Walls v. Durrani

2021 Ohio 4329

• Court: Ohio Court of Appeals
• Decided: December 10, 2021
• Docket: C-200167
• Status: Published

Opinion

[Cite as Walls v. Durrani, 2021-Ohio-4329.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

KATHERINE WALLS, : APPEAL NO. C-200167 TRIAL NO. A-1506955 Plaintiff-Appellee, :

: O P I N I O N. VS. :

ABUBAKAR ATIQ DURRANI, M.D., :

and :

CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC., : Defendants-Appellants.

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 10, 2021

Robert A. Winter Jr., and The Deters Law Firm Co. II, P.A., James F. Maus and Alex Petraglia, for Plaintiff-Appellee.

Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig, Russell S. Sayre, and Anna M. Greve, and Lindhorst & Dreidame Co., LPA, Michael F. Lyon and James F. Brockman, for Defendants-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} This is a medical malpractice case with a twist. The surgeon found

liable by the jury, defendant-appellant Dr. Abubakar Atiq Durrani, did not actually

perform the surgery causing the injury. Instead, he recommended a more invasive

form of surgery that the operating surgeon and plaintiff-appellee Katherine Walls

opted not to pursue, electing for a more conservative surgical path. These facts create

a dispositive causation problem given that Dr. Durrani neither wielded the surgical

knife nor recommended the operation that was actually performed. We accordingly

reverse the trial court’s judgment in favor of Ms. Walls and remand for entry of

judgment in favor of defendants.

I.

{¶2} Ms. Walls suffered a back injury in 1995 during her service in the

United States Army, resulting in chronic back and leg pain for most of her adult life.

Having aggravated her back injury at work around Christmas of 2010, and desperate

for relief that conservative care through the Veteran’s Administration could not

provide, Ms. Walls began to explore her private treatment options through Medicaid.

In late 2011, a neurosurgeon at the Mayfield Brain and Spine Clinic found

degenerative disc disease in Ms. Walls’s lower back. He advised her that she could

either undergo a fusion surgery or she could continue conservative therapy and learn

to live with the pain. But Ms. Walls, understandably nervous about the risks involved

with back surgery, sought out a second opinion. At that point, Ms. Walls connected

with the doctors at defendant-appellant Center for Advanced Spine Technologies,

Inc., (“CAST”), and Dr. Nael Shanti became her physician.

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{¶3} According to Ms. Walls, at the end of her first appointment (and most

subsequent appointments), Dr. Durrani came into the room and advised her she

needed a fusion surgery—the exact treatment she was trying to avoid. As a result of

Ms. Walls’s hesitancy to undergo invasive back surgery, Dr. Shanti treated her for the

first eight months using a conservative approach involving epidurals and physical

therapy. When that failed to alleviate the pain, Ms. Walls agreed to let Dr. Shanti

perform a less-invasive laminectomy decompression surgery in 2012 with the

understanding that the more invasive full fusion surgery (advocated by Dr. Durrani)

might still be necessary down the road. The laminectomy relieved some of Ms.

Walls’s pain and she started physical therapy with the intent to undergo the fusion in

approximately six months. However, before that could happen, Medicaid cancelled

Ms. Walls’s insurance when her son turned 18, leaving her without adequate

insurance to cover her physical therapy or to pursue the follow-up fusion surgery with

Dr. Shanti. Ms. Walls attempted, to no avail, to have the Veteran’s Administration

step in and pay for the follow up treatments with CAST. Deprived of the option to

have the needed fusion surgery and stabilize her back, and in light of CAST “dropping

her like a hot potato” because she lacked insurance, Ms. Walls began to experience

adverse results from the laminectomy.

{¶4} Typically, when someone sues over malpractice, she sues the doctor

who performed the surgery or procedure in question. But that did not happen here.

Instead, Ms. Walls entered into a release with Dr. Shanti that absolved him of any

liability and obligated him to testify against Dr. Durrani. She eventually filed suit

against Dr. Durrani for negligence, battery, lack of informed consent, intentional

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infliction of emotional distress, and fraud; and filed claims against CAST for vicarious

liability based on CAST’s alleged negligent hiring and supervision.

{¶5} The litigation strategy was apparently premised on holding CAST and

Dr. Durrani vicariously liable for Dr. Shanti’s actions, a path subsequently foreclosed

by another case with strikingly similar facts. See White v. Durrani, 2021-Ohio-566,

168 N.E.3d 597, ¶ 32 (1st Dist.). Dr. Durrani and CAST accordingly moved for

summary judgment on the vicarious liability claims, and the trial court agreed—it

entered partial summary judgment in favor of the defendants on that issue, holding

that releasing Dr. Shanti from liability meant that CAST could be secondarily liable

only if Dr. Durrani himself was found directly liable in negligence.

