Wilson v. Durrani

• Citation: 145 N.E.3d 1071,2019 Ohio 3880
• Decision Date: 25 September 2019
• Docket Number: NO. C-180194,NO. C-180196,C-180196,C-180194
• Parties: Robert WILSON, Plaintiff-Appellant, v. Abubakar Atiq DURRANI, M.D., Center for Advanced Spine Technologies, Inc., West Chester Hospital, LLC, and UC Health, Defendants-Appellees. Mike Sand, and Amber Sand, Plaintiffs-Appellants, v. Abubakar Atiq Durrani, M.D., Center for Advanced Spine Technologies, Inc., West Chester Hospital, LLC, and UC Health, Defendants-Appellees.
• Court: United States Court of Appeals (Ohio)

145 N.E.3d 1071

2019 Ohio 3880

Robert WILSON, Plaintiff-Appellant,

v.Abubakar Atiq DURRANI, M.D., Center for Advanced Spine Technologies, Inc., West Chester Hospital, LLC, and UC Health, Defendants-Appellees.

Mike Sand, and Amber Sand, Plaintiffs-Appellants,

v.Abubakar Atiq Durrani, M.D., Center for Advanced Spine Technologies, Inc., West Chester Hospital, LLC, and UC Health, Defendants-Appellees.

NO. C-180196

NO. C-180194

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: September 25, 2019

Robert A. Winter Jr., The Deters Law Firm, P.S.C., and Fred Johnson, Mattoon, for Plaintiffs-Appellants,

Lindhorst & Dreidame Co., LPA, Michael F. Lyon, James F. Brockman and James L. O'Connell, Cincinnati, for Defendants-Appellees Abubakar Atiq Durrani and Center for Advanced Spine Technologies, Inc.,

Frost Brown Todd, LLC, Douglas R. Dennis, Cincinnati, and Austin W. Musser, West Chester, for Defendants-Appellees West Chester Hospital, LLC, and UC Health.

OPINION.

Zayas, Presiding Judge.

{¶1} Appellants Robert Wilson, Mike Sand and his wife, Amber Sand (collectively, the "appellants"), appeal from judgments entered by the Hamilton County Court of Common Pleas granting judgment on the pleadings to appellees Dr. Abubakar Atiq Durrani, the Center for Advanced Spine Technologies, Inc., West Chester Hospital, LLC, and UC Health. Although the appellants instituted separate appeals from separate judgments and we previously denied motions to consolidate their appeals, the appellants advance identical assignments of error pertaining to very similar facts. We, therefore, consolidate their appeals for purposes of this opinion.

{¶2} These consolidated appeals are two of many appeals involving alleged malpractice by Dr. Durrani, a spine surgeon who fled the country for his native Pakistan following a federal indictment. In both cases before us, Dr. Durrani, his clinic, and a hospital argued in the trial court that the claims filed against them by a patient were untimely under the medical malpractice statute of repose, a statute which bars medical claims filed more than four years after the alleged malpractice, and that Ohio's saving statute does not apply to allow actions to survive beyond this expiration. The trial court agreed, holding in each case that the saving statute did not apply, and therefore, the patient's claims were barred.

{¶3} The Ohio Supreme Court explicitly reserved judgment on this issue in Antoon v. Cleveland Clinic Found. , 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974. The United States District Court for the Southern District of Ohio was presented with this very question recently though, and upon surveying Antoon , Ohio appellate court decisions, and other state court results, concluded that Ohio's saving statute does apply despite the expiration of the statute of repose. See Atwood v. UC Health , S.D.Ohio No. 1:16CV593, 2018 WL 3956766 (August 17, 2018). We find Atwood persuasive and reverse the trial court's judgments. In a matter of first impression for this court, we hold that Ohio's saving statute, properly invoked, allows actions to survive beyond expiration of the medical malpractice statute of repose, and acts to save the patients' claims in the cases before us.

I. Background and Procedural History

A. Robert Wilson

{¶4} In November 2010, plaintiff-appellant Robert Wilson began seeing Dr. Durrani at his clinic in Blue Ash, Ohio, the Center for Advanced Spine Technologies, Inc., ("CAST") seeking relief from headaches and back pain. Dr. Durrani recommended that Wilson undergo back surgery to repair discs along his spine. In February and April 2011, Dr. Durrani performed spine surgeries on Wilson at West Chester Hospital, which is owned by UC Health. Following the surgeries, Wilson experienced worsened pain and immobility. Wilson eventually decided to sue Dr. Durrani, claiming that the surgeries were medically unnecessary and improperly performed.

{¶5} On April 9, 2013, Wilson filed a complaint against Dr. Durrani, CAST, and West Chester Hospital/UC Health in the Butler County Court of Common Pleas. Wilson sued Dr. Durrani for negligence, battery, intentional infliction of emotional distress, fraud, and spoliation of evidence. Wilson sued CAST for vicarious liability for the negligent and improper acts of Dr. Durrani, negligent hiring, retention and supervision of Dr. Durrani, fraud, intentional infliction of emotional distress, and spoliation of evidence. Wilson sued West Chester Hospital/UC Health for negligence, negligent credentialing, supervision and retention, fraud, intentional infliction of emotional distress, and spoliation of evidence.

