Login | January 15, 2021

Time limit for medical malpractice cases prevents claims against spine surgeon

DAN TREVAS
Supreme Court
Public Information Office

Published: January 14, 2021

Patients claiming medical malpractice by a spine surgeon and Cincinnati-area hospitals waited too long to refile their cases when they attempted to move the cases from Butler County to Hamilton County, the Ohio Supreme Court ruled recently.
The Court’s 5-2 opinion written by Justice Judith L. French dismissed the cases of two of the hundreds of former patients of Dr. Abubaker Atiq Durrani and his Center for Advanced Spine Technologies, as well as the hospitals where he performed surgeries, including UC Health in Cincinnati and the affiliated West Chester Hospital in Butler County. (See Fugitive Doctor Challenges Former Patients’ Right to Sue).
The Court ruled Ohio’s “statute of repose” for medical injury claims gives patients four years to file a claim against a healthcare provider. Justice French stated that the medical statute of repose “clearly and unambiguously precludes commencement of a medical claim more than four years after the occurrence” of the medical procedure.
The law contains few exceptions, but another Ohio law, a “savings statute” extends a plaintiff’s right to refile a lawsuit and extends the time to file a medical malpractice lawsuit, the Court concluded. However, the opinion noted that state lawmakers expressly included a savings statute as an exception to the statute of repose for product-liability claims, providing further evidence that the time limit was intentionally not extended for medical claims.
Chief Justice Maureen O’Connor and Justice Sharon L. Kennedy joined Justice French’s opinion. Justices Patrick F. Fischer and R. Patrick DeWine did not participate in the case. Fifth District Court of Appeals Judge W. Scott Gwin, sitting for Justice Fischer, and Tenth District Court of Appeals Judge William A. Klatt, sitting for Justice DeWine, joined the majority opinion.
In a dissenting opinion, Justice Melody J. Stewart explained the exceptions to the statute of repose that are written in the law are there to help extend the time for filing a lawsuit under certain narrowly defined circumstances. However, the savings statute should apply because the patients did file lawsuits, the healthcare providers knew about the claimed injuries, the savings statute is a separate mechanism to refile an action that had been previously filed, and the statute has been routinely recognized as valid by the Court for more than 30 years, she concluded.
Justice Michael P. Donnelly joined the dissent.
Patients Move Cases
Mike and Amber Sand filed a lawsuit against Durrani and the hospitals based on spinal surgery performed on Mike Sand in April 2010. The Sands filed their lawsuit in Butler County Common Pleas Court in March 2013. Durrani performed surgery on Robert Wilson in February and April 2011, and Wilson sued Durrani in Butler County in April 2013.
In late 2015, the Sands and Wilson both voluntarily dismissed without prejudice their Butler County lawsuits. Weeks later in late December 2015, the Sands and Wilson refiled their lawsuits in Hamilton County, where many former patients filed related claims against Durrani and his clinic.
Durrani and the hospitals asked the Hamilton County Common Pleas Court to dismiss the refiled cases, arguing the statute of repose, R.C. 2305.113(C), barred the refiled claims because they arose from surgeries that occurred more than four years before the suits were refiled. The trial court agreed and dismissed the cases.
The patients appealed to the First District Court of Appeals, which found the savings statute allowed the patients to refile the lawsuits in Hamilton County.
Durrani and the hospitals appealed to the Supreme Court, which agreed to hear the case.
Lawsuit Limitations Analyzed
Justice French explained that R.C. 2305.113 sets out a one-year statute of limitations for filing a medical-injury claim and a four-year statute of repose. The two concepts have different purposes, the opinion noted.
The purpose of the statute of limitations is to ensure an injured patient diligently acts, and the statute begins to run when the patient discovers or should have discovered the injury or when a physician-patient relationship terminates.
The statute of repose “exists to give medical providers certainty with respect to the time within which a claim can be brought.” The opinion noted the U.S. Supreme Court has likened a statute of repose to a discharge in bankruptcy – providing a “fresh start” and giving defendants a point to “put past events behind” them.
The savings statute, R.C. 2305.19(A), is not a not an extension of the statute of limitations, but provides additional time to refile lawsuits, the opinion stated. The purpose of the savings statute is to attempt to resolve a claim on its merits, rather than having a case dismissed on a technicality or for other reasons, the opinion explained.
Because Sands and Wilson dismissed their lawsuits in 2015 without their cases failing on the merits, the savings statute would grant them one more year to file a lawsuit. But the rule does not act as an exception to the statute of repose, which required that the lawsuits be filed within four years of the injury -- which would have been in April 2015 at the latest, the opinion noted. Because they were filed after the four-year statute of repose ended, the trial court correctly dismissed the cases, the opinion concluded.
Extra Time Permitted, Dissent Stated
In her dissent, Justice Stewart noted the majority found the savings statute did not apply to medical claims because there was not an explicit exception to R.C. 2305.113(C) that allows for it. However, the Ohio Supreme Court has stated that the savings statute does apply to R.C. 2305.113(A), which is the statute of limitations for medical claims. But R.C. 2305.113(A) also does not have an explicit exception allowing the savings statute to apply, Justice Stewart noted.
“If the majority insists upon such rigid reliance on the existence of exceptions within R.C. 2305.113(C) as the basis for the holding today, it needs to explain why the same reasoning does not apply to R.C. 2305.113(A). This would be no small feat,” the dissent stated.
2019-1560. Wilson v. Durrani, Slip Opinion No. 2020-Ohio-6827.
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