{¶6} Although Ms. Walls had previously testified and responded to

discovery that her primary treating doctor was Dr. Shanti, on the eve of summary

judgment, anticipating the problems with the vicarious liability theory occasioned by

White, she changed her tune and recalled Dr. Durrani’s involvement in her treatment.

Notwithstanding the inconsistency in her testimony, the trial court found this

sufficient to stave off summary judgment on the direct liability claim, and the case

accordingly proceeded to trial. Ultimately, the jury found Dr. Durrani negligent for

recommending a surgery outside the standard of care and for failing to obtain

informed consent. Dr. Durrani moved for a directed verdict after Ms. Walls’s case-in-

chief and at the close of all the evidence, and moved for judgment notwithstanding

the verdict after the jury’s verdict, arguing that Dr. Durrani was not the cause of Ms.

Walls’s injuries. The trial court denied all three motions. Dr. Durrani now appeals,

bringing three assignments of error. In his first assignment of error, Dr. Durrani

asserts that the trial court should have entered a directed verdict in his favor because

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Ms. Walls did not present evidence that Dr. Durrani proximately caused the injury.

We ultimately find this assignment dispositive in light of a record barren of any

evidence establishing causation on Dr. Durrani’s part.

II.

{¶7} The traditional duty-breach-causation common law analysis applies to

medical negligence claims. See Kurzner v. Sanders, 89 Ohio App.3d 674, 681, 627

N.E.2d 564 (1st Dist.1993). Causation requires both “a factual nexus between the

breach and injury (i.e., actual cause) and a significant degree of connectedness that

justifies imposing liability (i.e., proximate cause).” Schirmer v. Mt. Auburn

Obstetrics & Gynecologic Assocs., 108 Ohio St.3d 494, 2006-Ohio-942, 844 N.E.2d

1160, ¶ 40 (Moyer, C.J., concurring in syllabus and judgment only), citing Hester v.

Dwivedi, 89 Ohio St.3d 575, 581, 733 N.E.2d 1161 (2000). See Sizemore v. Deemer,

2021-Ohio-1934, 174 N.E.3d 5, ¶ 21 (3d Dist.) (“Importantly, ‘cause in fact’ is not the

same as proximate cause and does not fulfill the entirety of the negligence causation

requirement.”). In determining causation, a court first considers whether cause in

fact has been established. See Ackison v. Anchor Packing Co., 120 Ohio St.3d 228,

2008-Ohio-5243, 897 N.E.2d 1118, ¶ 48. “Once cause in fact is established, a plaintiff

must then establish proximate cause in order to hold a defendant liable.” Id.

Although Dr. Durrani insists, invoking White, that he owed no duty of care to Ms.

Walls because no physician-patient relationship existed between them, we ultimately

need not ponder that issue in light of the clarity of the causation question.

{¶8} In both of his directed verdict motions and his motion for judgment

notwithstanding the verdict, Dr. Durrani argued that Dr. Shanti alone bore

responsibility because he operated on Ms. Walls and that any potential liability on the

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part of Dr. Durrani for recommending a fusion surgery ended when Dr. Shanti

intervened and performed a different surgery. A motion for a directed verdict should

be granted when, after construing the evidence most strongly in favor of the non-

moving party, the trial court finds that upon any determinative issue, “reasonable

minds could come to but one conclusion upon the evidence submitted and that

conclusion is adverse to such party.” White v. Leimbach, 131 Ohio St.3d 21, 2011-

Ohio-6238, 959 N.E.2d 1033, ¶ 22. In order for Ms. Walls’s claims to reach the jury,

she must establish evidence for each element of them, including causation. See Ruta

v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 68-69, 430 N.E.2d 935 (1982). And

where, as here, some crucial causal link is missing, the court should direct a verdict

rather than allow the jury to reach a decision based on speculation or conjecture. See

Westinghouse Elec. Corp. v. Dolly Madison Leasing & Furniture Corp., 42 Ohio St.2d

122, 126-127, 326 N.E.2d 651 (1975) (“[T]he court is to direct a verdict

where * * * some crucial link in the evidence is missing.”). Because “[a] motion for a

directed verdict raises a question of law,” we review the trial court’s decision de novo.

