In an Ohio medical malpractice lawsuit, the plaintiff has the burden of proving the elements of medical malpractice by a preponderance of the evidence. This is the same evidentiary standard used in other civil cases.
However, there are some special rules for proving medical malpractice. First, Rule 10(D)(2) of the Ohio Rules of Civil Procedure requires that a plaintiff in a medical malpractice lawsuit must include an affidavit of merit with his or her complaint. An affidavit of merit is a sworn statement by a medical expert in which the expert states:
- That he or she has reviewed all medical records reasonably available to the plaintiff concerning the allegations in the complaint;
- That he or she is familiar with the applicable standard of care; and
- That, in his or her opinion, the standard of care was breached by the defendants and the plaintiff was injured by that breach.
Second, to prove the elements of medical malpractice, the plaintiff must usually provide expert testimony. This is because most jurors would be unable to weigh the evidence and determine whether malpractice occurred, or what the plaintiff’s damages are, without an expert’s assistance.
Here is more information about Ohio’s medical malpractice law and when you’ll want to consider filing a lawsuit. The law limits the amount of time between when the injury occurred and when you can bring forth a claim, so be sure to consult with an experienced medical malpractice attorney as soon as possible.
How long do I have to file a medical malpractice claim?
As with other causes of action, Ohio law limits how long a plaintiff has to file a lawsuit for medical malpractice. It does this in two ways, both of which can be found in O.R.C. § 2305.113: a statute of limitations and a statute of repose. If the time limit under either the statute of limitations or the statute of repose has expired, then the plaintiff will be unable to sue.
Ohio’s Medical Malpractice Statute of Limitations
O.R.C. § 2305.113(A) contains the general limitations period for medical malpractice claims. Generally, a medical malpractice lawsuit must be filed within one year “after the cause of action accrued.”
In Ohio, a cause of action for medical malpractice accrues — and the one-year time limit begins to run — on the latest of the following three dates:
- When the medical malpractice occurred;
- When the plaintiff, through the exercise of “reasonable care and diligence,” should have discovered the injury; or
- When the physician-patient relationship terminated.
However, this one-year period can be extended under O.R.C. § 2305.113(B). If, within the one-year limitations period, a plaintiff notifies the medical professional or institution that he or she is considering filing a medical malpractice lawsuit, then the plaintiff has an additional 180 days to file after the date of the notice.
Ohio’s Medical Malpractice Statute of Repose
O.R.C. § 2305.113(C) is the statute of repose for medical malpractice claims. It says that plaintiffs only have four years after the date of the malpractice to file suit.
However, this is also subject to some exceptions, which are found in O.R.C. § 2305.113(D). To qualify for either of the following exceptions, the plaintiff must prove by clear and convincing evidence — a higher standard than a preponderance of the evidence — that he or she could not have discovered the injury through reasonable care and diligence earlier than he or she did.
First, if the plaintiff discovers the injury within the last year of the four-year period, and could not have discovered it sooner, then he or she can sue within one year of the discovery, even if that is more than four years after the malpractice occurred.
Second, if the plaintiff’s injury results from a foreign object left in the plaintiff’s body, then he or she can file suit within one year of discovering (or when he or she should have discovered) the foreign object, even if outside of the four-year period.
Exception for Minors
Minors — children younger than 18 years old — can take advantage of another exception to the general statutes of limitations and repose. Such children are said to be under a legal disability and O.R.C. § 2305.16 delays the start of the limitations and repose periods until “after the disability is removed.”
In other words, the one-year statute of limitations and the four-year statute of repose can’t begin to run until the child turns 18. However, parents with minor children injured by medical malpractice should still seek the help of an Ohio medical malpractice lawyer as soon as possible, rather than waiting until the last minute just because the law allows it.
Exception for Wrongful Death
Claims for wrongful death — including those premised on medical malpractice — are subject to a different statute of limitations. O.R.C. § 2152.02(D) provides for a two-year statute of limitations for wrongful death lawsuits.
Seek Help from an Experienced Medical Malpractice Attorney
If you or a loved one became sick or injured because your doctor or other care provider failed to uphold their duty to care for you, you may be eligible to claim compensation for your medical bills, lost wages, or pain and suffering you endured because of your injury. The experienced attorneys of Plevin & Gallucci have represented injured clients throughout Ohio who have suffered from surgical errors, birth injuries, medication errors, nursing home abuse, and more. Contact us today for a free case review to see how we may be able to help.