{¶6} On December 11, 2015, Wilson voluntarily dismissed his complaint filed in the Butler County Court of Common Pleas under Civ.R. 41(A)(1)(a), and, on December 16, 2015, filed a similar, albeit much longer, complaint in the Hamilton County Court of Common Pleas. Wilson added more specific factual allegations based upon discovery disclosed in the Butler County case, and added a claim against Dr. Durrani for lack of informed consent for the use of a product called Infuse/BMP-2 during both surgeries, and claims against CAST and West Chester Hospital/UC Health for violations of the Ohio Consumer Sales Practices Act.

{¶7} Dr. Durrani and CAST, and West Chester Hospital/UC Health moved separately for judgment on the pleadings, asserting that Wilson's claims against them were medical claims that were time-barred pursuant to Ohio's medical malpractice statute of repose, R.C. 2305.113(C), because the complaint alleges that the last surgery performed by Dr. Durrani was in or around April 2011, more than four years before Wilson filed suit in the Hamilton County Court of Common Pleas. The defendants argued that the 2013 filing in the Butler County Court of Common Pleas was a nullity.

{¶8} Wilson moved to amend his complaint to elaborate on the fraud claims and to add a RICO claim. The trial court entered decisions granting the motions for judgment on the pleadings and denying Wilson's motion for leave to amend his complaint.

B. Mike and Amber Sand

{¶9} In or around 2008 or 2009, plaintiff-appellant Mike Sand began seeing Dr. Durrani to address weakness in his left leg. Dr. Durrani urged Sand to undergo back surgery to repair discs along his spine, or else lose the use of his leg. On April 5, 2010, Dr. Durrani performed spine surgery on Sand at West Chester Hospital. Following his surgery, Sand experienced the same leg pain he had prior to the surgery, and began experiencing back pain which severely limited his mobility. Like Wilson, Sand decided to sue Dr. Durrani, claiming that the surgery was medically unnecessary and improperly performed.

{¶10} On March 28, 2013, Sand, and his wife, Amber Sand (collectively, "the Sands"), filed a complaint against Dr. Durrani, CAST, and West Chester Hospital/UC Health in the Butler County Court of Common Pleas. The Sands sued Dr. Durrani for negligence, battery, intentional infliction of emotional distress, fraud, spoliation of evidence, and loss of consortium. The Sands sued CAST for intentional infliction of emotional distress, spoliation of evidence, and loss of consortium. The Sands sued West Chester Hospital/UC Health for negligence, vicarious liability, negligent hiring, credentialing, supervision and retention, fraud, intentional infliction of emotional distress, spoliation of evidence, and loss of consortium.

{¶11} On November 25, 2015, the Sands voluntarily dismissed their complaint filed in the Butler County Court of Common Pleas under Civ.R. 41(A)(1)(a), and, on December 9, 2015, filed a similar complaint in the Hamilton County Court of Common Pleas. The Sands added more specific factual allegations based upon discovery disclosed in the Butler County case, and added a claim against Dr. Durrani for lack of informed consent and claims against CAST for vicarious liability, and negligent hiring, credentialing, supervision and retention.

{¶12} Asserting the same arguments from Wilson's case, Dr. Durrani and CAST, and West Chester Hospital/UC Health moved separately for judgment on the pleadings. The Sands moved to amend their complaint to elaborate on the fraud claims and to add a RICO claim. The trial court entered decisions granting the motions for judgment on the pleadings and denying the Sands' motion for leave to amend their complaint.

{¶13} Wilson and the Sands now appeal, asserting the same two assignments of error for review.

II. Legal Analysis

{¶14} In their first assignment of error, the appellants assert that the trial court erred in granting judgment on the pleadings, arguing that Ohio's saving statute, R.C. 2305.19(A), allows their claims to survive beyond the expiration of the four-year medical malpractice statute of repose, R.C. 2305.113(C). The appellants also argue that the trial court misapplied Antoon v. Cleveland Clinic Found. , 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, when it determined that the voluntary dismissal of their Butler County complaints precluded the filing of their Hamilton County complaints when the later filings were outside of the four-year time period.

{¶15} In order to grant a judgment on the pleadings, "the trial court must construe the material allegations in the complaint, as well as reasonable inferences arising from them, in favor of the plaintiff and conclude beyond a doubt that the plaintiff can show no set of facts that would entitle him to relief." (Internal citations omitted.) Euvrard v. The Christ Hosp. , 141 Ohio App.3d 572, 575, 752 N.E.2d 326, 329 (1st Dist.2001). Our review is de novo, which requires an independent determination of whether judgment has properly been entered as a matter of law. Id.

Statute of Repose

{¶16} A statute of repose bars "any suit that is brought after a specified time since the defendant acted * * * even if this period ends before the plaintiff has suffered a resulting injury." Antoon , 148 Ohio St. 3d 483, 2016-Ohio-743...