Clark v. DurraniClark v. Durrani
This cause was heard upon the appeal, the record, the briefs, and arguments.
For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed.
Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under
To the clerk:
Enter upon the journal of the court on 8/29/2025 per order of the court.
By: ________________________
Administrative Judge
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 29, 2025
Statman Harris, LLC, and Alan J. Statman, for Plaintiffs-Appellees,
{1} Defendants-appellants Dr. Abubaker Atiq Durrani and Center for Advanced Spine Technologies, Inc., (“CAST“) (together, “Durrani“) appeal the trial court‘s judgment denying Durrani‘s motions for judgment notwithstanding the verdict or, in the alternative, for a new trial.
{2} On appeal, Durrani argues the trial court (1) should have given a comparative-negligence jury instruction, (2) improperly instructed the jury to draw a negative inference from Dr. Durrani‘s absence at trial, (3) improperly permitted Dr. Keith Wilkey to testify as an expert, and (4) erred by allowing plaintiffs to pursue claims for past medical expenses. Durrani asserts that these errors by the trial court in denying their posttrial motions were not harmless.
I. Factual and Procedural History
{3} This case is one of the numerous cases that have come before this court which are commonly referred to as the “Durrani Cases.” While the legal questions raised in these appeals are often the same or similar, each plaintiff has their own story of how they came under Dr. Durrani‘s care.
{4} Here, plaintiff-appellee Chris Clark worked as a machinist and, later, as a carpet cleaner. When Clark was 19, a semi-truck rear-ended the car he was driving and Clark experienced back pain for years afterward.
{5} Clark‘s family physician, Dr. Deborah Pillow, referred him to Dr. Set Shahbabian and for an MRI, which revealed disc bulges, protrusions, and herniations up and down the lumbar region of Clark‘s spine. Clark took pain medication daily and received steroid injections on three occasions. Neither the pain medication nor the injections improved his back pain.
{6} In November 2012, Dr. Pillow referred Clark to Dr. Abubaker Atiq
Clark and his wife file a complaint against defendants.
{7} Clark filed a complaint and jury demand against Dr. Durrani and his medical practice, CAST. The complaint also named a number of other defendants who were all eventually voluntarily dismissed from the case.
{8} With respect to Durrani, the complaint alleged (1) that Dr. Durrani negligently performed the surgery, improperly diagnosed Clark‘s condition, and medically mismanaged and mistreated Clark, (2) that CAST was vicariously liable for Dr. Durrani‘s actions, (3) that CAST was negligent in hiring, retaining, credentialing, and supervising Dr. Durrani due to foreknowledge that Dr. Durrani‘s privileges at other hospitals had been terminated, (4) that Dr. Durrani committed battery by performing an unnecessary surgery, (5) that Dr. Durrani committed fraud, (6) intentional infliction of emotional distress, (7) spoliation of medical records evidence, (8) that Kathy Clark, Clark‘s wife, suffered loss of consortium and medical expenses, and (9) negligence per se.
Pretrial Filings
{9} In March 2020, plaintiffs filed a motion to join United Healthcare as an involuntary plaintiff because of its subrogation interest with respect to payments it made for portions of Clark‘s treatment. The motion noted that while all parties with a possible subrogation interest had been notified of the lawsuit filed by their insured, they had chosen not to be involved.
{10} The court responded by ordering that plaintiffs make United HealthCare a party plaintiff. They did. And, although United Healthcare was served with a summons and the complaint, it never entered an appearance.
{11} Prior to the start of trial, defendants filed a motion in limine to exclude testimony regarding Dr. Durrani absconding to Pakistan amid the pending medical malpractice cases against him. The trial court stated that it would not allow testimony regarding Dr. Durrani‘s departure, but it would not restrict comments about him residing in Pakistan, and there would be a jury instruction regarding such testimony.
{12} The matter proceeded to a jury trial in August 2021.
