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Crissinger v. The Christ Hospital

Court of Appeals of Ohio, First District, Hamilton

December 27, 2017

KAREN CRISSINGER, Plaintiff-Appellee,
v.
THE CHRIST HOSPITAL, and ABUBAKAR ATIQ DURRANI, M.D., Defendant-Appellants, and CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., Defendant. PATRICK CALLIGAN, Plaintiff-Appellee,
v.
CINCINNATI CHILDREN'S HOSPITAL MEDICAL CENTER, and ABUBAKAR ATIQ DURRANI, M.D., Defendant-Appellants, and CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., Defendant. JACOB FELTNER, DONNA FELTNER, and WILLIAM FELTNER, Plaintiffs-Appellees,
v.
CINCINNATI CHILDREN'S HOSPITAL MEDICAL CENTER, Defendant-Appellant, and ABUBAKAR ATIQ DURRANI, M.D., and CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., Defendants. ALISSA HIGHTCHEW, Plaintiff-Appellee,
v.
CINCINNATI CHILDREN'S HOSPITAL MEDICAL CENTER, Defendant-Appellant, and ABUBAKAR ATIQ DURRANI, M.D., and CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., Defendants. BRANDON MATHIS, Plaintiff-Appellee,
v.
CINCINNATI CHILDREN'S HOSPITAL MEDICAL CENTER, Defendant-Appellant, and ABUBAKAR ATIQ DURRANI, M.D., and CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., Defendants. ALEX TAYLOR, Plaintiff-Appellee,
v.
CINCINNATI CHILDREN'S HOSPITAL MEDICAL CENTER, Defendant-Appellant, and ABUBAKAR ATIQ DURRANI, M.D., and CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., Defendants.

         Civil Appeals From: Hamilton County Court of Common Pleas Trial Nos. A-1400584, A-1502865, A-1401182, A-1503379, A-1306915, A-1307861, A-1402940

          The Deters Law Firm, P.S.C., Matthew J. Hammer, for Plaintiffs-Appellees

          Dinsmore & Shohl, L.L.P., Jennifer Orr Mitchell, Matthew S. Arend and Jenna G. Moran, for Defendant-Appellant The Christ Hospital

          Dinsmore & Shohl, L.L.P., J. David Brittingham, Thomas P. Kemp, Jr., and Allison G. Knerr, for Defendant-Appellant Cincinnati Children's Hospital Medical Center

          Bonezzi Switzer Polito & Hupp Co., L.P.A., Paul W. McCartney, Jason A. Paskan and Thomas F. Glassman, for Defendant-Appellant Abubakar Atiq Durrani, M.D.

          OPINION

          Zayas, Judge.

         {¶1} In these eight consolidated appeals, defendants-appellants The Christ Hospital ("Christ"), Cincinnati Children's Hospital Medical Center ("Children's"), and Abubakar Atiq Durrani, M.D., ("Durrani") appeal from the trial court's December 15, 2015 general order. In four of these appeals, those involving plaintiffs-appellees Karen Crissinger and Patrick Calligan, we reverse the trial court's judgment and remand the causes for further proceedings. In the remaining appeals, we hold that there is no justiciable controversy, and dismiss the appeals as moot.

         Background

         {¶2} These appeals represent six cases out of over 500 filed against Durrani and the various hospitals he worked for or practiced at. These cases involve allegations that Durrani convinced the plaintiffs to undergo unnecessary spinal surgery, that he performed the surgery improperly, that he used implants "off-label" causing further problems, that he covered his actions up through fraud and destruction of evidence, and that the hospitals were also liable for his actions.

         {¶3} Several of the plaintiffs filed their claims outside of the limitations period provided in R.C. 2305.113, the "statute of repose" for medical claims. One such plaintiff, Judith Young, challenged the constitutionality of R.C. 2305.113, as well as the constitutionality of the "peer review immunity" statutes, R.C. 2305.251 and 2305.252. The trial court in Young held these statutes unconstitutional, and also held that most of Young's claims were not "medical claims" subject to the statute of repose, in a September 2, 2015 order. Young v. Durrani, 2016-Ohio-5526, 61 N.E.3d 34, ¶ 6 (1st Dist.).

         {¶4} Relevant to the appeals before us, the trial court then applied its Young holdings to all pending Durrani cases in a December 15, 2015 general order. All of the current appeals were taken from the general order. The appellants in the Crissinger case, Christ and Durrani, argue that the trial court erred in holding the statute of repose unconstitutional, and in overruling their respective motions to dismiss and for summary judgment. The appellants in the Calligan case, Children's and Durrani, argued the same. The appellant in the remaining cases, Children's, argued that the trial court erred in holding the peer-review immunity statutes unconstitutional.

         {¶5} The general order began by informing the parties that the trial court did "not want the parties filing Motions which are not necessary based on these rulings." It then stated that "[a]ll Motions to Dismiss and for Summary Judgment * * * are overruled." Finally, it stated that the "Plaintiffs will be allowed to reference and ask questions regarding what information is unknown/unavailable due to the peer review privilege, as well as, if Durrani ever underwent a peer review process. The peer review process is privileged, but not if one took place or not." (Emphasis added.)

         {¶6} After the appellants filed their notices of appeal, the appellees gave notice to both the trial court and this court that they were waiving any challenges to the peer-review immunity statutes, and moved the trial court to modify the December 15, 2015 general order to reflect their waiver.

         {¶7} On August 26, 2016, we decided Young,2016-Ohio-5526, 61 N.E.3d 34. Young reversed the trial court's holding that the statute of repose was unconstitutional, and remanded the cause to the trial court for dismissal of Young's medical claims. Id. at ¶ 33. We also held that Young's claims for negligence, negligent credentialing and retention, loss of consortium, fraud, products liability, and violations of the Ohio Consumer Sales Practices Act were "medical claims" subject to the statute of repose. Id. at ΒΆ 20-25. Finally, ...


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