[Cite as Ewing v. UC Health,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

TONI EWING, Individually and as : APPEAL NO. C-210390 Executrix of the Estate of Shirley TRIAL NO. A-1801959 Ewing, and as Personal Representative : of her Next of Kin and Beneficiares, O P I N I O N. Plaintiff-Appellant, :

vs. :

UC HEALTH, :

and :

UNIVERSITY OF CINCINNATI : MEDICAL CENTER, LLC,

Defendants-Appellees, :

and :

JOHN AND/OR JANE DOE #1, et al., :

Defendants. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: July 27, 2022

Marlene Penny Manes, for Plaintiff-Appellant,

Frost Brown Todd, LLC, Bill J. Paliobeis and Douglas R. Dennis, for Defendants- Appellees. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Plaintiff-appellant Toni Ewing (“Ewing”), individually and as executrix

of the estate of Shirley Ewing and as personal representative of her next of kin and

beneficiaries, appeals the judgment of the Hamilton County Court of Common Pleas,

which granted the motion for judgment on the pleadings of defendants-appellees UC

Health and University of Cincinnati Medical Center, LLC, (collectively “defendants”).

For the following reasons, we affirm the judgment of the trial court in part and reverse

the judgment of the trial court in part and remand the cause for further proceedings

consistent with this opinion and the law.

Factual and Procedural History

{¶2} On April 16, 2018, Ewing, the adult daughter of Shirley Ewing, filed a

complaint against defendants, among others, alleging three causes of action: a

survivorship claim, a wrongful-death claim, and an “emotional harm” claim. The

complaint asserted that the action was filed within 180 days of the written notice given

to defendants pursuant to R.C. 2305.113, and asserted that the action was voluntarily

dismissed in the case numbered A-1504406 on April 17, 2017, and was being refiled in

the current action within one year of such dismissal. The claims were based on events

alleged to have occurred during Shirley Ewing’s inpatient stay at the University of

Cincinnati Medical Center from February 18, 2014, to March 22, 2014. The complaint

alleged:

there were deviations from accepted standards of care which

resulted in harm and compensable damages to Shirley Ewing, in

amounts later to be determined, including but not limited to a fracture

of her leg, failure to timely recognize said fracture, surgery, placement

of a rod and pins, additional pain, suffering, mental anguish, emotional

2 OHIO FIRST DISTRICT COURT OF APPEALS

distress, additional expenses, * * * and shortening of life expectancy * *

*.

{¶3} The complaint further asserted that Shirley passed away on March 25,

2014, and contended that her death was accelerated and wrongful as a result of such

deviations in care. The “emotional harm” claim was brought by Ewing in her

individual capacity and alleged that Ewing suffered “emotional harm” as the result of

being the one who discovered her mother’s broken leg and “other damages” during the

hospitalization.

{¶4} Defendants filed a motion for judgment on the pleadings on May 8,

2019, arguing that Ewing’s complaint was barred by the medical-claim statute of

repose set forth in R.C. 2305.113(C). Defendants also subsequently asserted that the

wrongful-death and emotional-harm claims failed as a matter of law. After responsive

briefing between the parties and delays from awaiting the Ohio Supreme Court’s

decision in Wilson v. Durrani,

,

,

,

the trial court granted the defendants’ motion for judgment on the pleadings on June

22, 2021, and dismissed Ewing’s complaint in its entirety. In doing so, the trial court

found that both the survivorship claim and the wrongful-death claim were “medical

claims” under R.C. 2305.113(E) and were thus barred by the medical-claim statute of

repose as the complaint was not filed until April of 2018. Additionally, the trial court

found that the “emotional harm” claim, interpreted to be a claim for negligent

infliction of emotional distress, failed as a matter of law.

{¶5} Ewing timely filed a notice of appeal on July 20, 2021. She now raises a

single assignment of error for our review, arguing that the trial court erred in granting

defendants’ motion for judgment on the pleadings and dismissing all her claims.

Law and Analysis

3 OHIO FIRST DISTRICT COURT OF APPEALS

Standard of Review

{¶6} “Appellate review of a judgment on the pleadings involves only

questions of law and is therefore de novo.” New Riegel Local School Dist. Bd. of Edn.

v. Buehrer Group Architecture & Eng., Inc.,

,

,

, ¶ 8, citing Rayess v. Educational Comm. for Foreign Med. Graduates,

,

,

. “Dismissal is appropriate

under Civ.R. 12(C) when a court construes as true all material allegations in the

complaint, along with all reasonable inferences to be drawn therefrom, and finds,

beyond doubt, that the plaintiff can prove no set of facts that would entitle him to

relief.”

citing State ex rel. Midwest Pride IV, Inc. v. Pontious,

,

(1996). “Similarly, questions of statutory construction constitute

legal issues that we decide de novo.”

citing New York Frozen Foods, Inc. v.

