The cutoff date to file a medical malpractice lawsuit is extended if a medical practitioner flees the state within the four-year lawsuit deadline, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court revived many medical malpractice suits filed by patients of Dr. Abubakar Atiq Durrani for unnecessary and negligent back surgery. Durrani was indicted in 2013 by the federal government for criminal fraud related to his medical practice. He fled to Pakistan to avoid extradition to the United States.

Writing for the Court majority, Justice Michael P. Donnelly wrote that the Ohio law extending the typical time to file a lawsuit when a defendant absconds or conceals him- or herself extends the “statute of repose” for medical claims. The statute of repose states that no claim can be filed against medical providers more than four years after the alleged injury.

Justice Donnelly explained that the purpose of the statute of repose is to free medical providers from liability after four years from any alleged malpractice. However, the General Assembly has made it clear that those who abscond from the state are not entitled to the benefit of the four-year cutoff, he wrote.

Justices Melody Stewart and Jennifer Brunner joined Justice Donnelly’s opinion. Fifth District Court of Appeals Judge W. Scott Gwin, sitting for Justice Patrick F. Fischer, also joined Justice Donnelly’s opinion.

Chief Justice Maureen O’Connor dissented without an opinion.

In a dissenting opinion, Justice Sharon L. Kennedy explained that R.C. 2305.113(C), the statute of repose, contains three specific exceptions allowing cases to be extended, or “tolled.” Absconding is not one of the circumstances and does not extend the time to file a medical malpractice case beyond four years, she wrote.

Because R.C. 2305.113(C) creates express exceptions to the statute of repose, the dissent noted, any exceptions created by other statutes must be clear and unambiguous. The dissent concluded that “(t)he plain language of R.C. 2305.15(A) . . . does not create an exception to the medical-claim statute of repose.”

Tenth District Court of Appeals Judge William A. Klatt, sitting for Justice R. Patrick DeWine, joined Justice Kennedy’s opinion.

Patients Pursue Doctor for Suspicious Surgery
Durrani performed spinal surgery on Richard Elliot in March 2010 at Good Samaritan Hospital in Cincinnati. Within a week, Elliot suffered pain and infection, and soon was unable to eat or drink. He lost 80 pounds.

In 2013, Durrani fled to Pakistan after he was indicted for fraud and has not returned. In August 2015, Elliot filed a medical malpractice case in Hamilton County Common Pleas Court against Durrani; the Center for Advanced Spine Technologies, which Durrani owned; and Good Samaritan. Elliot was one of hundreds of Durrani patients who filed similar claims against him, his clinic, and the hospitals where Durrani performed the surgeries.

All the defendants asked the trial court to dismiss the case, arguing that the four-year statute of repose barred the lawsuit. The trial court dismissed the case.

Elliot appealed to the First District Court of Appeals, arguing that the four-year cutoff date did not apply because Durrani had absconded from the state. The First District partially reversed the trial court’s decision and found that the laws did extend the time to sue Durrani but do not apply to his clinic or the hospital.

Durrani appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Filing Deadline Statutes
Justice Donnelly explained that the case involves the interaction of several statutes. He noted that R.C. 2305.113(A) sets out the statute of limitations for filing a medical-malpractice lawsuit. That law requires a lawsuit to be filed within one year of the time the injury is discovered. 

R.C. 2305.113(C) is the statute of repose. Because an injury from malpractice might not be discovered immediately, the law sets an absolute deadline for when a lawsuit must be filed. In general, a suit must be initiated within four years of the medical procedure, regardless of when the patient discovered the injury. The opinion noted that the statute of repose provides three specific exceptions that would extend the deadline, including adding time when it is not possible for a patient to discover the injury within four years.

The Court then examined R.C. 2305.15, which states that when a person is “out of state, has absconded, or conceals self, the period of limitation for the commencement of the action as provided in sections 2305.04 to 2305.14” does not run during the time the person is absent from the state.

Durrani argued that the absconding statute does not apply to the statute of repose, because the statute of repose is not a “period of limitation.” The Court today wrote that a “period of limitation” is a broader term than “statute of limitation” and applies to both a statute of repose and a statute of limitation. The opinion stated that the absconding law applies to any period of limitation listed in R.C. 2305.04 to R.C. 2305.14. Because R.C. 2305.113(C) falls within the sections, the provision applies to Durrani.

The opinion stated that the legislature directs that an “entire statute is intended to be effective.”

“The legislature has not authorized us to apply the tolling statute only in part,” the Court concluded.

Absconding Statute Does Not Apply, Dissent Maintained
Citing Black’s Law Dictionary, Justice Kennedy wrote that “period of limitation” is synonymous with “statute of limitations” and does not apply to a statute of repose. She noted that the General Assembly in 1831 enacted the first tolling period for lawsuits against those who leave the state, and “(f)or almost 172 years, there was no statute of repose to which the absconded-defendant legislation could apply.”

The statute of repose was enacted in 2002, as part of a civil lawsuit reform effort. The intent of the law was to give medical providers certainty with respect to when they can be free from the fear of litigation. Lawmakers added three specific circumstances that allow for extending the four-year statute of repose, but absconding is not one of them, the dissent stated. 

No other exceptions “should be recognized unless there is a statute that creates those exceptions clearly and unambiguously,” the dissent noted. The absconding statute does not clearly indicate it applies to the statute of repose, the dissent concluded.

Justice Kennedy stated that under today’s decision, “when a medical provider leaves Ohio to practice in another state or to retire, he or she potentially has unending exposure to suit for injuries that occurred years or even decades earlier.”

2021-1352. Elliot v. Durrani, Slip Opinion No. 2022-Ohio-4190.

View oral argument video of this case.

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