[Cite as Jonas v. Durrani, 2020-Ohio-3787.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
SARA JONAS, APPEAL NO. C-180457 : TRIAL NO. A-1504134 and : BRADLEY JONAS, : Plaintiffs-Appellants, : vs. : ABUBAKAR ATIQ DURRANI, M.D., : CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC, :
and :
CHRIST HOSPITAL, :
Defendants-Appellees, :
CINCINNATI CHILDREN’S : HOSPITAL MEDICAL CENTER,
Defendant. :
ANDREW CARR, : APPEAL NO. C-180458 TRIAL NO. A-1505422 Plaintiff-Appellant, :
vs. : O P I N I O N.
ABUBAKAR ATIQ DURRANI, M.D., :
CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC,
and : OHIO FIRST DISTRICT COURT OF APPEALS
Defendants-Appellees, : and : WEST CHESTER HOSPITAL, LLC, : UC HEALTH, : and : CINCINNATI CHILDREN’S HOSPITAL MEDICAL CENTER, :
Defendants. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in C-180457; Affirmed in Part, Reversed in Part, and Cause Remanded in C-180458
Date of Judgment Entry on Appeal: July 22, 2020
Robert A. Winter Jr. and The Deters Law Firm, P.S.C., and Fred Johnson, for Plaintiffs-Appellants Sara Jonas, Bradley Jonas, and Andrew Carr,
Taft Stettinius & Hollister LLP, Russell S. Sayre, Aaron M. Herzig and Philip D. Williamson, for Defendants-Appellees Abubakar Atiq Durrani, M.D., and Center for Advanced Spine Technologies,
Dinsmore & Shohl LLP, Jennifer Orr Mitchell, Matthew S. Arend and R. Samuel Gilley, for Defendant-Appellee Christ Hospital.
2 OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} We once again confront issues swirling around the malpractice
allegedly committed by Dr. Abubakar Atiq Durrani. In this latest chapter, we
evaluate complaints filed by plaintiffs-appellants Sara Jonas, her husband Bradley
Jonas, and Andrew Carr. Given the similarity of their claims, we consolidate their
cases for opinion purposes. In line with recent authority from this court, we affirm
the dismissal of Ms. Jonas’s complaint, but reverse in part the dismissal of Mr. Carr’s
complaint.
I.
{¶2} Suffering from lower back pain, plaintiff-appellant Sara Jonas sought
treatment with Dr. Durrani in the spring of 2008. Dr. Durrani ultimately
recommended surgery to alleviate Ms. Jonas’s pain, performing surgery on her in
August 2008. Rather than solving her problems, however, after surgery Ms. Jonas
experienced increased pain and muscle spasms. This led Ms. Jonas to seek
treatment from another doctor who performed a repair surgery on her back. In the
wake of these events and her continued pain, Ms. Jonas and her husband Bradley
Jonas eventually brought suit in the Hamilton County Common Pleas Court against
Dr. Durrani, the Center for Advanced Spine Technologies, Inc., (“CAST”) and Christ
Hospital in May 2014, but they subsequently voluntarily dismissed the claims
pursuant to Civ.R. 41(A) in August 2014. Ms. Jonas then refiled her claims in August
2015, adding Cincinnati Children’s Medical Hospital Center (“Children’s”) as a party,
and asserting claims of negligence, fraud, lack of informed consent, battery, and
negligent credentialing, among others.
{¶3} Unlike Ms. Jonas, who underwent only one surgery with Dr. Durrani,
Dr. Durrani performed multiple surgeries on Andrew Carr. Beginning in 2004, Mr.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Carr sought care for a curvature of his spine, which ultimately led to a 2005
operation with Dr. Durrani at Children’s. Another surgery in 2007 at Christ Hospital
ensued, followed by yet a third surgery in 2010 at West Chester Hospital. After this
series of surgeries failed to alleviate Mr. Carr’s back issues, he eventually filed suit in
Butler County in 2013, but then voluntarily dismissed that case under Civ.R. 41(A) in
2015. Subsequently refiling the case later that same year in Hamilton County, Mr.
Carr raised claims against Dr. Durrani, CAST, Children’s, Christ Hospital, West
Chester Hospital, and UC Health, including claims of negligence, battery, fraud, lack
of informed consent, and negligent credentialing, among others.
