[Cite as Wilson v. Durrani, 2019-Ohio-3880.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
ROBERT WILSON, : APPEAL NO. C-180196 TRIAL NO. A-1506860 Plaintiff-Appellant, :
vs. :
ABUBAKAR ATIQ DURRANI, M.D., :
CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC.,
WEST CHESTER HOSPITAL, LLC, :
and :
UC HEALTH, :
Defendants-Appellees. :
MIKE SAND, : APPEAL NO. C-180194 TRIAL NO. A-1506694 and : O P I N I O N. AMBER SAND, :
Plaintiffs-Appellants, :
Defendants-Appellees. : OHIO FIRST DISTRICT COURT OF APPEALS
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 25, 2019
Robert A. Winter Jr., The Deters Law Firm, P.S.C., and Fred Johnson for Plaintiffs- Appellants,
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.,
Frost Brown Todd, LLC, Douglas R. Dennis and Austin W. Musser, for Defendants- Appellees West Chester Hospital, LLC, and UC Health.
2 OHIO FIRST DISTRICT COURT OF APPEALS
Z AYAS , Presiding Judge.
{¶1} Appellants Robert Wilson, Mike Sand and his wife, Amber Sand
(collectively, the “appellants”), appeal from judgments entered by the Hamilton
County Court of Common Pleas granting judgment on the pleadings to appellees Dr.
Abubakar Atiq Durrani, the Center for Advanced Spine Technologies, Inc., West
Chester Hospital, LLC, and UC Health. Although the appellants instituted separate
appeals from separate judgments and we previously denied motions to consolidate
their appeals, the appellants advance identical assignments of error pertaining to
very similar facts. We, therefore, consolidate their appeals for purposes of this
opinion.
{¶2} These consolidated appeals are two of many appeals involving alleged
malpractice by Dr. Durrani, a spine surgeon who fled the country for his native
Pakistan following a federal indictment. In both cases before us, Dr. Durrani, his
clinic, and a hospital argued in the trial court that the claims filed against them by a
patient were untimely under the medical malpractice statute of repose, a statute
which bars medical claims filed more than four years after the alleged malpractice,
and that Ohio’s saving statute does not apply to allow actions to survive beyond this
expiration. The trial court agreed, holding in each case that the saving statute did
not apply, and therefore, the patient’s claims were barred.
{¶3} The Ohio Supreme Court explicitly reserved judgment on this issue in
Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d
974. The United States District Court for the Southern District of Ohio was
presented with this very question recently though, and upon surveying Antoon, Ohio
appellate court decisions, and other state court results, concluded that Ohio’s saving
statute does apply despite the expiration of the statute of repose. See Atwood v. UC
Health, S.D.Ohio No. 1:16CV593, 2018 WL 3956766 (August 17, 2018). We find
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Atwood persuasive and reverse the trial court’s judgments. In a matter of first
impression for this court, we hold that Ohio’s saving statute, properly invoked,
allows actions to survive beyond expiration of the medical malpractice statute of
repose, and acts to save the patients’ claims in the cases before us.
I. Background and Procedural History
A. Robert Wilson
{¶4} In November 2010, plaintiff-appellant Robert Wilson began seeing Dr.
Durrani at his clinic in Blue Ash, Ohio, the Center for Advanced Spine Technologies,
Inc., (“CAST”) seeking relief from headaches and back pain. Dr. Durrani
recommended that Wilson undergo back surgery to repair discs along his spine. In
February and April 2011, Dr. Durrani performed spine surgeries on Wilson at West
Chester Hospital, which is owned by UC Health. Following the surgeries, Wilson
experienced worsened pain and immobility. Wilson eventually decided to sue Dr.
Durrani, claiming that the surgeries were medically unnecessary and improperly
performed.
{¶5} On April 9, 2013, Wilson filed a complaint against Dr. Durrani, CAST,
and West Chester Hospital/UC Health in the Butler County Court of Common Pleas.
Wilson sued Dr. Durrani for negligence, battery, intentional infliction of emotional
distress, fraud, and spoliation of evidence. Wilson sued CAST for vicarious liability
for the negligent and improper acts of Dr. Durrani, negligent hiring, retention and
supervision of Dr. Durrani, fraud, intentional infliction of emotional distress, and
spoliation of evidence. Wilson sued West Chester Hospital/UC Health for negligence,
negligent credentialing, supervision and retention, fraud, intentional infliction of
emotional distress, and spoliation of evidence.
