[Cite as Ewing v. UC Health , 2022
- Ohio
- 2560.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
TONI EWING, Individually and as Executrix of the Estate of Shirley Ewing, and as Personal Representative of her Next of Kin and Beneficiares , Plaintiff

- Appell ant ,
vs. UC HEALTH , and
UNIVERSITY OF CINCINNATI MEDICAL CENTER, LLC , Defendant s - Appellee s, and JOHN AND/OR JANE DOE #1, et al., Defendants. :

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: APPEAL NO. C

- 210390 TRIAL NO. A

- 1 8 01959

O P I N I O N

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Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is : Affirmed in Part and Reversed in Part , an d Cause Remanded Date of Judgment Entry on Appeal: July 27, 2022
Marlene Penny Manes , fo r P l aintiff

- Appellant , Frost Brown Todd, LLC, Bill J. Paliobeis and Douglas R. Dennis , for Defendant s Appellee s .O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 Z AYAS , Presiding Judge. 

### {¶1} Plaintiff

- a ppellant Toni Ewing (“Ewing”), individually and as executrix of the estate of Shirley Ewing and as person al r epresentative of her next of kin and beneficiaries, appeals the judgment of the Hamilton County Court of Common Pleas , which granted the motion for judgment on the pleadings of defendant s - appellees UC Health and University of Cincinnati Medica l Center, LLC , ( c ollect ively “ defendant s ”)

. For the following reasons, we affirm the judgment of the trial court in part and reverse the judgment of the trial court in part and remand the cause for further proceedings consistent with this opinion and the law.
Fact ual and Procedural History 

### {¶2} On April 16, 2018, Ewing , the adult daughter of Shirley Ewing, filed a complaint against defendants, among others , alleging three causes of action: a survivorship claim, a wrongful

- death claim, and an “ emotional harm ” claim . The

co m plaint asserted that th e action was filed within 180 days of the written notice given to defendants pursuant to R.C. 2305.113 , and asserted that the action was voluntarily dismissed in the case numbered A

- 1504406 on April 17, 2017 , and was being refile d i n the current action with in one year of such dismissal. The claims were based on events alleged to have occurred during Shirley Ewing’s inpatient stay at the University of Cincinnati Medical Center from February 18, 2014, to March 22, 2014

. The compla int alle ged : there were deviat ions from accepted standards of care which resulted in harm and compensable damages to Shirley Ewing, in amounts later to be determined, including but not limited to a fracture of her leg, failure to timely reco gnize said fr act u re, surgery, placement of a rod and pins, additional pain, suffering, mental anguish, emotionalO HIO F IRST D ISTRICT C OURT OF A PPEALS

3 distress, additional expenses, * * * and shortening of life expectancy * *
*. 

### {¶3} The c omplaint further asserted that Shirley passed away on March 25,
2014, an d c o nten ded that her death was a ccelerated and wrongful as a result of such deviations in care. The “emotional harm” claim was brought by Ewing in her individual capacity and alleged that Ewing suffered “ emotional harm ” as the result of being the one who dis c over ed her mother’s broken l eg and “other damages” during the hospitalization. 

### {¶4} Defendants filed a motion for judgment on the pleadings on May 8, 2019, arguing that Ewing’s complaint was barred by the medical

- claim stat ut e of repose set forth in R.C . 2 3 05.113 (C). Defendants also su bs equently asserted that the wrongful

- death and emotional

- harm claims failed as a matter of law. After responsive briefing between the parties and delays from awaiting the Ohio Supreme Court’s decision in Wil

son v. Durran i , 1 64 Ohi o St.3d 419, 2020

- Ohio

- 6 82 7, 173 N.E.3d 448 , the trial court granted the defendant s ’ motion for judgment on the pleadings on June
22, 2021 , and dismissed Ewing’s complaint in its entirety

. In doing so, t he trial court found that bot h the survivo rsh i p clai m and the wrongful

- death cl aim were “ medical claims ” under R.C. 2305.113(E) and were thus barred by the medical

- claim statute of
repose as the complaint was not filed until April of 2018 . Additionally, the trial court f ound that the “emotional h arm ” claim , interpreted to be a cl a im for negligent infliction of emotional distress, failed as a matter of law. 

