SARA JONAS, and BRADLEY JONAS, Plaintiffs-Appellants, vs. ABUBAKAR ATIQ DURRANI, M.D., CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC, and CHRIST HOSPITAL, Defendants-Appellees, and CINCINNATI CHILDREN‘S HOSPITAL MEDICAL CENTER, Defendant. ANDREW CARR, Plaintiff-Appellant, vs. ABUBAKAR ATIQ DURRANI, M.D., CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC, and CHRIST HOSPITAL, Defendants-Appellees, and WEST CHESTER HOSPITAL, LLC, UC HEALTH, and CINCINNATI CHILDREN‘S HOSPITAL MEDICAL CENTER, Defendants.
APPEAL NO. C-180457, TRIAL NO. A-1504134; APPEAL NO. C-180458, TRIAL NO. A-1505422
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 22, 2020
2020-Ohio-3787
O P I N I O N.
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in C-180457; Affirmed in Part, Reversed in Part, and Cause Remanded in C-180458
Date of Judgment Entry on Appeal: July 22, 2020
Robert A. Winter Jr. and The Deters Law Firm, P.S.C., and Fred Johnson, for Plaintiffs-Appellants Sara Jonas, Bradley Jonas, and Andrew Carr,
Taft Stettinius & Hollister LLP, Russell S. Sayre, Aaron M. Herzig and Philip D. Williamson, for Defendants-Appellees Abubakar Atiq Durrani, M.D., and Center for Advanced Spine Technologies,
Dinsmore & Shohl LLP, Jennifer Orr Mitchell, Matthew S. Arend and R. Samuel Gilley, for Defendant-Appellee Christ
BERGERON, Judge.
{¶1} We once again confront issues swirling around the malpractice allegedly committed by Dr. Abubakar Atiq Durrani. In this latest chapter, we evaluate complaints filed by рlaintiffs-appellants Sara
I.
{¶2} Suffering from lower back pain, plaintiff-appellant Sara Jonas sought treatment with Dr. Durrani in the spring of 2008. Dr. Durrani ultimately recommended surgery to alleviate Ms. Jonas‘s pain, performing surgery on her in August 2008. Rather than solving her problems, however, after surgery Ms. Jonas experienced increased pain and muscle spasms. This led Ms. Jonas to seek treatment from another doctor who performed a repair surgery on her back. In the wake of these events and her continued pain, Ms. Jonas and her husband Bradley Jonas eventually brought suit in the Hamilton County Common Pleas Court against Dr. Durrani, the Center for Advanced Spine Technologies, Inc., (“CAST“) and Christ Hospital in May 2014, but they subsequently voluntarily dismissed the claims pursuant to
{¶3} Unlike Ms. Jonas, who underwent only one surgery with Dr. Durrani, Dr. Durrani performed multiple surgeries on Andrew Carr. Beginning in 2004, Mr. Carr sought care for a curvature of his spine, which ultimately led to a 2005 operation with Dr. Durrani at Children‘s. Another surgery in 2007 at Christ Hospital ensued, followed by yet a third surgery in 2010 at West Chester Hospital. After this series of surgeries failed to alleviate Mr. Carr‘s back issues, he eventually filed suit in Butler County in 2013, but then voluntarily dismissed that case under
{¶4} Both Ms. Jonas‘s and Mr. Carr‘s refiled claims suffered the same fate at the trial court level, as Dr. Durrani, CAST, along with the relevant defendant hospitals moved to dismiss the pending claims against them based on Ohio‘s four-year medical malpractice statute of repose. Agreeing with the defendants, the trial court dismissed the claims, deeming them untimely аs falling outside the four-year window allotted under the statute. The court also denied the plaintiffs’ respective motions to amend their complaints, concluding the endeavors futile in light of the statute of repose barrier.
{¶5} Ms. Jonas (along with her husband) and Mr. Carr separately appealed the dismissals of their complaints and the denials of their motions to amend. After filing their appeals, however, Mr. Carr voluntarily dismissed with prejudice his pending claims against West Chester Hospital, UC Health, and Children‘s, and the Jonases dismissed with prejudice their pending сlaims against Children‘s. After the dust settled from those dismissals, it left only Dr. Durrani, CAST and Christ Hospital as parties relevant for these appeals.
