Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 02-28-2022
Case Style:
RICHARD ELLIOT vs. 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
Case Number: C-180555
Judge: Candace C. Crouse
Court:
COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
On appeal from The Hamilton County Court of Common Pleas
Plaintiff's Attorney:
Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Info@MoreLaw.com - 855-853-4800
Defendant's Attorney: 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 Hospital.
Description:
Cincinnati, Ohio - Medical Malpractice lawyer represented Plaintiff-Appellant with appealing a motion for leave to amend his complaint for Medical Malpractice.
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 consent,
intentional infliction of emotional distress, and fraud against Durrani. Elliot alleged
vicarious lability, negligent hiring, retention, and supervision, fraud, and other statutory
violations against CAST and TriHealth. Elliot later moved to amend the complaint to
add a civil state law RICO claim against all of the defendants.
{¶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.
OHIO FIRST DISTRICT COURT OF APPEALS
3
{¶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, R.C. 2305.19, does not permit the refiling of
actions beyond expiration of the medical statute of repose, R.C. 2305.113(C). The
Wilson plaintiffs moved for reconsideration on three grounds: (1) the statute of repose
had not yet expired due to the tolling provision in R.C. 2305.15(A), (2) the court wrongly
determined that the saving statute does not apply to the statute of repose, and (3) the
decision in Wilson should apply only prospectively. Due to the potentially binding
effects of Wilson, Durrani and CAST moved to stay this appeal pending disposition of
the motion for reconsideration. We granted the stay. We also stayed several other cases
pending before this court that had the same issue in dispute.
{¶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 R.C. 2305.15(A). On that same day, the
court reversed a number of other cases on the authority of Wilson and remanded those
cases to this court to consider the tolling-statute issue. For the efficient administration
and resolution of these matters, we designated this appeal as the lead case, ordered
supplemental briefing, and heard consolidated arguments on the issue. We address the
argument, along with Elliot’s other arguments, herein.
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 FIRST DISTRICT COURT OF APPEALS
4
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 R.C.
2305.113(C), Ohio’s four-year statute of repose for medical claims. Elliot alleges that
his injuries arose from a March 1, 2010 spinal surgery performed by Durrani. He
filed this lawsuit on August 9, 2015, more than five years after the surgery.
Therefore, the statute of repose bars his claims unless an exception applies. Elliot
argues that numerous exceptions apply in this case.
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 to
Durrani and CAST by virtue of R.C. 2305.15(A).1
{¶10} Elliot contends that R.C. 2305.15(A) expressly encompasses “sections
2305.04 to 2305.14 * * * of the Revised Code,” and thus, applies to the statute of repose
contained in R.C. 2305.113(C). Elliot cites several recent Ohio federal district court cases
in support of his argument. See, e.g., Landrum v. Durrani, S.D.Ohio No. 1:18-cv-807,
2020 WL 3512808, *4 (Mar. 25, 2020) (“The tolling provision at §2305.15(A) expressly
applies to ‘2305.04 to 2305.14,’ thus encompassing the statute of repose at
§2305.113(C).”); Powers v. Durrani, S.D.Ohio No. 1:18-cv-788, 2020 WL 5526401, *2
(Sept. 15, 2020) (applying Landrum); Mahlenkamp v. Durrani, S.D.Ohio No. 1:18-cv817, 2021 WL 2012939, *3 (May 19, 2021) (same); Sterling v. Durrani, S.D.Ohio No.
1:18-cv-802, 2021 WL 2013012, *3 (May 19, 2021) (same).
1 In his appellate brief, Elliot does not claim that R.C. 2305.15(A) applies to TriHealth. See
Appellant’s brief at 10 (“This error was preserved in the opposition briefs to the motions of Dr.
Durrani/CAST.”).
OHIO FIRST DISTRICT COURT OF APPEALS
5
{¶11} Appellees argue that R.C. 2305.113(C) contains only a few exceptions to
the four-year repose period, and tolling due to a defendant’s absence is not one of them.
1. Claims Against Durrani
{¶12} The Ohio Supreme Court’s decision in Wilson, Slip Opinion No. 2020-
Ohio-6827, left open the question of whether the absent-defendant statute, R.C.
2305.15(A), applies to toll the four-year medical statute of repose, R.C. 2305.113(C).
{¶13} To answer that question now, we first turn to the plain language of R.C.