{¶6} On December 11, 2015, Wilson voluntarily dismissed his complaint
filed in the Butler County Court of Common Pleas under Civ.R. 41(A)(1)(a), and, on
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December 16, 2015, filed a similar, albeit much longer, complaint in the Hamilton
County Court of Common Pleas. Wilson added more specific factual allegations
based upon discovery disclosed in the Butler County case, and added a claim against
Dr. Durrani for lack of informed consent for the use of a product called Infuse/BMP-
2 during both surgeries, and claims against CAST and West Chester Hospital/UC
Health for violations of the Ohio Consumer Sales Practices Act.
{¶7} Dr. Durrani and CAST, and West Chester Hospital/UC Health moved
separately for judgment on the pleadings, asserting that Wilson’s claims against
them were medical claims that were time-barred pursuant to Ohio’s medical
malpractice statute of repose, R.C. 2305.113(C), because the complaint alleges that
the last surgery performed by Dr. Durrani was in or around April 2011, more than
four years before Wilson filed suit in the Hamilton County Court of Common Pleas.
The defendants argued that the 2013 filing in the Butler County Court of Common
Pleas was a nullity.
{¶8} Wilson moved to amend his complaint to elaborate on the fraud claims
and to add a RICO claim. The trial court entered decisions granting the motions for
judgment on the pleadings and denying Wilson’s motion for leave to amend his
complaint.
B. Mike and Amber Sand
{¶9} In or around 2008 or 2009, plaintiff-appellant Mike Sand began
seeing Dr. Durrani to address weakness in his left leg. Dr. Durrani urged Sand to
undergo back surgery to repair discs along his spine, or else lose the use of his leg.
On April 5, 2010, Dr. Durrani performed spine surgery on Sand at West Chester
Hospital. Following his surgery, Sand experienced the same leg pain he had prior to
the surgery, and began experiencing back pain which severely limited his mobility.
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Like Wilson, Sand decided to sue Dr. Durrani, claiming that the surgery was
medically unnecessary and improperly performed.
{¶10} On March 28, 2013, Sand, and his wife, Amber Sand (collectively, “the
Sands”), filed a complaint against Dr. Durrani, CAST, and West Chester Hospital/UC
Health in the Butler County Court of Common Pleas. The Sands sued Dr. Durrani for
negligence, battery, intentional infliction of emotional distress, fraud, spoliation of
evidence, and loss of consortium. The Sands sued CAST for intentional infliction of
emotional distress, spoliation of evidence, and loss of consortium. The Sands sued
West Chester Hospital/UC Health for negligence, vicarious liability, negligent hiring,
credentialing, supervision and retention, fraud, intentional infliction of emotional
distress, spoliation of evidence, and loss of consortium.
{¶11} On November 25, 2015, the Sands voluntarily dismissed their
complaint filed in the Butler County Court of Common Pleas under Civ.R.
41(A)(1)(a), and, on December 9, 2015, filed a similar complaint in the Hamilton
County Court of Common Pleas. The Sands added more specific factual allegations
based upon discovery disclosed in the Butler County case, and added a claim against
Dr. Durrani for lack of informed consent and claims against CAST for vicarious
liability, and negligent hiring, credentialing, supervision and retention.
{¶12} Asserting the same arguments from Wilson’s case, Dr. Durrani and
CAST, and West Chester Hospital/UC Health moved separately for judgment on the
pleadings. The Sands moved to amend their complaint to elaborate on the fraud
claims and to add a RICO claim. The trial court entered decisions granting the
motions for judgment on the pleadings and denying the Sands’ motion for leave to
amend their complaint.
{¶13} Wilson and the Sands now appeal, asserting the same two assignments
of error for review.
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II. Legal Analysis
{¶14} In their first assignment of error, the appellants assert that the trial
court erred in granting judgment on the pleadings, arguing that Ohio’s saving
statute, R.C. 2305.19(A), allows their claims to survive beyond the expiration of the
four-year medical malpractice statute of repose, R.C. 2305.113(C). The appellants
also argue that the trial court misapplied Antoon v. Cleveland Clinic Found., 148
Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, when it determined that the
voluntary dismissal of their Butler County complaints precluded the filing of their
Hamilton County complaints when the later filings were outside of the four-year time
period.
