KAMERON MCNEAL, and LAUREN MCNEAL, Plaintiffs-Appellants, vs. ABUBAKAR ATIQ DURRANI, M.D., CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., CINCINNATI CHILDREN’S HOSPITAL MEDICAL CENTER, and TRIHEALTH, INC., f.d.b.a. “GOOD SAMARITAN HOSPITAL,” Defendants-Appellees; BRADLEY ARNOLD, Plaintiff-Appellant, vs. ABUBAKAR ATIQ DURRANI, M.D., CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., and CINCINNATI CHILDREN’S HOSPITAL MEDICAL CENTER, Defendants-Appellees; R. DAVID SCOTT, and MISSY SCOTT, Plaintiffs-Appellants, vs. ABUBAKAR ATIQ DURRANI, M.D., CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., WEST CHESTER HOSPITAL, LLC, and UC HEALTH, LLC, Defendants-Appellees.
APPEAL NOS. C-180554, C-180634, C-180566, C-180641; TRIAL NOS. A-1503653, A-1504450, A-1506865
COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 27, 2019
2019-Ohio-5351
O P I N I O N.
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in C-180554, C-180634 and C-180566; Reversed and Cause Remanded in C-180641
Date of Judgment Entry on Appeal: December 27, 2019
The Deters Law Firm, P.S.C. , Robert A. Winter, Jr., and Fred Johnson, for Plaintiffs-Appellants Kameron McNeal, Lauren McNeal and Bradley Arnold,
Strauss Troy Co. LPA and Robert R. Sparks and Nicholas M. Nighswander, PLLC, and Nicholas M. Nighswander, for Plaintiffs-Appellants R. David Scott and Missy Scott,
Bonezzi, Switzer, Polito & Hupp Co., Paul W. McCartney and Thomas F. Glassman and Lindhorst & Dreidame Co. LPA, Michael F. Lyon, James, F. Brockman and James L. O’Connell, for Defendants-Appellees Abubakar Atiq Durrani and 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 Hospital,
Rendigs, Fry, Kiely & Dennis, LLP, Jeffrey M. Hines, Karen A. Carrol and Ryan J. Dwyer, for Defendants-Appellees West Chester Hospital, LLC, and UC Health, LLC,
Dinsmore & Shohl LLP, J. David Brittingham, Thomas P. Kemp, Jr., and Allison G. Knerr, for Defendant-Appellee Cincinnati Children’s Hospital Medical Center.
{¶1} In this collection of appeals, consolidated for opinion purposes, we apply our recent decisions in Freeman v. Durrani, 1st Dist. Hamilton No. C-180197, 2019-Ohio-3643, and Wilson v. Durrani, 1st Dist. Hamilton Nos. C-180196 and C-180194, 2019-Ohio-3880, to resolve similar issues stemming from alleged pervasive malpractice committed by Dr. Abubakar Atiq Durrani. Both sides, to varying degrees, urge us to retreat from these decisions on which the ink is still drying. We resist those invitations, and find the outcome in these appeals largely dictated by our recent precedent. For the reasons exрlained below, we affirm dismissals in the Arnold and McNeal appeals because the initial suits were commenced outside of the window for the four-year statute of repose, but reverse dismissal in the Scott appeal because the initial complaint was filed within the statute of repose and Ohio’s “savings statute” saved the subsequent complaint.
I.
{¶2} Plaintiff-appellant, Bradley Arnold, suffered serious injuries in 2005 upon dislocating his hip in an accident. This injury brought Mr. Arnold within the orbit of Dr.
{¶3} Unfortunately, the surgery failed to alleviate Mr. Arnold’s medical issues or the severe pain he continued to experience. Based on the surgery’s failure to achieve the anticipated results, and bolstered by another doctor’s assessment that one of the screws from the surgery appeared to be touching a nerve, Mr. Arnold eventually brought suit against Dr. Durrani, The Center for Advanced Spine Technologies, Inc., (“CAST”) and CCMHC in the Hamilton County Court of Common Pleas in 2013, alleging various claims related to medical malpractice, negligence, and fraud. Mr. Arnold voluntarily dismissed the complaint pursuant to
{¶4} Similarly, plaintiff-appellant Kameron McNeal injured his back in 2004 during a wrestling match and, through a doctor’s referral, sought the assistance of Dr. Durrani. Mr. McNeal first underwent surgery with Dr. Durrani in 2005 at CCMHC. Though a minor at the time of the 2005 surgery, Mr. McNeal reached the age of majority in 2008.