2305.15. R.C. 2305.15 is titled, “Tolling during defendant’s absence, concealment or
imprisonment,” and states in pertinent part:
(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 R.C. 2305.15(A) expressly applies to “period[s] of
limitation for the commencement of the action” and “period[s] within which the action
must be brought,” broad phrases which incorporate both the statute of limitations and
the statute of repose set forth in R.C. 2305.113. Appellees conversely argue that because
R.C. 2305.15(A) uses the phrase “the period of limitation” and the word “accrues,” it
refers only to the statute of limitation set forth in R.C. 2305.113(A).
OHIO FIRST DISTRICT COURT OF APPEALS
6
{¶15} The first sentence of R.C. 2305.15(A) applies when the defendant
absconds before the cause of action accrues. Under this circumstance, “the period of
limitation for commencement of the action as provided in [R.C. 2305.113] does not
begin to run * * * while the person is so absconded.”
{¶16} R.C. 2305.113(C)(1), the medical statute of repose, states, “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.”
(Emphasis added.) Thus, R.C. 2305.113(C) sets forth a “period of limitation for the
commencement of the action.”
{¶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 R.C.
2305.15(A) broadly applies to both the statute of limitations and the statute of repose.
{¶18} The second sentence of R.C. 2305.15(A) applies when the defendant
absconds after a cause of action accrues. Under this circumstance, “the time of the
person’s absence * * * shall not be computed as any part of a period within which the
action must be brought.”
{¶19} R.C. 2305.113(C)(2) states, “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.”
Thus, under R.C. 2305.113(C)(2), an action upon a medical claim must be brought
within four years of the act or omission constituting the basis of the claim; any action
brought more than four years after the act or omission is precluded. Based on this
OHIO FIRST DISTRICT COURT OF APPEALS
7
language, R.C. 2305.113(C) sets forth “a period within which the action must be
brought.” Accordingly, the second sentence of R.C. 2305.15(A) also applies to both the
statute of limitations and the statute of repose.
{¶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 R.C. Chapter 2305 demonstrates the General Assembly’s
intent to prevent causes of action from accruing after a specified repose period. For
example, the products-liability statute of repose, R.C. 2305.10(C)(1), provides that “no
cause of action based on a product liability claim shall accrue against the
manufacturer or supplier of a product later than ten years from the date that the
product was delivered to its first purchaser or first lessee[.]” (Emphasis added.)
Likewise, the construction statute of repose, R.C. 2305.131(A)(1), provides that “no
cause of action * * * that arises out of a defective and unsafe condition of an
2 We note that Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71
N.E.3d 974, seems to suggest that a cause of action can accrue after the statute of repose expires.
Id. at ¶ 26 (“[O]ur discussion of vested causes of action was made solely in the context of
addressing a claim that accrued after the statute of repose had expired.”). However, the decision
in Antoon concerned only whether the statute of repose applied to vested claims (claims that
accrued within the four-year statute of repose). Thus, unlike the Ruther court, the Antoon court
never squarely addressed whether a claim can accrue after the statute of repose has expired.
OHIO FIRST DISTRICT COURT OF APPEALS
8
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 R.C. 2305.15(A) to circumstances in which the injury was discovered
before the statute of repose expired. See CTS Corp. at 16 (interpreting similar
language in North Carolina’s statute of repose and finding “it mandates that there
shall be no cause of action beyond a certain point, even if no cause of action has yet
accrued.”). A cause of action can never accrue after the statute of repose has run.
Thus, R.C. 2305.15(A) can only be invoked to toll the four-year repose period if the
cause of action is discovered during the repose period.
{¶23} Although R.C. 2305.15(A), on its face, applies to R.C. 2305.113(C), a
statute of repose is subject to tolling 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[.]’ ” Wilson, Slip
Opinion No. 2020-Ohio-6827, at ¶ 29, quoting California Pub. Employees’ Retirement
Sys. v. ANZ Securities, Inc., ___ U.S. ___, 137 S.Ct. 2042, 2050, 198 L.Ed.2d 584
(2017). “[W]here the legislature enacts a general tolling rule in a different part of the
code * * * courts must analyze the nature and relation of the legislative purpose of each
provision to determine which controls.” California Pub. Employees’ Retirement Sys. at
2050.
3 A prior version of the medical statute of repose provided that “no cause of action for [medical
malpractice] shall accrue later than six years from the date of the occurrence of the act or
omission constituting the alleged basis of the claim of malpractice.” Former R.C.