{¶15} In order to grant a judgment on the pleadings, “the trial court must
construe the material allegations in the complaint, as well as reasonable inferences
arising from them, in favor of the plaintiff and conclude beyond a doubt that the
plaintiff can show no set of facts that would entitle him to relief.” (Internal citations
omitted.) Euvrard v. The Christ Hosp., 141 Ohio App.3d 572, 575, 752 N.E.2d 326,
329 (1st Dist.2001). Our review is de novo, which requires an independent
determination of whether judgment has properly been entered as a matter of law. Id.
Statute of Repose
{¶16} A statute of repose bars “any suit that is brought after a specified time
since the defendant acted * * * even if this period ends before the plaintiff has
suffered a resulting injury.” Antoon, 148 Ohio St. 3d 483, 2016-Ohio-7432, 71
N.E.3d 974, at ¶ 8, quoting Black’s Law Dictionary 1637 (10th Ed.2014). By
contrast, a statute of limitations establishes “a time limit for suing in a civil case,
based on the date when the claim accrued (as when the injury occurred or was
discovered).” Id., quoting Black’s Law Dictionary 1636 (10th Ed.2014). While both
share the “goal of limiting the time for which a putative wrongdoer must be prepared
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to defend a claim,” a statute of repose measures this liability from the date of the last
culpable act. Id., citing CTS Corp. v. Waldburger, 573 U.S. 1, 8, 134 S.Ct. 2175, 189
L.Ed.2d 62 (2014).
{¶17} Ohio’s medical malpractice statute of repose provides:
Except as to persons within the age of minority or of unsound mind as
provided by section 2305.16 of the Revised Code, and except as
provided in division (D) of this section, both of the following apply:
(1) No action upon a medical, dental, optometric, or chiropractic claim
shall be commenced more than four years after the occurrence of the
act or omission constituting the alleged basis of the medical, dental,
optometric, or chiropractic claim.
(2) If an action upon a medical, dental, optometric, or chiropractic
claim is not commenced within four years after the occurrence of the
act or omission constituting the alleged basis of the medical, dental,
optometric, or chiropractic claim, then, any action upon that claim is
barred.
R.C. 2305.113(C). Under division (D), an additional year to file suit is provided for
those who could not have discovered the injury within three years but discover it in
the fourth year, and those with a foreign object left in their bodies. R.C. 2305.113(D).
{¶18} A medical claim is defined as: “any claim that is asserted in any civil
action against a physician, * * * [or] hospital * * * that arises out of the medical
diagnosis, care, or treatment of any person.” R.C. 2305.113(E)(3). It includes the
following:
(a) Derivative claims for relief that arise from the medical diagnosis,
care, or treatment of a person;
***
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(c) Claims that arise out of the medical diagnosis, care, or treatment of
any person or claims that arise out of the plan of care prepared for a
resident of a home and to which both types of claims either of the
following applies:
(i) The claim results from acts or omissions in providing medical care.
(ii) The claim results from the hiring, training, supervision, retention,
or termination of caregivers providing medical diagnosis, care, or
treatment.
Id.
{¶19} In another Durrani case, brought against all but one of these same
defendants, this court determined that similar claims for negligence, negligent
credentialing and retention, fraud, and violations of the Ohio Consumer Sales
Practices Act were “medical claims” subject to the statute of repose. Young v.
Durrani, 2016-Ohio-5526, 61 N.E.3d 34, ¶ 18-25 (1st Dist.). In that case, we
concluded that the claims ultimately arose out of the care or treatment of the patient
and were thus medical claims consistent with the statutory definition. Id.; see also
Hensley v. Durrani, 1st Dist. Hamilton No. C-130005, 2013-Ohio-4711 (concluding
that claims for fraud and lack of informed consent were medical claims).
Accordingly, the claims asserted by the appellants in these consolidated appeals are
medical claims.
Saving Statute
{¶20} Ohio’s saving statute provides:
In any action that is commenced or attempted to be commenced, if in
due time a judgment for the plaintiff is reversed or if the plaintiff fails
otherwise than upon the merits, the plaintiff or, if the plaintiff dies and
the cause of action survives, the plaintiff’s representative may
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commence a new action within one year after the date of the reversal
of the judgment or the plaintiff's failure otherwise than upon the
merits or within the period of the original applicable statute of
limitations, whichever occurs later. This division applies to any claim
asserted in any pleading by a defendant.