### {¶5} Ewing timely filed a notice of appeal on July 20, 2021. She now raises a single assignment of error for our review, arguing tha t the trial c our t erred in granting defendants ’ mo tion for judgment on the pleadings and dismissing all her claims

. Law and AnalysisO HIO F IRST D ISTRICT C OURT OF A PPEALS

4 Standard of Review 

### {¶6} “Appellate review of a judgment on the pleadings involves only questions of law and is therefore de novo.” New R ieg e l Loca l School Dist. Bd. of Ed n . v. Buehrer Group Architecture & Eng., Inc. , 157 Ohio St.3d 164, 2019

- Ohio

- 2851, 133 N.E.3d 482, ¶ 8, citing Rayess v. Educational Comm. for Foreign Med. Graduates , 134 Ohio St.3d 509, 2012

- Ohio

- 5676, 983 N. E.2d 1267, ¶ 18. “Dism issal is appropriate und e r Civ.R. 12(C) when a court con strues as true all material allegations in the complaint, along with all reasonable inferences to be drawn therefrom, and finds, beyond doubt, that the plaintiff can prove no se t of facts th at w ould e ntitle him to relief.” I d ., citing State ex rel. Midwes t Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 570, 664 N.E.2d 937 (1996). “Similarly, questions of statutory construction constitute legal issues that we decide de novo.” I d ., citing Ne w Y

o rk Fro zen Foods, Inc. v. Bedfo r d Hts. Income Tax Bd. of Rev. , 150 Ohio St.3d 386, 2016

- Ohio

- 7582, 82 N.E.3d 1105, ¶ 8. “Emotion al Harm” Claim 

### {¶7} “ [ A ] cause of action for the negligent infliction of serious emotional distress may be stated w here the plai nti f f

- byst an der reasonably appreciated the peril which took place, whe ther or not the victim suffered actual physical harm, and, * * *

a s a result of this cognizance or fear of peril, the plaintiff suffered serious emotional distress.” Paugh v. Hanks , 6 O hio St.3d 72, 451 N.E.2d 759 ( 1983), paragraph four of the syllabus. T he element of “seriousness” is a necessary component required for a plaintiff

- bystander to sufficiently state a claim for relief when the plaintiff did not suffer a contemp oraneous phys ica l in jury

. Id . at 78 ; s e e Binns v. Fredendall , 32 Ohio
S t.3d 244, 513 N.E.2d 278 (1987). “ Serious ” emotional distress must be “beyond trifling mental disturbance” or “mere upset or hurt feelings.” Paugh at 78. It must beO HIO F IRST D ISTRICT C OURT OF A PPEALS

5 “emotional injur

y which is bo th s eve re and debilitating

. ” Id . “Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.” Id

. “A court may dec i de whether a plaintiff

- bystander has stated a cause of action by ruling on whether the emotional distress alleged is serious as a matter of law.” Id

. 

### {¶8} Here , Ewing’s claim merely alleges “emotional harm.” Emotional harm is insuffi cient to esta bli s h s evere and debilitat i ng emotional distress. Thus, th e allegations in the complaint fail as a matter of law to assert the level of harm required to sustain a cause of action for negligent infliction of serious emotional distress. Theref ore, the tri a l c o urt properly granted j udgment in favor of defendants and dismissed this claim

. According ly, we overrule this part of the assignment of error as to this ca use of action

. Survivorship Claim 

### {¶9} Ewing does not contest that her survivorsh ip cla im is a “ med i cal cla im ” under R.C. 230 5 .113(E). Instead, she argues that the trial court erred by “retroactively” applying R.C. 2305.113(C) , the medical

- claim statute of repose, to refiled cases and failing to re cognize that savings statutes convey vested rights to
p l ain t iff s to refile their c laims, which cannot con stitutionally be extinguished by such retroactive application. 

### {¶10} Section I, Article 16 of the Ohio Constitution provides, “All courts shall be open, an d every person, for any injury done him in his land, go o ds, per son, or reputation , shall have remedy by d ue course of law, and shall have justice administered without denial or delay.” Ohio Constitution, Article I, Section 16. “A plain reading of Article 1, Section 16 reveals that it does not pro vide for rem e die s wi thout limitation o rO HIO F IRST D ISTRICT C OURT OF A PPEALS

6 for any perceived inju ry.” Ruther v. Kaiser , 134 Ohio St.3d 408, 2012

- Ohio

- 5686, 983 N.E.2d 291, ¶ 12. “Rather, the right

- to

- remedy clause provides that the court shall be open for those to seek remedy ‘by due cour se of law .” (Em p has is sic.) Id

. “Ar t icle 1, Section 16 does not prevent the General Assembly from defining a cause of action.” Id

. 