Bedford Hts. Income Tax Bd. of Rev.,

,

,

, ¶ 8.

“Emotional Harm” Claim

{¶7} “[A] cause of action for the negligent infliction of serious emotional

distress may be stated where the plaintiff-bystander reasonably appreciated the peril

which took place, whether or not the victim suffered actual physical harm, and, * * *

as a result of this cognizance or fear of peril, the plaintiff suffered serious emotional

distress.” Paugh v. Hanks,

,

(1983), paragraph four of

the syllabus. The element of “seriousness” is a necessary component required for a

plaintiff-bystander to sufficiently state a claim for relief when the plaintiff did not

suffer a contemporaneous physical injury.

; see Binns v. Fredendall,

,

(1987). “Serious” emotional distress must be “beyond

trifling mental disturbance” or “mere upset or hurt feelings.”

. It must be

4 OHIO FIRST DISTRICT COURT OF APPEALS

“emotional injury which is both severe and debilitating.”

“Thus, serious emotional

distress may be found where a reasonable person, normally constituted, would be

unable to cope adequately with the mental distress engendered by the circumstances

of the case.”

“A court may decide whether a plaintiff-bystander has stated a cause

of action by ruling on whether the emotional distress alleged is serious as a matter of

law.”

{¶8} Here, Ewing’s claim merely alleges “emotional harm.” Emotional harm

is insufficient to establish severe and debilitating emotional distress. Thus, the

allegations in the complaint fail as a matter of law to assert the level of harm required

to sustain a cause of action for negligent infliction of serious emotional distress.

Therefore, the trial court properly granted judgment in favor of defendants and

dismissed this claim. Accordingly, we overrule this part of the assignment of error as

to this cause of action.

Survivorship Claim

{¶9} Ewing does not contest that her survivorship claim is a “medical claim”

under R.C. 2305.113(E). Instead, she argues that the trial court erred by

“retroactively” applying R.C. 2305.113(C), the medical-claim statute of repose, to

refiled cases and failing to recognize that savings statutes convey vested rights to

plaintiffs to refile their claims, which cannot constitutionally be extinguished by such

retroactive application.

{¶10} Section I, Article 16 of the Ohio Constitution provides, “All courts shall

be open, and every person, for any injury done him in his land, goods, person, or

reputation, shall have remedy by due course of law, and shall have justice administered

without denial or delay.” Ohio Constitution, Article I, Section 16. “A plain reading of

Article 1, Section 16 reveals that it does not provide for remedies without limitation or

5 OHIO FIRST DISTRICT COURT OF APPEALS

for any perceived injury.” Ruther v. Kaiser,

,

,

. “Rather, the right-to-remedy clause provides that the court shall be

open for those to seek remedy ‘by due course of law.” (Emphasis sic.)

“Article 1,

Section 16 does not prevent the General Assembly from defining a cause of action.”

{¶11} Thus, the Ohio Supreme Court has determined that “a party need not be

granted an unlimited amount of time to bring a vested cause of action, but must receive

only a ‘reasonable’ amount of time in order for a law to pass constitutional muster.”

(Citations omitted.) Antoon v. Cleveland Clinic Found.,

, 2016-

Ohio-7432,

. Further, the Ohio Supreme Court held that the statute

of repose, “in compliance with the right-to-remedy clause, does not ‘completely

foreclose a cause of action for injured plaintiffs or otherwise eliminate their ability to

receive a meaningful remedy.’ ” Id. at ¶ 29, quoting Flagstar Bank, F.S.B. v. Airline

Union’s Mtge. Co.,

,

,

, ¶ 29.

Accordingly, it held that the medical-claim statute of repose is constitutional “both

when it extinguishes a vested and a nonvested cause of action.”

Thus, the statute

of repose is a “true statute of repose that applies to both vested and nonvested claims.”

Id. at ¶ 35; see Wilson,

,

,

.

Therefore, even if Ewing had a vested right under the saving statute as she asserts, it

was not unconstitutional for her claim to be extinguished by the statute of repose as

she was provided with a reasonable amount of time within which to bring her claim.