{¶5} After the 2005 surgery, however, Mr. McNeal continued to experience pain and eventually underwent a second surgery with Dr. Durrani in April 2009. Instead of fixing the issues, however, the second surgery produced new pain and numbness in Mr. McNeal’s hips, legs, and knees. Due to the unsuccessful nature of the surgeries, Mr. McNeal, along with his wife Lauren, ultimately filed suit against Dr. Durrani, CAST, CCMHC and TriHealth, Inc., (formerly Good Samaritan Hospital) in the Hamilton County Court of Common Pleas in May 2014, but then voluntarily dismissed the suit under
{¶6} The last plaintiff-appellant at issue here, Ralph David Scott, underwent six separate surgeries with Dr. Durrani spanning from 2006 through 2011. The two earliest surgeries occurred in 2006 and 2008 at a hospital not a party to this appeal. The four later surgeries, occurring in 2010 and 2011, were all performed at West Chester Hospital. In 2013, Mr. Scott, and his wife Missy Scott, filed the first complaint based on these surgeries in the Common Pleas Court of Butler County and named Dr. Durrani, CAST, West Chester Hospital, LLC, (“WCH”) and UC Health, Inc., (which manages WCH) as defendants. Mr. Scott voluntarily dismissed the case in December 2014 and eventually refiled in Hamilton County the following December 2015.
{¶7} Dr. Durrani, CAST, and the various other defendant hospitals in each case ultimately all moved to dismiss the complaints against them in Hamilton County. In Mr. Arnold’s and Mr. McNeal’s cases, the defendants moved pursuant to
{¶8} Messrs. Arnold, McNeal, and Scott (and their respective spouses) all now appeal the respective dismissals of their cases. Mr. Arnold and Mr. McNeal assert two assignments of error, challenging both
II.
{¶9} As Mr. Arnold’s and Mr. McNeal’s appeals implicate the same issues against similar рrocedural backdrops, we will address them together. The trial court dismissed both of their cases on
A.
{¶10} We begin with their first аssignments of error, which challenge the trial court’s determination that
{¶11} We recently explored this issue in depth in Wilson, 1st Dist. Hamilton Nos. C-180196 and C-180194, 2019-Ohio-3880. In Wilson, we held that
{¶12} But Wilson does not come to these plaintiffs’ aid and resurrect their claims because both of their initial complaints were filed after the four-year repose period in
{¶13} Perhaps anticipating this problem, both plaintiffs try to expand the statute of repose by relying on Bugh v. Ohio Dept. of Rehab., and Corr., 2019-Ohio-112, 128 N.E.3d 906 (10th Dist.), to support their proposition that “the trial court erred by using the surgery date lockstep” in determining that the statute of repose barred their claims. Instead, they propose that the statute of repose runs from the date of the “last” act or omission, which they contend was the date that Mr. Arnold and Mr. McNeal were last seen by Dr. Durrani, thus rendering their initial suits timely. In this respect, they also feature a quote from Wilson where we included language about how the “last culpable act” can trigger the statute. Wilson at ¶ 16.
{¶14} But plaintiffs’ arguments take these cases out of context and cannot be squared with the plain language of
{¶15} These cases fail to provide Messrs. Arnold and McNeal a ticket for reversal because their claims revolve around affirmative actions—the alleged negligently-performed surgeries by Dr. Durrani. To be sure, both individuals saw Dr. Durrani subsequent to their surgeries, but these subsequent visits do not form the basis for their medical сlaims. A tour of their complaints reveals instead that the underlying claims rest on the contention that Dr. Durrani improperly and unnecessarily performed surgery on them. Thus, the “act” from which the statute of repose necessarily runs here is from the date of the surgeries because they constitute the alleged basis of the medical claims.