{¶4} Both Ms. Jonas’s and Mr. Carr’s refiled claims suffered the same fate
at the trial court level, as Dr. Durrani, CAST, along with the relevant defendant
hospitals moved to dismiss the pending claims against them based on Ohio’s four-
year medical malpractice statute of repose. Agreeing with the defendants, the trial
court dismissed the claims, deeming them untimely as falling outside the four-year
window allotted under the statute. The court also denied the plaintiffs’ respective
motions to amend their complaints, concluding the endeavors futile in light of the
statute of repose barrier.
{¶5} Ms. Jonas (along with her husband) and Mr. Carr separately appealed
the dismissals of their complaints and the denials of their motions to amend. After
filing their appeals, however, Mr. Carr voluntarily dismissed with prejudice his
pending claims against West Chester Hospital, UC Health, and Children’s, and the
Jonases dismissed with prejudice their pending claims against Children’s. After the
dust settled from those dismissals, it left only Dr. Durrani, CAST and Christ Hospital
as parties relevant for these appeals.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} On appeal, Ms. Jonas and Mr. Carr each present two assignments of
error, challenging the dismissal of their claims as barred by the medical malpractice
statute of repose and the trial court’s denial of their respective motions to amend
their complaints.
II.
{¶7} We begin our analysis with Ms. Jonas’s appeal and her first
assignment of error. The trial court dismissed Ms. Jonas’s complaint pursuant to
Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. We
review a trial court’s dismissal of a claim on Civ.R. 12(B)(6) grounds de novo.
Makrauer v. Hal Homes, Inc., 1st Dist. Hamilton No. C-190256, 2020-Ohio-945, ¶
6. A complaint should only be dismissed for failure to state a claim where it appears,
beyond a doubt, that the plaintiff can prove no set of facts that would entitle him or
her to recovery. Id. In conducting this review, we must accept the complaint’s
factual allegations as true, drawing all reasonable inferences therefrom in favor of
the nonmoving party. Id.
A.
{¶8} Under her first assignment of error, Ms. Jonas challenges the trial
court’s determination that Ohio’s medical malpractice statute of repose, R.C.
2305.113(C), bars her claims. The statute of repose included within R.C. 2305.113
bars medical claims commenced more than four years “after the occurrence of the act
or omission constituting the alleged basis of the medical * * * claim[.]” R.C.
2305.113(C)(1) and (2). A statute of repose therefore measures the time limit in
which to bring a claim, not from when the claim accrues, but from the date of when
the alleged wrongful conducted occurred. See Makrauer at ¶ 7; McNeal v. Durrani,
2019-Ohio-5351, 138 N.E.3d 1231, ¶ 14 (1st Dist.), appeal accepted 158 Ohio St.3d
5 OHIO FIRST DISTRICT COURT OF APPEALS
1522, 2020-Ohio-3018, 145 N.E.3d 312 (noting that plain language of the statute
measures four-year repose period from the occurrence of the act or omission
constituting the alleged basis of the claim). Here, the trial court determined that the
underlying “act” supporting her claims was the 2008 surgery that Dr. Durrani
performed, thus barring the claims filed more than four years after this date.
Attempting to rebut this determination on appeal, Ms. Jonas presents a litany of
issues in an effort to circumvent the presumptive bar of the statute of repose. Yet
many of these arguments cannot be squared with our recent precedent.
{¶9} To begin, Ms. Jonas seeks to characterize her fraud and negligent
credentialing claims as nonmedical claims in order to escape the purview of the four-
year repose period in R.C. 2305.113(C). We recently considered and rejected this
same argument, recognizing that R.C. 2305.113(E) broadly defines “medical claims.”