R.C. 2305.19(A). Under division (C), the saving statute does not apply to certain
actions in probate. R.C. 2305.19(C).
{¶21} Where the saving statute applies, “the date for filing the new action
relates back to the filing date for the preceding action for limitations purposes.”
Frysinger v. Leech, 32 Ohio St.3d 38, 42, 512 N.E.2d 337 (1987). The Ohio Supreme
Court has held that, as a remedial statute, the saving statute “should be given a
liberal construction to permit the decision of cases upon their merits rather than
upon mere technicalities of procedure.” Cero Realty Corp. v. Am. Mfrs. Mut. Ins.
Co., 171 Ohio St. 82, 85, 167 N.E.2d 774 (1960); see Gruelich v. Monnin, 142 Ohio St.
113, 116, 50 N.E.2d 310 (1943) (holding likewise that a saving statute should be
liberally construed so as not to deny a litigant the right to commence a new action
after a previous one has failed otherwise than upon the merits); see also Kinney v.
Ohio Dept. of Adm. Svcs., 30 Ohio App.3d 123, 126, 507 N.E.2d 402 (10th Dist.1986)
(describing the policy considerations for liberally construing the saving statute to
apply to a statute of limitations).
The Saving Statute Applies to Medical Malpractice Claims
{¶22} In Atwood v. UC Health—incidentally, another Durrani case—the
court noted that “[i]n several instances, Ohio courts have assumed without any
discussion that Ohio’s savings statute is applicable to medical malpractice claims.”
Atwood, S.D.Ohio No. 1:16CV593, 2018 WL 3956766, at *6. See Saunders v. Choi,
12 Ohio St.3d 247, 250, 466 N.E.2d 889 (1984) (stating that R.C. 2305.19 “provided
10 OHIO FIRST DISTRICT COURT OF APPEALS
[the] appellant with another opportunity to revive her cause of action which would
have been otherwise time-barred, but for this savings provision.”); Frysinger, 32
Ohio St.3d 38, 512 N.E.2d 337 (holding that R.C. 2305.19 applied to save a medical-
malpractice action dismissed under Civ.R. 41(A)(1)(a)); Rall v. Arora, 3d Dist.
Marion No. 9-12-56, 2013-Ohio-1392, ¶ 20 (concluding that R.C. 2305.19 could not
save medical-malpractice claims in plaintiffs’ third complaint as the saving statute
can only be used once).
{¶23} This was also true for Antoon, 148 Ohio St. 3d 483, 2016-Ohio-7432,
71 N.E.3d 974. The Ohio Supreme Court assumed that the saving statute applied to
medical claims in Antoon, but specifically declined to go into further discussion due
to the facts presented. In Antoon, the court upheld the constitutionality of the
medical malpractice statute of repose, reaffirming its earlier position in Ruther v.
Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291. In Ruther, the court
explained that R.C. 2305.113(C) is “a true statute of repose,” which “ ‘exists to give
medical providers certainty with respect to the time within which a claim can be
brought and a time after which they may be free from the fear of litigation.’ ” Antoon
at ¶ 22, quoting Ruther at ¶ 19. The court reasoned that otherwise, “ ‘if the General
Assembly cannot legislate a statute of repose, medical providers are left with the
possibility of unlimited liability indefinitely.’ ” Id. Ultimately, the court held the
four-year expiration permissible because “a party need not be granted an unlimited
amount of time to bring a vested cause of action, but must receive only a ‘reasonable’
amount of time in order for a law to pass constitutional muster.” (Internal citations
omitted.) Antoon at ¶ 28.
{¶24} The plaintiffs in Antoon had originally filed their complaint in the
Cuyahoga County Court of Common Pleas in 2010 alleging medical malpractice and
derivative claims against a clinic and the doctors who provided them care in 2008. A
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year later, the plaintiffs dismissed their claims without prejudice. While the case was
pending, the plaintiffs filed a number of actions in federal court and with federal
agencies—all related to the surgeries, but not alleging medical malpractice and not
seeking damages. The federal claims were eventually dismissed. In 2013, the
plaintiffs refiled their complaint in the Cuyahoga County Court of Common Pleas,
again alleging medical malpractice.
{¶25} The court found the plaintiffs’ claims barred by the statute of repose,
rejecting the plaintiffs’ assertion that “filing then dismissing a claim will indefinitely
suspend the statute of repose by ‘commencing’ the suit on the date of the first filing.”