Dr. Keith Wilkey‘s Testimony
{13} At trial, Clark relied on the expert medical testimony of Dr. Keith Wilkey. Dr. Wilkey is a board-certified orthopedic spine surgeon and a member and fellow of the American Academy of Orthopedic Surgeons, and holds memberships in the North American Spine Society and the European Spine Society. He received training in offering or recommending spine surgeries from the Leatherman Spine Institute and had performed “[p]robably tens of thousands” of spine surgeries.
{14} Prior to COVID, Dr. Wilkey was an orthopedic spine surgeon in New York where he dedicated more than 50 percent of his professional time to the active clinical practice of medicine. Then, in July 2020, New York shut down all elective surgeries—seven years after Clark‘s complaint had been filed. At the time of trial, Dr. Wilkey was a medical director at United Healthcare, and his duties included reviewing medical records and deciding whether surgery was appropriate.
{15} Defendants objected to Dr. Wilkey‘s testimony at trial, arguing that Dr. Wilkey did not spend 50 percent of his professional time in the active clinical practice of medicine or instructing at an accredited university. Defendants cited Johnson v. Abdullah, 2021-Ohio-3304, for the proposition that a medical expert must meet these requirements at the time of trial.
{17} The trial court overruled the objection based on
{18} At trial, Dr. Wilkey explained the applicable standard of care as it relates to the type of surgery Dr. Durrani performed on Clark. He testified that Dr. Durrani‘s performance of the surgery on and his subsequent treatment of Clark deviated from that applicable standard of care and Clark was damaged as a result.
Jury Instructions
{19} The trial court denied defendants’ request for a comparative-negligence instruction. In explaining its decision, the court stated that there is no comparative negligence in Ohio, and plaintiffs needed only to prove their claims by a preponderance of the evidence. Defendants objected to the court‘s decision, arguing
{20} With respect to Durrani‘s absence, the court provided the following instructions to the jury:
The defendant, Dr. Durrani, has not attended these proceedings in person. He is represented by counsel. You shall not speculate on why he is not present or consider his absence for any purpose except as instructed below . . . Dr. Durrani has voluntarily left the jurisdiction removing himself from plaintiffs ability to subpoena him to trial . . . When a party, such as Dr. Durrani, has relevant evidence or testimony within his or her control, and the party fails to produce that relevant evidence or testimony, that failure gives rise to an inference that the evidence or testimony is unfavorable to that party.
The trial court further instructed the jury as to inference:
To infer or to make an inference is to reach a reasonable conclusion of fact which you may, but are not required to, make from other facts which you find have been established by direct evidence. Whether an inference is made rests entirely with you . . . You may not build one inference upon another inference. But you may make more than one inference from the same facts or circumstances.
Defendants objected to both instructions.
The Jury‘s Verdicts
{21} The jury returned verdicts in plaintiffs’ favor on the claims of negligence, fraudulent misrepresentation, and loss of consortium. The jury found in favor of defendants as to the claims of failure to obtain informed consent and battery.
{22} The jury awarded Clark $485,000 in compensatory damages: $75,000
{23} Defendants filed two separate motions for judgments notwithstanding the verdict (“JNOV“), or, pursuant to
{24} On March 20, 2024, defendants filed a memorandum in support of their motions based on Hounchell v. Durrani, 2023-Ohio-2501 (1st Dist.), in which this court held that the jury instruction regarding Dr. Durrani‘s absence allowed the jury to infer that Dr. Durrani was absent because of a consciousness of guilt.
{25} On April 22, 2024, the trial court entered a final, appealable judgment based on the jury verdicts and its final decisions on the remaining posttrial motions. As discussed below, the trial court again denied Durrani‘s JNOV motions.
{26} This appeal followed. Each issue raised on appeal was raised in defendants’ post-trial motions and thus preserved for review by this court.
II. Analysis
{27} In the sole assignment of error, Durrani argues the trial court should have granted the post-trial motions because the court (1) failed to instruct the jury on comparative negligence, (2) improperly instructed the jury to draw a negative inference from Dr. Durrani‘s absence, (3) improperly permitted Dr. Wilkey to testify as an expert, despite his lack of active clinical practice, and (4) erred by allowing Clark
JNOV Motions
{28} Under
Motions for a New Trial
{29} A trial court may grant a motion for a new trial under
A. The denial of the comparative-negligence instruction was not an abuse of discretion.
{30} Durrani claims to be entitled to a new trial based on the trial court‘s refusal to instruct the jury on comparative negligence. A trial court should give a requested instruction if (1) the instruction is a correct statement of the law, (2) it is
{31} Ohio law recognizes contributory negligence as a defense in medical malpractice cases. Viox v. Weinberg, 2006-Ohio-5075, ¶ 13 (1st Dist.). A defendant doctor must prove the plaintiff patient breached a duty, proximately causing his own injury. Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 2009-Ohio-2460 (9th Dist.), quoting Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 226 (1975). Thus, the defendant must show the plaintiff‘s own “want of ordinary care . . . which combined and concurred with the defendant‘s negligence and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred.” (Emphasis added.) Id. In other words, “[t]he contributory negligence of the patient must have been an active and efficient contributing cause of the injury that is the basis of the patient‘s claim.” Viox at ¶ 13.
{32} In its January 6, 2023 entry, the trial court distinguished Dr. Durrani‘s recommendation that Clark engage in postsurgical physical therapy from requiring him to do so. The court further concluded Clark could not be deemed to have been contributorily negligent for failing to complete physical therapy prescribed by the same surgeon who recommended and performed an unnecessary surgery.
{33} In his merit brief, Durrani references Dr. Horn‘s recommendation that
{34} Clark complained of postsurgical pain running down his legs, headaches, swelling in the incision, and fluid leaking from his back, which was accumulating at the surgical site. Clark testified he did not have any of these symptoms before being treated by Dr. Durrani. Clark also testified that, before the surgery, he only experienced pain going up his back.
{35} While defense experts testified that the physical therapy prescribed by Dr. Durrani was appropriate, there was no evidence to suggest Clark‘s failure to fully comply with physical therapy caused or contributed to the postsurgical injuries he complained of. Reasonable minds, therefore, could not have concluded that Clark contributed to the pain and discomfort he experienced after the unnecessary surgery was performed on him. Accordingly, the trial court did not abuse its discretion in denying Durrani‘s request for a comparative-negligence instruction.
B. The trial court‘s instructions did not cause the jury to draw negative inferences from Dr. Durrani‘s absence.
{36} In addition to arguing that the trial court failed to give the previously discussed jury instruction, Durrani claims that the instruction regarding Dr. Durrani‘s absence was also improper. On appeal, “‘[t]he question of whether a jury instruction is legally correct and factually warranted is subject to de novo review.‘” Jones v.
{37} An adverse-inference instruction “has its origin in the theory that the failure to produce evidence which a fearless claimant would naturally produce permits the inference that the tenor of the evidence would be unfavorable to such claimant.” Id. at ¶ 33, quoting Silveous v. Rensch, 20 Ohio St.2d 82, 84 (1969).
{38} In Jones, the trial court instructed the jury using the exact verbiage as in the instant matter. Id. at ¶ 30. The Jones court initially concluded that the trial court erred in giving the jury instruction because it “was not permissive nor limited to evidence that would naturally be produced” as it “permit[ted] only the inference that the testimony or evidence in Dr. Durrani‘s possession would be unfavorable to him.” Id. at ¶ 34. This court then considered the instruction as a whole to determine whether it misled the jury such that it materially affected defendants’ substantial rights. Id. at ¶ 35. This court ultimately held that the instruction, as a whole, did not prejudice defendants because it was apparent that the inference was permissive, not required, and that it also “clearly set forth what evidence should be considered by the jury in rendering its decision.” Id. at ¶ 38. We further held that a thorough review of the entire proceeding revealed that the jury was not misled; as in the instant matter, we noted the jury found for Durrani on some claims. Id. at ¶ 39. That, combined with jury interrogatories which showed the jury relied on actual evidence in the record, demonstrated the trial court‘s instruction did not affect the jury‘s verdict. Id.
{39} Here, as in Jones, the trial court informed the jury that it had discretion as to what inferences it drew, including inferences from Dr. Durrani‘s absence. There is no indication on the face of the record that this permissive inference misled the jury or tainted its decision. Accordingly, we hold the trial court did not abuse its discretion
C. Dr. Wilkey was an expert qualified to testify at the time of the trial.
{40} To establish his medical malpractice claim, Clark relied on the expert testimony of Dr. Wilkey. Over defendants’ objection at trial, Dr. Wilkey testified that Dr. Durrani breached the standard of care and that the breach caused Clark‘s injuries. Durrani now argues the trial court erred in allowing Dr. Wilkey‘s expert testimony.
{41} A trial court has discretion to determine whether a witness is competent to testify as an expert under
{42} Under the 2022 version of
{43} The Celmer Court reasoned that
{45}
{46} Durrani asserts Johnson controls as it forbids a trial court from creating new exceptions outside of the one laid out in Celmer. Durrani further argues that the July 1, 2023 amendment to
{47} Adopting Durrani‘s position would create a requirement that “would preclude anyone from taking a temporary leave of absence for any number of reasons, including maternity or paternity leave, a sabbatical, or in this case, a global pandemic.” Miles v. Cleveland Clinic Health Sys.-East Region, 2023-Ohio-2582, ¶ 19 (8th Dist.).
{48} Additionally,
{49} Further, the amendment became effective prior to the trial court‘s April 2024 entry of final judgment on all posttrial motions—including Durrani‘s revived JNOV motion filed in March 2024—and this matter has remained pending throughout this appeal. See Courtney v. Durrani, 2025-Ohio-2335, ¶ 72-75 (1st Dist.); Ravenscraft/Bowling v. Durrani, 2025-Ohio-2900, ¶ 43-46 (1st Dist.). Dr. Wilkey, therefore, was qualified to testify as an expert under
{50} We, therefore, once again, reject Durrani‘s challenge to Dr. Wilkey‘s qualifications as an expert. Accordingly, the trial court did not abuse its discretion when it permitted Dr. Wilkey‘s testimony.
D. The trial court did not err in awarding past medical expenses
{51} Durrani argues that, because Clark failed to join United Healthcare, the trial court should have vacated Clark‘s damages for past medical expenses. Durrani further argues that Clark was not the real party in interest because United Healthcare paid Clark‘s past medical expenses.
{52} The record shows that plaintiffs followed the trial court‘s order to join United Healthcare as an involuntary plaintiff. United Healthcare chose not to enter an appearance. Although the trial court concluded in its January 2023 entry that United Healthcare “could and should have been joined as a party to this action under
{53} Actions must be prosecuted by “the real party in interest.” Bender v. Durrani, 2024-Ohio-1258, ¶ 129 (1st Dist.), quoting
{55} Of note, the parties stipulated that the amount of past medical expenses was correct in that United Healthcare made medical payments in the amount of $67,413.21. United Healthcare had a subrogation agreement with Clark, which gave United Healthcare a contractual subrogation claim, which entitled it to collect a share of the damages awarded to Clark as reimbursement for medical payments it made on Clark‘s behalf. See
Defendants were not exposed to double damages.
{56} Further, the subrogation lien against Clark‘s awarded damages protected Durrani‘s interest; as stated by the trial court, defendants were not subject to double liability because United Healthcare can only collect from Clark‘s verdict against defendants. See id. at ¶ 132; see also Courtney, 2025-Ohio-2335, at ¶ 96 (1st Dist.) (the trial court cured the insurers’ absence from the trial by protecting Durrani from the risk of double damages).
{57} The trial court did not err in awarding past medical expenses to Clark.
III. Conclusion
{58} As the trial court did not err, this court declines to address Durrani‘s harmless-error argument.
Judgment affirmed.
ZAYAS, P.J., and BOCK, J., concur.