• One Lump or Two
  • May 19, 2015 | Author: Jason A. Mosbaugh
  • Law Firm: Weltman, Weinberg & Reis Co., L.P.A. - Cincinnati Office
  • In the Ohio healthcare industry, claims of negligence against nursing homes, residential or long-term care facilities are increasing. However, the time afforded to bring such claims varies. Consider the following hypotheticals:

    No. 1 - Patient John Doe, resides in an Ohio assisted living facility, pays the monthly expense for room, board and other ancillary charges and is afforded assisted living benefits when requested by the staff of the facility operator. He does not have a "plan of care" in effect with the facility. On March 24, 2015, John Doe, requests assistance disembarking from his bed and in the process of doing so suffers a broken leg as a result of alleged negligence of the facility staff.

    No. 2 - Plaintiff Jane Doe, resides in an Ohio residential long-term care facility and is subject to a "plan of care" with the facility. Similarly, on March 24, 2015, Plaintiff Jane Doe, requests assistance disembarking from her bed and too suffers a broken leg as a result of alleged negligence of the facility employees.

    Certainly there are differences between these two hypotheticals, however the most significant is not immediately obvious unless you are aware of the recent amendments to the Ohio Revised Code, notably ORC 2305.113 effective March 23, 2015.

    In hypothetical number 1, the claims of purported Plaintiff John Doe are likely still subject to Ohio's two year general negligence statute of limitations. In hypothetical number 2, the seemingly similar claims of Plaintiff Jane Doe are now likely subject to ORC 2305.113's limited one year medical claims statute of limitations.

    While it is true Ohio has long had a limited one year statute of limitations for medical claims, these typically involved medical mal-practice claims and other claims of medical negligence. Ohio courts have, at best, inconsistently applied the one year medical claims statute to injury negligence claims within residential or long-term care facilities. See Hill v. Wadsworth-Rittman Area Hospital, 185 Ohio App.3d 788; 2009-Ohio-5421; 925 N.E.2d 1012.

    With the amendment and inclusion of industry specific terms of art such as "skilled nursing care, personal care services and plans of care", the Ohio legislature has made it significantly more difficult for plaintiffs to allege that injuries subject to a plan of care occurring in residential or long-term care facilities are governed by the general two year negligent statute of limitation rather than the more restrictive one year statute of limitation for medical claims. The specific amending language in ORC 2305.113 effective March 23, 2015 states in pertinent part:

    (3) "Medical claim" means any claim that is asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residential facility, or against a licensed practical nurse, registered nurse, advanced practice registered nurse, physical therapist, physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of any person. "Medical claim" includes the following:

    (a) Derivative claims for relief that arise from the plan of care, medical diagnosis, or treatment of a person;

    (b) Claims that arise out of the plan of care, medical diagnosis, or treatment of any person and to which either of the following applies;

    (i) The claim results from acts or omissions in providing medical care.

    (ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medical diagnosis, care, or treatment.

    (c) Claims that arise out of the plan of care, medical diagnosis, or treatment of any person and that are brought under section 3721.17 of the Revised Code;

    (d) Claims that arise out of skilled nursing care or personal care services provided in a home pursuant to the plan of care, medical diagnosis, or treatment.

    The addition of the "plan of care" provision likely acts to convert many personal injury claims of patients in care facilities to "medical claims" when the resident is subject to a plan of care.

    In summary, now more than ever, every claim for negligence against a nursing home, residential or long-term care facility should be carefully scrutinized when filed more than one year after the date of its occurrence. Irrespective of how the claims are plead, of injuries which were typically presumed to fall under the Ohio two year negligence statute now may very well be limited to a period of only one year under Ohio’s medical claims statute.