RICHARD ELLIOT v. ABUBAKAR ATIQ DURRANI, M.D., THE CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., and TRIHEALTH, INC., f.d.b.a. THE GOOD SAMARITAN HOSPITAL OF CINCINNATI, OHIO
APPEAL NO. C-180555; TRIAL NO. A-1504466
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 3, 2021
[Cite as Elliot v. Durrani, 2021-Ohio-3055.]
CROUSE, Judge.
Civil Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Robert A. Winter Jr., The Deters Law Firm Co., II, PA, James F. Maus and Alex Petraglia, for Plaintiff-Appellant,
Lindhorst & Dreidame Co., LPA, Michael F. Lyon, James F. Brockman, Taft Stettinius & Hollister LLP, Aaron M. Herzig, Russell S. Sayre, Philip D. Williamson and Anna M. Greve, for Defendants-Appellees Abubakar Atiq Durrani, M.D., and the Center for Advanced Spine Technologies, Inc.,
Rendigs, Fry, Kiely & Dennis, LLP, Michael P. Foley, Thomas M. Evans and Jessica L. Worth, for Defendant-Appellee TriHealth, Inc., f.d.b.a. Good Samaritan
CROUSE, Judge.
{1} Plaintiff-appellant Richard Elliot appeals the trial court‘s denial of his motion for leave to amend his complaint, and the trial court‘s grant of Abubakar Atiq Durrani, M.D., (“Durrani“), the Center for Advanced Spine Technologies, Inc., (“CAST“), and TriHealth, Inc.‘s motions to dismiss. For the reasons that follow, we reverse the dismissal as to Durrani, but affirm the dismissal as to CAST and TriHealth.
I. Facts and Procedure
{2} In early 2010, Elliot began suffering lower back pain and sought treatment from Durrani. Durrani allegedly recommended lumbar spinal-fusion surgery to alleviate Elliot‘s pain. Elliot underwent the surgery on March 1, 2010, at Good Samaritan Hospital. Unfortunately, Elliot‘s surgical wounds became infected and he required extensive postoperative treatment.
{3} In June 2014, Elliot filed suit against Durrani, CAST, and TriHealth (formerly Good Samaritan Hospital). Elliot voluntarily dismissed the case a few months later, in September 2014. He refiled the claims less than a year after dismissal, in August 2015. Elliot alleged medical malpractice, battery, lack of informed
{4} Durrani, CAST, and TriHealth all moved to dismiss the complaint against them. All of the defendants asserted that Elliot‘s claims were barred by the medical statute of repose. Agreeing with the defendants, the trial court dismissed the case with prejudice. The trial court also denied Elliot‘s motion to amend his complaint, finding it futile in light of the statute of repose. Elliot appealed.
{5} After oral argument, but while this appeal was pending, the Ohio Supreme Court decided Wilson v. Durrani, Slip Opinion No. 2020-Ohio-6827. Therein, the court held that the saving statute,
{6} On March 2, 2021, the Ohio Supreme Court denied the motion for reconsideration as to the saving statute, but granted the motion for reconsideration as to the tolling statute and remanded Wilson for this court to consider, in the first instance, whether the repose period was tolled under
II. Statute of Repose
{7} In his first assignment of error, Elliot contends that the trial court erred by granting Durrani, CAST, and TriHealth‘s motions to dismiss. We review de novo the grant of a motion to dismiss pursuant to Civ.R. 12(B)(6). McNeal v. Durrani, 2019-Ohio-5351, 138 N.E.3d 1231, ¶ 9 (1st Dist.), rev‘d on other grounds, Scott v. Durrani, 162 Ohio St.3d 507, 2020-Ohio-6932, 165 N.E.3d 1268.
{8} The motions to dismiss focused on the applicability of
A. Absent-Defendant Tolling Statute
{9} In December 2013, less than four years after Elliot‘s surgery, Durrani, who was under federal indictment, fled the country. Elliot claims that Durrani‘s flight from Ohio to Pakistan tolls all limitations periods, including the statute of repose, as
{10} Elliot contends that
{11} Appellees argue that
1. Claims Against Durrani
{12} The Ohio Supreme Court‘s decision in Wilson left open the question of whether the absent-defendant statute,
{13} To answer that question now, we first turn to the plain language of
(A) When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98, and 1304.35 of the Revised Code does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person‘s absence or concealment shall not be computed as any part of a period within which the action must be brought.