{¶12} Because R.C. 2305.113—which relocated the medical-claim statute of

repose from R.C. 2305.11(B)—was enacted in 2002, well before the hospitalization in

question and well before Ewing brought her claims, we interpret Ewing’s retroactive

application argument to be that the Ohio Supreme Court’s decision in Wilson should

not be applied retroactively. However, it is a well-settled principle in Ohio that “ ‘[i]n

6 OHIO FIRST DISTRICT COURT OF APPEALS

the absence of a specific provision in a decision declaring its application to be

prospective only, the decision shall be applied retroactively as well.’ ” Martin v.

Taylor, 11th Dist. Lake No. 2021-L-046,

, citing State ex rel.

Bosch v. Indus. Comm. of Ohio,

,

(1982). The Ohio

Supreme Court did not announce prospective-only application in Wilson. Id.; see

Wilson. In fact, “it specifically denied a request for prospective-only application when

it ruled on the motion for reconsideration of [Wilson].”

citing Wilson v. Durrani,

,

,

(granting motion for

reconsideration in part and denying request that decision be applied prospectively

only). Therefore, we find no error in the trial court’s application of the statute of

repose to bar this claim. Accordingly, we overrule this part of the assignment of error

as to this cause of action.

Wrongful-Death Claim

{¶13} “[W] hen a person is injured by the tortious conduct of another and the

person later dies from the injury, two claims arise.” Thompson v. Wing,

,

(1994). “The first is a claim for malpractice or personal injury,

enforced either by the injured person herself or her representative in a survival action.”

“The second is a wrongful death [sic] claim, enforced by the decedent’s personal

representative on behalf of the decedent’s beneficiaries.”

Although prosecuted by

the same personal representative, the two actions are not derivative of the same right

and are instead two separate and independent causes of action.

; Klema

v. St. Elizabeth’s Hosp.,

, 521,

(1960); Koler v. St.

Joseph Hosp.,

,

(1982). The cause of action

held by the injured party is “ ‘confined to his [or her] personal loss and suffering before

he [or she] died.’ ”

, quoting St. Louis, Iron Mountain & S. Ry. Co. v.

7 OHIO FIRST DISTRICT COURT OF APPEALS

Craft,

,

,

(1915). Whereas the cause of

action held by decedent’s beneficiaries is “ ‘confined to their pecuniary loss

through his [or her] death.’ ”

“ ‘One begins where the other ends, and a

recovery upon both in the same action is not a double recovery for a single wrong but

a single recovery for a double wrong.’ ” (Emphasis added.)

Because each action is

separate and independent from the other, the right to bring a wrongful-death action is

not dependent on the existence of a separate cause of action held by the injured person

prior to his or her death.

;

. A wrongful-death action

requires only that the decedent “at one time” had a cause of action against the

defendant.

{¶14} A wrongful-death action is a special statutory action which did not exist

at common law.

. R.C. 2125.01 establishes a wrongful-death claim in

Ohio. Peters v. Columbus Steel Castings Co.,

,

,

. It provides, “When the death of a person is caused by wrongful

act, neglect, or default which would have entitled the party injured to maintain an

action and recover damages if death had not ensued, the person who would have been

liable if death had not ensued * * * shall be liable in an action for damages.” R.C.

2125.01. Pursuant to R.C. 2125.02(D):

(1) Except as provided in division (D)(2) of this section, a civil

action for wrongful death shall be commenced within two years after the

decedent’s death.

(2)

(a) Except as provided in divisions (D)(2)(b), (c), (d), (e), (f), and

(g) of this section or in section 2125.04 of the Revised Code, no

8 OHIO FIRST DISTRICT COURT OF APPEALS

cause of action for wrongful death involving a product liability

claim shall accrue against the manufacturer or supplier of a

product later than ten years from the date that the product was

delivered to its first purchaser or first lessee who was not

engaged in a business in which the product was used as a

component in the production, construction, creation, assembly,

or rebuilding of another product.

(Emphasis added.)

{¶15} Divisions (D)(2)(b), (c), (d), (e), (f), and (g) provide exceptions to the

products-liability statute of repose set forth in R.C. 2125.02(D)(2)(a), and R.C.

2125.04 provides a saving statute for wrongful-death actions, which allows the actions

to be refiled when certain situations occur. Thus, R.C. 2305.02(D) expressly provides

only one exception to the commencement period provided in R.C. 2305.02(D)(1) for

wrongful-death claims and that exception is only applicable to wrongful-death claims

related to products liability.