Id. at ¶ 24. Rather, no action “commenced” until the complaint was filed in 2013,
more than four years after the act or omission constituting the alleged basis of the
medical claim. In clarifying this holding, and reserving judgment on the issue now
before us, the court reiterated that “the Ohio saving statute applies only if a party
files a substantially similar action within one year of the dismissal without
prejudice.” Id. at ¶ 31, citing Children’s Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio
St.2d 523, 525, 433 N.E.2d 187 (1982). Because the plaintiffs’ federal actions did not
expressly assert medical-malpractice claims, they were not “substantially the same”
as the state court action, and the saving statute did not apply. Id. at ¶ 32.
{¶26} In the cases before us, by contrast, the appellants’ claims in their
Butler County complaints and their Hamilton County complaints are nearly
identical. The appellants merely added a claim against Dr. Durrani for lack of
informed consent to the surgeries, and, in the Sands’ case, added claims against
CAST for vicarious liability and negligent hiring, and, in Wilson’s case, added claims
against West Chester Hospital/UC Health for violations of the Ohio Consumer Sales
Practices Act. All of the parties named in the voluntarily-dismissed Butler County
complaints were named again in the Hamilton County complaints—that is, every
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party named in the appellants’ new actions had been put on notice in the initial
action. Thus, the appellants avoided the allegation that their complaints were not
substantially the same.
{¶27} However, the trial court, citing to Antoon, determined that the
appellants’ voluntary dismissal of their Butler County complaints pursuant to Civ.R.
41 meant the action was a nullity and was not to be considered for purposes of the
four-year computation under the statute of repose. Antoon indeed states, in applying
the statute of repose, that an action that has been dismissed without prejudice is
deemed to never have existed. Antoon at ¶ 24, citing De Ville Photography, Inc. v.
Bowers, 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959). This statement was in
reference to the plaintiffs’ argument that filing and then dismissing a claim will
indefinitely suspend the statute of repose by “commencing” the suit on the date of
the first filing—it was not in reference to the saving statute. After all, the saving
statute could effectively never apply if an action that has been dismissed without
prejudice is deemed to never have existed: the filing date for the new action could not
relate back to the filing date for the preceding action if the preceding action was
considered a nullity.
{¶28} Only one appellate court has addressed the application of the saving
statute to medical claims in light of the statute of repose. Wade v. Reynolds, 34 Ohio
App.3d 61, 517 N.E.2d 227 (10th Dist.1986), involved an earlier version of the statute
of repose, which applied to medical claims “regardless of legal disability and
notwithstanding section 2305.16 of the Revised Code.” In Wade, the plaintiff timely
filed her complaint for medical malpractice on October 31, 1980. The complaint was
dismissed for reasons other than failure upon the merits on March 21, 1984, and was
then refiled on March 21, 1985. The Tenth District determined that because the
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statute of repose contained enumerated exceptions which did not include the saving
statute, the saving statute must apply to save the plaintiff’s claim. Id. at 62.
{¶29} Atwood pointed out, however, that “[t]he express exceptions, or lack
thereof, say little about legislative intent.” Atwood, S.D.Ohio No. 1:16CV593, 2018
WL 3956766, at *7. Quoting a decision critical of Wade from the United States Court
of Appeals for the Seventh Circuit, the court noted that the exceptions rationale
“‘could have just as easily cut the other way’ ” because the “ ‘legislature apparently
knew how to write exceptions into [the statute of repose], but failed to except the
saving statute.’ ” Id., quoting Hinkle by Hinkle v. Henderson, 85 F.3d 298, 304 (7th
Cir.1996). Dr. Durrani and CAST made the argument in Atwood, as they do here,
that the statute of repose for product-liability claims, R.C. 2305.10(C)(1), contains a
specific exception for the saving statute. The Atwood court responded that in 2009
the General Assembly added exceptions to the saving statute, explicitly stating that
the saving statute does not apply to certain probate proceedings. Atwood at *7. In
other words, just as the legislature could have included the saving statute as an
exception in the statute of repose, the legislature could have included the statute of
repose as an exception in the saving statute—but unfortunately, it did neither. Thus,
we likewise find arguments regarding legislative intent unpersuasive.
