A fugitive doctor accused of botching hundreds of spine surgeries is striking back at some of his former victims, accusing them of a botched judge-shopping scheme that he argues should cost the patients their right to sue.

In July 2013, the FBI arrested Dr. Abubaker Atiq Durrani in Cincinnati. He was indicted on charges of performing unnecessary surgeries and billing the federal government and private insurers for those services. He fled to his native Pakistan in 2013 to avoid prosecution.

Hundreds of his former patients initiated lawsuits in the common pleas courts of Hamilton and Butler counties -- against him and the local hospitals where he practiced. Others filed lawsuits in federal district court. Attorneys for many of the former patients launched a plan to have one Hamilton County Common Pleas Court judge consolidate and hear hundreds of medical malpractice lawsuits filed against the medical providers.

The medical providers asked the Ohio Supreme Court to block the single-judge plan, and the Court agreed in 2016 . Once the cases were severed and sent to judges originally assigned to the cases, Durrani asked the trial courts to dismiss the cases, arguing the cases were refiled after the four-year statute of repose in R.C. 2305.113(C) had passed. The trial court agreed.

Two former patients appealed the dismissal of their cases to the First District Court of Appeals. The First District ruled that Ohio’s “reversal savings statute,” R.C. 2305.19, applied to the medical claims and gave the men one more year to file their lawsuits.

In Wilson v. Durrani, the Ohio Supreme Court will consider the medical practitioners’ appeal along with seven other cases at next week’s oral arguments. 

Patients Change Legal Strategy
Mike Sand and Robert Wilson are two former Durrani patients who were treated at West Chester Hospital, a branch of Cincinnati-based UC Health, in Butler County. Durrani treated Sand in 2010, and Sand sued Durrani and the hospitals in Butler County Common Pleas Court in March 2013. Wilson was treated in 2011 and filed suit April 2013. Both voluntarily dismissed their cases and refiled in Hamilton County in late 2015.

Their lawsuits were part of the effort to have Judge Robert Ruehlman consolidate all the Durrani-related medical malpractice cases onto his docket. After the medical providers complained, the Ohio Supreme Court ruled Judge Ruehlman didn’t follow state or local rules when he unilaterally transferred cases, and the Court ordered the judge to transfer the cases that weren’t assigned to him back to the judges to whom they were originally assigned. (See Court Blocks Hamilton County Judge from Consolidating Hundreds of Malpractice Cases.)

After the Wilson and Sands cases were severed and sent back to the trial court, they were dismissed.

Deadline to Sue Missed, Doctor and Medical Providers Argue
The medical providers note that R.C. 2305.113(C) is a “true statute of repose,” which is a time restraint that is different than a statute of limitations.

The providers explain the differences, stating that a statute of limitations is “plaintiff-focused” and requires the plaintiff to file within a certain time period after the plaintiff “knew or should have known” about the injury. There are several exceptions to the time limits, and provisions to toll, or extend the time, to file a case. A statute of repose is “defendant-focused” and affords a defendant, such as a medical provider, a certain time limit, which if passed, frees the defendant from “threat of liability.” A statute of repose is generally a hard time limit that cannot be extended by tolling unless the law expressly allows for it, the providers maintain.

Durrani maintains Ohio’s medical statute of repose has three express exceptions that allow the four-year limit to be exceeded by injured patients. The “savings statute” claimed by the patients isn’t one of the exceptions, he argues, and the cases should be dismissed.

Cases Can Continue, Patients Assert
The men note the First District relied on a recent U.S. Sixth Circuit Court of Appeals decision regarding another Durrani patient. The Sixth Circuit ruled in its 2018 Atwood v. UC Health that the savings statute most likely applied to the statute of repose, and if a patient filed a lawsuit within the four-year limit, then the patient could withdraw and refile the case within a year.

The patients maintain the First District found a way to “harmonize” the two laws so that they still bar patients from attempting to sue providers if they hadn’t attempted to do so in the four years after their last procedures. However, those who had initially sued within the time limit, but were delayed by having to refile, can continue with their cases, they assert.

The question of whether those cases can be legally refiled has drawn statewide attention from the medical profession and personal-injury lawyers. Among the organizations submitting amicus curiae briefs in this case are the Ohio Hospital Association, Ohio State Medical Association, and the Ohio Osteopathic Association on behalf of the health care providers, and the Ohio Association of Justice in support of patients allegedly injured by unnecessary surgeries.

