Ohio court ruling may expose doctors to unending lawsuits

The Ohio State Medical Assn. and others are asking the Supreme Court of Ohio to review a lower court's ruling they say exposes physicians to an endless risk of negligence claims.

An appellate court decision in Ruther v. Kaiser found that the state's statute of repose was unconstitutional. The court allowed a family's claim to move forward, despite the alleged negligence having happened 10 years before.

"This evisceration of the statute of repose will affect the ability of every Ohio hospital, physician and medical provider to plan for the future, given the omnipresent specter of unknown old medical claims that could be filed at any time," the OSMA said in a friend-of-the-court brief filed with the Litigation Center of the American Medical Association and the State Medical Societies.

The statute of repose works in connection with the statute of limitations to enforce deadlines in which claims must be filed. In Ohio, the statute of limitations allows plaintiffs one year to file a claim after discovering alleged medical negligence. The statute of repose says if plaintiffs have not discovered an alleged injury or negligent act after four years, they cannot sue.

The ruling stems from the case of Timothy Ruther, who was a patient of emergency physician George Kaiser, DO, during the 1990s. Ruther received lab work in 1995, 1997 and 1998, the results of which were not made clear to Ruther, according to court documents. In 2008, after he was no longer a patient of Dr. Kaiser's, Ruther was diagnosed with liver cancer and Hepatitis C. A review of his lab results from 1995, 1997 and 1998 revealed elevated levels of liver enzymes, court documents showed.

In 2009, Ruther and his family sued Dr. Kaiser and the Warren County Family Practice Physicians. They claimed that Dr. Kaiser never told Ruther of his test's abnormalities, preventing Ruther from seeking preventive cancer care. Ruther died a month later. The suit was amended to a wrongful death claim.

Dr. Kaiser argued that the state's statute of repose barred the family's claims. He requested that the trial court dismiss the case.

The trial court ruled in favor of the Ruthers. The Ohio Court of Appeals on April 11 also sided with the plaintiffs, ruling that the statute of repose is "unconstitutional as it applies to the [case]" because it bars the claim before the plaintiffs could have reasonably known one existed.

On May 26, attorneys for Dr. Kaiser petitioned the Supreme Court to examine the ruling. At this article's deadline, the court had not said whether it would review the case. Dr. Kaiser's attorney did not respond to a phone call seeking comment.

Sarah Tankersley, attorney for the Ruthers, said the appellate court was correct to overrule the statute of repose and allow the family's claim to continue.

"It's not fair to take someone's right away from them," she said. "If [Ruther] had known about these labs back in the '90s, he would have proceeded to have a liver biopsy at that time, before stage 4 cancer spread over his body."

The ruling erodes the ability of physicians and other health professionals to manage their risk exposure for litigation, said Nancy Gillette, OSMA general counsel. The statute of repose was enacted as part of a state tort reform package in 2003. The law has lowered insurance premiums for doctors, Gillette said. More than 30 states have statutes of repose.

"We feel very strongly the statute should be in place, because it brings predictability and fairness in medical malpractice litigation, which has the effect of making for a more stable liability insurance market," she said.