{¶16} Here, the trial court found that Ewing’s wrongful-death claim was

additionally subject to the medical-claim statute of repose contained in R.C.

2305.113(C). Ewing argues that this was in error as her wrongful-death claim was not

subject to the medical-claim statute of repose.

{¶17} R.C. 2305.113 establishes, among other things, the periods of limitation

for a “medical claim,” which is defined as:

[A]ny 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

9 OHIO FIRST DISTRICT COURT OF APPEALS

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.

R.C. 2305.113(E)(3). R.C. 2305.113(A) provides a one-year statute of limitation for

medical claims and R.C. 2305.113(C) provides a four-year statute of repose for medical

claims.

{¶18} While the Ohio Supreme has made it clear that wrongful-death claims

are separate and distinct causes of action from medical-malpractice claims—meaning

that one is not interdependent upon the other to survive, and a wrongful-death claim

begins where a medical-malpractice claim ends—this is not determinative of whether

the wrongful-death claim is subject to the statute of repose under R.C. 2305.113(C).

See generally Lombard v. Good Samaritan Med. Ctr.,

,

(1982) (recognizing that the common-law definition of malpractice is

distinguishable from the definition of a medical claim);1 Couch v. Durrani, 1st Dist.

Hamilton Nos. C-190703, 190704, C-190705, C-190706 and C-190707, 2021-Ohio-

726, ¶ 9-19, appeal not accepted,

,

,

(recognizing that a cause of action independent from that of medical malpractice

may still constitute a medical claim).

{¶19} We begin by looking to the statutory language and its plain meaning.

See, e.g., In re P.R., 1st Dist. Hamilton Nos. C-180166 and C-180167,

, citing In re J.F.,

,

(1st Dist.). In doing so, we

1We note that this case was decided based upon the former definition of a medical claim under R.C. 2305.11. The definition of a medical claim has since been expanded and relocated to R.C. 2305.113(E).

10 OHIO FIRST DISTRICT COURT OF APPEALS

should not look solely to the plain language of R.C. 2305.113 as we cannot ignore R.C.

Chapter 2125, which governs wrongful-death claims. In determining that the medical-

claim statute of repose applied, the trial court relied on its determination that this

wrongful-death claim was also a medical claim. We hold that whether this wrongful-

death claim meets the definition of a medical claim under R.C. 2305.113(E) is not

dispositive of the issue before us. The question presented by this appeal is one

concerning the interplay between the two statutes when a wrongful-death claim is

related to the medical diagnosis, care, or treatment of the decedent. In other words,

we are asked to decide whether, despite the clear and unambiguous language of R.C.

2125.02(D)(1), the medical-claim statute of repose in R.C. 2305.113(C) further limits

the time for commencing a wrongful-death claim where such claim arises from the

diagnosis, care, or treatment of the decedent.

{¶20} This issue is one that has recently been addressed in several other

districts and has created a conflict among those districts. The Tenth and Sixth

Districts have both recently held that a wrongful-death claim related to the medical

diagnosis, care, or treatment of a decedent was not subject to the medical-claim statute

of repose contained in R.C. 2305.113(C). See Everhart v. Coshocton Cty. Mem. Hosp.,

10th Dist. Franklin No. 21AP-74,

, appeal accepted, ___ Ohio

St.3d ___,

, ___ N.E.3d ___; Davis v. Mercy St. Vincent Med. Ctr.,

6th Dist. Lucas No. L-21-1095,

; see also Daniel v. United States,

(N.D.Ohio 2013). In doing so, both courts focused on the statutory

language of R.C. 2125.02(D). See

;

.

{¶21} Conversely, the Third, Fifth, and Eleventh Districts have held that a

wrongful-death claim related to the medical care, diagnosis or treatment of the

decedent was subject to the medical-claim statute of repose. See Smith v. Wyandot

11 OHIO FIRST DISTRICT COURT OF APPEALS

Mem. Hosp.,

,

(3d Dist.), appeal not accepted,

,

,

; Mercer v. Keane, 2021-Ohio-

1576,

(5th Dist.), appeal not accepted,

,

,

; Martin, 11th Dist. Lake No. 2021-L-046, 2021-

Ohio-4614, at ¶ 46, citing Wilson v. Mercy Health, 11th Dist. Trumbull No. 2021-T-

0004,

.