See Freeman v. Durrani, 2019-Ohio-3643, 144 N.E.3d 1067, ¶ 21 (1st Dist.) (noting
in the years since original enactment the General Assembly “vastly broadened” the
definition of a “medical claim.”). R.C. 2305.113(E), includes claims arising out of
medical care, diagnosis, or treatment of any person including “[d]erivative claims for
relief” arising out of the same. R.C. 2305.113(E)(3)(a). In other words, simply
placing a “fraud” label on a claim cannot side-step the statute of repose. Undaunted,
Ms. Jonas maintains that Dr. Durrani’s misrepresentation of facts was not medical in
nature and, therefore, outside the realm of R.C. 2305.113(C). But the complaint tells
a different story, describing the fraud as consisting of “material, false representations
* * * related to * * * treatment” and seizing on these misrepresentations as inducing
her to undergo surgery. These are precisely the type of allegations that we previously
recognized as falling within the statutory definition of “medical claims” under R.C.
2305.113(E), as they arise out of the care and treatment of the patient. See McNeal
6 OHIO FIRST DISTRICT COURT OF APPEALS
at ¶ 18 (fraud claims were “medical in nature” where allegations were framed in
terms of patients’ treatment); Freeman at ¶ 24 (same).
{¶10} Ms. Jonas’s negligent credentialing claim meets a similar fate here, as
we have repeatedly held that such claims constitute “medical claims” for purpose of
the statute of repose. McNeal at ¶ 19 (“[W]e have previously held that negligent
credentialing claims constitute ‘medical claims’ under the statute of repose.”); Young
v. Durrani, 2016-Ohio-5526, 61 N.E.3d 34, ¶ 21 (1st Dist.) (noting that the plaintiff’s
claim for negligent credentialing was a medical claim as it resulted from the “hiring,
training, supervision, retention, or termination of caregivers providing medical
diagnosis, care, or treatment.”); Crissinger v. Christ Hosp., 2017-Ohio-9256, 106
N.E.3d 798, ¶ 17 (1st Dist.) (relying on Young in concluding that negligent
credentialing claims are medical claims for purposes of the statute of repose). This
conclusion comports with the definition of “medical claims,” which includes claims
arising out of the medical diagnosis, care, or treatment of any person when “[t]he
claim results from the hiring, training, supervision, retention, or termination of
caregivers providing medical diagnosis, care, or treatment.” R.C.
2305.113(E)(3)(c)(ii).
{¶11} Recognizing that the definition of “medical claim” under R.C. 2305.113
likely spells the death knell for her claims, Ms. Jonas also urges us to adopt an
equitable estoppel or fraud exception to the statute of repose. But we have
consistently rejected such entreaties in the past, noting that the General Assembly
specifically declined to add a fraud exception, and ultimately “we cannot substitute
our judgment for the legislature’s choice.” Freeman at ¶ 24; Crissinger at ¶ 11
(same). Where the General Assembly could have included an equitable estoppel or
7 OHIO FIRST DISTRICT COURT OF APPEALS
fraud exception (as some other states have done), but declined to do so, our job is not
to supplant that authority, but rather to apply the statute as written.
{¶12} Next, Ms. Jonas turns to the Ohio savings statute, R.C. 2305.19, for
relief. R.C. 2305.19(A) allows a party to refile a suit within one year after the date of
dismissal for a case that failed “otherwise than upon the merits.” Ms. Jonas asserts
that because she timely refiled her second complaint within one year of the dismissal
of the initial complaint, the refiling relates back to her original claim, therefore
saving it. But for such a refiling to save a claim from application of the medical
malpractice statute of repose, the original claim must have been timely filed within
the four-year repose period under R.C. 2305.113(C). Wilson v. Durrani, 2019-Ohio-
3880, 145 N.E.3d 1071, ¶ 31 (1st Dist.), appeal accepted, 157 Ohio St.3d 1562, 2020-
Ohio-313, 138 N.E.3d 1152. Here though, the savings statute cannot come to the
rescue because Ms. Jonas did not file her original complaint until May 2014,
approximately six years after her surgery and two years beyond the statutory repose
period. Ultimately, R.C. 2305.19(A) cannot revive an untimely original complaint
barred by the statute of repose. McNeal at ¶ 11-12.