### {¶11} Thus, the Ohi o Supreme Court has determined that “ a party need not be granted an unlimited amount of time to bring a vested cause of a cti on, but must receive only a ‘reason able’ amount of time in or d er for a law to pass co nstitutional muster.” (Citations omitted.) Antoon v. Cleveland Clinic Found ., 148 Ohio St. 3 d 483, 2016

- Ohio

- 7432, 71 N.E.3d 974, ¶ 27. Further, t he O hio Supreme C our t he ld that the statute of repose, “in compli ance with the right

- to

- remedy clause, does not ‘complet ely foreclose a cause of a c tion for injured plaint iffs or otherwise eliminate their ability to receive a meaningful remedy.’ ” Id . at ¶ 29 , quoting Flag sta r Ba nk, F.S.B. v. Airline
Un ion ’ s Mtge. Co. , 128 Ohio St.3d 529, 2011

- Ohio

- 1961, 947 N.E.2d 672, ¶ 29

. Accordingly , it held that the medical

- claim statute of repose is constitu tion al “both when it extinguishes a vested and a nonves ted caus e of action.” I d

. Thus , the statute of r epose is a “true statute of repose that applies to both vested and nonvested claims.” Id . at ¶ 3 5 ; see Wilson , 164 Ohio St.3d 419, 2020

- Ohio

- 6827 , 17 3 N.E.3d 448, at ¶ 16. Therefore , even if Ewing ha d a vested ri ght under the s a v ing statute as she a sserts, it

w as not unconstitutional for her claim to be extinguished by the statute of repose as she was provided with a reasonable amount of time with in w hich to bring her claim. 

### {¶12} B ecause R.C . 2305.113
— wh ich relocated the medical

- c l a i m statute of
repose from R.C. 2305.11(B)

— was enacted in 2002, well before the hospitalization in question and well before Ewing brought her claims, we interpret Ewing’s re troa ctive application argument to be that the Ohio Supr eme Court’s d ecision in Wi l s o n should not be appli ed retroactively. However, it is a well

- sett led principle in Ohio that “ ‘ [i] nO HIO F IRST D ISTRICT C OURT OF A PPEALS

7 the absence of a specific provision in a decision declaring its application to be prospective only, the decision sh all be applied retroacti vely as well. ’ ” Martin v. Tay lor , 11th Dist. Lake No. 2 0 21 - L

- 046, 2021 - Ohio

- 4614, ¶ 42, citing State ex rel.
Bo sch v. Indus

. Com m . o f Ohio , 1 Ohio St.3d 94, 98, 438 N.E.2d 415 (1982). T h e Ohio Supreme Court did not announce prospective

- only application in Wi lson

. I d .; see Wilson

. In fact , “ it specificall y denied a request for prospective

- only application when it ruled on the motion for reconsideration of [ Wilson ].” Id ., citing Wilson v . Durrani , 161 Ohio St.3d 1453, 2021

- Ohio

- 534, 163 N.E.3d 580 ( gran ting motion f or

r econsideration in part and denying requ est that decision be applied pros pectively only)

. Therefor e, we find no error in the trial court’s applicat i on of the statute of repose to bar this claim. Accordi n gly, we overrule t his part of the a ssignment of err o r as to this cause of acti on. Wrongfu l

- Death Claim 

### {¶13} “ [ W] hen a person is in jured by the t ortious con duct of another an d the
p erson later dies from the injur y , two claims arise. ” Thompson v. Wing , 70 Ohio St.3d 176, 183, 637 N

. E.2d 9 17 (1994)

. “ Th e fi r st is a claim for malpract ice or personal injury, enfo rced either by the in jured p erson herself or her representative in a survival action. ” Id

. “ The second is a wrong ful death [sic] claim, enforced by the dece dent ’ s personal representat ive on behal f of the dece dent ’ s beneficiaries. ” Id

. Although prosecuted by th e same personal representative, the two actions are n ot de rivative of the same right and are instead two s epar a te and independent cause s of actio n . Id

. at 182

- 183 ; Klem a v. St. Eli zabeth ’ s H os p . , 170 Ohio St. 519 , 521 , 166 N .E.2d 765 (1960) ; Kol er v. S t. Jos eph Ho sp . , 69 Ohio St.2d 477 , 479, 432 N.E.2d 821 (1982)