{¶16} Further attempting to avoid application of the statute of repose, both plaintiffs assert that Dr. Durrani’s absconding to Pakistan should toll the repose period undеr
{¶17} As their next entreaty to avoid the statute of repose, Mr. Arnold and Mr. McNeal insist that their fraud and negligent credentialing claims are in fact nonmedical claims (and thus beyond the scope of the statute of repose), but these arguments cannot be squared with our recent precedent. In Freeman, 1st Dist. Hamilton No. C-180197, 2019-Ohio-3643, we explained that fraud claims relating to treatment fall under the broad umbrella of “medical claim” as defined in
{¶18} Messrs. Arnold and McNeal attempt to distinguish their fraud claims from medical claims by positing that the decision to misstate the facts was not “medical in nature.” But such an exception would swallow the rule, as we recognized in Freeman. Just as in Freeman, these plaintiffs’ “fraud allegations echo the statutory definition of ‘medical claim’ under
{¶19} Similarly, we have previously held that negligent credentialing claims constitute “medical claims” under the statute of repose. See Crissinger v. Christ Hosp., 2017-Ohio-9256, 106 N.E.3d 798, ¶ 17 (1st Dist.) (“Our previous holding in Young established that the claims for negligence, negligent credentialing, and fraud were ‘medical claims’ within the statute of repose[.]”); Young v. Durrani, 2016-Ohio-5526, 61 N.E.3d 34, ¶ 21 (1st Dist.) (“Similarly the Youngs’ claim for negligent credentialing and retention is a medical claim because it results from the ‘hiring, training, supervision, retention, or termination of caregivers providing medical diаgnosis, care, or treatment.’ ”), citing
B.
{¶20} Turning to Mr. Arnold’s and Mr. McNeal’s second assignments of error, they both challenge the trial court’s denial (on futility grounds) of their motions for leave to amend their complaints. We generally review the denial of a motion to amend a complaint for an abuse of discretion. Danopulos v. Am. Trading II, L.L.C., 2016-Ohio-5014, 69 N.E.3d 157, ¶ 23 (1st Dist.). Because we already determined that the statute of repose bars their claims, this resolves most of the issues raised in their second assignments of error that rest on the premise of a contrary ruling. We therefore overrule these aspects of their second assignments of error and focus our analysis on their state RICO claims under
{¶21}
(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.
Wilk v. Discover Bank, 11th Dist. Lake No. 2019-L-006, 2019-Ohio-3842, ¶ 57, quoting Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 27 (10th Dist.). After a review of the proposed amended complaint, however, the allegations primarily consist of conclusory statements that the defendant hospitals engaged in a pattern of corrupt activity by allowing Dr. Durrani to continue the surgeries, which is insufficient for purposes of
{¶22} The allegations underlying the claims under
{¶23} We therefore conclude that amendment under these circumstances would have been futile, and the trial court did not err in denying the motions to amend the complaints. See Freeman at ¶ 27 (amendment futile where underlying claims were “medical claims” subject to four-year statute of repose).
III.
{¶24} As to Mr. Scott’s case, the trial court ultimately granted judgment on the pleadings under
{¶25} Mr. Scott underwent surgeries in 2006, 2008, 2010, and 2011, and filed his first complaint in Butler County in 2013. He subsequently voluntarily dismissed that suit and refiled within a year in Hamilton County, but outside of the medical malpractice repose period in
{¶26} Thus, so long as the two suits were “substantially similar” the savings statute may be properly invoked. Children’s Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio St.2d 523, 525, 433 N.E.2d 187 (1982) (“The savings statute applies when the original suit and the new action are substantially the same.”). And here the parties in the original and refiled action are identical, the complaints assert similar causes of action based on the same surgeries, and both suits seek monetary damages. Compare Wilson at ¶ 32 (appeals substantially similar when involving the “same defendants for almost identical causes of action[.]”) with Children’s Hosp. at 525 (claims not substantially similar when the parties in the new action were different parties than the ones in the original suit and the relief sought was different); Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 31 (claims were not “substantially the same” when the second comрlaint included over a dozen additional parties and was pleaded solely as a qui tam action and did not expressly assert malpractice claims). Furthermore, none of the remaining defendants contest the similarity of the complaints on appeal. We thus have no hesitation in finding that the original and refiled actions are substantially similar for purposes of invoking the savings statute.