{¶13} Anticipating this problem, Ms. Jonas maintains that the trial court
erred in applying the date of the surgery to calculate the running of the repose
period, insisting instead that the date of the surgery was not the last act or omission
of the defendants in an effort to (effectively) elongate the repose period. Recently
faced with a similar argument in McNeal v. Durrani, we noted that the plaintiffs’
claims there “revolve[d] around affirmative actions,” the allegedly negligently
performed surgeries. Id. at ¶ 15. Similarly, surveying Ms. Jonas’s complaint, the
underlying claims rest on the assertion that Dr. Durrani negligently performed the
2008 surgery. While Ms. Jonas’s complaint makes mention of follow-up care and
8 OHIO FIRST DISTRICT COURT OF APPEALS
post-surgery concealments, all of the harm flows from the underlying claim that the
surgery was negligently performed. See id. at ¶ 15 (“Thus, the ‘act’ from which the
statute of repose necessarily runs here is from the date of the surgeries because they
constitute the alleged basis of the medical claims.”). In sum, we see no allegations of
a later separate act or omission that would enable us to stretch the starting line for
the statute of repose period.
{¶14} As another potential avenue for relief, Ms. Jonas asserts that Dr.
Durrani’s flight in December 2013 tolled the running of the statute of repose under
R.C. 2305.15(A), which tolls various limitations periods based on an individual’s
departure, concealment, or absconding. But here, even if the tolling provisions
applied (the merits of which we take no position on), the 2008 date of surgery meant
the repose period on Ms. Jonas’s claims ran in 2012. Therefore, Dr. Durrani’s flight
occurred only after the repose period ran. McNeal at ¶ 16 (rejecting the same
argument where Dr. Durrani fled after the repose period ran). Similarly, Ms. Jonas
claims that when she refiled her action Dr. Durrani was no longer a “physician”
within the meaning of the statute of repose and, therefore, her claims were no longer
“medical claims” governed by the statute. But again, Dr. Durrani lost his medical
license in 2014. Therefore, he was, in fact, a licensed doctor at the time he performed
the surgery and at all times relevant for the repose period under R.C 2305.113(C).
Even if Ms. Jonas’s interpretation of this requirement were accurate (again, a
question we need not reach today), the statute of repose is a “true statute of repose”
and nothing suggests that a doctor’s subsequent loss of license after the repose
period runs revives a forfeited claim. See Antoon v. Cleveland Clinic Found., 148
Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 1.
9 OHIO FIRST DISTRICT COURT OF APPEALS
B.
{¶15} Perhaps appreciating that most of the points above have been covered
by our precedent, Ms. Jonas’s final argument seeks to break new ground. She posits
that Dr. Durrani’s implantation of BMP-2 constitutes a “foreign object” pursuant to
R.C. 2305.113(D)(2). Featuring language from four-decades-old caselaw and relying
on her alleged lack of consent, Ms. Jonas asserts that Dr. Durrani’s use of BMP-2 as
part of her surgery constituted a “foreign object” undiscovered until 2013 and
therefore saving her claim under R.C. 2305.113(D)(2)’s exception for undiscovered
“foreign objects.”
{¶16} The statute of repose provides “[i]f the alleged basis of a medical claim
* * * is the occurrence of an act or omission that involves a foreign object that is left
in the body of the person making the claim, the person may commence an action
upon the claim not later than one year after the person discovered the foreign object
* * * .” R.C. 2305.113(D)(2). Before enactment of R.C. 2305.113, courts recognized a
variant of this exception as a common law means for tolling the then-existing statute
of limitations for medical malpractice actions. Melnyk v. Cleveland Clinic, 32 Ohio
St.2d 198, 200, 290 N.E.2d 916 (1972); Vucsko v. Cleveland Urology Assoc., Inc.,
8th Dist. Cuyahoga No. 107498, 2019-Ohio-1992, ¶ 11 (discussing common law
foreign object exception). Justifying this carve-out, the Supreme Court, in Melnyk,
explained that the limitations period warranted a “foreign object” exception because
of the relationship between the “utterly helpless surgical patient and his surgeon”
and because the surgeon “must be held to have assumed the responsibility for the
removal of such articles, excepting only those which are intentionally left there for
sound medical reasons.” Melnyk at 200.