. The cause of actio n hel d by the injured party is “ ‘ confined to his [ or her ] personal l oss and suffering before he [or she ] died

. ’ ” Klema at 521 , quoting St . Lou is, Ir on Mountain & S

. R y . Co. v.O HIO F IRST D ISTRICT C OURT OF A PPEALS

8 Craft , 237 U.S. 648, 658, 35 S. Ct. 704, 59 L. Ed. 1160 (1915) . Whereas the cause of action held by dece dent ’ s beneficiar ies is “ ‘ confined to their pecuniary loss through hi s [or her] death. ’ ” Id

. “ ‘ One begins wh ere 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. ’ ” (Emphasis added.) Id

. Because each action i s separate an d i ndepe n d ent from the other, the ri ght to b r ing a wrongful

- death action is not dependent on the existe nce of a separate cause o f action held by the injur ed person prior to his or her death. Thom pson at 183 ; K

lema at 521. A wrongf

u l

- dea th act ion requires on l y tha t the dece dent “ at one time ” ha d a c a use of action against the defendant. Id

. 

### {¶14} A wrongful

- death action is a special statutory action which did not e xist at common law. Klema at 524. R .C. 2125.01 est ablishes a wrongful

- death claim in Ohio. Pe te r s v. Columbus S teel Castings Co ., 115 Ohi o St.3d 134, 2007 - Ohio

- 4787, 873 N.E.2d 1258 , ¶ 9

. It provides, “ When the death of a person is caused by wrongful act, negle ct, or default wh ich would have entitled the party injured to maintain an action and re c o v er damages if death had no t ensued , the person w ho would have been liable if death ha d no t ensued * * * shall be liable in an action for damages. ” R.C.
2125.01. Pursuant to R .C. 2 125.02( D) : (1) Exce pt as provided in divis ion (D) (2) of thi s section , a c i v il actio n for wrongful death sh a ll be co m menced within two years a fter the dec edent ’ s death

.

(2) (a) Except as provided in divisions (D)(2 )( b), (c), (d), (e), (f), and (g) of this s ecti on or in section 2125.04 of the Revised Cod e, noO HIO F IRST D ISTRICT C OURT OF A PPEALS

9 cau se of action f

o r wrong ful death involvin g a prod u ct liabi l ity claim shall acc rue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered t o it s first p urchaser or first lessee who was not engaged in a business i n which th e product was u sed as a

com ponen t in the prod uction, construction , creation, assembly, or rebuilding of another p roduct. (Emphasis added.) 

### {¶15} D ivisions (D)(2)(b), (c), (d ), ( e) , (f ), and (g) pro vide exceptions to the produc ts

- liabil ity statute o f r epose set forth in R.C. 2125.02( D )(2 ) ( a) , an d R.C.
2125.04 provides a sav ing statute f or wr ongful

- death actions , which allows the actions to be ref iled when c ertain situations occur. T hu s, R .C. 2305.02(D) expressly pro vides only one exce pt ion to the co mm e ncement peri od provided in R.C. 230 5 .0 2 (D)(1 ) for wrongf ul

- death claim s and that exception is only applicable to wrong ful

- death claims related t o products liability

. 

### {¶16} Here , the trial court found that E wing ’ s wrongful

- death claim was additi onally subjec t t o the medical

- claim statute of repo s e c ontained in R.C.
2305.113 (C)

. Ewing argues that this was in error as her wrongful

- d eath claim was not subject to the medical

- claim statute of repose

. 

### {¶17} R.C. 2305.113 esta blishes , among other things, t he periods of l i mitation for a “ medi cal cla im , ” whi c h i s defined as : [ A ] ny claim that is asserted in a ny civil action against a physician, podiatrist, hosp ital, home, or re sidential facility, against any employee

o r agent of a physician, podiatrist, hospit al, home , o r re s ide ntial facilit y , or again st a lic e nse d p ractical nurse, registered nurse, advancedO HIO F IRST D ISTRICT C OURT OF A PPEALS

10 pra ctice registered nurse, physical therapi st, ph ysi cian assistant,
emergency medica l technician

- basic, emergen cy medical technician

intermediate, or emerg ency medica l te c hni cian

- paramedi c , and that arises o ut of the medical diagnosis, care , or treatment of any person.
R. C. 2305.113(E)(3). R.C. 2305.113(A) provides a one

- year sta tute of limitation for medical claims and R.C. 2305.113(C) provides a four

- ye ar statut e of r e pos e for medic a l claims

. 