2305.11(A)(2)(a). This language was repealed in 2001, following the Ohio Supreme Court’s
declaration that the Tort Reform Act was unconstitutional in its entirety. See State ex rel. Ohio
Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062 (1999).
OHIO FIRST DISTRICT COURT OF APPEALS
9
{¶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, 134 S.Ct. 2175, 189 L.Ed.2d 62. “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
defendants5 and ask whether the defendant relinquished a time limitation by leaving the
state, absconding himself, or concealing himself. When defendants leave the state,
potentially becoming difficult to locate or hard to serve, the privilege granted by the
statute of repose is frustrated. Therefore, the absent-defendant tolling statute must
control.
{¶27} The enactment and legislative history of R.C. 2305.15(A) provide further
evidence that the General Assembly intended to toll every limitation period under R.C.
4 Compare statutes of limitations which target plaintiffs and “emphasize [their] duty to diligently
prosecute known claims.” Wilson at ¶ 10, quoting CTS Corp. at 8.
5 Compare saving statutes which focus on the plaintiff’s particular circumstances and the fairness
of holding him or her to a rigid statute of limitations.
OHIO FIRST DISTRICT COURT OF APPEALS
10
2305.113. The General Assembly enacted the absent-defendant tolling statute in 1853.
See Gen. Code 11228. As originally enacted, the tolling provision provided:
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 R.C. 2305.15(A) and specified its application to “sections 2305.04 to 2305.14 * * * of
the Revised Code.”
{¶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.
OHIO FIRST DISTRICT COURT OF APPEALS
11
{¶29} Since the 1950s, the General Assembly has amended R.C. 2305.15 three
times and has never excluded statutes of repose from the time limitations to which it
applies. In 2002 Am.Sub.S.B. No. 281 (“S.B. 281”), the General Assembly relocated the
medical statute of repose from R.C. 2305.11(B) to R.C. 2305.113(C). Despite other
amendments to R.C. 2305.15, the General Assembly maintained that R.C. 2305.15(A)
applied to “sections 2305.04 to 2305.14 * * * of the Revised Code”; a range inclusive of
the newly-enacted R.C. 2305.113(C).
{¶30} In the same bill, the General Assembly amended R.C. 2305.15(B) to
expressly include the newly-enacted R.C. 2305.113. The amended version of R.C.
2305.15(B) provides: “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 * * * 2305.113 * * * of the Revised
Code, within which any person must bring any action against the imprisoned person.”
(Emphasis added.) The Final Bill Analysis for S.B. 281 described the amendment of R.C.
2305.15 as “add[ing] a reference to section 2305.113 in the list of sections currently
referenced by section 2305.15,” and made no distinction between the statute of
limitations and the statute of repose within R.C. 2305.113. S.B.No. 281, Final Bill
Analysis. The legislature could have easily limited its cross-reference to the statute of
limitations alone, or it could have located the statute of repose in a different section, but
it chose not to do so. Instead, it retained the expansive language in R.C. 2305.15(B) and
added a cross-reference to R.C. 2305.113 in its entirety.
{¶31} Reading both subsections of R.C. 2305.15 together, it would be
inconsistent to find that the tolling provision in one subsection of the statute applies
only to statutes of limitations while the tolling provision in the very next subsection
applies to both statutes of limitations and statutes of repose. See State ex rel. Herman v.
OHIO FIRST DISTRICT COURT OF APPEALS
12
Klopfleisch, 72 Ohio St.3d 581, 585, 651 N.E.2d 995 (1995), citing United Tel. Co. of Ohio
v. Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994) (“All statutes relating to the
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, R.C. 2305.15(A) cannot be read in isolation from the rest of
the Revised Code. Rather, the General Assembly’s limitation of actions must be read as
a cohesive chapter of the Revised Code.
{¶33} Built into the statute of repose is an express exception for legal disabilities
under R.C. 2305.16. There are striking similarities between the absent-defendant
statute in R.C. 2305.15(A) and the legal-disabilities statute in R.C. 2305.16. R.C. 2305.16
states:
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.
OHIO FIRST DISTRICT COURT OF APPEALS
13
(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 R.C.