Oral Argument Details
The Supreme Court will consider four appeals on Aug. 4. The Court will also hear four cases, including Durrani, on Aug. 5. Oral arguments begin at 9 a.m.

Because of the COVID-19 pandemic, the Court will hold its session by videoconference. All arguments are streamed live online at sc.ohio.gov, and broadcast live and archived on the Ohio Channel.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, Aug. 4
A 12-year-old Richmond Heights girl died in February 2013 after her parents called 911 because she wasn’t breathing. The child had abscesses and bedsores on her body. The medical examiner concluded the child died from an infection in one of the abscesses that traveled to her lungs. The girl’s parents each were sentenced to 10 years in prison for involuntary manslaughter. The Cuyahoga County prosecutor argues in State v. Jones that the trial court took all the required statutory steps to impose the sentences. The parents respond that the sentences are contrary to the purposes of felony sentencing –whether the public needs protection from them and whether 10 years was the minimum punishment necessary.

In Binder and Butterfield v. Cuyahoga County, more than 400 Cuyahoga County employees have filed class action lawsuits against the county for changes made to how they record their hours each week. A city law reduced the hourly rates of certain groups of employees to provide a paid lunch hour while keeping their annual salaries the same. The trial court certified a class in November 2017. The county argues the employees failed to file their claims through a county civil service commission. The employees contend the local law doesn’t authorize the commission to handle these complaints, and it would’ve been futile to pursue that route. 

A natural gas transmission company determined one of its underground pipelines was in the path of a longwall coal mining operation. Because longwall mining can cause surface land to collapse, the gas company asked the mining company to pay for the cost of excavating two miles of gas lines to prevent damages. When the coal company refused, the gas company filed a lawsuit in 2012 seeking a declaratory judgment requiring the coal company to pay “damages,” including the costs of excavation to prevent any actual damage to the pipeline. In Columbia Gas Transmission v. The Ohio Valley Coal Company, the Court will consider if the gas company can collect payment for “preventative measures” to avoid damages.

A Bluffton rheumatologist accused of inappropriately touching women went to the police station to discuss the allegations, then alerted an Ohio Medical Board investigator to the accusations. During an interview secretly recorded by the investigator, the doctor stated he acted inappropriately with two women. The recording was admitted at trial, and the doctor was convicted of gross sexual imposition. In State v. Gideon, the Lima prosecutor argues the jury could consider the recording because the investigator didn’t coerce the doctor, and the doctor’s fear of losing his medical license if he didn’t answer the investigator’s questions wasn’t objectively reasonable. The doctor maintains he had a legal obligation to talk with the investigator or else lose his livelihood.

Wednesday, Aug. 5
In 2011, the Hamilton County Juvenile Court suspended a juvenile’s commitment to detention, placed him on probation, and classified him as a juvenile sex offender with a duty to register until 2022. In re R.B. is a challenge to the timing of the youth’s completion-of-disposition hearing, which was held in 2017. State law mandates a hearing “upon completion of disposition,” and the county prosecutor argues the hearing is meant to occur around the time a juvenile completes his or her disposition. The youth was still on “non-reporting probation with monitored time” until 2017, the prosecutor states. Now an adult, the man counters that he completed treatment in 2013 and the juvenile court no longer had jurisdiction
over him in 2017, because he had turned 21.

In 2010, a Cuyahoga County man pleaded guilty to aggravated murder and kidnapping. The trial court stated that it was sentencing the man “20 years to life” for aggravated murder, and a total of 33 years to life for all charges. An appeals court reversed his sentence, finding a “20-years-to-life” sentence wasn’t permitted by state law for aggravated murder and isn’t the same as “life imprisonment with parole eligibility after serving 20 years of imprisonment,” which is authorized by law. In State v. Dowdy, the Court will consider if the penalties are the same or if the offender must be resentenced.

In 2013, an Ohio manufacturer of construction products filed a lawsuit charging that a trade association and a rival company made defamatory comments in articles sent to industry customers, resulting in millions of dollars in lost sales. The leaders of the rival companies were the officers of the trade association. The Ohio company settled its claims with the officers and their companies. But the officers refused to allow the association to settle. A jury returned a $43 million judgment against the association. In Reister v. Gardner, the Court will consider if the association officers can be sued to recover the $43 million the association owes.