### {¶18} W

hile th e Oh io Supreme has made it clear that wro ngful

- death claim s

are separat e and distinct cause s of action from medical

- ma lpractice claim s — meaning that one i s not interdependent u pon the other to surviv e , and a wrongful

- de at h cl aim be gins where a medical

- malpra cti ce claim ends

— this is not d etermi native of w hether the wrong fu l

- death claim is subject to the statute of repose under R.C. 2305.113 ( C)

. See generally Lombard v. Good Sa marita n Med

. C t r . , 69 Ohio St. 2d 471, 474 , 43 3 N .E.2d 162 (1 982) (re cognizing t hat the common - law def inition of malpractice is distinguish able from the definition of a me dical claim) ; 1 Couch v . Durrani , 1 st Dist. Hamilton No s . C

- 190703, 19 0704, C

- 1907 05, C

- 190706 and C

- 190707, 2021 - Ohio

726, ¶ 9

- 1 9 , ap

p eal not acce

pted , 16 4 Ohio St.3 d 1 420, 2021 - Ohio

- 2923, 1 72 N. E.3d

10 48 (recognizing that a cause of action independent from that o f medical malpractic e
may still constitute a medical claim ). 

### {¶19} W e begin by looking to the statutory language a nd its pla in me a ning.
See , e.g., I

n re P.R. , 1 st Dist. Hamilton No s . C

- 180166 and C

- 180167, 2019 - Ohio

- 4751, ¶ 9 , citing In re J. F. , 2017 - Ohio

- 7675, 97 N.E.3d 999, ¶ 18 (1 st Dist.). In doing so, we

1 We not e that this case was decided bas ed up on the former definition of a medical cla im under R.C. 2305.1 1 . T h e definition of a medical claim ha s sin ce been expand e d and relocated to R.C. 2 305.113(E).O HIO F IRST D ISTRICT C OURT OF A PPEALS

11 should not look solely to the plain language of R.C. 2305 .113 as we c a nn o t ignore R.C. Chapter 2125, which gov erns wrongful

- death claims. In determining that the medical

claim statute of repose applied, the trial court relied on its determination that this
wrong ful

- death cl aim was also a medical claim

. We h old that whether t h is wrongful

death claim meets the definition of a medical claim under R .C. 2305.113(E) is not dispositive of the issue be fore us. T he question presented b y this appeal is one

conce r ning the interp lay between the two statut es w hen a wrong fu l

- death claim is related to the medical diagnosi s , ca r e , or treatment of the decedent

. In othe r w ords, we are asked to dec i de whether , d espite the clear and unambiguous language o f R.C. 2125.02(D)(1) , the medi cal

- cl aim stat ute o f repose in R.C. 230 5.113 (C ) further lim its the tim e for commencing a wrongful

- death claim where suc h claim ar ises from the diagnosis , care , o r t reatment of the decedent

. 

### {¶20} Th is issue is one that has recently been addressed in sever a l other districts and has crea ted a conf lic t among those distri cts
. T he T enth and S ixth
D istricts h ave both recently held t h at a wrongful

- death claim relat ed to the me d ical diagnosis, care, or treatment of a decedent was not subject to the medical

- claim statute of repose contained in R.C. 23 05.113 (C)

. S ee Everhart v . C oshocton Cty. Mem. Hosp. , 10th Dist. Franklin No. 21AP

- 74, 2022 - O hio

- 629, ¶ 21, 51 , appeal accepted ,

___ Ohio St.3d ___ , 2022 - Ohio

- 2162 , __ _ N.E. 3 d ___ ; Davis v. Mercy St. Vin cent Med. Ct r. , 6th Dist. Lucas No. L

- 21 - 1095, 2022 - Ohio

- 1 266 , ¶ 6 3 ; see also Dan iel v. United Sta t es , 977 F. Supp.2d 777 (N.D.Oh i o 2013)

. In d oing so, both courts focused on the statutory language of R.C. 2125.02 ( D ). See E v erhar t at ¶ 20 - 2 1 ; Davis at ¶ 58

- 59
. 