2305.15(A) and R.C. 2305.16 is the express exception in R.C. 2305.113(C) for application
of the legal-disabilities statute. 6
{¶35} There is no question that the language of R.C. 2305.16 applies to the
statute of repose. So it would make no logical sense to conclude that the virtually
identical language of R.C. 2305.15(A) does not apply to the statute of repose. But
appellees claim that the broad language in Wilson prohibits such an interpretation.
{¶36} In Wilson, Slip Opinion No. 2020-Ohio-6827, at ¶ 29, the Ohio Supreme
Court held that R.C. 2305.113(C) prohibits the commencement of any action upon a
medical claim more than four years after the act or omission upon which the claim is
based “[u]nless one of the stated exceptions applies.” The court found that R.C.
2305.113(C) “expressly provides for tolling of the statute of repose under R.C. 2305.16 *
* *, while not providing for application of any other statutory provisions that would toll
or extend statutory time periods.” Id. at ¶ 33. The court thus concluded, “Because the
statute of repose now expressly incorporates only one statutory exception, other statutes
that extend the time in which to bring an action must necessarily be excluded.” Id.
6 The General Assembly included R.C. 2305.16 as an express exception to the medical statute of
repose only after the Ohio Supreme Court held the four-year repose period unconstitutional as
applied to minors. See Mominee v. Scherbarth, 28 Ohio St.3d 270, 503 N.E.2d 717 (1986). As
originally enacted, the medical statute of repose applied “to all persons regardless of legal
disability and notwithstanding 2305.16.” However, the year following the court’s decision in
Mominee, the General Assembly amended the medical statute of repose to include tolling for
persons "within the age of minority, of unsound mind, or imprisoned, as provided by R.C.
2305.16."
OHIO FIRST DISTRICT COURT OF APPEALS
14
{¶37} However, the decision in Wilson analyzed a very narrow issue—whether
the savings statute in R.C. 2305.19 applied to extend the statute of repose in R.C.
2305.113(C).
{¶38} R.C. 2305.19(A) provides:
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} R.C. 2305.19 is a saving statute. Saving statutes “are remedial and are
intended to provide a litigant an adjudication on the merits.” Wilson at ¶ 11. Thus, R.C.
2305.19 does not “operate[] to toll the statute of limitations.” Id. at ¶ 18. “Rather, it
provides a plaintiff with a limited period of time in which to refile a dismissed claim by
commencing a new action that would otherwise be barred by the statute of limitations.”
Id. R.C. 2305.19 is made applicable to statutes of repose only by express incorporation.
See R.C. 2305.10(C) (stating that the products-liability statute of repose applies “[e]xcept
as otherwise provided in” R.C. 2305.19).
{¶40} Unlike R.C. 2305.19, R.C. 2305.15(A) is a tolling provision. Thus, R.C.
2305.15(A) does not allow a plaintiff to commence an action outside the statutory
period. Instead, R.C. 2305.15(A) tolls the time to commence a timely action. R.C.
2305.15(A) extends the applicable period of limitation while the defendant is out of state
or otherwise absconded, and permits a plaintiff to file a timely action within the
extended period.
{¶41} Furthermore, unlike R.C. 2305.19, R.C. 2305.15(A) is not made applicable
to statutes of repose by express incorporation. In fact, R.C. 2305.15(A)’s tolling
OHIO FIRST DISTRICT COURT OF APPEALS
15
provision is not expressly included as an exception in any section of the Revised Code.
Instead, R.C. 2305.15(A) alone sets forth the statutory sections to which it applies. By its
terms, R.C. 2305.15(A) applies to “sections 2305.04 to 2305.14, 1302.98, and 1304.35 of
the Revised Code.”
{¶42} Comparing the two sections, it is clear that the nature and structure of
R.C. 2503.15(A) vastly differs from that of R.C. 2305.19. Thus, although Wilson held
that R.C. 2305.19 cannot save a plaintiff’s claims beyond the medical repose period, the
same rule cannot be applied to the dissimilar tolling provision of R.C. 2305.15(A).
Accordingly, the Ohio Supreme Court’s decision in Wilson does not control the result in
this case.
{¶43} Based on the plain language, purpose, and history of R.C. 2305.15(A), as
well as a cohesive reading of the Revised Code, we conclude that R.C. 2305.15(A) applies
to toll the four-year medical statute of repose in R.C. 2305.113(C). Because Durrani fled
the country in December 2013, less than four years after Elliot’s surgery, the statute of
repose is tolled and does not bar Elliot’s claims against Durrani.