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} But Melnynk does little to shed light on the meaning of the “foreign
object” exception as it relates to the repose period, as at the time the statute did not
include a statute of repose. Saultz v. Funk, 64 Ohio App.2d 29, 32, 410 N.E.2d 1275
(8th Dist.1979) (noting that repose period became effective in 1975). But even with
the later addition of a repose component to the statute, it “[did] not mention a
limited discovery rule * * * [r]ather the legislature limited the period during which
the termination and tolling rules may extend the period for bringing a claim under
[the limitations period].” Id. at 36. “By enacting [the repose period], the legislature
limited the termination and tolling rules to the extent that they previously would
have allowed a claim to be filed more than four years after the act or omission alleged
to constitute malpractice.” Id. at 37. In fact, not until passage of Am.Sub.S.B. 281
by the General Assembly in 2003, did the legislature include the statute of repose
exception for foreign objects under R.C. 2305.113(D)(2). That act repealed parts of
former R.C. 2305.11, which originally housed the medical malpractice limitation and
repose periods, and enacted R.C. 2305.113, to regulate medical actions formerly
governed by R.C. 2305.11. See Final Analysis, Am.Sub.S.B. No. 281, 124th General
Assembly. Unfortunately, for our purposes, R.C. 2305.113 does not define “foreign
object.”
{¶18} A review of Ohio caselaw, however, confirms that a central concern of
the foreign object exception is the failure to remove an item that the doctor should
have removed from the body. See Emery v. Dettling, 9th Dist. Summit No. C.A.
8117, 1976 WL 188862, *1 (Aug. 4, 1976) (distinguishing intentional placement of an
IUD in the patient from a foreign body left in the body during surgery); Lipovecs v.
Eisenstat, 8th Dist. Cuyahoga No. 51512, 1987 WL 5304, *4 (Jan. 8, 1987) (noting
that foreign object exception to the discovery rule did not apply to objects which the
11 OHIO FIRST DISTRICT COURT OF APPEALS
physician intentionally placed in body as part of a surgery); Vucsko at ¶ 15 (noting
that caselaw indicates that exception applies to objects not intentionally left in the
body). This understanding of a “foreign object” also aligns with how other
jurisdictions have interpreted “foreign object” exceptions to their own limitations or
repose periods. See Bright v. Sorensen, 2020 UT 18, 463 P.3d 626, ¶ 63 (2020)
(“foreign object” includes items used during surgery and meant to be removed or
objects accidentally introduced into the body during surgery); Walton v. Strong
Mem. Hosp., 25 N.Y.3d 554, 35 N.E.3d 827 (2015) (contrasting “foreign objects”
meant to be removed, serving only a medical function for the duration of the surgery
from fixation devices meant to be left in the body); Shah v. Lehman, 953 S.W.2d 955,
957 (Mo.App.1997) (foreign objects are objects introduced and negligently permitted
to remain in the body, not intentional introduction of an object meant to remain in
the body).
{¶19} In rejecting Ms. Jonas’s “foreign object” claim, the trial court relied on
Favor v. W.L. Gore Assoc., Inc., S.D.Ohio No. 2:13-cv-655, 2013 WL 4855196 (Sept.
11, 2013), which explains that “Ohio cases indicate that the exception carved out for a
‘foreign object’ left in a patient’s body is intended to cover objects that should have
been removed from the body, not to objects which are intentionally placed there as
part of the medical procedure to which the patient consented.” Id. at *3. While Ms.
Jonas zeroes in on the finale of this quote to assert that she never consented to the
use of BMP-2, her own complaint acknowledges that she consented to the surgery.