{¶6} On appeal, Ms. Jonas and Mr. Carr each present two assignments of error, challenging the dismissal of their claims as barred by the medical malpractice statute of repose and the trial court‘s denial of
II.
{¶7} We begin our analysis with Ms. Jonas‘s appeal and her first assignment of error. The trial court dismissed Ms. Jonas‘s complaint pursuant to
A.
{¶8} Under her first assignment of error, Ms. Jonas challenges the trial court‘s determination that Ohio‘s medical malpractice statute of repose,
{¶9} To begin, Ms. Jonas seeks to characterize her fraud and negligent credentialing claims as nonmedical claims in order to escape the purview of the four-year repose period in
{¶10} Ms. Jonas‘s negligent credentialing claim meets a similar fate here, as we have repeatedly held that such claims constitute “medical claims” for purpose of the statute of repose. McNeal at ¶ 19 (“[W]e have previously held that negligent credentialing claims constitute ‘medical claims’ under the statute of repose.“); Young v. Durrani, 2016-Ohio-5526, 61 N.E.3d 34, ¶ 21 (1st Dist.) (noting that the plaintiff‘s claim for negligent credentialing was a medical claim as it resulted from the “hiring, training, supervision, retention, or termination of caregivers providing medicаl diagnosis, care, or treatment.“); Crissinger v. Christ Hosp., 2017-Ohio-9256, 106 N.E.3d 798, ¶ 17 (1st Dist.) (relying on Young in concluding that negligent credentialing claims are medical claims for purposes of the statute of repose). This conclusion comports with the definition of “medical claims,” which includes claims arising out of the medical diagnosis, care, or treatment of any person when “[t]he claim results from the hiring, training, supervision, retention, or termination of caregivers providing medical diagnosis, care, or treatment.”
{¶11} Recognizing that the definition of “medical claim” under
{¶12} Next, Ms. Jonas turns to the Ohio savings statute,
{¶13} Anticipating this problem, Ms. Jonas maintains that the trial court erred in applying the date of the surgery to calculate the running of the reposе period, insisting instead that the date of the surgery was not the last act or omission of the defendants in an effort to (effectively) elongate the repose period. Recently faced with a similar argument in McNeal v. Durrani, we noted that the plaintiffs’ claims there “revolve[d] around affirmative actions,” the allegedly negligently performed surgeries. Id. at ¶ 15. Similarly, surveying Ms. Jonas‘s complaint, the underlying claims rest on the assertion that Dr. Durrani
{¶14} As another potential avenue for relief, Ms. Jonas asserts that Dr. Durrani‘s flight in December 2013 tolled the running of the statute of repose under
B.
{¶15} Perhaps appreciating that most of the points above have been covered by our precedent, Ms. Jonas‘s final argument seeks to break new ground. She posits that Dr. Durrani‘s implantation of BMP-2 constitutes a “foreign object” pursuant to
{¶16} The statute of repose provides “[i]f the alleged basis of a medical 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 * * * .”