2. Claims Against CAST
{¶44} We are next asked to analyze whether R.C. 2305.15(A) tolls the statute of
repose as to CAST.
{¶45} For R.C. 2305.15(A) to apply, the person against whom the cause of
action accrues must be out of state, absconded, or concealed. However, Elliot does not
contend that CAST is out of state, absconded, or concealed. Instead, Elliot contends that
because Durrani is the sole owner of CAST, CAST is bound by Durrani’s flight.
{¶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.
OHIO FIRST DISTRICT COURT OF APPEALS
16
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 R.C. 2305.15(A), which tolls the limitations periods when a physician is out
of state, absconds, or conceals self, because its “reasoning only applies to tolling due to a
continuing patient-physician relationship.” Landrum II at *4.
OHIO FIRST DISTRICT COURT OF APPEALS
17
{¶50} Accordingly, the tolling provision in R.C. 2305.15(A) applies only to
claims against Durrani and not to claims against CAST.
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, R.C. 2305.19(A),
preserves his claims beyond the four-year statute of repose. This argument is
squarely foreclosed by the Ohio Supreme Court in Wilson, Slip Opinion No. 2020-
Ohio-6827. In Wilson, the court held that a plaintiff may not take advantage of the
saving statute to refile a medical claim after the four-year repose period has expired.
Thus, R.C. 2305.19 cannot save Elliot’s untimely claims.
{¶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. R.C. 2305.113(C); Powers, S.D.Ohio No. 1:18-cv-788, 2020 WL
5526401, at *2. We have previously held that postsurgical care does not constitute
the “last culpable act” where the alleged negligently-performed surgery forms the
basis of the medical claim. McNeal, 2019-Ohio-5351, 138 N.E.3d 1231, at ¶ 16.
{¶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
OHIO FIRST DISTRICT COURT OF APPEALS
18
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 R.C. 2305.113.7
{¶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 nothing suggests that a doctor’s
subsequent loss of license after the repose period runs revives a forfeited claim.”
{¶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
7 R.C. 2305.113(E)(3) defines a medical claim as “any claim that is asserted in any civil action
against a physician * * * [.]”
OHIO FIRST DISTRICT COURT OF APPEALS
19
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 negligentcredentialing 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 R.C. 2305.113(E)(3). See Freeman v. Durrani,
2019-Ohio-3643, 144 N.E.3d 1067, ¶ 23 (1st Dist.) (“[C]laims of post-surgery fraud
fall under R.C. 2305.113(E)(3)(c)(i)–the claims arise out of medical treatment and
result from acts or omissions in providing medical care.”); Couch v. Durrani, 1st
Dist. Hamilton Nos. C-190703, C-190704, C-190705, C-190706 and C-190707, 2021-
Ohio-726, ¶ 10 (“[N]egligent-credentialing claims are ‘medical claims’ as defined in
R.C. 2305.113(E)(3)(b)(ii).”). We see no reason to depart from our line of cases, and
accordingly hold Elliot’s fraud and negligent-credentialing claims constitute “medical
claims” for purposes of the statute of repose.
{¶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 R.C. 2923.31 et seq.
OHIO FIRST DISTRICT COURT OF APPEALS
20
{¶62} The denial of leave to amend a pleading is reviewed under an abuse-ofdiscretion 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 to profit from unnecessary surgeries. However, Elliot’s
proposed amended complaint provided only conclusory statements that largely
mirrored the language of the statute. The proposed complaint plainly alleged that
Durrani performed unnecessary surgeries on patients at Good Samaritan Hospital and
that TriHealth billed the patients for those surgeries. These allegations demonstrate, at
best, a simple conspiracy devoid of the “degree of hierarchical organization and
structure” required for a RICO enterprise. Hager v. ABX Air, Inc., S.D.Ohio No. 2:07-
OHIO FIRST DISTRICT COURT OF APPEALS
21
CV-317, 2008 WL 819293 (Mar. 25, 2008). Thus, Elliot did not plead facts sufficient to
establish a civil state law RICO claim under the OCPA. See McNeal at ¶ 21 (“[T]he
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 R.C. 2923.32.”). Accordingly,
amendment would have been futile and denial of leave to amend was properly entered.
{¶65} Elliot’s second assignment of error is overruled.
Outcome: 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.
Plaintiff's Experts:
Defendant's Experts:
Comments: