2019 Ohio 3880
Ohio Ct. App.2019Background:
- Plaintiffs (Wilson; Mike and Amber Sand) underwent spine surgeries by Dr. Abubakar Durrani in 2010–2011 and later alleged unnecessary or improperly performed procedures.
- Each plaintiff filed timely medical-malpractice complaints in Butler County in 2013, then voluntarily dismissed those suits in late 2015 and refiled nearly identical complaints in Hamilton County in December 2015.
- Defendants moved for judgment on the pleadings, arguing R.C. 2305.113(C) (four-year medical-malpractice statute of repose) barred the Hamilton filings and that Ohio’s saving statute (R.C. 2305.19(A)) did not save the claims.
- The trial court granted judgment on the pleadings and denied leave to amend, treating the earlier, voluntarily dismissed suits as nullities under Antoon v. Cleveland Clinic Foundation.
- The appellate court consolidated the appeals, reversed, and held that the saving statute—when properly invoked—permits a refiling within one year to relate back to the original timely filing and thus can save claims otherwise barred by the statute of repose; remanded for further proceedings (including consideration of motions to amend).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio's saving statute (R.C. 2305.19) can save medical-malpractice claims refiled after a timely complaint was voluntarily dismissed, even if refiling occurs after the 4-year statute of repose (R.C. 2305.113(C)) expired | Saving statute permits refiling within one year of a dismissal without prejudice so the later filing relates back to the timely original and is not barred | A dismissal without prejudice is a nullity for repose purposes (per Antoon), so the later filing is not "commenced" within the repose period and the saving statute cannot circumvent the statute of repose | Saving statute applies when properly invoked; where initial suit was timely and defendants had notice, the one-year savings window can relate the later filing back and save the claim |
| Whether the trial court erred in denying plaintiffs' motions for leave to amend complaints (as futile if claims were time-barred) | Amendments are not futile if the saving statute saves the refiling; leave should be considered on the merits | Amendments would be time-barred under the statute of repose, so leave was properly denied | Court reversed denial as premature; remanded for trial court to reconsider leave to amend consistent with the holding that the saving statute may apply |
Key Cases Cited
- Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483 (Ohio 2016) (upheld constitutionality of medical statute of repose; reserved on saving-statute issue)
- Ruther v. Kaiser, 134 Ohio St.3d 408 (Ohio 2012) (describes R.C. 2305.113(C) as a true statute of repose designed to give medical providers certainty)
- Frysinger v. Leech, 32 Ohio St.3d 38 (Ohio 1987) (saving statute may relate new action back to prior filing for limitations purposes)
- Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 171 Ohio St. 82 (Ohio 1960) (saving statute is remedial and should be liberally construed to decide cases on the merits)
- Wade v. Reynolds, 34 Ohio App.3d 61 (Ohio Ct. App. 1986) (applied saving statute to earlier version of medical statute of repose)
- Children’s Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio St.2d 523 (Ohio 1982) (saving statute applies only if the subsequent action is substantially similar and filed within one year)
- CTS Corp. v. Waldburger, 573 U.S. 1 (U.S. 2014) (distinguishes statute of repose from statute of limitations and explains repose policy objectives)
- Saunders v. Choi, 12 Ohio St.3d 247 (Ohio 1984) (recognized R.C. 2305.19 could revive a medical-malpractice action dismissed without prejudice)