Ohio Supreme Court Revives a Family's Case Against a Doctor Who Moved Away (Kennedy v. Western Reserve Senior Care)

Published December 10, 2024 · Ohio Court Decisions

When a family loses someone after medical care that went wrong, the legal case often takes years. Doctors change jobs, and some move to other states. On November 27, 2024, the Supreme Court of Ohio decided a case about what that move means for a family's claim. The decision helped one family get back into court. But a new law that took effect just weeks earlier will make this kind of protection unavailable in most future cases, and families need to know that.

What happened

The case is Kennedy v. Western Reserve Senior Care, 2024-Ohio-5565. According to the court's opinion, Donald Gerres died in October 2013. The executor of his estate, Claudia Kennedy, filed a medical malpractice and wrongful death case in Portage County in 2014, alleging that substandard care caused his death. She voluntarily dismissed the case in 2019 and refiled it within a year.

The health care providers argued that the refiled case was too late because of Ohio's four-year statute of repose for medical claims, a firm outer time limit measured from the date of the medical care. R.C. 2305.113(C). The Supreme Court had held in December 2023, in Everhart v. Coshocton County Memorial Hospital, 2023-Ohio-4670, that this four-year limit applies to wrongful death claims based on medical care. In Ms. Kennedy's case, the trial court granted a directed verdict for the providers right after opening statements at trial.

On appeal, the family relied on a different statute. Ohio's "tolling statute," R.C. 2305.15(A), says that when a person who could be sued is out of the state, that time is not counted against the deadline for suing them. One of the doctors, Dr. Sataya Acharya, had moved to Pennsylvania after Mr. Gerres's death. The family argued that her time out of Ohio paused the clock on the claim against her.

The Eleventh District Court of Appeals disagreed. It held that applying the tolling statute to a doctor who left Ohio for legitimate work reasons would violate the Commerce Clause of the United States Constitution by burdening interstate commerce.

What the Supreme Court decided

The Supreme Court reversed. Writing for the court, Justice Stewart explained that the tolling statute treats Ohio residents and nonresidents the same, has no protectionist purpose, and does not regulate trade or business. The court held that R.C. 2305.15(A) "does not violate the dormant Commerce Clause" as applied to a physician who left Ohio to practice medicine in another state. It sent the case back to the trial court for further proceedings.

Chief Justice Kennedy concurred in the judgment only. Justice Donnelly dissented, saying he would have dismissed the appeal as improvidently accepted.

For the Gerres family, the decision means the claim against the doctor who moved away is back in the trial court more than ten years after his death. The ruling does not decide whether the care was negligent. It decides only that the doctor's move to another state does not make the tolling statute unconstitutional as applied to her.

The important change: H.B. 179

There is a second part to this story, and it matters more for families going forward. While this case was pending, the General Assembly amended the tolling statute in House Bill 179, effective October 24, 2024. The Supreme Court noted the amendment and analyzed only the older version of the law.

Under the amended statute, the out-of-state tolling rule "does not apply to statutes of repose," and the law specifically lists the four-year medical repose provisions in R.C. 2305.113(C) and (D). R.C. 2305.15(A)(2). In plain terms, a doctor's move out of Ohio no longer extends the four-year outer limit for medical claims under the current statute.

So the Kennedy decision helped one family whose case arose under the old law. Families facing the same situation today should not count on tolling to save a late medical claim.

What this means for families

Medical cases have more than one clock running at once:

• The wrongful death deadline. A wrongful death case generally must be filed within two years after the death. R.C. 2125.02(F)(1). Our deadlines chapter explains the exceptions.
• The four-year medical repose period. Under Everhart, wrongful death claims based on medical care are also subject to the four-year limit in R.C. 2305.113(C), measured from the care itself. If the care happened long before the death, this limit can arrive before the two-year wrongful death deadline does.
• Survival claims. A separate claim for the suffering your loved one experienced before death may have its own timing rules. Our guide chapter on wrongful death and survival claims explains the difference.

Here is what we suggest:

1. Do not wait to ask questions. If you believe medical care contributed to a death, talk with a lawyer as soon as you are able, even if you are not sure there was a mistake.
2. Request records early. Hospital and nursing records take time to obtain and review.
3. Be cautious about dismissing and refiling. A voluntary dismissal can have serious consequences for timing in medical cases, as this family learned.
4. Do not assume a doctor's move helps you. Under the amended statute, it generally will not extend the medical repose period.

We discussed other reasons cases take time in our post on how long a wrongful death case takes. Our page on medical malpractice wrongful death explains how these cases are investigated.