### {¶21} Con versely, t he T hird, F ifth, and E leventh D istri cts hav e held that a

wr on gful

- death claim re lated to the medical care, d iagnosis o r t reatment of the decedent was subject to the medical

- claim statute of repose

. Se e Smith v. WyandotO HIO F IRST D ISTRICT C OURT OF A PPEALS

12 Mem. Hosp. , 2018

- Ohio

- 2 441 , 114 N.E.3d 1224, ¶ 22 (3d Dist.), appeal not accept ed , 153 Ohio St. 3d 1505, 2018

- Ohio

- 428 5, 109 N.E.3d 1260 ; Mercer v. Keane , 202 1 - Ohio

1576, 172 N.E.3d 1101, ¶ 40 (5 th D is t. ), appeal not accept ed , 164 Ohio S t. 3 d 1420,

2021 - Ohio

- 2923, 172 N. E.3d 1047 ; Martin , 11th Dist. Lake No. 2021

- L

- 046, 2021

- Ohi o - 4614, a t ¶ 46, cit ing Wilson v. Mer cy Hea lth , 11th Di st. Trumbu ll No. 2021

- T

000 4, 2021 - Ohio

- 2470, ¶ 23

- 24. 

### {¶22} Mercer , howe ver, did not directly address the issue cu r rently before this
court. In Mercer , t he medical

- malpractice action was initially filed in 2016 be fore the d ece dent’s death. Id . at ¶ 2, 4. T he exec utor of the decedent ’ s estate then filed an amended complaint in 2020 after the de cedent pass ed awa y , wh i ch was beyond the

r epose period

. Id . at ¶ 4

- 7 . T he only issue presented to the court wa s w heth er the

wro n gf ul

- death action related back to the malpractice action , thereb y making the action tim ely filed under the statute of repose

. Id

. at ¶ 36

- 38 . Thus , the re was no argument presented to the court that the wrongful

- death claim was not subje ct to t he medical

- cl aim statute of repose and the co urt did not directly conside r the issue

. 

### {¶23} On the other hand, Smith and Martin both directly held th at wrongful

de a th claim s arising from t he medical diagnosis, c are , or trea tment of a decedent were subje ct to t he medi cal

- cl aim statute of repose

. Sm i th at ¶ 22; Martin at ¶ 46. B oth

c ourts acknow

l edged that wrongful

- death claim s were subject to thei r own sta tute of l i mitations out side of R.C . 2305.1 13 (A) but still found that the cla ims were subject to the medi ca l

- claim statu te of repose b ase d on the language o f R.C. 2305.113

. Smith at ¶ 25; Martin at ¶46. In doing so, each court ’ s focus was the fact that the claim s m et the defini tion of a medical c laim. Smith at ¶ 22 , 28

- 30 ; Ma rtin at ¶ 45 - 46

. 

### {¶24} We reco gn ize t hat, w hen loo kin g to the plai n l ang ua ge o f R.C.
2305.113 (E)(3) and the b roa d def init ion of medical claim, a wrong ful

- d eath claimO HIO F IRST D ISTRICT C OURT OF A PPEALS

13 which is relate d to the medica l diagnosis , care or treatment of the decedent seems to fit into the definition of a medic al clai m, depending on the unde rlyin g a lle gations

. N otab ly, th e definition of a m edical claim is no t lim ited to only those claim s b ro ught by th e perso n receiving tre a tment. Se e R.C. 2305.113(E)( 3). A m edical clai m is any claim against any of the listed persons th at arises ou t of the medic al diagnosis, c ar e,

o r treatment of any p erson . Id

. The Ohio S u pr eme Court has fou nd this langua ge to be plain an d unambiguous a n d advised that we must give f ull meaning to all the
express sta t utory language

. E state o f Stevi c v . Bio

-

Med

. Ap plication of O hio, Inc ., 12 1 Oh io St.3d 488, 2009

- Ohio

- 1525 , 905 N.E .2d 63 5 , ¶ 16, 18. 

### {¶25} I n fact, w e note th e 2018 enactment of R.C. 23 23
. 451 , w h ich i mplies that a wrongf ul

- death claim could constitute a medical claim for the purpose of req uiring an aff ida v it of mer it. R .C . 2323.451 di sc u sses the requirement of C iv.R. 10(D) that an

a ffidavit of merit be f

i led with any complaint th at asserts a me d ical c laim and provides

an exten sion of time fo r plaintiffs to add new medica l claims or new def endants after th e complain t i s fil ed and a fter di s covery is conducted if ce rtain conditions are met.
See R.C. 2323.4 51. The provision relevant to our pu rpose s her e , R .C. 23 23 .451 ( E),
p rovides : Sub ject to division (F) of this section , a fter expirat ion of the one

h undr ed

- eighty

- day pe riod descri b ed in division (D)(2) of this sect ion, the plaintiff shall not join any a dditional medical claim or def endant to
t he a c t ion unless the medical cl aim is for w rongful death , and the period of limita tion for the claim under R. C. 21 25. 02 of the Rev ised Code h a s not expired. (Em phasis added.)O HIO F IRST D ISTRICT C OURT OF A PPEALS

