2021 Ohio 3055
Ohio Ct. App.2021Background:
- In March 2010 Richard Elliot underwent lumbar spinal-fusion surgery by Dr. Abubakar Durrani and suffered postoperative infection and complications.
- Elliot sued Durrani, CAST (Durrani’s practice entity), and TriHealth (hospital). He initially filed in June 2014, voluntarily dismissed, and refiled in August 2015 (more than four years after the surgery).
- Trial court granted defendants’ Civ.R. 12(B)(6) motions and dismissed all claims with prejudice as barred by Ohio’s four-year medical statute of repose (R.C. 2305.113(C)); it also denied leave to amend to assert a state-law RICO/OCPA claim as futile.
- While the appeal was pending the Ohio Supreme Court decided Wilson v. Durrani and remanded limited tolling issues; this Court stayed and ordered supplemental briefing on whether R.C. 2305.15(A) (absent-defendant tolling) tolled the medical repose.
- This panel held R.C. 2305.15(A) tolls the four-year medical statute of repose as to an absent physician (Durrani) who fled the state before the repose expired, reversing dismissal as to Durrani.
- The panel held R.C. 2305.15(A) does not toll the repose as to CAST or TriHealth, and it affirmed dismissal as to those entities; the denial of leave to amend to add the OCPA/RICO claim was also affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does R.C. 2305.15(A) toll the four-year medical statute of repose (R.C. 2305.113(C)) when a physician absconds? | R.C. 2305.15(A) applies to the "period of limitation" and "period within which the action must be brought," so it tolls the repose while Durrani was absent. | Repose contains its own limited exceptions and is not tolled by the absent-defendant statute. | Court: R.C. 2305.15(A) tolls the medical statute of repose where the defendant physician absconds; claims against Durrani are not time-barred. |
| Does absent-defendant tolling extend to a corporate practice (CAST) owned by the absent physician? | Tolling should bind CAST because Durrani is CAST’s owner and the corporate claims arise from his absence. | R.C. 2305.15(A) requires that the person against whom the cause accrued be out of state/absconded; CAST did not abscond. | Court: Tolling under R.C. 2305.15(A) applies only to the absent physician, not to CAST; dismissal as to CAST affirmed. |
| Can Ohio’s saving statute (R.C. 2305.19) revive/refile medical claims after the four-year repose expired? | R.C. 2305.19 preserves refiled actions and should allow refiling. | Saving statute cannot circumvent an express statute of repose. | Court: Wilson controls; R.C. 2305.19 cannot save/refile claims after the medical repose expires. |
| Did the trial court abuse its discretion by denying leave to amend to add an OCPA/RICO claim? | Elliot argued he should be allowed to amend to plead state-law RICO against defendants. | Proposed RICO allegations were conclusory and lacked the particularity/structure required by OCPA/RICO. | Court: Denial was proper as amendment would be futile; proposed complaint failed to plead RICO elements with required specificity. |
| Does the statute of repose run from last date of treatment or from the surgery (the alleged negligent act)? | Repose should run from last date of treatment (postsurgical acts). | Repose runs from the last culpable act that forms the basis of the medical claim; where surgery is the negligent act, repose runs from surgery date. | Court: Repose measured from the surgery (March 1, 2010) here; postoperative care did not reset the repose. |
Key Cases Cited
- McNeal v. Durrani, 138 N.E.3d 1231 (1st Dist.) (discussing dismissal standard and related Durrani litigation)
- CTS Corp. v. Waldburger, 573 U.S. 1 (statutes of repose can define and extinguish causes of action)
- California Pub. Employees’ Retirement Sys. v. ANZ Sec., 137 S. Ct. 2042 (general tolling rules require analysis against repose language; courts must determine which provision controls)
- Frysinger v. Leech, 512 N.E.2d 337 (Ohio) (physician–patient relationship termination rule tolling discovery-based limitations)
- Ruther v. Kaiser, 983 N.E.2d 291 (Ohio) (discussing accrual and discovery relative to repose)
- Groch v. GMC, 883 N.E.2d 337 (Ohio) (historical context for enactment of statutes of repose)
- Mominee v. Scherbarth, 503 N.E.2d 717 (Ohio) (concerning constitutionality and legislature’s amendment of medical repose for minors)
- Antoon v. Cleveland Clinic Found., 71 N.E.3d 974 (Ohio) (discussed in notes as addressing vested claims relative to repose)
- Freeman v. Durrani, 144 N.E.3d 1067 (1st Dist.) (holding fraud and post-surgery claims can be “medical claims” under R.C. 2305.113)
- Sec’y, U.S. Dep’t of Labor v. Preston, 873 F.3d 877 (11th Cir.) (describing repose as conferring a personal privilege/immunity to defendants)