To be sure, she challenges aspects of her consent given her claim that Dr. Durrani
withheld certain information, but this attack on the efficacy of consent cannot be
transformed into a “foreign object” exception. See, e.g., White v. Leimbach, 131 Ohio
St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033, ¶ 27 (element of lack of informed
12 OHIO FIRST DISTRICT COURT OF APPEALS
consent claim includes that the physician failed to disclose the material risks and
dangers potentially involved in the proposed therapy). In other words, we do not
read that federal decision as engrafting an exception that would enable every patient
who contested consent to avail themselves of the “foreign object” exception. Nor do
we see how such a position can be squared with the language of the statue.
{¶20} Similarly, Ms. Jonas seizes on the “sound medical reason” aspect from
Melnyk, to reason that because Dr. Durrani had no sound medical reason use BMP-
2, this converts the BMP-2 into a “foreign object.” Of course, the “sound medical
reason” phrase is a relic from a case that predates the statute at hand by over a
quarter-century. If the General Assembly had elected to include such language in the
statute, we would be obliged to interpret it. But it did not. A plain, common sense,
reading of the statute in the context of the caselaw demonstrates that “foreign
objects” refers to objects that were meant to be removed upon the procedure’s
conclusion. A recent case from the Supreme Court of Utah interpreting an analogous
statutory provision reached a similar conclusion. Bright, 2020 UT 18, 463 P.3d 626.
There, the court emphasized the aspect of “discovery” of the foreign object (our
statute uses “discovered”) as presupposing “the placement of an object that was not
the intended point of the surgery.” Id. at ¶ 61. In other words, “the term discovery
confirms that foreign objects are things left by mistake—in an improper place.”
(Emphasis sic.) Id. Synthesizing these points, the Utah court held that Utah’s
“foreign objects” exception encompasses “implements used during surgery but
meant to be removed,” as well as “objects accidentally introduced into the body
during surgery.” Id. at ¶ 63. But “foreign objects” does not “extend to medical
devices or implants that are the very point of a medical procedure.” Id.
13 OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} We find this interpretation sensible and persuasive. To adopt Ms.
Jonas’s position would be to expand the “foreign objects” exception and render every
medical device case a potential candidate for a longer repose period. A plaintiff
could, by challenging the medical reasoning of the doctor or the effectiveness of
consent, circumvent the repose period. That would frustrate, rather than further, the
intent of the General Assembly.
{¶22} This conclusion is bolstered by the opening phrase of the statute,
which links the foreign object claim to “the alleged basis of a medical claim* * *.”
R.C. 2305.113(D)(2). Ms. Jonas’s complaint tells a story about an intentional (albeit
allegedly improper) decision to implant a medical device rather than anything
sounding akin to a “foreign object” claim. As it relates to use of BMP-2, the
complaint attacks Dr. Durrani’s use of BMP-2 “in ways and for surgeries not
approved by the FDA,” and by not explaining his “potential use of [BMP-2] in [her]
surgery when [Dr. Durrani] had a duty to disclose.” This strikes us as a fairly
prototypical medical negligence claim for improper off-label use of a medical device.
Ms. Jonas never alleges that the BMP-2 was meant to be removed at the conclusion
of her surgery or accidentally introduced into her, but instead she attacks it as the
centerpiece of a faulty procedure orchestrated by Dr. Durrani. Therefore, the
“alleged basis of the medical claim” is not a foreign object trespassing in the body but
rather negligently-performed surgery with an improper device.
{¶23} Given that her complaint was filed more than four years after the act,
i.e., the surgery, that formed the basis of the complaint, the medical malpractice
statute of repose bars Ms. Jonas’s claim. We accordingly overrule her first
assignment of error.
14 OHIO FIRST DISTRICT COURT OF APPEALS
C.
{¶24} Under her second assignment of error, Ms. Jonas alleges that the trial
court erred when it denied her motion to amend her complaint on futility grounds.
We review denial of a motion to amend a complaint for an abuse of discretion.
