Court of Appeals of Ohio, First District, Hamilton
Appeals From: Hamilton County Court of Common Pleas Trial
Nos. A-1400584, A-1502865, A-1401182, A-1503379, A-1306915,
Deters Law Firm, P.S.C., Matthew J. Hammer, for
Dinsmore & Shohl, L.L.P., Jennifer Orr Mitchell, Matthew
S. Arend and Jenna G. Moran, for Defendant-Appellant The
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.
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.
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
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.).
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.
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."
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.
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 ¶ 20-25. Finally, ...