Professional Negligence Law Reporter

An Ohio appellate court held that an attorney was not liable for malpractice where he advised his clients according to the current state of the law.

Attorney Daniel Abraham represented Kathleen and Brett McCarthy in a medical negligence action that arose, at the latest, in April 2015. The plaintiffs voluntarily dismissed the case without prejudice in January 2019. That month, Abraham advised the couple in writing that under Ohio law, they had one year from the date of dismissal, or until January 2020, to refile their complaint, or they would be barred from pursuing the matter further. The McCarthys refiled their lawsuit in January 2020 through different counsel. At the end of that year, the Ohio Supreme Court held that expiration of the four-year statute of repose precluded recommencement of a medical negligence claim. The defense moved successfully for judgment on the pleadings, on the grounds that the plaintiffs’ claims were barred under the statute of repose.

The McCarthys sued Abraham, alleging he had negligently advised them regarding the statute of repose, among other things. The defendant moved for summary judgment, and the trial court granted the motion. The court found that based on the status of the law regarding the statute of repose and savings statute in January 2019, Abraham had advised the plaintiffs appropriately.

Affirming, the appellate court found that in a legal negligence case, an attorney’s actions are governed by the law as it existed at the time of the acts. Moreover, the court said, an attorney cannot be liable for malpractice for lack of knowledge as to the true state of the law where a debatable point of law is involved. Here, the court said that the defendant advised the McCarthys regarding the deadline to refile their claim based on the state of the law as it existed at the time. The defendant provided advice consistent with relevant, contemporary precedent, the court said, noting that he therefore comported with what a reasonable attorney, similarly situated, would have done under the circumstances.

Finding that the defendant had not breached the standard of care owed to the plaintiffs as a matter of law, the court held that the trial court had properly granted summary judgment for the defense.

Citation: McCarthy v. Abraham, 2023 WL 9017583 (Ohio Ct. App. Dec. 29, 2023).