McNeal, 2019-Ohio-5351, 138 N.E.3d 1231, at ¶ 20, citing Danopulos v. Am. Trading
II, L.L.C., 2016-Ohio-5014, 69 N.E.3d 157, ¶ 23 (1st Dist.). But a trial court does not
err in denying a motion to amend where such amendment would be futile. Freeman,
2019-Ohio-3643, 144 N.E.3d 1067, at ¶ 27, citing Hensley v. Durrani, 1st Dist.
Hamilton No. C-130005, 2013-Ohio-4711, ¶ 14.
{¶25} Here, Ms. Jonas contends that granting her leave to amend her claim
would have allowed her “to bolster [the] factual claims against challenges raised
within Appellee’s motions” and that she “sustained needless undue prejudice by
being unable to argue the factual allegations with the amended complaint.” The trial
court below concluded both that the fraud was not an independent medical claim,
and it denied the motion to amend, noting that no fraud exception existed within the
statute. And a survey of Ms. Jonas’s additional factual allegations reveals that they
relate back to the underlying surgery. For example, Ms. Jonas’s additional
allegations relating to the fraud provide merely that “Dr. Durrani lied * * * about the
results of the post-op radiology which reflected the failed nature of the surgery” and
that “Dr. Durrani lied about the outcome of the surgery * * * inform[ing] [Ms. Jonas]
that the surgery was successful[.]” Based on our preceding analysis, her amendment
would have been futile under these circumstances because the pleading of additional
facts would still not have rendered her claim timely in light of the medical
malpractice statute of repose. Therefore, the trial court did not err in denying her
motion to amend, and we overrule her second assignment of error.
15 OHIO FIRST DISTRICT COURT OF APPEALS
III.
{¶26} Turning to Mr. Carr’s case, the trial court granted judgment on the
pleadings pursuant to Civ.R. 12(C) as to the claims against Dr. Durrani and CAST,
while dismissing the claims as to Christ Hospital on Civ.R. 12(B)(6) grounds. As we
previously acknowledged, we review rulings on Civ.R. 12(B)(6) de novo. Makrauer,
1st Dist. Hamilton No. C-190256, 2020-Ohio-945, at ¶ 6. Similar to Civ.R. 12(B)(6),
we review a trial court’s decision on a motion for judgment on the pleadings
pursuant to Civ.R. 12(C) de novo. Euvard v. The Christ Hosp., 141 Ohio App.3d 572,
575, 752 N.E.2d 326 (1st Dist.2001). And though Mr. Carr underwent three surgeries
with Dr. Durrani, only the 2010 surgery is at issue for purposes of this appeal. The
prior surgeries would be time-barred based on the filing of the initial complaint
(2013) in line with our analysis above with respect to Ms. Jonas’s appeal, and Mr.
Carr marshals no unique arguments as to how they might be salvaged. Therefore, we
limit our focus to the 2010 surgery.
{¶27} In contrast to Ms. Jonas’s complaint, Mr. Carr filed his initial
complaint in Butler County in 2013, and within the four-year repose period for
purposes of R.C. 2305.113(C) for the 2010 surgery. Mr. Carr then subsequently
voluntary dismissed that complaint, refiling largely indistinguishable claims in
Hamilton County within one year of the dismissal of the original complaint (but
otherwise outside of the medical malpractice statute of repose). Despite refiling the
claim outside the repose period, Mr. Carr’s claim is nevertheless saved by R.C.
2305.19(A), as confirmed by our recent caselaw, so long as the two claims are
“substantially the same.” Wilson, 2019-Ohio-3880, 145 N.E.3d 1071, at ¶ 25;
Children’s Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio St.2d 523, 525, 433 N.E.2d
187 (1982) (“The savings statute applies when the original suit and the new action
16 OHIO FIRST DISTRICT COURT OF APPEALS
are substantially the same.”). Upon examination, the two complaints satisfy such a
standard, as they essentially raise the same claims against the same parties.
