2020 Ohio 3787
Ohio Ct. App.2020Background
- Sara Jonas underwent spinal surgery by Dr. Abubakar Durrani in August 2008; she later had revision surgery and originally sued in 2014, voluntarily dismissed, and refiled in 2015 asserting negligence, fraud, lack of informed consent, battery, and negligent credentialing.
- Andrew Carr underwent multiple surgeries by Durrani (2005, 2007, 2010); he filed in Butler County in 2013 (within four years of the 2010 surgery), voluntarily dismissed, and refiled in Hamilton County in 2015 asserting similar claims.
- Trial court dismissed both plaintiffs’ refiled claims as time-barred by Ohio’s four-year medical-malpractice statute of repose (R.C. 2305.113(C)) and denied motions to amend as futile.
- Jonas argued her claims (fraud, negligent credentialing, and use of BMP-2) were not subject to the repose period or were saved/tolled; Carr argued his refiling was saved by the savings statute and sought to add an OCPA/RICO claim.
- This court affirmed dismissal of Jonas’s complaint (and denial to amend) and reversed in part for Carr: it held the 2010 claim was saved by the savings statute but affirmed denial to add the OCPA claim; the case was remanded accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2305.113(C) statute of repose bars Jonas’s claims | Jonas: surgery date should not bar claims; fraud/credentialing not medical; tolling/flight applies | Durrani/CAST/Christ: surgery is the act giving rise to medical claims; repose runs from surgery date | Court: Repose runs from surgery; Jonas’s claims barred and dismissal affirmed |
| Whether fraud & negligent-credentialing claims are non-medical to avoid repose | Jonas: label as fraud or credentialing makes them non-medical | Defendants: R.C. 2305.113(E) broadly defines “medical claim”; these arise from care/treatment | Court: Claims are “medical” under the statute; plaintiff’s characterization rejects relief |
| Whether BMP-2 implant qualifies as a “foreign object” under R.C. 2305.113(D)(2) (one-year discovery exception) | Jonas: BMP-2 was an undiscovered foreign object; discovery in 2013 triggers one-year window | Defendants: BMP-2 is an implant/device intentionally used in surgery, not an inadvertently left object | Court: Foreign-object exception covers items meant to be removed or accidentally introduced; implants integral to procedure do not qualify; exception inapplicable |
| Whether Carr’s refiling is saved by R.C. 2305.19 (savings statute) | Carr: original 2013 complaint (within four years of 2010 surgery) + refiling within one year saves claim | Defendants: refiling outside repose is untimely | Court: Savings statute applies because original suit timely and claims are substantially the same; Carr’s 2010 claim saved; reversal in part (Christ Hosp. still dismissed as uninvolved) |
| Whether trial court erred denying amendment to add OCPA/RICO claim (Carr) | Carr: proposed civil RICO claim is non-medical and should proceed | Defendants: amendment is futile; pleading lacks the particularity and elements of an OCPA claim | Court: Amendment properly denied—complaint fails to plead OCPA elements with required specificity |
Key Cases Cited
- McNeal v. Durrani, 138 N.E.3d 1231 (1st Dist. 2019) (statute of repose measured from act/omission that is the basis of the medical claim)
- Freeman v. Durrani, 144 N.E.3d 1067 (1st Dist. 2019) (R.C. 2305.113(E) broad definition of "medical claim"; no fraud exception)
- Antoon v. Cleveland Clinic Found., 71 N.E.3d 974 (Ohio 2016) (statute-of-repose principles; repose is a true repose)
- Melnyk v. Cleveland Clinic, 290 N.E.2d 916 (Ohio 1972) (origin of the common-law foreign-object discovery rule)
- Bright v. Sorensen, 463 P.3d 626 (Utah 2020) (foreign-object exception focuses on items left by mistake or meant to be removed)
- Wilson v. Durrani, 145 N.E.3d 1071 (1st Dist. 2019) (savings statute cannot revive an original complaint barred by repose; refiled claims must be substantially the same)
- Young v. Durrani, 61 N.E.3d 34 (1st Dist. 2016) (negligent-credentialing claims are "medical claims" under the statute)
- Crissinger v. Christ Hosp., 106 N.E.3d 798 (1st Dist. 2017) (relying on Young to treat negligent credentialing as medical)
- White v. Leimbach, 959 N.E.2d 1033 (Ohio 2011) (elements of lack-of-informed-consent claim)
- Children’s Hosp. v. Ohio Dep’t of Pub. Welfare, 433 N.E.2d 187 (Ohio 1982) (savings-statute requirement that original and new actions be substantially the same)
- Morrow v. Reminger & Reminger Co., L.P.A., 915 N.E.2d 696 (Ohio App. 2009) (civil OCPA/RICO pleading requirements and particularity)