14 

### {¶26} We al so note that R.C. 2323.43 , the statute which relat es solely to medical cl a im s a n d provides damage limitat ions for med ical claims, specifically provides an e xemption fro m those l imitat ions for wron gful

- dea th ac tions

. See R.C. 2323.43(G)(3). B oth sta tutes se em to indicate that a wron gful

- death claim could meet the definition of a “ medic al cl a im

. ” However, as already noted above, we c annot look sol ely to t h e language of R.C. 23 05.113 when d eci ding the issue be fore us due to the nature of this claim

. 

### {¶27} T he Ohio Supreme Court has already held that where the medical

ma lpractice claim ends, the wrongfu l

- d eath claim begins. Klema , 170 Ohio St. at 5 21 , 166 N.E.2d 765 , quoting Craft , 23 7 U.S. at 658 , 3 5 S. Ct. 704, 59 L

. Ed. 116 0 . We a g ree beca use , r e g ardless of any underlying malpractice, there is no c ause of action for wrongful death until the death of th e decedent . The trigger for the cause of ac tion is the death of the patient

. T h us , in addressi ng the issue before us, we m ust begi n by looking to the express stat utory language of R.C. Cha pter 2125, w hich creat es and
g overns a wrongful

- death claim, to se e what the legis lature has determined re gard ing the period of limitation for com men cing a wrongf ul

- d eath cause of a ction. T he e xpre s s language of R.C. 2125.02 (D) provides t hat a cause of action for wrongful death shall be c ommenced within two year s after t he d ec edent ’ s death , exc ept as provided in divi sion (D)(2) of the statute. This a ction is for wro ngful death. T h e language is cl ear and unambiguous. D i vision ( D )(2) the n prov ides that , with certain other excepti ons listed in the statute, no cause of action for wrongful death invol ving a p rod uc t

- liability claim shall accrue against a m anuf actu rer or supplier later than ten years from the dat e the product was deliv ered

. R

. C. 2125.02(D)(2). Thus, t he General As s emb ly clearly provided only one exception to t he period of limitation se t forth in R .C. 2125.02 (D)(1) and that exception is o n ly f or wrong ful

- death cl aims re lated to pr oductsO HIO F IRST D ISTRICT C OURT OF A PPEALS

15 liability. The Genera l Assemb ly provid e d such a n exception even though produc ts

liabili ty claims are ge nerally subject to the ir own st a t ute of repose i n R.C.

2 305 .10(C)(1). T he Gen eral Assembly provided n o sim ilar exc ept ion in R.C.

2 1 2 5 .02 (D) for claims related to the medica l di ag nosis, care , or treatment of the decedent

. Th erefore , when looking to the plain language o f R.C. 2125.02 (D) ,

w rong ful

- death claims w oul d not be subject to an exception for the me d ical

- claim

s tat ute of repose

. 

### {¶28} Ad ditionally, if we go beyon d th e plain meaning of the s t atutory lan guage, we find that R.C. 2305. 1 3 1(A) ( 1) and 2305. 101 (A) , two s t atutes outs ide of R.C. 2125.02 that pr ovi de a dditional exceptions to the wron g ful

- de ath peri o d of limitat ion , expressly state that the ex ceptions exist “ notwit hs tandin g ” R.C. 21 25.0 2
. See R.C. 23 05.131 ( pr ov iding that n o ca use of action to recover damage s for bodily injury , injury to real or per son a l property , or wrongful dea th wh i ch arises ou t o f a defectiv e a nd unsafe condition of an i mprovement to real prope rty shall a cc r ue a gain s t

c ertain pers ons later than t en yea rs fro m the date of substantial comp l etion of the improvement ) ; R.C. 2305.10 1 ( pro v iding that a claimant who has al l eged bodily in j ury
or wrong ful death caused by the effect s of the Dalkon Sh i eld i ntrauterine devi c e and who h as filed a claim in the rele van t cour t in the eastern district of Vi rginia may b ring an action in Ohio agai nst th e Dalkon Sheil d Claimants Trust w i thin one year o f

ce rti ficat ion by the Vir ginia court providing that the claimant may proceed to lit igat i on or arbitrat ion , or within six mon th s of the effective date of R. C. 230 5.101, which ever is later )

. No similar la ngu a ge was provided in R.C. 2305.113 which would al l ow t he medic al

- claim statute of repose to apply notwi ths tanding R. C. 2 125.02
. 