Ruta at 69.

{¶9} Ms. Walls begins her defense of the verdict by claiming that Dr.

Durrani failed to broach the causation issue at the trial level when he advanced the

motions for directed verdict. Our review of the record indicates otherwise. While

counsel might not have used the exact words “intervening” or “superseding” causation

during the hearing on the motions for a directed verdict, Dr. Durrani asserted the

legal theory of proximate cause multiple times in his motions for a directed verdict,

which sufficed to preserve it. See Trax Constr. Co. v. Village of Reminderville, 11th

Dist. Lake Nos. 2020-L-113, 2020-L-127, and 2021-L-008, 2021-Ohio-3481, ¶ 30

6 OHIO FIRST DISTRICT COURT OF APPEALS

(finding issue properly preserved despite not using exact nomenclature). During the

directed verdict hearing, counsel framed the issue as one of causation, emphasizing

“the issue of Dr. Durrani’s actual involvement in the surgery * * * because the proof

before this Court is that Ms. Walls does not know who performed the surgery.” This

argument built upon the objections raised in Dr. Durrani’s answer, at summary

judgment, and throughout the trial that he did not perform or recommend the surgery

and thus cannot be held liable. See State v. Whitfield, 1st Dist. Hamilton No. C-

190591, 2020-Ohio-2929, ¶ 15 (“Although perhaps not the main thrust of his

argument before the trial court, [defendant] sufficiently challenged the frisk for

purposes of preserving his right to raise the issue on appeal.”). Finding this issue

preserved, we turn to the merits of the question.

III.

{¶10} Let’s start with the issue of cause in fact and whether Dr. Durrani

performed the surgery in question. The test for actual causation is referred to in legal

circles as the “but for” test, meaning that the defendant’s conduct is the actual cause if

the harm would not have occurred “but for” the defendant’s act. Ackison, 120 Ohio

St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, at ¶ 48 (“This requirement is, in

essence, a ‘but for’ test of causation, which is the standard test for

establishing cause in fact.”). On appeal, somewhat inconsistent with her trial

approach, Ms. Walls seems to speculate that perhaps Dr. Durrani had a hand in the

surgery. This belief rests on two premises: first, that Dr. Durrani’s name was listed as

the assistant on the initial schedule of the operating room, and second, that Dr.

Durrani visited her room after the surgery. Neither supposition puts the scalpel in Dr.

Durrani’s hands. It is not enough for Ms. Walls to speculate that Dr. Durrani “might

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have” caused her injury. See Gedra v. Dallmer Co., 153 Ohio St. 258, 91 N.E.2d 256

(1950), paragraph two of the syllabus (“In a negligence action, it is not sufficient for

plaintiff to prove that the negligence of defendant might have caused an injury to

plaintiff.”). While Dr. Durrani was listed as a possible assistant when CAST booked

the operating room, the nursing logs from the actual surgery confirm that he never

entered the operating room during the procedure. Dr. Shanti’s post-operative notes

make no mention of Dr. Durrani participating in the operation, a point ratified in his

testimony, wherein Dr. Shanti explained that he alone performed the surgery. No

witness testified, and no document established, that Dr. Durrani played any role in

the actual surgery. That may explain why, during the trial, all of the witnesses, and

even counsel and the court, proceeded on the premise that Dr. Shanti was the

surgeon.

{¶11} Nor do we need to speculate on this point because the jury did not find

that Dr. Durrani performed the surgery. Instead, it explained, in response to

interrogatories, that it based its negligence conclusion on Dr. Durrani’s causing injury

to Ms. Walls through his recommendation of surgery: “Defendant suggested surgery

for Ms. Walls outside the standard of care.” Therefore, we reject any notion that the

jury could have found Dr. Durrani to be the actual cause of Ms. Walls’s injuries by

performing the surgery. If causation exists, we must find it elsewhere.1

{¶12} Now, let’s shift the focus to the surgical recommendation. Before

diving in, however, we pause to note a somewhat confusing interaction that

undoubtedly muddied the waters on this issue. While providing instructions to the

1Unfortunately, Ms. Walls’s counsel failed to provide a substantive defense of causation in their appellate brief, which has complicated our review of this matter.

8 OHIO FIRST DISTRICT COURT OF APPEALS

jury, the trial court correctly counseled jurors that liability for any negligence could

only be imposed if the negligence directly and proximately caused the injury.