Children’s Hosp. at 525; Wilson at ¶ 32. Moreover, none of the parties quibble over
this point. Therefore, the claims were substantially similar for purposes of invoking
the savings statute. Mr. Carr’s first assignment of error, insofar as it relates to the
2010 surgery, is accordingly sustained (but since Christ Hospital had no involvement
in the 2010 surgery, we affirm the dismissal with respect to it).
{¶28} As to Mr. Carr’s second assignment of error, he maintains that the trial
court erred when it denied his motion to amend to add a civil state law RICO claim
pursuant to the Ohio Corrupt Practices Act (“OCPA”) under R.C. 2923.31 et seq. In
denying the motion, the trial court depicted the claim as merely an attempt to recast
his medical malpractice claims in order to circumvent the statute of repose,
rendering any such amendment futile. In his appellate brief, Mr. Carr maintains that
the trial court should have permitted this claim to proceed, insisting that it was non-
medical in nature.
{¶29} But at a threshold level, we fail to see how Mr. Carr properly
presented a civil claim under the OCPA. Perusal of his purported OCPA claim
reveals little more than conclusory statements punctuated with an incantation of the
elements of the statute. At a minimum, establishing a viable claim under the statute
requires pleading, with particularity, that:
(1) that conduct of the defendant involves the commission of two or
more specifically prohibited state or federal criminal offenses; (2) that
the prohibited criminal conduct of the defendant constitutes a pattern;
and (3) that the defendant has participated in the affairs of an
17 OHIO FIRST DISTRICT COURT OF APPEALS
enterprise or has acquired and maintained an interest in or control of
an enterprise.
Flanagan v. Eden, 8th Dist. Cuyahoga No. 85252, 2005-Ohio-3133, ¶ 10; Morrow v.
Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, 915
N.E.2d 696, ¶ 27 (10th Dist.) (noting that failure to plead any of the elements of an
OCPA claim with particularity results in a defective complaint); Universal Coach,
Inc. v. New York City Transit Auth., Inc., 90 Ohio App.3d 284, 291, 629 N.E.2d 28
(8th Dist.1993) (“The failure of the plaintiffs to plead these three elements with
specificity mandated that the trial court dismiss the claimed RICO violation[.]”). But
to satisfy these criteria, Mr. Carr simply offers statements such as “CAST is an
enterprise.” Nowhere in the amended complaint can we discern how he envisions
structure, continuity, and separate existence from the corrupt practice to establish an
“enterprise” within the meaning of R.C. 2923.31(C). Morrow at ¶ 38 (noting that
these elements imply a degree of hierarchy which distinguish a RICO enterprise from
a simple conspiracy). Stating a civil claim under the OCPA requires a requisite
specificity that Mr. Carr’s pleading is lacking, as mere conclusory statements will not
suffice. See Morrow at ¶ 27 (noting pleading requirements for OCPA claim);
Herakovic v. Catholic Diocese of Cleveland, 8th Dist. Cuyahoga No. 85467, 2005-
Ohio-5985, ¶ 16 (same). Therefore, Mr. Carr did not plead facts sufficient to
establish a claim as required for the OCPA. As the amendment was futile for these
reasons, the trial court did not err in denying the motion to amend (although we
reach that conclusion via a different path). We accordingly overrule Mr. Carr’s
second assignment of error.
18 OHIO FIRST DISTRICT COURT OF APPEALS
IV.
{¶30} In conclusion, and based on our preceding analysis of the claims, in
the appeal numbered C-180457, we overrule both of the Jonases’ assignments of
error and affirm the judgment of the trial court. In the appeal numbered C-180458,
we sustain Mr. Carr’s first assignment of error as it relates to his 2010 surgery and
overrule his second assignment of error. The judgment of the trial court in the
appeal numbered C-180458 is therefore reversed in part, affirmed in part, and the
cause is remanded to the trial court for further proceedings consistent with this
opinion.
Judgment accordingly.
MYERS, J., concurs. ZAYAS, P.J., concurs in judgment only.
Please note: The court has recorded its own entry this date.