{¶17} But Melnyk does littlе to shed light on the meaning of the “foreign object” exception as it relates to the repose period, as at the time the statute did not include a statute of repose. Saultz v. Funk, 64 Ohio App.2d 29, 32, 410 N.E.2d 1275 (8th Dist.1979) (noting that repose period became effective in 1975). But even with the later addition of a repose component to the statute, it “[did] not mention a limited discovery rule * * * [r]ather the legislature limited the period during which the termination and tolling rules may extend the period for bringing a claim under [the limitations period].” Id. at 36. “By enacting [the repose period], the legislature limited the termination and tolling rules to the extent that they previously would have allowed a claim to be filed more than four years after the act or omission alleged to constitute malpractice.” Id. at 37. In fact, not until passage of Am.Sub.S.B. 281 by the General Assembly in 2003, did the legislature include the statute of repose exception for foreign objects under
{¶18} A review of Ohio caselaw, however, confirms that a central concern of the foreign object exception is the failure to remove an item that the doctor should have removed from the body. See Emery v. Dettling, 9th Dist. Summit No. C.A. 8117, 1976 WL 188862, *1 (Aug. 4, 1976) (distinguishing intentional placement of an IUD in the patient from a foreign body left in the body during surgery); Lipovecs v. Eisenstat, 8th Dist. Cuyahoga No. 51512, 1987 WL 5304, *4 (Jan. 8, 1987) (noting that foreign object exception to the discovery rule did not apply to objects which the physician intentionally placed in body as part of a surgery); Vucsko at ¶ 15 (noting that caselaw indicates that еxception applies to objects not intentionally left in the body). This understanding of a “foreign object” also aligns with how other jurisdictions have interpreted “foreign object” exceptions to their own limitations or repose periods. See Bright v. Sorensen, 2020 UT 18, 463 P.3d 626, ¶ 63 (2020) (“foreign object” includes items used during surgery and meant to be removed or objects accidentally introduced into the body during surgery); Walton v. Strong Mem. Hosp., 25 N.Y.3d 554, 35 N.E.3d 827 (2015) (contrasting “foreign objects” meant to be removed, serving only a medical function for the duration of the surgery from fixation devices meant to be left in the body); Shah v. Lehman, 953 S.W.2d 955, 957 (Mo.App.1997) (foreign objects are objects introduced and negligently permitted to remain in the body, not intentional introduction of an object meant to remain in the body).
{¶19} In rejecting Ms. Jonas‘s “foreign object” claim, the trial court relied on Favor v. W.L. Gore Assoc., Inc., S.D.Ohio No. 2:13-cv-655, 2013 WL 4855196 (Sept. 11, 2013), which explains that “Ohio cases indicate that the exception carved out for a ‘foreign object’ left in a patient‘s body is intended to cover objects that should have been removed from the body, not to objects which are intentionally placed there as part of the mediсal procedure to which the patient consented.” Id. at *3. While Ms. Jonas zeroes in on the finale of this
{¶20} Similarly, Ms. Jonas seizes on the “sound medical reason” aspect from Melnyk, to reason that because Dr. Durrani had no sound medical reason use BMP-2, this cоnverts the BMP-2 into a “foreign object.” Of course, the “sound medical reason” phrase is a relic from a case that predates the statute at hand by over a quarter-century. If the General Assembly had elected to include such language in the statute, we would be obliged to interpret it. But it did not. A plain, common sense, reading of the statute in the context of the caselaw demonstrates that “foreign objects” refers to objects that were meant to be removed upon the procedure‘s conclusion. A recent case from the Supreme Court of Utah interpreting an analogous statutory provision reached a similar conclusion. Bright, 2020 UT 18, 463 P.3d 626. There, the court emphasized the aspect of “discovery” of the foreign object (our statute uses “discovered“) as presupposing “the placement of an object that was not the intended point of the surgery.” Id. at ¶ 61. In other words, “the term discovery confirms that foreign objects are things left by mistake—in an improper place.” (Emphasis sic.) Id. Synthesizing these points, the Utah court held that Utah‘s “foreign objects” exception encompasses “implements used during surgery but meant to be removed,” аs well as “objects accidentally introduced into the body during surgery.” Id. at ¶ 63. But “foreign objects” does not “extend to medical devices or implants that are the very point of a medical procedure.” Id.
{¶21} We find this interpretation sensible and persuasive. To adopt Ms. Jonas‘s position would be to expand the “foreign objects” exception and render every medical device case a potential candidate for a longer repose period. A plaintiff could, by challenging the medical reasoning of the doctоr or the effectiveness of consent, circumvent the repose period. That would frustrate, rather than further, the intent of the General Assembly.
{¶22} This conclusion is bolstered by the opening phrase of the statute, which links the foreign object claim to “the alleged basis of a medical claim* * *.”