{¶22} Mercer, however, did not directly address the issue currently before this

court. In Mercer, the medical-malpractice action was initially filed in 2016 before the

decedent’s death. Id. at ¶ 2, 4. The executor of the decedent’s estate then filed an

amended complaint in 2020 after the decedent passed away, which was beyond the

repose period. Id. at ¶ 4-7. The only issue presented to the court was whether the

wrongful-death action related back to the malpractice action, thereby making the

action timely filed under the statute of repose. Id. at ¶ 36-38. Thus, there was no

argument presented to the court that the wrongful-death claim was not subject to the

medical-claim statute of repose and the court did not directly consider the issue.

{¶23} On the other hand, Smith and Martin both directly held that wrongful-

death claims arising from the medical diagnosis, care, or treatment of a decedent were

subject to the medical-claim statute of repose.

;

. Both

courts acknowledged that wrongful-death claims were subject to their own statute of

limitations outside of R.C. 2305.113(A) but still found that the claims were subject to

the medical-claim statute of repose based on the language of R.C. 2305.113.

;

. In doing so, each court’s focus was the fact that the claims met

the definition of a medical claim.

;

.

{¶24} We recognize that, when looking to the plain language of R.C.

2305.113(E)(3) and the broad definition of medical claim, a wrongful-death claim

12 OHIO FIRST DISTRICT COURT OF APPEALS

which is related to the medical diagnosis, care or treatment of the decedent seems to

fit into the definition of a medical claim, depending on the underlying allegations.

Notably, the definition of a medical claim is not limited to only those claims brought

by the person receiving treatment. See R.C. 2305.113(E)(3). A medical claim is any

claim against any of the listed persons that arises out of the medical diagnosis, care,

or treatment of any person.

The Ohio Supreme Court has found this language to

be plain and unambiguous and advised that we must give full meaning to all the

express statutory language. Estate of Stevic v. Bio-Med. Application of Ohio, Inc.,

,

,

.

{¶25} In fact, we note the 2018 enactment of R.C. 2323.451, which implies that

a wrongful-death claim could constitute a medical claim for the purpose of requiring

an affidavit of merit. R.C. 2323.451 discusses the requirement of Civ.R. 10(D) that an

affidavit of merit be filed with any complaint that asserts a medical claim and provides

an extension of time for plaintiffs to add new medical claims or new defendants after

the complaint is filed and after discovery is conducted if certain conditions are met.

See R.C. 2323.451. The provision relevant to our purposes here, R.C. 2323.451(E),

provides:

Subject to division (F) of this section, after expiration of the one-

hundred-eighty-day period described in division (D)(2) of this section,

the plaintiff shall not join any additional medical claim or defendant to

the action unless the medical claim is for wrongful death, and

the period of limitation for the claim under R.C. 2125.02 of

the Revised Code has not expired.

(Emphasis added.)

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶26} We also note that R.C. 2323.43, the statute which relates solely to

medical claims and provides damage limitations for medical claims, specifically

provides an exemption from those limitations for wrongful-death actions. See R.C.

2323.43(G)(3). Both statutes seem to indicate that a wrongful-death claim could meet

the definition of a “medical claim.” However, as already noted above, we cannot look

solely to the language of R.C. 2305.113 when deciding the issue before us due to the

nature of this claim.

{¶27} The Ohio Supreme Court has already held that where the medical-

malpractice claim ends, the wrongful-death claim begins. Klema, 170 Ohio St. at 521,

, quoting Craft,

,

,

. We agree

because, regardless of any underlying malpractice, there is no cause of action for

wrongful death until the death of the decedent. The trigger for the cause of action is

the death of the patient. Thus, in addressing the issue before us, we must begin by

looking to the express statutory language of R.C. Chapter 2125, which creates and

governs a wrongful-death claim, to see what the legislature has determined regarding

the period of limitation for commencing a wrongful-death cause of action. The express

language of R.C. 2125.02(D) provides that a cause of action for wrongful death shall

be commenced within two years after the decedent’s death, except as provided in

division (D)(2) of the statute. This action is for wrongful death. The language is clear

and unambiguous. Division (D)(2) then provides that, with certain other exceptions

listed in the statute, no cause of action for wrongful death involving a product-liability

claim shall accrue against a manufacturer or supplier later than ten years from the

date the product was delivered. R.C. 2125.02(D)(2). Thus, the General Assembly

clearly provided only one exception to the period of limitation set forth in R.C. 2125.02

(D)(1) and that exception is only for wrongful-death claims related to products

14 OHIO FIRST DISTRICT COURT OF APPEALS

liability. The General Assembly provided such an exception even though products-

liability claims are generally subject to their own statute of repose in R.C.

