Professional Negligence Law Reporter

The Ohio Supreme Court held that a claim for loss of parental consortium may not proceed where the principal claim is barred under the state’s statute of repose, Ohio Rev. Code Ann. §2305.113(C).

Physician Peter Lee treated Kathleen McCarthy for rectal bleeding in 2010 and diagnosed her as having hemorrhoids. McCarthy’s symptoms worsened, and she returned to Lee in 2015. Lee confirmed his diagnosis. Two years later, McCarthy was diagnosed with Stage III colon cancer. She and her husband sued Lee and others, alleging negligence. The defendants moved for judgment on the pleadings, arguing that the plaintiff’s claim was barred by the statute of repose. The trial court dismissed the complaint. The McCarthys then filed a civil action against Lee and his group on behalf of their three minor children. The plaintiffs alleged loss of consortium resulting from the treatment of Kathleen’s condition. The trial court granted the defendants’ motion to dismiss and concluded that because the statute of repose barred the McCarthys’ medical claim, the children had no cognizable claim under Ohio law. An appellate court affirmed.

Affirming, the state high court noted that §2305.113(C) prevents a cause of action from vesting more than four years after a breach of the duty of care. Here, the court found, because the McCarthys filed their medical negligence claim more than four years after Lee’s treatment of Kathleen, the statute of repose barred the action. Citing case law, the court added that when a principal claim fails for substantive reasons, the derivative loss of consortium claim fails as well.

The court found that by operation of the statute of repose, the McCarthys’ medical negligence claim was no longer legally cognizable. Therefore, their children’s loss of consortium claim also is not viable, the court said, concluding that the trial court had properly dismissed the claims.

Citation: McCarthy v. Lee, 2023 WL 8939731 (Ohio Dec. 28, 2023).