{14} Elliot argues that
{15} The first sentence of
{16}
{17} This view is affirmed by the Ohio Supreme Court‘s decision in Wilson, Slip Opinion No. 2020-Ohio-6827, at ¶ 35, wherein the court recognized that a “period of limitation” is broader than the “statute of limitations.” In Wilson, the court noted that the phrase “period of limitation” “reasonably encompasses not only the statute of limitations, but also the statute of repose.” Id. Thus, the first sentence of
{18} The second sentence of
{19}
{20} The General Assembly‘s inclusion of the word “accrues” does not detract from this interpretation. A claim “does not accrue” if the injury giving rise to the claim “is undiscovered until after the [repose period] has ended.” Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 21. If the injury is undiscovered when the statute of repose expires, then the “statute of repose bars the claim-the right of action-itself.” Wilson, Slip Opinion No. 2020-Ohio-6827, at ¶ 9. That is, if the injury is not discovered within four years, then the claim never accrues and the cause of action never comes into existence.2 See CTS Corp. v. Waldburger, 573 U.S. 1, 16-17, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014) (holding that statutes of repose define the scope of the cause of action, and thus, “a statute of repose can prohibit a cause of action from coming into existence.“).
{21} A review of
improvement to real property * * * shall accrue * * * later than ten years from the date of substantial completion of such improvement.”3 (Emphasis added.)
{22} These statutes evince a legislative understanding that the word “accrues” necessarily limits
{23} Although
{24} Statutes of repose target defendants and “emphasize [their] entitlement to be free from liability after a legislatively determined time.”4 Wilson at ¶ 10, quoting CTS Corp., 573 U.S. at 9. “A statute of repose confers on a defendant a personal privilege of sorts, in the form of an immunity from further liability.” Secy., United States Dept. of Labor v. Preston, 873 F.3d 877, 884 (11th Cir. 2017). They are intended to provide “a fresh start” and “embody[] the idea that at some point a defendant should be able to put past events behind him.” Wilson at ¶ 9, quoting CTS Corp. at 9. For that reason, statutes of repose begin to run on the date of the defendant‘s last culpable act or omission instead of when the cause of action accrues. CTS Corp. at 8.
{25} Because statutes of repose are designed to “grant complete peace to defendants,” they are generally not subject to equitable tolling. California Pub. Employees’ Retirement Sys. at 2052. However, the repose period may be subject to alteration through statute. Id. at 2050.
{26} Absent-defendant tolling statutes, much like statutes of repose, target
{27} The enactment and legislative history of
When a cause of action accrues against a person, if he is out of the state, or has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in this chapter, shall not begin to run until he comes into the state or while he is so absconded or concealed. After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought.
Gen. Code 11228. In 1953, the General Assembly relocated the absent-defendant statute to
{28} The absent-defendant statute was unquestionably intended to apply to statutes of limitations-i.e., the only time limitations in existence at its creation. However, the General Assembly began enacting statutes of repose in the late 1950s and early 1960s in response to “architects and builders [who] were increasingly subjected to suits brought by third parties long after work on a building had been completed.” Groch v. GMC, 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 337, ¶ 112. Over time, the General Assembly enacted statutes of repose in other areas of the law. In 1975, it enacted the first medical statute of repose. See Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, 2809, 2810-2811; Mominee v. Scherbarth, 28 Ohio St.3d 270, 272, 503 N.E.2d 717 (1986). Despite the addition of these new limitation periods, the absent-defendant statute has remained virtually unchanged.
{29} Since the 1950s, the General Assembly has amended
{30} In the same bill, the General Assembly amended
{31} Reading both subsections of
same general subject matter must be read in pari materia, and in construing these statutes in pari materia, this court must give them a reasonable construction so as to give proper force and effect to each and all of the statutes.“). This further bolsters our conclusion that the General Assembly intended for a defendant‘s absence from the state to toll all applicable time limitations, including any applicable statute of repose.
