McCarthy v. Abraham, 232 N.E.3d 1272 (2023)
Kathleen and Bretty McCarthy came to Columbus, Ohio area attorney Daniel Abraham, for legal advice in 2019 on possible medical malpractice claims against Dr. Peter Lee and his treatment of Kathleen. Attorney Abraham gave the McCarthy’s what was good advice at the time but was later overturned by the Ohio Supreme Court in Wilson v. Durrani. The Wilson decision changed the statute of limitations law in Ohio, preventing the McCarthy’s claim from going forward. Should Attorney Abraham be held liable for legal malpractice because of this change in the law affecting his past advice?
Facts of the Underlying Medical Malpractice Case
Everyone agrees that the McCarthy’s claims against Dr. Lee arose, at the latest, on April 15, 2015, this being the date of Kathleen’s last exam with Dr. Lee. Their medical claims alleged that Dr. Lee failed to discuss with Kathleen the possibility of colon cancer based on her symptoms and failed to order a colonoscopy for Kathleen.
Two years after this last visit, in April 2017, Kathleen was diagnosed with Stage III colon cancer. Upon learning of her diagnosis, Kathleen quickly secured a 180 day extension to the statute of limitations under Ohio State Law [R.C. 2305.113(B)] and hired Attorney Abraham of Colley Shroyer & Abraham in September 2018. Attorney Abrham commenced the lawsuit against Dr. Lee in October 2018, within the statute of limitations. The complaint alleged medical negligence, loss of consortium, and wrongful death.
The McCarthy’s, through Attorney Abraham, then voluntarily dismissed the claim without prejudice in January 2019. Attorney Abraham contends that this dismissal was based on his failure to secure an Affidavit of Merit from an Expert as required by Ohio Civil Procedure Rules [Civ.R. 10(D)(2)]. Attorney Abraham then sent the McCarthy’s a letter explaining that they had another year, until January 2020, to re-file this complaint. Attorney Abraham also said that he was closing the McCarthy’s file and was taking no further action on the case at the time.
The McCarthy’s followed Attorney Abraham’s advice and re-filed their complaint in January 2020 through different counsel. The case puttered along for the remainder of 2020 but trouble was lurking in the water for the McCarthy’s.
Wilson v. Durrani
In December 2020, while the McCarthy’s case was still pending, the Ohio Supreme Court decided Wilson v. Durani, which held, in part, that claims which had previously failed otherwise than on the merits in a prior action, were precluded from commencement upon the expiration of the statute of repose. Wilson v. Durrani, 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 580.
The court denied a request by McCarthy’s counsel to have the Wilson decision only apply prospectively.
What did this mean for Kathleen and Brett’s claims? Well, as asserted in Dr. Lee’s motion for summary judgment, the Wilson decision prevented the McCarthy’s claims from going forward. These claims had previously been brought in a prior action. In that prior action, the claims failed, otherwise than on the merits – they were voluntarily dismissed by Attorney Abraham. And since the claims had failed, the statute of repose in medical negligence cases had expired. The trial court presiding over the McCarthy’s claims accordingly dismissed the cause of action with prejudice.
The Legal Malpractice Case Against Attorney Abraham
Brett McCarthy, as executor of his mother’s estate brought this case against Attorney Abraham for giving them ‘bad advice’. But Attorney Abraham had not given the McCarthy’s bad advice! The advice about the timing of the McCarthy’s claims was true and correct according to Ohio state law in 2019 when Attorney Abraham was the McCarthy’s counsel.
The Wilson decision changed this law. The Wilson Supreme Court, and the trial court presiding over the McCarthy’s claims, determined that the Wilson decision should be applied retroactively, meaning to cases that arose prior to the Wilson decision was published.
So could Attorney Abraham really be held responsible for giving the McCarthy’s advice that then later changed through no fault of his own? No!
The McCarthy court relied on prior Ohio precedent which held that, “In a legal malpractice action, an attorney’s acts must be governed by the law as it existed at the time of the act.” Howard v. Sweeney, 27 Ohio App.3d 41, 499 N.E.2d 383 (8th Dist.1985). Moreover, “[a]n attorney cannot be held liable for malpractice for lack of knowledge as to the true state of the law where a doubtful or debatable point is involved.” Id. Thus, “[c]ounsel’s failure to predict a subsequent change in a settled point of law cannot serve as a foundation for professional negligence.” Id.
Implications for Other Attorneys
Don’t worry too much about changes to the law affecting prior advice you gave clients. Make sure you are giving advice that is up to date with current law, as is best available to you. If the law later changes, this is not a proper basis for a client to bring a legal malpractice case against you.
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