Stephenson v. Durrani

• Docket Number: C-220020,C-220036
• Decision Date: 21 July 2023
• Citation: 2023 Ohio 2500
• Parties: PATRICK STEPHENSON, Plaintiff-Appellee/Cross-Appellant, v. ABUBAKAR ATIQ DURRANI, M.D., and CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., Defendants-Appellants/Cross-Appellees.
• Court: Ohio Court of Appeals

1

2023-Ohio-2500

PATRICK STEPHENSON, Plaintiff-Appellee/Cross-Appellant, v. ABUBAKAR ATIQ DURRANI, M.D., and CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., Defendants-Appellants/Cross-Appellees.

Nos. C-220020, C-220036

Court of Appeals of Ohio, First District, Hamilton

July 21, 2023

Civil Appeals From: Hamilton County Court of Common Pleas Trial No A-1706544

Judgment Appealed From Is: Reversed and Cause Remanded

Robert A. Winter, Jr., James F. Maus and Benjamin M. Maraan, II, for Plaintiff-Appellee/Cross-Appellant,

Taft Stettinius & Hollister LLP, Russell S. Sayre, Aaron M Herzig, Philip D. Williamson, Anna M. Greve, David C. Roper Lindhorst & Dreidame Co., L.P.A., Michael F. Lyon, James F. Brockman and Paul J. Vollman for Defendants-Appellants/Cross-Appellees.

OPINION

BERGERON, JUDGE.

{¶1} This medical malpractice case brought by plaintiff-appellee/cross-appellant Patrick Stephenson involves allegations of medical negligence relating to four separate back surgeries performed by Dr. Abubakar Durrani. Mr. Stephenson subsequently filed suit against defendants-appellants/cross-appellees Dr. Durrani and the Center for Advanced Spine Technologies, Inc., ("CAST") (collectively, "Defendants"), along with other defendants not parties to this appeal. The case proceeded to a jury trial, which returned verdicts in favor of Mr. Stephenson, concluding that Dr. Durrani was negligent in his care and treatment, failed to acquire informed consent, committed battery, and made fraudulent misrepresentations to Mr. Stephenson. Our review of the trial record demonstrates that the trial court abused its discretion in various evidentiary and trial-related rulings that, when viewed collectively, we cannot consider harmless. We accordingly must reverse the judgment and remand this matter for a new trial.

I.

{¶2} Ejected from a car in an automobile accident at 12 years old, Mr. Stephenson (now approximately 54) has suffered lingering back pain ever since-in addition to lower back pain, he experienced pain across his buttocks, the middle of his back, up his shoulder and neck, and numbness and tingling down his legs and into his toes. In March 2010, after his pain became next to unbearable-he characterized his lower back pain close to a 10 on a 10-point scale-one of his doctors referred him to Dr. Durrani. During this referral meeting, Dr. Durrani assured Mr. Stephenson that he would "fix" him, insisting that he needed to undergo various surgeries, including a cervical neck surgery, otherwise his head would "come off in a car accident. Mr. Stephenson, with an EMT background, initially dismissed Dr. Durrani's statement as nonsense. But Dr. Durrani doubled down, emphasizing, "if you're in an accident[,] you're going to end up with a broken neck and you're going to end up paralyzed."

{¶3} After this admonition, Mr. Stephenson agreed to Dr. Durrani's treatment plan. Dr. Durrani performed an initial surgery in August 2010 at West Chester Hospital-an L4-L5, L5-S1 AxiaLif surgery-which apparently eliminated the numbness and tingling in his legs, and the pain down his buttocks. However, the pain in his lower back remained, and he claims that the surgery caused him to suffer new pain in his mid-back and pain in his ribs. As a result, in March 2011, Dr. Durrani performed a second surgery at West Chester Hospital-a C5-C6 fusion-that apparently relieved his arm and shoulder pain and relieved a pinched nerve.

{¶4} In May 2011, Dr. Durrani performed a third surgery-a T7-T10 instrumental fusion. Mr. Stephenson claims that after this surgery, he began to experience new pain on his right side that he had never before encountered. He began to suffer from new and different back pain as well. To address these issues, Dr. Durrani performed a final fourth surgery in November 2012 on Mr. Stephenson-a foraminotomy and hemilaminectomy from C5-C7. Although this surgery apparently resolved his mid-back pain, Mr. Stephenson is presently unable to work and cannot walk, and he believes that each surgery performed by Dr. Durrani was medically unnecessary, improperly performed, and lacked his informed consent.

