ELLIOT, APPELLEE, v. DURRANI, APPELLANT, ET AL.
No. 2021-1352
Supreme Court of Ohio
Submitted August 2, 2022—Decided December 6, 2022
Slip Opinion No. 2022-Ohio-4190
DONNELLY, J.
APPEAL
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Elliot v. Durrani, Slip Opinion No. 2022-Ohio-4190.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-4190
[Until this opinion appears in the Ohio Official Reports advance sheets, it may bе cited as Elliot v. Durrani, Slip Opinion No. 2022-Ohio-4190.]
Medical malpractice—Absconded defendant—
DONNELLY, J.
{¶ 1} This discretionary appeal asks whether the four-year statute of repose cuts off a plaintiff‘s time for filing a medical-malpractice claim when the defendant has fled the country before the statute of repose has expired. We hold that by its plain language,
I. BACKGROUND
{¶ 2} In March 2010, appellant, Abubakar Atiq Durrani, M.D., performed spinal surgery on appellee, Richard Elliot, at Good Samaritan Hospital of Cincinnati. Within a week, Elliot suffered pain and infection. Six weeks later, Elliot was unable to eat or drink and had lost 80 pounds. Elliot believes that Dr. Durrani and his clinic, Center for Advanced Spine Technologies, Inc., were responsible for performing his surgery unnecessarily, negligently, and without his informed consent. He also believes that Good Samaritan Hospital was negligent in credentialing Dr. Durrani, among other failings. In August 2013, the United States government indicted Dr. Durrani for criminal fraud related to his medical practiсe. See United States v. Durrani, S.D.Ohio Case No. 1:13-cr-84 (Aug. 7, 2013). Dr. Durrani fled to Pakistan in late 2013, and he has not returned.
{¶ 4} In July 2018, the trial court granted the motions to dismiss based on Elliot‘s having waited more than four years after the act or omission on which the claim was based to file his medical-malpractice complaint. The court held that
{¶ 5} Elliot appealed. During the pendency of that appeal, this court issued its decision in Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448. In Wilson, the plaintiffs had filed mеdical-malpractice claims against Dr. Durrani within four years of their surgeries. After the statute of repose had run, however, the plaintiffs dismissed their complaints pursuant to Civ.R. 41(A)(1)(a), id. at ¶ 2-3, which allows plaintiffs to dismiss their claims without prejudice under certain circumstances. The plaintiffs then refiled their lawsuits in another county, believing that
{¶ 6} The plaintiffs in Wilson filed a motion for reconsideration, asserting that the statute of repose had not run, because under
{¶ 7} Before issuing its decision on remand in Wilson, the First District rendered its decision in this case. After considering the language of
II. LAW AND ANALYSIS
A. Standard of Review
{¶ 8} We begin with the standard of review. “[I]ssues of statutory construction constitute legal issues that we decide de novo on appeal.” New York Frozen Foods, Inc. v. Bedford Hts. Income Tax Bd. of Rev., 150 Ohio St.3d 386, 2016-Ohio-7582, 82 N.E.3d 1105, ¶ 8. In any case concerning the meaning of a statute, our focus is the text. ” ‘[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous.’ ” State ex rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 38, quoting BedRoc Ltd., L.L.C. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004). “Thus, when a statute is unambiguous in its terms, courts must apply it rather than interpret it.” Id.
B. Relevant Statutes
{¶ 9} This case involves several statutes. First is
{¶ 10}
Except as to persons within the age of minority or of unsound mind as provided by
section 2305.16 of the Revised Code , and except as provided in division (D) of this section, both of the following apply:(1) No action upon a medical, dental, optometric, or chiropractic claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim.
(2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, or chiropractic claim, then, any action upon that claim is barred.
(Emphasis added.) In other words,
{¶ 11}
If a person making a medical claim, dental claim, optometric claim, or chiropractic claim, in the exercise of reasonable care and diligence, could not have discovered
the injury resulting from the act or omission constituting the alleged basis of the claim within three years after the occurrence of the act or omission, but, in the exercise of reasonable care and diligence, discovers the injury resulting from that act or omission before the expiration of the four-year period specified in division (C)(1) of this section, the person may commence an action upon the claim not later than one year after the person discovers the injury resulting from that act or omission.
(Emphasis added.)
{¶ 12}
If the alleged basis of a medical claim, dental claim, optometric claim, or chiropractic claim is the occurrence of an act or omission that involves a foreign object that is left in the body of the person making the claim, the person may commence an action upon the claim not later than one year after the person discovered the foreign object or not later than one year after the person, with reasonable care and diligence, should have discovered the foreign object.
A person who commences an action upon a medical claim, dental claim, optometric claim, or chiropractic claim under the circumstances described in division (D)(1) or (2) of this section has the affirmative burden of proving, by clear and convincing evidence, that the person, with reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within the three-year period described in division (D)(1) of this section or within the one-year period described in division (D)(2) of this section, whichever is applicable.
(Emphasis added.) Regarding a foreign object left in the body,
{¶ 13} The next relevant statute is the tolling statute,
(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 * * * 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 pаrt of a period within which the action must be brought.
(B) When a person is imprisoned for the commission of any offense, the time of the person‘s imprisonment shall not be computed as any part of any period of limitation, as provided in
section 2305.09, 2305.10, 2305.11, 2305.113 or 2305.14 of the Revised Code, within which any person must bring any action against the imprisoned person.
{¶ 14} The final relevant statute is
In any action that is 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 reversal of the judgment or the plaintiff‘s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.
(Emphasis added.)
C. Wilson v. Durrani
{¶ 15} Both Elliot and Dr. Durrani find support for their positions in Wilson, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448. Dr. Durrani cites our holding in Wilson in support of his assertion that no exceptions to the statute of repose outside of those contained in
{¶ 16} Elliot counters that Wilson examined whether the saving statute saves a cause of action from the statute of repose if it saves the action from the statute of limitations. See id. at ¶ 23-27. Concerning that discussion, this court cited California Pub. Emps.’ Retirement Sys. v. ANZ Securities, Inc., 582 U.S. 497, 137 S.Ct. 2042, 2050, 198 L.Ed. 2d 584 (2017), which held: “In light of the purpose of a statute of repose, the provision is in general not subject to tolling. Tolling is permissible only where there is a particular indication that the legislature did not intend the statute to provide complete repose but instead anticipated the extension of the statutory period under certain circumstances.”
{¶ 17} This is exactly our situation here. As in this case, our analysis in Wilson turned on the language of the statute. In Wilson, we were asked to read into the saving statute an exception to the statute of repose. But the court held that neither the statute of repose nor the saving statute afforded it an avenue to do so. The statute of repose delineates discretе exceptions, none of which incorporate the saving statute. And the saving statute specifically mentions the circumstance that will stretch the statute of limitations, but it says nothing about the statute of repose. Accordingly, this court held in Wilson that
{¶ 18} Furthermore, the court emphasized that only explicit exceptions to the statute of repose are to be applied. Id., 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, at ¶ 33. What we make clear now is that the explicit directives in other statutes matter as much as the directives in the statute of repose and are not to be ignored. The saving statute is not identified anywhere as an exception to the medical-claim statute of repose. See id. at ¶ 37. But
{¶ 19} That the tolling statute and the statute of repose are complementary rather than conflicting can hardly be denied. Certain language in Wilson may provide an avenue to attack them as incompatible, but only if we ignore the language in each statute. However, we are not authorized to ignore statutory language. “When statutory language is unambiguous, it must be applied as written, without resort to rules of statutory interpretation or considerations of public policy.” State ex rel. Paluch v. Zita, 141 Ohio St.3d 123, 2014-Ohio-4529, 22 N.E.3d 1050, ¶ 13.
{¶ 20} Dr. Durrani has two responses. First, Dr. Durrani claims that the “period of limitation” in
{¶ 21} Furthermore, this court in Wilson quoted with approval the meaning of the phrase “period of limitation” as interpreted by the Seventh Circuit Court of Appeals in Hinkle v. Henderson, 85 F.3d 298 (7th Cir.1996); that court applied the phrase to both a statute of reposе and a statute of limitations. See Wilson, 146 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, at ¶ 35. The phrase “period of limitation,” which appears in
{¶ 22} Dr. Durrani argues that we should not apply the express exemption to the statute of repose found in
{¶ 23} But we have no authority to read an explicit statutory provision out of the Revised Code.
{¶ 24} Because
III. CONCLUSION
{¶ 25} The legislature has presented us with an unambiguous tolling statute in
Judgment affirmed.
GWIN, STEWART, and BRUNNER, JJ., concur.
O‘CONNOR, C.J., dissents.
KENNEDY, J., dissents, with an opinion joined by KLATT, J.
W. SCOTT GWIN, J., of the Fifth District Court of Appeals, sitting for FISCHER, J.
WILLIAM A. KLATT, J., of the Tenth District Court of Appeals, sitting for DEWINE, J.
KENNEDY, J., dissenting.
{¶ 26} In this discretionary appeal from the First District Court of Appeals, we are asked to decide whether the medical-claim statute of repose,
Law and Analysis
Statutory Interpretation
{¶ 27} This case brings two statutory provisions into сonsideration:
{¶ 28}
The Absconding-Defendant Statute
{¶ 29}
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 thе person‘s absence or concealment shall not be computed as any part of a period within which the action must be brought.
{¶ 30}
{¶ 31} The General Assembly enacted legislation in 1831 tolling the period of limitations for pursuing a legal action against a defendant who had left the state. See 29 Ohio Laws 41, 214, 216. This absconded-defendant legislation was later revised and included in Ohio‘s first Code of Civil Procedure enacted in 1852, see 51 Ohio Laws 57, 60 (effective July 1, 1853), and through subsequent legislative revisions came to be what is now
The Medical-Claim Statute of Repose
{¶ 32} This reading of the absconding-defendant statute is supported by the
Except as to persons within the age of minority or of unsound mind as provided by section 2305.16 of the Revisеd Code, and except as provided in division (D) of this section, both of the following apply:
(1) No action upon a medical * * * claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim.
(2) If an action upon a medical * * * claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim, then, any action upon that claim is barred.
(Emphasis added.)
{¶ 33} The statute of repose is therefore subject to three express exceptions. First, it does not run while a claimant lacks legal capacity. See
If a person making a medical claim, * * * in the exercise of reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within three years after the occurrence of the act or omission, but, in the exercise of reasonable care and diligence, discovers the injury resulting from that act or omission before the expiration of the four-year period specified in divisiоn (C)(1) of this section, the person may commence an action upon the claim not later than one year after the person discovers the injury resulting from that act or omission.
{¶ 34} The language of
{¶ 35} We said as much in Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448. The question in that case was whether the saving statute,
{¶ 36} In Wilson, we noted that a statute of repose is akin to “a discharge in bankruptcy * * * providing ‘a fresh start’ and ‘embod[ying] the idea that at some point a defendant should be able to put past events behind him.’ ” (Brackets added in Wilson.) Id. at ¶ 9, quoting CTS Corp. v. Waldburger, 573 U.S. 1, 9, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014). In light of this purpose, we explained, “exceptions to a statute of repose require ’a particular indication that the legislature did not intend the statute to provide complete repose but instead anticiрated the extension of the statutory period under certain circumstances.’ ” (Emphasis added.) Id. at ¶ 29, quoting California Pub. Emps.’ Retirement Sys. v. ANZ Securities, Inc., 582 U.S. 497, 137 S.Ct. 2042, 2050, 198 L.Ed.2d 584 (2017). And since the General Assembly has created three express exceptions to the medical-claim statute of repose in
{¶ 37}
{¶ 38} A comparison of
The Implications of Today‘s Decision
{¶ 39} “The statute of repose exists to give medical providers certainty with respect to the time within which a claim can be brought and a time after which they may be free from the fear of litigation.” Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 19. The majority today overrides that statutory purpose and tolls the running of the statute of repose whenever the medical provider simply leaves the state—even if he or she departs Ohio without the intention to evade a malpractice action. Under the majority‘s holding today, when a medical provider leaves Ohio to practice in another state or to retire, he or she potentially has unending exposure to suit for injuries that occurred years or even decades earlier. That result is contrary to the legislative intent of
{¶ 40} This court does not have the final word regarding the interpretation of a statute. We have observed that ” ‘the General Assembly has shown no hesitation in acting promptly when it disagrees with аppellate rulings involving statutory construction and interpretation.’ ” In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-5696, 983 N.E.2d 350, ¶ 11, quoting State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 23, superseded by statute on other grounds as stated in State v. Jarvis, 167 Ohio St.3d 118, 2021-Ohio-3712, 189 N.E.3d 754. If the majority today has misinterpreted
Conclusion
{¶ 41} The period given for a claimant to bring a cause of action is a matter of public policy reserved to the General Assembly. See Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 29. “[I]t is not the role of the courts to establish their own legislative policies or to second-guess the policy choices made by the General Assembly.” Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 61. Rather, “[o]ur role, in exercise of the judicial power granted to us by the Constitution, is to interpret and apply the law enacted by the General Assembly.” Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 29.
{¶ 42} Here,
KLATT, J., concurs in the foregoing opinion.
Robert A. Winter Jr.; James F. Maus; and Statman Harris, L.L.C., and Alan Statman, for appellee.
Taft, Stettinius & Hollister, L.L.P., Aaron M. Herzig, Russell S. Sayre, Philip D. Williamson, and Anna M. Greve, for appellant.
Squire Patton Boggs (U.S.), L.L.P., Lauren S. Kuley, and Jeffrey W. DeBeer, urging reversal for amici curiae Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association.
Sean McGlone, urging reversal for amicus curiae Ohio Hospital Association.
Flowers & Grube, Paul W. Flowers, Melissa A. Ghrist, and Louis E. Grube, urging affirmance for amicus curiae Ohio Association for Justice.