The Ohio Supreme Court recently rejected a claim by a man suing a Columbus-based anesthesiologist that even though he was unable to locate the doctor to serve him with the lawsuit until after the statute of limitations had run, he was entitled to extra time under Ohio’s “savings statute.”

In a 5-2 decision, the Supreme Court ruled that a plaintiff who failed to serve his lawsuit on the defendant within the time allotted by Ohio’s civil rules could not rely upon the savings statute to revive his claim after the statute of limitations had expired. 

The Court’s decision reversed the Tenth District Court of Appeals, which ruled that the savings statute gave Michael Moore additional time to serve retired anesthesiologist Eric Humphreys, Central Ohio Anesthesia and Mount Carmel St. Ann’s Hospital for injuries his son allegedly suffered from a January 2014 medical procedure.

Writing for Court majority, Justice R. Patrick DeWine stated that Moore asked the courts to extend the one-year time limit to commence a lawsuit to two years by ignoring the explicit language of the rule and the savings statute. Justice DeWine noted that Moore also argued his lawsuit against Central Ohio Anesthesia should be allowed to go forward even if his case against the physician were dismissed. Because the Tenth District did not reach this argument, the Court remanded that portion of his case to the appeals court for further consideration.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French and Patrick F. Fischer joined Justice DeWine’s opinion.

In a dissenting opinion, Justice Melody J. Stewart wrote the Tenth District correctly concluded that Moore was entitled to extra time. She wrote that Humphreys incorrectly attempted to claim the trial court had no jurisdiction to hear the case against him while also asking the court to rule in his favor.

Justice Michael P. Donnelly joined Justice Stewart’s opinion.

Justice DeWine explained the case addresses the interplay among the statute of limitations for a medical claim; Ohio Rule of Civil Procedure 3(A); and the savings statute, R.C. 2305.19(A).

The statue of limitations for a medical malpractice claim in Ohio is one year, under R.C. 2305.113(A), but can be extended for six months with proper notification. Moore provided the notification to Humphreys and the medical providers, extending his deadline to file his lawsuit to July 7, 2015.

Moore filed his complaint one day before the deadline and requested the court serve the complaints on Humphreys, Central Ohio Anesthesia, and Mt. Carmel. Civ.R. 3(A) states that an action is “commenced” on the date it is filed if the defendants are served within one year. The rule required Moore to serve all the defendants by July 6, 2016. 
Moore failed to serve Humphreys with notice of the lawsuit. He attempted to serve the doctor by mailing the complaint to Mt. Carmel. But Humphreys had retired and stopped seeing patients at Mt. Carmel or anywhere.

In February 2017, the medical providers asked the Franklin County Common Pleas Court for summary judgment, arguing that because Moore missed the July 2016 deadline to serve Humphreys, his case had not commenced. Any attempt by Moore to reach Humphreys after July 2016 would result in the case being barred by the one-year statute of limitations, the medical providers argued. Mt. Carmel and Central Ohio Anesthesia argued that if Humphreys could no longer be sued, they could not be held liable.

Shortly after the medical providers’ request for a judgment in their favor, Moore instructed the court to serve notice of the lawsuit to Humphreys at another address, and the service was successful. However, the trial court dismissal the case with prejudice, barring Moore from continuing to pursue the case.

Moore appealed to the Tenth District. The appeals court treated his second attempt to serve Humphreys as if Moore had voluntarily dismissed his case and refiled the case before the trial court ruled against him. The Tenth District ruled that the savings statute gave Moore the extra time because he filed his original case in 2015 before the statute of limitations ran out.

The medical providers appealed the decision to the Supreme Court. The Tenth District certified that its decision was in conflict with other Ohio appellate court decisions. The Supreme Court agreed to hear the medical providers’ appeal and to resolve the conflict.

The majority opinion explained that the Tenth District improperly allowed the savings statute to apply. R.C. 2305.19(A) states that if a case is commenced, and if the claim fails for a reason other than the merits, then plaintiff may file a new case within a year.

The Court held that the Tenth District mistakenly treated Moore’s second attempt to notify Humphreys as a dismissal of his original case and refiling of the same case under the Court’s 1991 Goolsby v. Anderson Concrete Corp. decision. The Court clarified that Goolsby only applies if the second attempt to notify the defendant occurs before the statute of limitations runs out, not after, as in Moore’s case.

The Court found Moore waited too long. Moore had until July 6, 2016 to serve Humphreys with notice of the lawsuit. Before that deadline, Moore could have dismissed the case and refiled it, which would have granted him another year to serve the doctor under the savings statute. But Moore waited another seven months before instructing the court to serve Humphreys. At that time, the statute of limitations had expired and Moore’s case failed on the merits, the opinion stated. A new case could not be filed, the Court concluded.

The majority incorrectly assumed that failing to commence a case within the statute of limitations automatically bars a case from moving forward, Justice Stewart wrote in her dissent. And Humphreys cannot “have it both ways” by claiming that Moore’s case against him was never commenced while also participating in the case and arguing for a judgment in his favor on the merits of the action.

The dissent explains that although Civ.R. 3(A), statutes of limitations, and the savings statute, are interrelated, each has its own distinct function. Civ.R. 3(A) establishes how a case is commenced, the statute of limitations establishes a deadline for commencement, and the savings statute saves a case from a statute of limitations defense if the case was either commenced, or attempted to be commenced, and failed otherwise than on the merits.

The dissent notes that Moore’s claim against Humphreys was filed within the statute of limitations. The only problem was that Moore failed to serve Humphreys within one year as required by Civ.R. 3(A), which meant he failed to commence his action within the statute of limitations because service was lacking. Still, since Moore had attempted to commence the action, the savings statute could apply if the claim failed otherwise than on the merit, the dissent explained.

The dissent pointed out that Humphreys asked the trial court to dismiss Moore’s action on the basis that Moore failed to serve him and the statute of limitations had passed. According to the dissent, Humphreys could not assert a failure of service defense together with a statute of limitations defense because each defense results in a different outcome.

As the dissent explained, a failure of service defense recognizes that because the defendant has not been served, he is not a party before the court. If that defense was successful, the case would be dismissal without prejudice, which is the same as the case failing otherwise than on the merits. On the other hand, a statute of limitations defense goes to the merits of the action, and in doing so, presumes that the defendant is a party before the court and that the case has been commenced. If the defendant prevailed on a statute of limitations defense, the case would be dismissed with prejudice, which is a failure on the merits.

Since Humphreys claimed the case against him cannot go forward because he was not served, then the trial court should have dismissed the case without prejudice on failure of service grounds without reaching the merits of the claim by ruling on the statute of limitations defense.

In her dissent, Justice Stewart explains that she would view the trial court’s dismissal as a dismissal without prejudice, which would allow Moore to use the savings statute to refile his claim against Humphreys.