{¶5} Mr. Stephenson initially brought his lawsuit with other former patients of Dr. Durrani in August 2016. After the court severed his case from the others, and after he settled with other defendants, Mr. Stephenson pursued claims against Dr. Durrani for negligence, battery, lack of informed consent, intentional infliction of emotional distress, fraud, and spoliation of evidence. Against CAST, Mr. Stephenson asserted claims for vicarious liability, negligent hiring, retention and supervision, spoliation of evidence, fraud, and violation of the Ohio Consumer Sales Practices Act.

{¶6} A jury trial for this case began in February 2020. After a week and a half long trial, the jury found Dr. Durrani and CAST acted with actual malice or aggravated or egregious fraud towards Mr. Stephenson, were negligent in their care and treatment of him, failed to acquire his informed consent, committed battery against him, and fraudulently misled him. The jury awarded Mr. Stephenson $820,014 in total damages, including $262,509 for past medical expenses, $525,018 in punitive damages, and attorney's fees. The trial court reduced the punitive damages to $350,000, pursuant to R.C. 2315.21(D)(2)(b), and applied a set-off of $87,378, reflecting the settlement that Mr. Stephenson received from the other defendants, lowering his damages award to $732,635. The trial court also granted prejudgment interest in the amount of $65,540 upon finding that Defendants failed to undertake a good faith effort to settle the case. This appeal and cross-appeal followed shortly thereafter.

II.

{¶7} In their first assignment of error, Defendants insist that Mr. Stephenson's claims related to the first three surgeries are time-barred. Generally, in Ohio, medical malpractice claims are subject to a four-year statute of repose. R.C. 2503.113(C); Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, ¶ 13. Mr. Stephenson's surgeries took place in August 2010, March 28, 2011, May 4, 2011, and November 7, 2012, and he commenced this action on August 15, 2016, more than four years after the first three surgeries.

{¶8} Defendants acknowledge, as they must, that Mr. Stephenson's claims against Dr. Durrani are tolled based on the absent defendant statute because he fled to Pakistan in 2013. See Elliot v. Durrani, 2021-Ohio-3055, 178 N.E.3d 977, ¶ 43 (1st Dist.) ("Because Durrani fled the country in December 2013, less than four years after [plaintiff's] surgery, the statute of repose is tolled and does not bar [plaintiff's] claims against Durrani."), aff'd, Slip Opinion No. 2022-Ohio-4190, ¶ 25. See also R.C. 2305.15(A) ("When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action * * * does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person's absence or concealment shall not be computed as any part of a period within which the action must be brought."). Since the absent defendant statute applies to the claims against Dr. Durrani based on the Supreme Court's ruling in Elliot, these claims are therefore not time-barred pursuant to R.C. 2305.15(A). We accordingly reject Defendants' statute of repose argument with respect to Dr. Durrani.

{¶9} The analysis differs, however, regarding the claims against CAST. In Elliot, we specifically held, based on our interpretation of the plain language of the absent defendant statute, "[T]he tolling provision in R.C. 2305.15(A) applies only to claims against Durrani and not to claims against CAST." Elliot at ¶ 50. Mr. Stephenson tries to circumvent this holding in two ways.

{¶10} First, he argues waiver, claiming that Defendants only broached this point in their answer to his amended complaint. See Setters v. Durrani, 2020-Ohio-6859, 164 N.E.3d 1159, ¶ 58 (1st Dist.) ("Setters I ") ("Appellants cannot avail themselves of the protection of the [affirmative defense] when they made no real effort to pursue the defense. Thus, despite the fact that they briefly raised it in their answer, appellants waived the defense."); Adams v. Durrani, 2022-Ohio-60, 183 N.E.3d 560, ¶ 97 (1st Dist), quoting State ex rel. AWMS Water Solutions, L.L.C. v. Mertz, 162 Ohio St.3d 400, 2020-Ohio-5482, 165 N.E.3d 1167, ¶ 53-55, and Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St.3d 284, 2009-Ohio-6764, 921 N.E.2d 1038, ¶ 53 ("Recently, the Ohio Supreme Court held that even if an affirmative defense is raised in an answer to the complaint, it is waived 'when a litigant supplies no argument "regarding whether the relevant case law applied to the facts of the case, justifies a decision in the litigants favor."' ").

{¶11} But in addition to their answer, Defendants raised the statute of repose issue in their opposition to the motion for leave to file the second amended complaint, providing relevant legal authorities and analysis supporting their position. This briefing represented a legitimate effort to pursue the statute of repose defense, and not a mere conclusory assertion that the affirmative defense should apply. See Setters I at ¶ 57, quoting Garcia v. O'Rourke, 4th Dist. Gallia No. 04CA7 2005-Ohio-1034, ¶ 19 (" 'An unspecific and unsupported allegation * * * without further affirmative action to prosecute the raised defense, does not provide the trial court with information necessary to adjudicate the claimed defense. Thus, a mere conclusory allegation results in a waiver of...