In mid-December of last year, the Ohio General Assembly quietly introduced legislation redefining the definition of medical claim as codified in R.C. 2305.113(E)(3). The change is important because of a growing trend in Ohio, as I mentioned here and here, clarifying that not all claims against nursing homes or hospitals were "medical claims" for the purposes of the one-year statute of limitations and affidavit of merit requirement. Those line of cases will likely not survive the March 23, 2015 enactment of the new statutory language. The Ohio Legislature amended R.C. 2305.113 and changed the definition of a medical claim from any claims arising out of the medical diagnosis, care, or treatment of any person, to "claims that arise out of the plan of care, medical diagnosis, or treatment of any person." Of particular importance, is the move from "care" to "plan of care." This altered language eviscerates a small exception carved out from the previous version.
Before the recent amendment, Ohio courts defined the term "care" to mean "the prevention or alleviation of a physical or mental defect or illness." Browning v. Burt, 66 Ohio St.3d 544, 557, 1993-Ohio-178, 613 N.E.2d 993. The 10th District in particular seized upon that language to create the exception to claims filed against nursing homes predicated upon the patient falling during transport to dining facilities or bathrooms. If the care provided was neither ancillary to nor an inherently necessary part of the prescribed care or treatment, the plaintiff's claim was one for negligence–for which the two-year statute of limitations applied–and no affidavit of merit was required. In redefining the definition of medical claim, through changing the statutory language from "care" to "plan of care," the legislature may have eliminated the narrow exception. A "plan of care" is much broader in scope.
"Plan of care" is more broadly set out in the Ohio Administrative Code and courts may adopt that usage in analyzing the newly minted language. In OAC 3701-17-14, a nursing home is required to provide each patient with a "plan of care," to include providing adequate personal care to keep the patient clean and comfortable, and adequate supervision to prevent falls. According to the administrative code, a plan of care is broader than the term medical care, and incorporates the transportation of patients to such places as treatment areas, bathrooms, and dining facilities. In fact in the typical fall cases, where the facility's lack of supervision caused the fall, the plaintiff generally relies on the plan of care as a basis to demonstrate negligence. For instance, if the plan of care required two assistants to assist the patient to the bathroom and only one was provided, the facility breached the standard of care because they were aware two assistants were necessary. Moving forward, lawyers and plaintiffs must be cognizant that the definition alters the analysis for determining whether the one-year statute of limitations applies to certain medical claims, which before were treated as general claims of negligence. Until courts have the opportunity to review the new language, plaintiffs and their attorneys must make sure to review claims pursuant to the new definition and preserve any claims within one-year of the incident. Waiting may likely result to the claim being time-barred.
