1975), 169 Conn. 267, 363 A.2d 

1. Cf. Haskins v. Bias (1981), 2 Ohio App.3d 297, 441 N.E.2d 

842. Thus, through the theory of “constitutional incorporation,” one 

of construction, legislation which serves to abolish or severely 

impair common-law remedies existing at the time the Constitution 

was adopted is invalid unless a reasonable substitute is provided for 

the remedy which is lost. Conversely, where a party would not have 

had a right to bring an action at common law, either because no 

cause of action existed or because some bar prevented its assertion, 
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20 

the cause of action is not constitutionally incorporated by the 

adoption of the access-to-the-courts provision. If a party received a 

subsequent right of action, not recognized at common law, either 

through legislative enactment or judicial pronouncement, that right 

could properly be abrogated by the legislature even without 

affording a reasonable substitute. Any right of action created 

subsequent to the access-to-the-courts provision exists only as a 

matter of judicial or legislative grace and may be withdrawn at any 

time. 

It is within this context that we must consider the statute of 

repose set forth in R.C. 2305.11(B). We have already seen that the 

statute provides for an absolute bar of a cause of action for medical 

malpractice after a four-year period of time has elapsed from the 

date of the occurrence—that is, the date on which the alleged 

malpractice took place. It can readily be seen that where the injury 

is not discovered within the prescriptive period, the effect of the 

repose is to abolish the party’s right of action altogether. A person 

so situated is literally given no opportunity to bring his action 

because the right to proceed is obliterated before it even accrues. In 

actual effect, this abolition grants the negligent doctor an area of 

absolute immunity from suit at the expense of the patient’s 

constitutionally guaranteed right to access to the courts. This is 

especially true of those suffering from some disability such as we 

have in the cases before us, to wit: not having reached the statutory 

age of an adult. 

Since the bottom-line effect of this statute of repose, R.C. 

2305.11(B), is to abolish a common-law right or action which 

existed at the time the Constitution was adopted, and since the 
January Term, 2016 

21 

legislature provided no reasonable alternative remedy or substitute 

for the one which it has abrogated, this court must hold that R.C. 

2305.11(B) is violative of Section 16, Article I of the Ohio 

Constitution and is, therefore, unconstitutional. “These rights the 

legislature did not give * * * and the legislature can not take them 

away. * * * ” Byers v. Meridian Printing Co. (1911), 84 Ohio St. 

408, 422, 95 N.E. 917. 

(Emphasis sic and footnotes omitted.) Mominee, 28 Ohio St.3d at 290-293, 503 

N.E.2d 717 (Douglas, J., concurring). 

{¶ 43} Article I, Section 16 is not some trivial add-on to the Constitution of 

this great state. It is part of the Bill of Rights and has been since the first 

Constitution was ratified in 1802. It currently states, “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 * * *.” Today the majority opinion modifies this 

fundamental constitutional provision. Unfortunately, by implication, Article 1, 

Section 16 now reads thus: All courts shall be open, and every person, for an injury 

done him in his lands, goods, person, or reputation, shall have remedy by due course 

of law unless the General Assembly decides that the courts are not open.

{¶ 44} The import of the majority opinion is that negligent medical 

providers are more important than the people they injure. Any person suffering an 

injury due to medical negligence must now discover the injury within four years or 

be foreclosed from recovery, even if the injury is not reasonably discoverable. In 

the short term, this is not a particularly important case. Not many Ohioans are 

unable to determine that they have been negligently injured by a medical provider 

within four years. But the long-term impact of this case is incalculably bad: some 

toxins are long acting, with unforeseeable consequences. 
SUPREME COURT OF OHIO

22 

{¶ 45} The Toomer’s Corner oak trees in Auburn, Georgia, were 

intentionally poisoned, but the damage wasn’t immediately noticeable. The impact 

was irredeemable, however, and the trees were eventually removed. 

http://www.al.com/news/index.ssf/2015/11/harvey_updyke_poisoned_toomers.ht

ml. This court’s acceptance of the position that the General Assembly can 

undermine constitutional provisions is poisonous, though not yet irreparable. This 

case moves us one step closer to the time when the common law will be completely 

obliterated in Ohio. Today, this court countenances the intolerable concept that 

Ohioans’ right to a remedy exists only through the good graces of the General 

Assembly. This court is wrong. The right to a remedy is a power reserved to the 

people by the people in Ohio’s Constitution, and it cannot be diminished by statute. 

I trust that this court will eventually realize its mistake and find the will to protect 

Ohioans from future encroachments on their constitutional rights. 

{¶ 46} I concur in judgment only, which is a minor point indeed. I dissent 

to everything else in the majority opinion. 

_________________ 

Brannon & Associates, Dwight D. Brannon, Kevin A. Bowman, and 

Matthew A. Schultz, for appellees. 

Reminger Co., L.P.A., Martin T. Galvin, William A. Meadows, and Brian 

T. Gannon, for appellants. 

Bonezzi Switzer Polito & Hupp Co., L.P.A., Bret C. Perry, and Jason A. 

Paskan, urging reversal for amicus curiae Academy of Medicine of Cleveland & 

Northern Ohio. 

Squire Patton Boggs (US) L.L.P., Heather L. Stutz, Christopher F. Haas, 

and Larry J. Obhof; and Sean McGlone, urging reversal for amici curiae Ohio 

Hospital Association, Ohio State Medical Association, and Ohio Osteopathic 

Association. 
January Term, 2016 

23 

Giorgianni Law L.L.C. and Paul Giorgianni, urging affirmance for amicus 

curiae Ohio Association for Justice. 

_________________