{¶27} The defendants here appreciate that Wilson is fatal to their statute of repose argument, and request that we overrule it. But we see no basis that would justify overruling an opinion that we handed down just months ago. A simple plea of “you got it wrong” falls well short of the demands for jettisoning recent precedent. See Bouher v. Aramark Servs., Inc., 181 Ohio App.3d 599, 2009-Ohio-1597, 910 N.E.2d 40, ¶ 24 (1st Dist.) (elaborating on the specific circumstances which justify overruling prior precedent). Indeed, in several of these Durrani-related cases, when the plaintiffs have complained about one of our rulings and requested a revisiting of it, the defendants have assured us of the impropriety of reconsidering rulings of such recent vintage. We аccordingly sustain Mr. Scott’s first assignment of error based on Wilson.
{¶28} Mr. Scott’s second and third assignments of error challenge the trial court’s decision to allow WCH to amend its
IV.
{¶29} In light of the foregoing аnalysis, in the appeal numbered C-180566 we overrule both of Mr. Arnold’s assignments of error and affirm the judgment of the trial court. In the appeals numbered C-180554 and C-180634, we overrule Mr. McNeal’s two assignments of error and affirm the judgment of the trial court. Finally, as to Mr. Scott’s appeal numbered C-180641 we sustain his first assignment of error, reverse the judgment of the trial court and remand the cause to the trial court for further proceedings consistent with this opinion. We do not address his second and third assignments of error because they are mooted by our disposition of his first assignment of error.
Judgment accordingly.
MYERS, J., concurs.
MOCK, P.J., concurs separately.
MOCK, P.J., concurring separetely.
{¶30} While I agree that the savings statute applies to preserve the Scott claims while not doing so for the Arnold or McNeal claims, I write separately because I believe the reasoning for such a result is different than what was announced in Wilson v. Durrani, 1st Dist. Hamilton Nos. C-180196 and C-180194, 2019-Ohio-3880, and Atwood v. UC Health, S.D.Ohio No. 1:16cv593, 2018 WL 3956766 (August 17, 2018).
{¶31} Both Wilson and Atwood rely on policy considerations to determine the interplay between the statute of repose for medical claims and the savings statute. But I believe that the language of the repose statute itself dictates the result. If a statute is ambiguous, a court must then interpret the statute to determine the General Assembly’s intent; but if it is not ambiguous, then a court need not interpret it but must simply apply it. Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242.
{¶32}
{¶33} The first provision is simple enough to understand, and that provision applies to all three sets of claims here. In all three sets of claims, the refiled actions were filed outside the four-year period. But, under the second provision, we see a distinction. The second provision sets forth that if an action is not commenced within four years, then any action is barred. As to the Arnold and McNeal claims, no action had been commenced within the four-year period. The Arnold claims were initially filed in 2013 in reference to a 2008 surgery. The McNeal claims were initiated in 2014 in reference to, at the latest, a 2009 surgery. Therefore, according to
{¶34} On the other hand, the Scott claims were commenced within the four-year period. Therefore, the statute does not apply to their claims.
A basic rule of statutory construction requires that “words in statutes should not be construed to be redundant, nor should any words be ignored.” E. Ohio Gas Co. v. Pub. Util. Comm., 39 Ohio St.3d 295, 299, 530 N.E.2d 875 (1988). Statutory language “must be construed as a whole and given such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative.” [State ex rel. Myers v. Bd. of Education of Rural School Dist. of Spencer Twp. Lucas Cty., 95 Ohio St. 367, 372-373, 116 N.E. 516, 517 (1917).]
{¶36} I believe that the only reading of
{¶37} In this case, the Scott claims were filed within four years of the occurrence constituting the alleged basis of the claim. For that reason, the statute of repose in
Please note:
The court has recorded its own entry on this date.