{32} Furthermore,
{33} Built into the statute of repose is an express exception for legal disabilities under
Unless otherwise provided in sections * * * 2305.04 to 2305.14 of the Revised Code, if a person entitled to bring any action mentioned in those sections, * * * is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person may bring it within the respective times limited by those sections, after the disability is removed.
* * *
After the cause of action accrues, if the person entitled to bring the action becomes of unsound mind * * *, the time during which the person is of unsound mind and so adjudicated or so confined shall not be computed as any part of the period within which the action must be brought.
(Emphasis added.)
{34} A review of the relevant language shows that both statutes operate to toll the statutory period of limitations. Both statutes refer to these limitation periods as the “period within which the action must be brought.” In addition, both statutes focus on when “the cause of action accrues.” The only notable difference between
{35} There is no question that the language of
{36} In Wilson, Slip Opinion No. 2020-Ohio-6827, at ¶ 29, the Ohio Supreme Court held that
{37} However, the decision in Wilson analyzed a very narrow issue—whether the savings statute in
{38}
In any action that is commenced or attempted to be commenced, * * * if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of * * * the plaintiff‘s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.
{39}
{40} Unlike
{41} Furthermore, unlike
provision is not expressly included as an exception in any section of the Revised Code. Instead,
{42} Comparing the two sections, it is clear that the nature and structure of
{43} Based on the plain language, purpose, and history of
2. Claims Against CAST
{44} We are next asked to analyze whether
{45} For
{46} Elliot cites Tausch v. Riverview Health Inst., 187 Ohio App.3d 173, 2010-Ohio-502, 931 N.E.2d 613 (2d Dist.) in support of his argument. The court in Tausch held that when a statute of limitations is tolled as to a doctor pursuant to Frysinger v.Leech, it is also tolled as to the hospital where the doctor performed the surgery. Id. at ¶ 36.
{47} Frysinger v. Leech, 32 Ohio St.3d 38, 512 N.E.2d 337 (1987), established an exception to the “discovery rule” for the accrual of medical-malpractice actions. In general, “a cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury.” (Internal quotations omitted.) Id. at 40. However, under Frysinger, the statute of limitations is tolled until the physician-patient relationship terminates. Id. at 41-42.
{48} The goals of the “termination rule” are to “‘encourage[] the parties to resolve their dispute without litigation, and stimulate[] the physician to mitigate the patient‘s damages.‘” Tausch at ¶ 26, quoting Frysinger at 41. Due to “the values Frysinger identified and relied on in adopting the termination rule,” the court in Tausch held that a related vicarious-liability claim arising out of the physician‘s negligence must be tolled against the hospital while the physician-patient relationship continues. Id. at ¶ 36. The court essentially determined that “it would be unreasonable to require a plaintiff to commence a suit against a hospital alleging negligence by a physician while still being treated by that physician.” Landrum v. Durrani (Landrum II), S.D.Ohio No. 1:18-CV-807, 2020-WL-3501399, *4 (June 29, 2020).
{49} Thus, Tausch concerned only the “termination rule” in Frysinger, which tolls the statute of limitations for vicarious-liability claims against the hospital while the plaintiff is still being treated by the physician. Tausch is inapplicable to the tolling provision in
B. Other Exceptions to the Statute of Repose
{51} The remaining arguments that Elliot has presented in an effort to circumvent the statute of repose have already been rejected by the Ohio Supreme Court or this court in recent precedent.
{52} First, Elliot contends that Ohio‘s savings statute,
{53} In an attempt to elongate the repose period, Elliot argues that the statute of repose began to run from the last date of treatment rather than the date of surgery. The statute of repose measures liability from the date of “the act or omission constituting the alleged basis of the medical claim“-i.e., the “last culpable act” of the defendant.
{54} A review of the complaint in this case shows that Elliot‘s underlying claims rest on the assertion that “the surgery performed by Dr. Durrani was medically unnecessary and improperly performed.” Although the complaint mentions improper follow-up care, those assertions necessarily flow from the alleged negligently-performed surgery. The postoperative care did not independently form the basis of Elliot‘s claims, and nothing in the complaint alleges that any separate harm occurred by virtue of the postoperative care. Thus, the act from which the statute of repose runs is the March 1, 2010 surgery, which makes the underlying 2015 lawsuit untimely.
{55} Elliot further attempts to evade the statute of repose by arguing that because the Ohio Medical Board revoked Durrani‘s license before this action was filed, claims against Durrani are not claims against a “physician,” and thus, not “medical claims” for purposes of
{56} In Levandofsky v. Durrani, S.D.Ohio No. 1:18-CV-809, 2020 WL 5535872 (Feb. 26, 2020), the Southern District of Ohio addressed this issue and held that there is “nothing in the [statute of repose] to suggest that a medical claim based upon the medical treatment rendered by a licensed physician is suddenly transformed into a ‘non-medical’ claim if that physician‘s license is revoked years after the cause of action arose but before a patient files suit.” Id. at *5. The court noted, “If interpreted otherwise, a physician who retired, or let his or her license lapse, would forever be subject to potential liability for medical claims.” Id. at fn. 7. We agree with this reasoning and indicated as much in Jonas v. Durrani, 2020-Ohio-3787, 156 N.E.3d 365, ¶ 14 (1st Dist.), rev‘d on other grounds, Carr v. Durrani, 163 Ohio St.3d 207, 2020-Ohio-6943, 168 N.E.3d 1188, when we stated, “the statute of repose is a ‘true statute of repose’ and
{57} Durrani was licensed to practice medicine at the time he performed the March 2010 surgery. As stated above, Elliot‘s underlying claims rest on the assertion that “the surgery performed by Dr. Durrani was medically unnecessary and
improperly performed.” There is nothing to suggest that Durrani‘s subsequent loss of license changed the nature of those claims. Thus, Durrani‘s subsequent loss of his medical license does not make the medical statute of repose inapplicable to this case.
{58} Finally, Elliot attempts to characterize his fraud and negligent-credentialing claims as nonmedical claims outside the purview of the statute of repose. However, we have repeatedly held that such claims fall squarely within the definition of “medical claims” under
{59} Based on our recent precedent, the statute of repose bars Elliot‘s claims against CAST and TriHealth.
{60} Elliot‘s first assignment of error is sustained in part and overruled in part.
III. Amended Complaint
{61} In his second assignment of error, Elliot contends that the trial court erred by denying his motion for leave to file an amended complaint. Through his amended complaint, Elliot sought to add a civil state law RICO claim pursuant to the Ohio Corrupt Practices Act (“OCPA“) under
{62} The denial of leave to amend a pleading is reviewed under an abuse-of-discretion standard. Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 576, 589 N.E.2d 1306 (1992). “[A] trial court properly refuses to grant leave to amend when amendment would be futile.” Hensley v. Durrani, 1st Dist. Hamilton No. C-130005, 2013-Ohio-4711, ¶ 14, citing Natl. City Bank v. Citizens Natl. Bank of Southwest Ohio, 2d Dist. Montgomery No. 20323, 2004-Ohio-6060, ¶ 26.
{63} To plead a civil RICO claim under the OCPA, the plaintiff must show: (1) that conduct of the defendant involves the commission of two or more specifically prohibited state or federal criminal offenses; (2) that the prohibited criminal conduct of the defendant constitutes a pattern; and (3) that the defendant has participated in the affairs of an enterprise or has acquired and maintained an interest in or control of an enterprise. McNeal, 2019-Ohio-5351, 138 N.E.3d 1231, at ¶ 21. “The failure to plead any of those elements with particularity results in a defective complaint that cannot withstand a Civ.R. 12(B)(6) motion to dismiss.” Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 27 (10th Dist.).
{64} Elliot‘s proposed amended complaint lacked the level of specificity required under the OCPA. Elliot claims that Durrani and TriHealth engaged in a pattern of corrupt activity by attempting
{65} Elliot‘s second assignment of error is overruled.
IV. Conclusion
{66} For the foregoing reasons, we overrule Elliot‘s first assignment of error as to CAST and TriHealth, and affirm the judgment of the trial court. We also overrule Elliot‘s second assignment of error in its entirety. However, we sustain Elliot‘s first assignment of error as to Durrani, reverse the judgment of the trial court, and remand the cause for further proceedings consistent with this opinion.
Judgment accordingly.
ZAYAS, P.J., and BERGERON, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.