Ohio parents' med-mal claims now toll the same as their children's.

The Ohio Supreme Court has ruled that the tolling provision of the state's one-year statute of limitations for medical malpractice cases covers not only the claims of minor children but also those of their parents. (Fehrenbach v. O'Malley, 862 N.E.2d 489 (Ohio 2007).)

Tara Fehrenbach of Loveland, now 17, suffers permanent health problems from bacterial meningitis she contracted as an infant in 1990. According to her parents' lawsuit, a doctor's failure to diagnose the infection led to the death of vessels that drained spinal fluid from Tara's brain, requiring the insertion of a shunt to take over the task. The shunt clogs repeatedly, and Tara has needed six hospitalizations over the years for brain surgery.

Her parents, Gina and Thomas, filed a negligence suit for both Tara and themselves in 1997 against her pediatrician, Kathleen O'Malley, and Suburban Pediatric Associates. They allege that O'Malley's failure to diagnose and treat the meningitis led to Tara's problems, and they seek damages for loss of consortium and medical expenses.

John Metz of Cincinnati, who represents the Fehrenbachs, said his clients could not have known in the first year after the infection occurred that the doctor's negligence had caused their daughter's complications and could not have appreciated the emotional toll of living with the constant fear that the shunt could clog, with fatal results for Tara.

It's unfair "to require the parents to file their claims first--usually within one year of medical negligence--[when] clearly the majority of damages could not have occurred [yet]," Metz said. "In most cases, the statute of limitations should include the entire period of their child's minority."

The tolling provision reads, "When the interests of two or more parties are joint and inseparable, the disability of one shall inure to the benefit of all." Metz said he has argued for decades in other cases that the "parents' claim for their loss of consortium is 'joint and inseparable' [from the child's] and their time to file should be tolled as is their child's."

The defendants agreed that Tara's claim was tolled but moved for summary judgment against the parents, arguing that Ohio law makes loss of consortium a separate and distinct claim subject to the one-year statute of limitations. The trial court granted summary judgment, but a district court of appeals reversed, holding that the Fehrenbachs' claims were derived from their daughter's, making the tolling provision applicable.

The Ohio Supreme Court agreed and ruled that a parent's claim for loss of consortium against a third party for injuries to a minor child is an interest that is joint and inseparable from the child's own claim.

Writing for the unanimous court, Chief Justice Thomas Moyer said that filing loss-of-consortium and personal injury claims at the same time would also promote "judicial economy" and limit the chance of conflicting outcomes in separate cases arising out of the same incident.

"Requiring the Fehrenbachs to litigate their loss-of-consortium claim within one year of their injury and allowing Tara many years to bring her claim subjects the defendants to multiple lawsuits and potentially conflicting and inconsistent results. By allowing the statute of limitations on the parents' claim to be tolled during the child's infancy, piecemeal litigation and its inherent problems can be avoided," he wrote.

Attorney Metz said the Fehrenbachs' case is significant because "it finally provides the proper avenue to fairly compensate parents of children who are injured by wrongdoers."

"Hopefully the Ohio Supreme Court's practical approach to these claims will convince other courts to look at their own laws in this area, or [it] may convince the state legislatures to make law that provides parents with fairness," he added.