Court of Appeals of Ohio, First District, Hamilton
Appeals From: Hamilton County Court of Common Pleas Trial
Nos. A-1503653, A-1504450, A-1506865
Appealed From Are: Affirmed in C-180554, C-180634 and
C-180566; Reversed and Cause Remanded in C-180641
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.
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.
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
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
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.
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.
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.
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.
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 ...