2305.10(C)(1). The General Assembly provided no similar exception in R.C.

2125.02(D) for claims related to the medical diagnosis, care, or treatment of the

decedent. Therefore, when looking to the plain language of R.C. 2125.02(D),

wrongful-death claims would not be subject to an exception for the medical-claim

statute of repose.

{¶28} Additionally, if we go beyond the plain meaning of the statutory

language, we find that R.C. 2305.131(A)(1) and 2305.101(A), two statutes outside of

R.C. 2125.02 that provide additional exceptions to the wrongful-death period of

limitation, expressly state that the exceptions exist “notwithstanding” R.C. 2125.02.

See R.C. 2305.131 (providing that no cause of action to recover damages for bodily

injury, injury to real or personal property, or wrongful death which arises out of a

defective and unsafe condition of an improvement to real property shall accrue against

certain persons later than ten years from the date of substantial completion of the

improvement); R.C. 2305.101 (providing that a claimant who has alleged bodily injury

or wrongful death caused by the effects of the Dalkon Shield intrauterine device and

who has filed a claim in the relevant court in the eastern district of Virginia may bring

an action in Ohio against the Dalkon Sheild Claimants Trust within one year of

certification by the Virginia court providing that the claimant may proceed to litigation

or arbitration, or within six months of the effective date of R.C. 2305.101, whichever

is later). No similar language was provided in R.C. 2305.113 which would allow the

medical-claim statute of repose to apply notwithstanding R.C. 2125.02.

{¶29} The pertinent “notwithstanding” language from R.C. 2305.131(A)(1)

and the pertinent “except as provided” language from R.C. 2125.02(D)(1) was added

15 OHIO FIRST DISTRICT COURT OF APPEALS

within the same bill where the General Assembly enacted the statute of repose in R.C.

2305.10(C)(1) for a cause of action based on a products-liability claim and added the

express exception to the period of limitation for a wrongful-death claim in R.C.

2125.02(D)(2) for a claim based on products liability. 2004 Am.Sub.S.B. No. 80, 150

Ohio Laws, Part V. Significantly, although the General Assembly also enacted

revisions to R.C. 2305.113 within that same bill, no additions were added to either R.C.

2305.113 or 2125.02 to reference the other.

{¶30} “The ‘General Assembly’s use of particular language to modify one part

of a statute but not another part demonstrates that the General Assembly knows how

to make that modification and has chosen not to make that modification in the latter

part of the statute.’ ” Wilson,

,

,

, quoting Hulsmeyer v. Hospice of Southwest Ohio, Inc.,

,

,

. Additionally, “ ‘[t]he General Assembly, in

enacting a statute, is assumed to have been aware of other statutory provisions

concerning the subject matter of the enactment even if they are found in separate

sections of the Code.’ ”

, quoting Meeks v. Papadopulos,

,

(1980). Finally, “if the General Assembly could

have used a particular word in a statute but did not, we will not add that word by

judicial fiat.”

citing In re Application of Columbus S. Power Co.,

,

,

.

{¶31} Because the General Assembly did not provide an exception to the

period of limitation in R.C. 2125.02(D)(1) for wrongful-death claims arising from the

medical diagnosis, care or treatment of the decedent, these claims would not be subject

to the medical-claim statute of repose. Any other interpretation would require us to

ignore the plain language of R.C. 2125.02(D). Therefore, we hold that the wrongful-

16 OHIO FIRST DISTRICT COURT OF APPEALS

death claim is governed solely by the period of limitation expressly set forth by the

legislature in R.C. 2125.02(D) and is not subject to the medical-claim statute of repose

in R.C. 2305.113(C). Accordingly, it was improper for the trial court to dismiss Ewing’s

wrongful-death claim based on the medical-claim statute of repose. So long as Ewing’s

claim was brought within the applicable two-year period of limitation found in R.C.

2125.02(D), the saving statute would be applicable to save this claim. This part of the

assignment of error is sustained.

Conclusion

{¶32} For the foregoing reasons, we overrule the assignment of error in part

as to the emotional-harm claim and the survivorship claim but sustain the assignment

of error in part as to the wrongful-death claim. We remand the cause for further

proceedings consistent with this opinion and the law.

Judgment affirmed in part and reversed in part, and cause remanded.

BERGERON and BOCK, JJ., concur.

Please note:

The court has recorded its own entry this date.

17