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Fehrenbach v. O'Malley10/21/2005
aims were "separate and distinct." Tara's parents could not recover for their losses unless it was proved that O'Malley had negligently treated Tara, and the statute of limitations for each claim began to run on the same date. The Ohio Rules of Civil Procedure dictate the same result: joinder of the malpractice claim and the parental claim was compulsory.
Therefore, if we were to hold that the tolling provisions did not inure to the benefit of the Fehrenbachs under these circumstances, then Tara would logically lose the benefit of the same provision.
{ } The Ohio Supreme Court in Coleman v. Sandoz Pharmaceuticals Corp. has suggested that the benefit of the R.C. 2305.16 tolling provisions could be limited in an opposite scenario: where a child files a consortium claim separate from an injured parent's claim. In response to a federal district court's certified request for instruction on state law, the Coleman court held that a child's derivative loss-of-consortium claim should be joined with the parent's claim where feasible, presumably at the expense of the tolling provisions. The court stressed the importance of joining the claims to avoid piecemeal litigation and to encourage the settlement of all claims at the same time. In this case, allowing the tolling provisions to inure to the benefit of the Fehrenbachs would allow for the joinder of their claim with the claim on behalf of Tara, but not at the expense of losing the benefit of the tolling provisions for the primary malpractice claim. Since the parental claim was only derivative, it makes sense to allow the Fehrenbachs to follow the lead of Tara's malpractice claim for statute-of-limitations purposes.
{ } We are aware of the policies supporting the enforcement of statutes of limitation such as promoting the prompt prosecution of claims, preventing stale and fraudulent claims, and limiting the burden and anxiety associated with threatened litigation. But those concerns do not weigh heavily here, as the defendants in a lawsuit to remedy a personal injury to a minor were already facing liability due to the primary malpractice claim.
{ } The purpose of the tolling statute is to protect the interests of minors by preserving their right to recover for wrongs inflicted against them. The statute recognizes the difficulty in pursuing a claim based upon an injury to a minor, as many children cannot "recognize or articulate physical problems."
{ } In light of the foregoing, we maintain our position that the tolling provisions of R.C. 2305.16 inure to the benefit of parents pursuing a claim for loss of consortium and medical expenses. We hold that the parental claim in this case was timely where it was filed along with the primary malpractice claim within the time period prescribed for filing the malpractice claim. Accordingly, the fifth assignment of error is sustained.
{ } In conclusion, we sustain the Fehrenbachs' first, third, fourth, and fifth assignments. We reverse the trial court's judgment and remand the case for a new trial both on the malpractice claim and on the parental claim for loss of consortium and medical costs.
Judgment reversed and cause remanded.
PAINTER, P.J., and SUNDERMANN, J., concur.
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