2019 Ohio 5351
Ohio Ct. App.2019Background
- Three consolidated malpractice suits against Dr. Abubakar Atiq Durrani and affiliated entities: Arnold, McNeal, and Scott (and spouses). Each plaintiff underwent spine surgeries by Durrani between 2005–2011 and later alleged negligence, fraud, and negligent credentialing.
- Arnold (surgery 2008) first sued in 2013, voluntarily dismissed in 2014, refiled 2015. McNeal (surgeries 2005, 2009; minority tolling until 2008) first sued 2014, voluntarily dismissed 2014, refiled 2015. Scott (surgeries 2006–2011) first sued in 2013, voluntarily dismissed 2014, refiled 2015.
- Defendants moved to dismiss (Arnold, McNeal: Civ.R. 12[B][6]; Scott: Civ.R. 12[C]) on statute-of-repose grounds (R.C. 2305.113[C]). Trial court dismissed all three cases. Plaintiffs appealed.
- Central legal questions: application of Ohio’s four-year medical-malpractice statute of repose (R.C. 2305.113[C]); interplay with Ohio’s savings statute (R.C. 2305.19[A]) and relation-back; whether fraud and negligent-credentialing claims are nonmedical; whether proposed RICO amendments would be futile.
- This court applied recent First District precedent (Wilson and Freeman) and distinguished failure-to-diagnose authority (Bugh). Result: affirm dismissals for Arnold and McNeal; reverse and remand for Scott because his original complaint was timely within the repose period and the savings statute saved the refiled action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does R.C. 2305.113(C) bar the refiling? | Arnold/McNeal: repose should run from last visit or last culpable act; Scott: initial suit was timely so refiling saved by R.C. 2305.19(A). | Repose bars actions not commenced within 4 years of the act/omission (surgeries); refiling outside 4 years is untimely. | Arnold/McNeal: dismissed—initial suits filed after 4-year repose so savings statute cannot save. Scott: reversed—initial suit filed within 4 years, so savings statute saves refiled suit. |
| Does R.C. 2305.19(A) (savings statute) allow relation-back past the repose? | Plaintiffs: savings statute saves refiling if original suit dismissed without prejudice and refiled within one year. | Defendants: savings cannot revive claims not originally filed within repose. | Court: R.C. 2305.19(A) can save a refiling only when the initial complaint was timely within the 4‑year repose (Wilson precedent). Applied to save Scott but not Arnold/McNeal. |
| Are fraud and negligent-credentialing claims outside the statute of repose? | Plaintiffs: fraud/credentialing are nonmedical, so not subject to the medical repose. | Defendants: those claims arise from medical diagnosis/care/treatment and are "medical claims" under R.C. 2305.113(E)(3). | Held: fraud and negligent-credentialing allegations here are medical claims and subject to the four-year repose (Freeman, Young, Crissinger line). |
| Would allowing amendment to add state-RICO claims be proper or futile? | Plaintiffs: proposed RICO pleads an enterprise and pattern of corrupt activity. | Defendants: allegations are conclusory and merely repackaged medical claims; no pleading of multiple predicate criminal acts or pattern. | Held: Amendment would be futile; proposed RICO claims lack pleaded pattern/predicate offenses and are essentially medical claims. Motion to amend denial was not an abuse of discretion. |
Key Cases Cited
- Frysinger v. Leech, 32 Ohio St.3d 38 (relation-back under savings statute)
- Bugh v. Ohio Dept. of Rehab. & Corr., 128 N.E.3d 906 (interpreting repose when claim premised on failure-to-diagnose)
- Crissinger v. Christ Hosp., 106 N.E.3d 798 (negligent credentialing is a medical claim under R.C. 2305.113)
- Young v. Durrani, 61 N.E.3d 34 (claims for negligent credentialing and malpractice are "medical claims")
- Children’s Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio St.2d 523 (savings statute applies when original and new suits are substantially the same)
- Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483 (refiling not "substantially the same" when parties/relief differ)
- D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250 (statutory construction: give effect to all words)
Court disposition: Affirmed dismissals in Arnold (C-180566) and McNeal (C-180554, C-180634); reversed and remanded in Scott (C-180641) because the initial complaint was filed within the four-year repose and the savings statute saved the refiled action.