Confused about the distinction between those concepts, during deliberations, the jury

asked for clarification on the word “directly” in the interrogatory, which charged them

with determining whether Dr. Durrani’s negligence directly and proximately caused

the injury at issue. The trial court responded that “[d]irect and proximate mean the

same” thing and ordered the jury to strike the word “direct” from the interrogatory,

leaving only proximate cause to be decided. In a case with causation at center stage,

this conflation of two important concepts certainly created the potential for

confusion. But without any objection from Dr. Durrani, we must presume that actual

causation was satisfied, and we accordingly shift our attention to proximate

causation.

{¶13} To find that Dr. Durrani’s actions represented the proximate cause of

Ms. Walls’s injuries in this manner, the harm she suffered as a result of the

laminectomy must be the natural and probable consequence of Dr. Durrani’s

suggested fusion surgery. See Strother v. Hutchinson, 67 Ohio St.2d 282, 287, 423

N.E.2d 467 (1981). Practically speaking, proximate cause limits Dr. Durrani’s liability

in negligence to the foreseeable consequences of his actions. Johnson v. Univ. Hosps.

of Cleveland, 44 Ohio St.3d 49, 57, 540 N.E.2d 1370 (1989) (“[L]egal responsibility

must be limited to those causes which are so closely connected with the result and of

such significance that the law is justified in imposing liability.”). The burden of

proving proximate cause rests with Ms. Walls. See Wallace v. Ohio Dept. of

Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 38.

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{¶14} The negligence alleged by Ms. Walls during trial was that Dr. Shanti’s

failure to perform the full fusion “left her spine in such a situation that it was doomed

to collapse,” resulting in her suffering from post-laminectomy syndrome. Yet Ms.

Walls emphasized at trial that Dr. Durrani suggested a fusion surgery from the

outset—“he recommended fusion, and he said that fusion was a very well-known

technique and they had gotten much better at perfecting it.” Later in her testimony,

she reiterated the point: “he had always wanted me to get a fusion.” She, however,

adamantly opposed this option: “I didn’t want to do a full fusion * * * I wanted to try

to do more conservative surgery if that was possible.” We are confounded to

understand how Dr. Durrani’s suggested fusion surgery could be both outside the

standard of care and the solution to her chronic pain. During closing arguments, Ms.

Walls’s counsel asserted that even though she didn’t want the fusion, Dr. Durrani

should have told her, “You need a fusion.” Yet that is precisely what he did, on

multiple occasions apparently. Ms. Walls testified that Dr. Durrani told her fusion

surgery was the best answer because “there were some bone spurs that would

continue getting worse” unless she had the surgery at that point. Despite that, Ms.

Walls “wanted to wait and try other options first to see if anything else worked.”

{¶15} Try as he might, Dr. Durrani could not convince Ms. Walls to skip

conservative treatments and proceed straight to the more invasive surgery. It was

certainly within Ms. Walls’s prerogative to follow one path before traveling down the

other. But she cannot then blame Dr. Durrani if, by the time she was ready to try his

approach, a series of unfortunate events unfolded to preclude that option.2 In other

2Ms. Walls acknowledged that, had her Medicaid not been terminated, she would have proceeded with the fusion surgery.

10 OHIO FIRST DISTRICT COURT OF APPEALS

words, Ms. Walls made an informed decision to disregard Dr. Durrani’s advice and

follow Dr. Shanti’s more conservative surgical approach. Any initial negligence

flowing from the recommendation of fusion surgery was cut off by Dr. Shanti’s

independent recommendation and performance of the laminectomy. There is no

causal link between the two and we find it impossible to see how any injury Ms. Walls

suffered from the laminectomy could be the natural and probable consequence of Dr.

Durrani recommending a fusion surgery.

{¶16} In a similar vein, the jury’s informed consent decision suffers from the

same proximate cause problem. To prevail on this claim, Ms. Walls bears the burden

of identifying the risks of Dr. Durrani’s recommended medical procedure through

expert testimony and showing that the risk identified materialized and proximately

caused her injury. White, 131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033, at ¶ 2.

It goes without saying that because Ms. Walls did not heed Dr. Durrani’s advice to

undergo a fusion surgery, no injury from a fusion materialized. Beyond that, explicit

in the tort of lack of informed consent is the assumption that the patient actually

underwent the procedure at hand. See id. at ¶ 26-29 (“The tort of lack of informed

consent is established when * * * a reasonable person in the position of the patient

would have decided against the therapy had the material risks and dangers inherent

and incidental to treatment been disclosed to him or her prior to the therapy.”). And

if there is one piece of certainty on this record, it is that Ms. Walls repeatedly refused

the surgery urged by Dr. Durrani.

