The Supreme Court of Ohio recently addressed an important issue involving parents' lossof- filial-consortium claims. For years plaintiff parents have had to pursue such derivative claims well before their child's personal injury claim accrued at age eighteen, and defendants faced the prospect of litigating the same case twice. The Supreme Court finally ended this situation by holding that "a parent's claim for loss of consortium against a third party for injuries to the parent's minor child is an interest that is 'joint and inseparable' from the child's own claim[…, so] the parent's claim may be tolled during the child's disability." Fehrenbach v. O'Malley, 113 Ohio St.3d 18, 22, 2007-Ohio-971, ¶22.
The Fehrenbach case involved a common factual scenario: parents filed medical malpractice claims against a physician based upon injuries flowing from their daughter's bacterial meningitis. They brought the suit, both individually and on behalf of their minor daughter, more than five years after the alleged malpractice occurred. Pursuant to R.C. 2305.113(A), medical malpractice actions must usually be filed within one year after the cause of action accrues. While a minor's claims are tolled until age eighteen under R.C. 2305.16, that statute does not expressly toll the parents' derivative claim for loss of filial consortium during the child's minority. The trial court dismissed the parents' claim as not timely filed. On appeal, the Fehrenbachs argued that, because their claim arose from the same occurrence and was joint and inseparable from the claims of their daughter, it should also be tolled by R.C. 2305.16. Defendants countered that, as a separate and distinct claim, the parents' consortium claim was time-barred.
The Supreme Court held that the statute of limitations for the parents' claim was tolled during their child's minority. The Court 's analysis focused on the derivative nature of the parents' claim. As a threshold matter, the Court acknowledged that consortium claims are distinct and separate legal claims from that of an injured family member. Nonetheless, such claims are derivative of, and flow from, the exact same occurrence that produced the personal injury suffered by that family member. Thus, while the consortium claim is "separate," it does not exist without the underlying tort claim. Though separate, the two legal claims for relief are factually intertwined.
The Court also emphasized the principles embodied in Rule 19.1 of the Ohio Rules of Civil Procedure to support litigating the underlying personal injury claim and the consortium claim together. The joinder provisions of that Rule are premised on notions of creating judicial economy and minimizing of the risk of inconsistent judgments. Specifically, CIV. R. 19.1(A)(3) mandates joinder where there is "personal injury . . . to a minor and a claim of the parent . . . for loss of consortium . . . if caused by the same wrongful act." Thus, parents must join their consortium claims with the personal injury claims of a minor child. But if the child chooses not to file suit immediately, the parents are forced to litigate their consortium claims separately or else lose them due to a short statute of limitations.
In Fehrenbach, the parents' claims were dismissed because they had not been filed within a year -- which may seem like a good result for defendants. More commonly, however, parents would assert their own claims within the limitations period but would not join the injured minor as a party. Plaintiffs employed this tactic as leverage on defendants to force settlement -- often, before the injuries of the minor were fully manifested or developed. This forced defendants to seek joinder under CIV. R. 19.1(A)(3), arguing that the claims needed to be litigated together to avoid inconsistent judgments and promote judicial economy.
The risk of multiple, inconsistent judgments in this situation is not insignificant. Potentially, the underlying case could be tried twice and reach different results. First, because their consortium claim is derivative in nature, parents cannot recover unless they can prove the underlying personal injury claim of their minor child. Second, the child's own claim is tried later, perhaps many years later. Unless legal doctrines like collateral estoppel and issue preclusion are effectively applied, the defendants could win the first case but, years down the road, lose on the child's claim in front of a different jury.
Fehrenbach eliminates this difficult situation once and for all. The parents' consortium claim is tolled along with the minor's personal injury claim. If the child sues before reaching the age of majority, defendants may join the parents' claim under CIV. R. 19.1(A)(3). The claims of the parents and their child are now tethered together in a single lawsuit based on the same underlying facts. When those claims are tried remains under the exclusive control of plaintiffs. The clock does not begin to run until the child reaches the age of majority, and both claims would normally be filed together or, if not, will be joined upon the defendant's request.