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McNeal v. Durrani

Court of Appeals of Ohio, First District, Hamilton

December 27, 2019

KAMERON MCNEAL, and LAUREN MCNEAL, Plaintiffs-Appellants,
v.
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,
v.
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,
v.
ABUBAKAR ATIQ DURRANI, M.D., CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., WEST CHESTER HOSPITAL, LLC, and UC HEALTH, LLC, Defendants-Appellees.

          Civil Appeals From: Hamilton County Court of Common Pleas Trial Nos. A-1503653, A-1504450, A-1506865

         Judgments Appealed From Are: Affirmed in C-180554, C-180634 and C-180566; Reversed and Cause Remanded in C-180641

          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.

          OPINION

          Bergeron, Judge.

         {¶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 explained 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. Durrani, who would ultimately perform surgery on his spine in March 2008 at Cincinnati Children's Hospital Medical Center ("CCMHC"). Though a minor when the accident occurred, Mr. Arnold reached adulthood by the time of the surgery.

         {¶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 Civ.R. 41(A) in September 2014, refiling it in August 2015 (in reliance on the savings statute).

         {¶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 Civ.R. 41(A) a few months later in August 2014. Mr. McNeal eventually refiled the complaint in July 2015.

         {¶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 Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted, and in Mr. Scott's case, they moved for judgment on the pleadings under Civ.R. 12(C). While slightly different procedurally, the substance of the arguments was largely indistinguishable-the defendants in each case asserted that the claims were time-barred by virtue of Ohio's medical malpractice statute of repose. The trial court ultimately agreed with the defendants, dismissing each case on that ground.

         {¶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 the dismissal of their cases and the denial of their motions for leave to amend their complaints. Mr. Scott presents three assignments of error, challenging the dismissal of his case as erroneous, the trial court's grant of leave to WCH to amend its answer to add a statute of repose defense, and ...


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