{¶23} Given that her complaint was filed more than four years after the act, i.e., the surgery, that formed the basis of the complaint, the medical malpractice statute of repose bars Ms. Jonas‘s claim. We accordingly overrule her first assignment of error.
C.
{¶24} Under her second assignment of error, Ms. Jonas alleges that the trial court erred when it denied her motion to amend her complaint on futility grounds. We review denial of a motion to amend a complaint for an abuse of discretion. McNeal, 2019-Ohio-5351, 138 N.E.3d 1231, at ¶ 20, citing Danopulos v. Am. Trading II, L.L.C., 2016-Ohio-5014, 69 N.E.3d 157, ¶ 23 (1st Dist.). But a trial court does not err in denying a motion to amend where such amendment would be futile. Freeman, 2019-Ohio-3643, 144 N.E.3d 1067, at ¶ 27, citing Hensley v. Durrani, 1st Dist. Hamilton No. C-130005, 2013-Ohio-4711, ¶ 14.
{¶25} Here, Ms. Jonas contends that granting her leave to amend her claim would have allowed her “to bolster [the] factual claims against challenges raised within Appellee‘s motions” and that she “sustained needless undue prejudice by being unable to argue the factual allegations with the amended complaint.” The trial court below concluded both that the fraud wаs not an independent medical claim, and it denied the motion to amend, noting that no fraud exception existed within the statute. And a survey of Ms. Jonas‘s additional factual allegations reveals that they relate back to the underlying surgery. For example, Ms. Jonas‘s additional allegations relating to the fraud provide merely that “Dr. Durrani lied * * * about the results of the post-op radiology which reflected the failed nature of the surgery” and that “Dr. Durrani lied about the outcome of the surgery * * * inform[ing] [Ms. Jonas] that the surgery was successful[.]” Based on our prеceding analysis, her amendment would have been futile under these circumstances because the pleading of additional facts would still not have rendered her claim timely in light of the medical malpractice statute of repose. Therefore, the trial court did not err in denying her motion to amend, and we overrule her second assignment of error.
III.
{¶26} Turning to Mr. Carr‘s case, the trial court granted judgment on the pleadings pursuant to
{¶27} In contrast to Ms. Jonas‘s complaint, Mr. Carr filed his initial complaint
{¶28} As to Mr. Carr‘s second assignment of error, he maintains that the trial court erred when it denied his motion to amend to add a civil state law RICO claim pursuant to the Ohio Corrupt Practices Act (“OCPA“) under
{¶29} But at a threshold level, we fail to see how Mr. Carr properly presented a civil сlaim under the OCPA. Perusal of his purported OCPA claim reveals little more than conclusory statements punctuated with an incantation of the elements of the statute. At a minimum, establishing a viable claim under the statute requires pleading, with particularity, that:
(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.
Flanagan v. Eden, 8th Dist. Cuyahoga No. 85252, 2005-Ohio-3133, ¶ 10; Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 27 (10th Dist.) (noting that failure to plead any of the elements of an OCPA claim with particularity results in a defective complaint); Universal Coach, Inc. v. New York City Transit Auth., Inc., 90 Ohio App.3d 284, 291, 629 N.E.2d 28 (8th Dist.1993) (“The failure of the plaintiffs to plead these three elements with specificity mandated that the trial court dismiss the claimed RICO violation[.]“). But to satisfy these criteria, Mr. Carr simply offers statements such as “CAST is an enterprise.” Nowhere in the amended complaint can we discern how he envisions structure, continuity, and separate existence from the corrupt practice to establish an “enterprise” within the meaning of
IV.
{¶30} In conclusion, and based on our preceding analysis of the claims, in the appeal numbered C-180457, we overrule both of the Jonases’ assignments of error and affirm the judgment of the trial court. In the appeal numbered C-180458, we sustain Mr. Carr‘s first assignment of error as it relates to his 2010 surgery and overrule his second assignment of error. The judgment of the trial court in the appeal numbered C-180458 is therefore reversed in part, affirmed in part, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment accordingly.
MYERS, J., concurs.
ZAYAS, P.J., concurs in judgment only.
Please note:
The court has recorded its own entry this date.