### {¶29} Th e p ertin e nt “ notwiths ta nding ” language from R.C. 2305.131(A)(1) and the pert inent “ except as provided ” language from R. C. 21 25. 02 (D)(1) was addedO HIO F IRST D ISTRICT C OURT OF A PPEALS

16 within the same b ill where t h e Gen eral Ass emb ly enacted the statute of repose in R.C.
2305.10 (C) (1) for a cause of act i on based on a products

- liability claim an d added the express except ion to the period of limitation for a wrongfu l

- d ea t h claim in R.C.
2125.02 (D)(2) for a cla im based o n pr oducts l iab ility

. 2004 Am.Sub.S.B. No. 80, 150 Ohio Laws, Par t V

. Significantly , a l though the General Assembly also enacted revisions to R.C. 2305.113 wi th in tha t same b ill , no addi tions we re add ed to ei the r R.C.
2305.113 or 212 5.02 to reference the othe r. Id

. 

### {¶30} “ The ‘ Gen eral Assembly ’ s use of particular lang uage to modify one part

o f a statute but not another pa rt demonstrates that the General As sembly knows how to make that modification and h a s chosen not to make that mo dification in the latter
p art of the s tat ute. ’ ” Wilson , 164 Ohi o St.3d 419, 2020

- O hio

- 6 82 7, 173 N.E.3d 448 , at ¶ 30, quoting Hu lsmeyer v. Hos pice of Southwest Ohio, Inc. , 142 Ohio St.3d 236,
2014 - Ohio

- 5511, 29 N.E.3d 903, ¶ 2 6. Ad ditionally , “ ‘ [ t ]he General Assembly, in

e nacti n g a statute, is assumed to have been aware of other statut ory prov isions concerning the s ubject matter of the enactment even if th ey are found in separate

s ection s of the Code. ’ ” Hulsmeyer at ¶ 26 , q u ot ing Meeks v. Papadopulos , 62 Ohio St.2d 187, 191

- 19 2 , 40 4 N.E.2d 15 9 (1980)

. Finally, “ if the General Assembl y could hav e used a particular word in a stat ute but did not, we will not add that word by judicia l fiat

. ” Id ., citing In re Application of C o lum bu s S. Power Co. , 138 Ohio St.3d 448, 2014

- Ohio

- 462 , 8 N .E.3d 86 3, ¶ 26. 

### {¶31} B ecause the Genera l Assembly did no t provide an e xc eption t o the
pe r iod of limitation in R.C. 2125. 02(D) (1) for wrongful

- death claims arising from the medical di agnosis , care or t reatme nt of the de ce dent , these claims would not be sub j ect to the m e di cal

- claim sta tute of repose. Any o ther int erpretation wo uld re qu i re us to ignor e th e plai n lan guage of R.C . 2125. 02 ( D). Therefore, w e h ol d that the wrongful

-O HIO F IRST D ISTRICT C OURT OF A PPEALS

17 d eath claim is governed so lely by the period of limita tion expressl y set fort h by the le gislat u re in R.C. 2125.02 (D) and is not subject to the med ical

- cl a im st atute of repose in R.C. 2305.113 (C )

. Ac cordingly, it was improper for the trial court to dismiss Ewing ’ s wrongful

- dea th cl aim based on the medi cal

- claim sta tut e of repose

. S o l ong as Ewin g ’ s

c lai m was b ro ught within the applicable two

- year per iod o f limi tation found in R.C. 2125.02(D ) , t he sav ing sta tute would be applicabl e to save this claim

. This part of the assign ment of error is sustained. Conclusion 

### {¶32} For the foregoing rea sons, we ov e r ru l e t he assi gn ment of error in part as to th e emotion al

- ha r m cla im and the survivorship cla im but s us tai n the assignment of error in p art as to the wrongf ul

- death claim. We remand the caus e for further
proce edings consiste n t with this op i nio n and the law

.

Ju dgment af

fi rmed in part and reversed in part , and caus e remanded

. B ER GER

ON and B OCK , J J. , concur. Please note:
T he c ourt has recorded its own ent ry this date.