{¶30} While legislative intent is indeterminate, the policy considerations are
not. As Judge Barrett noted in Atwood, the Ohio Supreme Court has explained that
“the General Assembly made a policy decision to grant Ohio medical providers the
right to be free from litigation based on alleged acts of medical negligence occurring
outside a specified time period.” Ruther, 134 Ohio St.3d 408, 2012-Ohio-5686, 983
N.E.2d 291, at ¶ 21. The medical malpractice statute of repose gives “medical
providers certainty with respect to the time within which a claim can be brought and
a time after which they may be free from the fear of litigation.” Id. at ¶ 19.
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Forcing medical providers to defend against medical claims that
occurred 10, 20, or 50 years before presents a host of litigation
concerns, including the risk that evidence is unavailable through the
death or unknown whereabouts of witnesses, the possibility that
pertinent documents were not retained, the likelihood that evidence
would be untrustworthy due to faded memories, the potential that
technology may have changed to create a different and more stringent
standard of care not applicable to the earlier time, the risk that the
medical providers’ financial circumstances may have changed—i.e.,
that practitioners have retired and no longer carry liability insurance,
the possibility that a practitioner’s insurer has become insolvent, and
the risk that the institutional medical provider may have closed.
Id. at ¶ 19-20. Thus, the two goals of the statute of repose are “to eliminate indefinite
potential liability and to give defendants greater certainty and predictability.” Hinkle
by Hinkle, 85 F.3d at 303.
{¶31} These policy considerations are not at odds with those of the saving
statute. As discussed above, the saving statute is given a liberal construction to
permit the decision of cases upon their merits rather than technicalities. Since the
saving statute is only available to plaintiffs who timely commenced their claims, the
statute is compatible with the first goal of the statute of repose—at most, extending
the statute of repose by one year. With regard to the second goal, certainty and
predictability are only affected where the defendant is unaware that the first action
was filed. Id.
Where the defendant knows that plaintiff has brought an action,
usually from receiving service, he must be presumed to understand
that a procedural defect in the action may cause a delay of up to one
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year pursuant to the savings statute. In such a case, his level of
certainty and predictability is no less than in any other litigated
matter, and the purpose of the statute of repose is still realized.
(Internal citations omitted.) Id. Accordingly, we conclude that the saving statute,
properly invoked, allows actions to survive beyond expiration of the medical
malpractice statute of repose.1
{¶32} The appeals before us are perhaps a better illustration of the policy
considerations for the application of the saving statute than the statute of repose.
These appeals involve the same plaintiffs suing the same defendants for almost
identical causes of action in complaints that were voluntarily dismissed in one
jurisdiction and filed in another jurisdiction in five days’ time, in Wilson’s case, and
15 days’ time, in the Sands’ case. While restricting indefinite liability is a reasonable
policy consideration, it was barely a consideration of the defendants here, who knew
they were being sued in a timely-filed action in Butler County. And, as far as
certainty and predictability go, the same is true. The defendants knew the plaintiffs
brought actions against them, as they were evidently served the complaints and had
engaged in discovery in the actions maintained in Butler County. Consequently, as
the resolution of cases upon technicalities of procedure is disfavored, see Cero Realty
Corp., 171 Ohio St. 82, 167 N.E.2d 774, we hold that the saving statute applies to save
the appellants’ claims and sustain the appellants’ first assignment of error.
{¶33} Finally, in their second assignment of error, the appellants assert that
the trial court erred in denying their motions for leave to file amended complaints.
1 We note that this case is different from the recently-decided case of Freeman v. Durrani, 1st Dist. Hamilton No. C-180197, 2019-Ohio-3643, wherein this court was asked to create a fraud exception and equitable-estoppel exception to Ohio’s medical malpractice statute of repose but refused. In this case, unlike Freeman, we are tasked with harmonizing coexisting statutes that do not definitively speak to the question at hand. The only harmonious construction that does not frustrate the purpose of either statute is to create a saving-statute exception to the medical malpractice statute of repose.
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The trial court denied the appellants leave on the basis that their amendments would
be futile as time barred under the medical malpractice statute of repose. In light of
the preceding analysis, we sustain the appellants’ second assignment of error and
remand for further consideration of the motions for leave.
Conclusion
{¶34} We sustain the appellants’ first and second assignments of error,
reverse the trial court’s judgments, and remand the cause for further proceedings
consistent with the law and this opinion.
Judgments reversed and cause remanded.
BERGERON and CROUSE, JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.