BARBARA COUCH v. ABUBAKAR ATIQ DURRANI, M.D., et al.; TODD GREEN v. ABUBAKAR ATIQ DURRANI, M.D., et al.; SHANDON SIMMONS v. ABUBAKAR ATIQ DURRANI, M.D., et al.; FRANCENE COOK v. ABUBAKAR ATIQ DURRANI, M.D., et al.; EVELYN YOUNG v. ABUBAKAR ATIQ DURRANI, M.D., et al.
APPEAL NOS. C-190703, C-190704, C-190705, C-190706, C-190707
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 12, 2021
2021-Ohio-726
CROUSE, Judge.
TRIAL NOS. A-1806458, A-1806463, A-1806428, A-1806464, A-1502866
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: March 12, 2021
Robert A. Winter Jr., The Deters Law Firm Co. II, P.A., James F. Maus and Alex Petraglia, for Plaintiffs-Appellants Barbara Couch, Todd Green, Shandon Simmons, Francene Cook, and Evelyn Young,
Dinsmore & Shohl LLP, Jennifer Orr Mitchell, Matthew S. Arend and R. Samuel Gilley, for Defendant-Appellee The Christ Hospital.
CROUSE, Judge.
{¶1} These five consolidated appeals concern the latest in the several hundred cases involving alleged medical malpractice by defendant Abubakar Atiq Durrani, M.D. In line with recent authority from this court, we conclude that appellants’ claims are barred by the four-year medical-malpractice statute of repose. Therefore, we affirm the judgments of the trial court.
I. Facts & Procedure
{¶2} Appellants are five former patients of Durrani, a spinal surgeon who formerly operated at defendant-appellee The Christ Hospital (“TCH“). Appellants underwent various spinal surgeries with Durrani between April 2007 and April 2009. Appellants allege that their surgeries were among the hundreds of medically unnecessary surgeries performed by Durrani.
{¶3} Central to this appeal, appellants claim that TCH negligently credentialed, supervised, and retained Durrani as a credentialed physician. Appellants allege that TCH failed to adequately evaluate Durrani‘s educational background, work history, and peer reviews when he applied for privileges at TCH. Appellants further allege that TCH knew about Durrani‘s fraudulent scheme, and yet, continued granting him surgical privileges and allowing him to operate at its facilities. According to appellants, TCH willfully disregarded complaints about Durrani reported by its staff, doctors, and patients; ignored complaints pertaining to Durrani‘s privileged time at other area hospitals; and settled several cases involving Durrani‘s alleged misconduct. Appellants ultimately contend that TCH allowed and encouraged Durrani‘s conduct in order to enhance its revenues.
{¶5} Appellants filed separate appeals and this court sua sponte consolidated the five cases. Appellants collectively raise one assignment of error.
II. Legal Standard & Analysis
{¶6} In their sole assignment of error, appellants contend that the trial court erred by granting TCH‘s motions to dismiss. We review de novo a trial court‘s decision to grant or deny a motion to dismiss under Civ.R. 12(B)(6). Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.
{¶7} The motions to dismiss focused on the applicability of
A. Negligent-Credentialing Claims
{¶9} First, appellants argue that their negligent-credentialing claims are not “medical claims” within the meaning of
{¶10} In Young v. Durrani, 2016-Ohio-5526, 61 N.E.3d 34 (1st Dist.), we held that negligent-credentialing claims are “medical claims” as defined in
{¶11} Appellants now ask us to overrule this line of cases. Appellants argue that Young is in conflict with Browning v. Burt, 66 Ohio St.3d 544, 613 N.E.2d 993 (1993), and its progeny.
{¶12} In Browning, the Ohio Supreme Court distinguished a negligent-credentialing claim against a hospital from a medical claim alleging malpractice against a physician. Browning interpreted former
{¶13} In an attempt to supersede Browning, the General Assembly redefined the term “medical claim” to explicitly include negligent credentialing. See 1996 Am.Sub.H.B. No. 350 (“H.B. 350“). Pursuant to H.B. 350, a “medical claim” included “a claim that is asserted * * * against a hospital and that is based on negligent credentialing.” In 1999, the Ohio Supreme Court held that H.B. 350 violated the one-subject rule of the Ohio Constitution and was unconstitutional in its entirety. See State ex rel. Ohio Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062 (1999). To address the procedural deficiency, the General Assembly subsequently enacted 2002 Am.Sub.S.B. No. 281 (“S.B. 281“). S.B. 281 moved the definition of a “medical claim” to the newly-enacted
{¶14} The case law that has evolved since the 2002 statute is not particularly helpful to the issue presented in this case—whether a negligent-credentialing claim is a “medical claim” within the meaning of
{¶15} In Evans, the plaintiff-patient alleged that she had been sexually assaulted by a treating physician at the defendant-hospital. Id. at ¶ 2. The plaintiff immediately filed a criminal complaint against the doctor, but the police declined to pursue criminal charges. Id. The plaintiff did not file a civil action against the doctor within the one-year statute of limitations for civil battery. Id. Instead, the plaintiff brought a claim for negligent hiring, supervision, and/or retention against the hospital within the two-year statute of limitations for negligence actions. Id. The trial court granted summary judgment for the hospital, holding that the hospital could not be liable for negligent hiring, retention, or supervision where the doctor could not be found civilly liable or guilty of the underlying sexual assault. Id.
{¶16} The main issue on appeal was whether an employee must be found civilly liable or guilty of a crime before a plaintiff can sue an employer for negligent hiring, supervision, or retention. As a corollary to that issue, the Ohio Supreme Court also had to consider whether the claim for negligent hiring, supervision, or retention was limited by the one-year statute of limitations for civil battery.
{¶17} With respect to the second issue—which is the basis of appellants’ argument—the court held that the statute of limitations for negligent hiring, supervision, and retention was not affected by the statute of limitations for the underlying conduct. Id. at ¶ 12. The court had determined that “a plaintiff need not show that an employee has been adjudicated civilly liable or has been found guilty of a crime * * * in order * * * to maintain a negligent hiring, retention, or supervision claim against an employer.” Id. at ¶ 10. Because an employee need not be held legally accountable to maintain a viable action against the employer, the court
{¶18} Notably, Evans did not address whether a negligent-credentialing claim (a separate but related claim) is a “medical claim.” Neither party in that case disputed that a claim for negligent hiring, supervision, and retention was subject to the two-year bodily-injury statute of limitations. Rather, the parties disputed whether the plaintiff‘s failure to file a civil action against the employee within that limitations period foreclosed the plaintiff‘s ability to later prove a claim for negligent hiring, supervision, and retention against the employer. Thus, Evans is not controlling and does not affect our prior precedent. We determine that the Ohio Supreme Court has not otherwise ruled on the issue since the General Assembly amended and expanded the definition of “medical claim.”
{¶19} Although the court did not explicitly address the issue, the decision in Evans actually supports a finding that negligent-credentialing claims are “medical claims” for purposes of
{¶21}
{¶22} Based on the foregoing, appellants have not presented a compelling reason to overrule our holdings in Young, Crissinger, and McNeal. Applying our precedent, appellants’ negligent-credentialing claims are “medical claims” as defined in
B. Fraud and Equitable-Estoppel Exceptions
{¶23} Next, appellants urge us to recognize a fraud exception and/or an equitable-estoppel exception to the statute of repose.
{¶24} In Freeman v. Durrani, 2019-Ohio-3643, 144 N.E.3d 1067 (1st Dist.), we refused to craft a fraud or equitable-estoppel exception to the statute of repose.
{¶25} Appellants now ask us to overrule Freeman. However, appellants do not present any compelling reason to depart from our holding in Freeman. Instead, appellants argue that equitable principles and public-policy considerations demand a different result.
{¶26} The Ohio Supreme Court has consistently held that ”
{¶27} We again decline appellants’ invitation to create a fraud or equitable-estoppel exception to
C. Fraud Claims
{¶28} Finally, appellants argue that their fraud claims are independent nonmedical claims not governed by the statute of repose.
{¶29} In Freeman and McNeal, we examined the same arguments presented by appellants herein and held that fraud claims relating to a physician‘s treatment are “medical claims” under
{¶30} Appellants again ask us to overrule Freeman. However, appellants do not present any new reason to depart from our holding in Freeman. Thus, appellants’ fraud claims are “medical claims” subject to the four-year statute of repose.
III. Conclusion
{¶31} For the foregoing reasons, we overrule appellants’ sole assignment of error and affirm the judgments of the trial court.
Judgments affirmed.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.