{¶17} When pressed during oral arguments to point us in the direction of any

evidence connecting Dr. Durrani to the laminectomy recommendation, Ms. Walls’s

counsel steered us to a question of who recommended the laminectomy

11 OHIO FIRST DISTRICT COURT OF APPEALS

decompression surgery, in which she responded: “That would be Dr. Shanti and Dr.

Durrani. I think Dr. Shanti * * * agreed with me on the more conservative measures,

and Dr. Durrani agreed to try that * * * because I didn’t want to do the full-out

fusion.” This comment, however, perpetuates the distinction Ms. Walls drew in her

testimony between Dr. Shanti recommending a more conservative path, and Dr.

Durrani insisting on the more invasive option. This is a bridge too far to establish

causation on Dr. Durrani’s part—the tortfeasor in this instance was Dr. Shanti, who

not only recommended but performed the surgery that counsel described as

“completely unnecessary” during closing arguments. In addition, proximate cause, by

definition, does not include acts interrupted by another person’s tortious conduct.

See Dubose v. McCloud, 1st Dist. Hamilton No. C-190690, 2020-Ohio-4972, ¶ 10

(“Courts define proximate cause as ‘that which in a natural and continuous sequence,

unbroken by any new, independent cause, produces that event and without which

that event would not have occurred.’ ”) (Emphasis added.), quoting Aiken v. Indus

Comm., 143 Ohio St. 113, 117, 53 N.E.2d 1018 (1994). Thus, if another responsible

agent—such as Dr. Shanti—intervened and committed a new and independent act, Dr.

Durrani is relieved from liability. See Shaw Steel, Inc. v. Ronfeldt Mfg., 8th Dist.

Cuyahoga No. 102665, 2016-Ohio-1117, ¶ 44. That is precisely the situation here. Dr.

Shanti was a conscious and responsible agent who not only could have, but in fact did,

eliminate any hazard from a fusion surgery by performing an entirely different

procedure and thus relieving Dr. Durrani of liability. Indeed, if Ms. Walls had

followed Dr. Durrani’s recommendation, she would have undergone the precise

surgery she finds herself seeking to this day.

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{¶18} Even though the trial court granted summary judgment on the claims

of vicarious liability, shadows of that theory permeated the trial. Ms. Walls and her

counsel dubbed Dr. Shanti the “assistant” to Dr. Durrani, portraying him as a

neophyte surgeon and seeking to hold Dr. Durrani responsible for Dr. Shanti’s

actions. But with vicarious liability off the table (Ms. Walls did not cross appeal that

issue), Ms. Walls needed to do more to establish causation than simply characterize

Dr. Shanti as the understudy. And that is where the trial record comes up empty.

{¶19} Bolstering this conclusion is apparent tension in the jury interrogatory

responses. On the one hand, the jury found that Dr. Durrani’s recommendation of a

surgery constituted negligence that proximately caused Ms. Walls’s harm. On the

other, the jury found that Dr. Durrani made fraudulent misrepresentations to her

about the need for surgery, but concluded that those representations did not

proximately cause her harm. It’s difficult to understand how both of these

propositions could be true on this record. Neither side challenged any inconsistency

in the interrogatory responses, but we simply highlight how this reinforces our

assessment of the trial record.

{¶20} Because Ms. Walls’s harm (based on the theory pursued at trial) is

attributable to the rejection of Dr. Durrani’s advice, she has not met her burden of

proving that Dr. Durrani proximately caused her injury. The trial court accordingly

should have granted a directed verdict because there was insufficient evidence of

causation as a matter of law to support the claims of negligence and informed consent

against Dr. Durrani.

{¶21} We conclude by acknowledging the very real pain and suffering that

Ms. Walls has suffered as a result of her chronic back conditions and by virtue of her

13 OHIO FIRST DISTRICT COURT OF APPEALS

surgery. Nothing in this opinion should be viewed as detracting from that reality. But

the cause of her injury flowing from her surgery was Dr. Shanti, not Dr. Durrani, and

we cannot allow our sympathies to substitute for evidence.

* * *

{¶22} We accordingly sustain the first assignment of error, decline to address

the others as moot, and reverse the trial court’s judgment and remand the cause for

entry of judgment in favor of defendants.

Judgment reversed and cause remanded.

MYERS, P. J. and CROUSE, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion