[Cite as Freeman v. Durrani, 2019-Ohio-3643.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JULIE FREEMAN, : APPEAL NO. C-180197
TRIAL NO. A-1504131
Plaintiff-Appellant, :
O P I N I O N.
vs. :
ABUBAKAR ATIQ DURRANI, M.D., :
THE CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
:
CINCINNATI CHILDREN’S
HOSPITAL MEDICAL CENTER, INC., :
and :
THE CHRIST HOSPITAL, INC., :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 11, 2019
The Deters Law Firm, Fred Freeman and Robert A. Winter Jr., for Plaintiff-
Appellant,
Bonezzi Switzer Polito & Hupp Co., LPA, Paul W. McCartney, Thomas F. Glassman,
Lindhorst & Dreidame Co., LPA, Michael F. Lyon, James F. Brockman and James L.
O’Connell, for Defendants-Appellees Abubakar Atiq Durrani, M.D., and the Center
for Advanced Spine Technologies, Inc.,
Dinsmore & Shohl LLP, J. David Brittingham and Thomas P. Kemp, Jr., for
Defendant-Appellee Cincinnati Children’s Hospital Medical Center, Inc.,
OHIO FIRST DISTRICT COURT OF APPEALS
Dinsmore & Shohl LLP, Jennifer Orr Mitchell, Matthew S. Arend and R. Samuel
Gilley for Defendant-Appellee The Christ Hospital, Inc.
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OHIO FIRST DISTRICT COURT OF APPEALS
C ROUSE , Judge.
{¶1} Plaintiff-appellant Julie Freeman appeals the trial court’s denial of her
motion for leave to amend her complaint, and the trial court’s grant of the Cincinnati
Children’s Hospital Medical Center, Inc.’s, (“Cincinnati Children’s”) motion to dismiss
the complaint and the Center for Advanced Spine Technologies, Inc., (“CAST”) and
Abubakar Atiq Durrani, M.D.’s, (“Durrani”) motion for judgment on the pleadings.
For the reasons that follow, we affirm the judgment of the trial court.
I. Facts and Procedure
{¶2} Freeman first sought treatment from Durrani in 2008. Durrani allegedly
recommended C6-C7 anterior cervical discectomy and fusion surgery. On June 4, 2008,
Freeman underwent the surgery at The Christ Hospital, Inc. Immediately thereafter,
Freeman’s pain increased in intensity. Freeman contends that her intensified pain
resulted from Durrani’s medically unnecessary and improperly performed surgery.
{¶3} On August 4, 2015, Freeman filed a complaint against Durrani, CAST,
and Cincinnati Children’s.1 Freeman asserted claims of negligence, battery, lack of
informed consent, intentional infliction of emotional distress, fraud, spoliation of
evidence, and products liability, and violations of the Ohio Consumer Sales Protection
Act.
{¶4} On September 8, 2015, Cincinnati Children’s filed a motion to dismiss the
complaint. On July 25, 2017, Durrani and CAST filed a motion for judgment on the
pleadings. All parties asserted that Freeman’s claims were barred by the applicable
statute of repose. On September 4, 2017, Freeman filed a motion to amend her
complaint to detail additional allegations on the issue of fraud. Freeman asserted no
new claims.
1 Freeman also filed claims against The Christ Hospital, Inc.; however, the parties resolved the
matter prior to the entry of this opinion.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} On March 1, 2018, the trial court entered judgment, granting both the
motion to dismiss and the motion for judgment on the pleadings. The court
simultaneously denied the motion for leave to amend. This timely appeal followed.
II. Motion to Dismiss and Motion for Judgment on the Pleadings
{¶6} We review de novo the grant of a motion for judgment on the
pleadings and the grant of a motion to dismiss for failure to state a claim. Citicasters
Co. v. Bricker & Eckler, L.L.P., 149 Ohio App.3d 705, 2002-Ohio-5814, 778 N.E.2d
663, ¶ 5 (1st Dist.); Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-
4362, 814 N.E.2d 44, ¶ 5.
1. Exceptions to the Statute of Repose
{¶7} In her first assignment of error, Freeman asks us to recognize a fraud
exception and an equitable-estoppel exception to Ohio’s medical malpractice statute of
repose.
{¶8} Pursuant to R.C. 2305.113(C), an action upon a medical claim must be
commenced within four years after the occurrence of the act constituting the basis of the
claim. If an action is not commenced within the four-year limit, then any action upon
that claim is barred. R.C. 2305.113(C)(2). Here, the act constituting the basis of
Freeman’s claims occurred on June 4, 2008, when Durrani performed the C6-C7
anterior cervical discectomy and fusion surgery. Freeman filed the current action on
August 4, 2015, more than seven years after the surgery. Because Freeman commenced
the current action after the four-year statute of repose, the action is barred unless an
exception applies.
{¶9} The statute of repose provides for limited exceptions in cases of persons
within the age of minority, persons of unsound mind, malpractice discovered during
the fourth year after treatment, and malpractice involving foreign objects left in a
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OHIO FIRST DISTRICT COURT OF APPEALS
patient’s body. R.C. 2305.113(C), (D)(1), and (D)(2). However, Freeman does not
argue that any of these statutory exceptions apply. Rather, Freeman argues for a
judicially-created fraud exception and/or equitable-estoppel exception. In doing so,
Freeman asks us to overrule Crissinger v. Christ Hospital, 2017-Ohio-9256, 106
N.E.3d 798 (1st Dist.).
{¶10} In Crissinger, this court held that the statute of repose is constitutional
without a fraud exception. To support its holding, this court relied on the plain language
of R.C. 2305.113 and the intent of the General Assembly. As determined by the Ohio
Supreme Court in Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-
7432, 71 N.E.3d 974, ¶ 23, the plain language of R.C. 2305.113 is “clear, unambiguous,
and means what it says. If a lawsuit bringing a medical * * * claim is not commenced
within four years after the occurrence of the act or omission constituting the basis for the
claim, then any action on that claim is barred.” The statute does not, either expressly or
impliedly, provide for a fraud exception.
{¶11} When viewed in light of the statutory scheme as a whole, it appears that
the failure to include a fraud exception was not inadvertent. As detailed above, the
General Assembly carved out specific exceptions within R.C. 2305.113, none of which
include fraudulent conduct or equitable estoppel. In addition, the General Assembly
provided fraud exceptions for other statutes of repose, but not for the medical
malpractice statute of repose. See, e.g., R.C. 2305.131(C) (“[The premises-liability
statute of repose] is not available as an affirmative defense * * * if the defendant engages
in fraud * * * [.]”). This demonstrates that the General Assembly intentionally chose not
to create a fraud exception or an equitable-estoppel exception for medical claims.
{¶12} “The General Assembly has the right to define the contours of a cause of
action.” Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 26.
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OHIO FIRST DISTRICT COURT OF APPEALS
By enacting R.C. 2305.113(C), the General Assembly chose up to four years for an action
on a medical claim to arise. Although some claims would be foreclosed before a plaintiff
had the opportunity to pursue them, “the General Assembly has struck a rational
balance between the rights of prospective claimants to pursue their allegations and the
rights of prospective defendants to have protection from stale litigation.” Id. at ¶ 28. As
the judiciary, “[i]t is our duty to apply the statute as the General Assembly has drafted it;
it is not our duty to rewrite it.” Doe v. Marlington Local School Dist. Bd. of Edn., 122
Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29. Therefore, despite the harsh
results the statute of repose yields in this case, “[t]his court should not substitute its
judgment for that legislative choice.” Id.
{¶13} The trial court did not err by declining to recognize a fraud exception or
equitable-estoppel exception to the statute of repose.
2. Definition of Medical Claims
{¶14} Freeman contends that her claims of fraud are independent nonmedical
claims, and therefore, not barred by the statute of repose.
{¶15} “In determining which limitation period will apply, courts must look to
the actual nature or subject matter of the case, rather than to the form in which the
action is pleaded.” Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d
1298 (1984). A “medical claim” is “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). “Medical claims” also include derivative claims for
relief that arise from the medical diagnosis, care, or treatment of a person. R.C.
2305.113(E)(3).
{¶16} In Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 56, 514 N.E.2d
709 (1987), the Ohio Supreme Court held that “[a] physician's knowing
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OHIO FIRST DISTRICT COURT OF APPEALS
misrepresentation of a material fact concerning a patient's condition * * * may give rise
to a cause of action in fraud independent from an action in medical malpractice.” An
action in fraud is separate and distinct from an action in medical malpractice “where the
decision to misstate the facts cannot be characterized as medical in nature.” Id.
{¶17} In her initial complaint, Freeman alleged that Durrani committed fraud
by recommending unnecessary surgery and failing to disclose the risks of surgery. In
Hensley v. Durrani, 1st Dist. Hamilton No. C-130005, 2013-Ohio-4711, this court held
that claims of fraud for recommending unnecessary surgery and failing to disclose the
risks of surgery are medical in nature. In Hensley, this court held that both allegations
“go squarely to [the] diagnosis, care and treatment”—allegations concerning the medical
necessity of surgery are “simply an attack on Durrani’s ‘medical diagnosis’ ” and
questions about undisclosed risks associated with the surgery are claims of lack of
informed consent. Id. at ¶ 19.
{¶18} Freeman argues that we are not bound by Hensley because Durrani,
CAST, and Cincinnati Children’s decision to misstate the facts was not “medical in
nature.” However, Freeman’s fraud allegations echo the statutory definition of “medical
claim” under R.C. 2305.113(E)(3). In her initial complaint, Freeman claimed “Durrani
made material, false representations to [Freeman] and her insurance company related
to [Freeman’s] treatment.” (Emphasis added.) Freeman’s fraud allegations are also
virtually identical to her negligence allegations. Specifically, Freeman contends that
Durrani, CAST, and Cincinnati Children’s misrepresented the nature of the spinal
surgery and the particular risks that were involved therein to induce her to undergo
surgery and induce payment by her insurance company. By alleging an independent
fraud claim, Freeman is simply attempting to recast her medical-malpractice claims.
Therefore, these claims of fraud are “medical claims” within the statute of repose.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} In her proposed amended complaint, Freeman also alleged that Durrani
committed fraud by misinforming her about the outcome of the surgery and concealing
information to avoid civil liability. Freeman argues that Gaines, 33 Ohio St.3d 54, 514
N.E.2d 709, is controlling as to these claims. In Gaines, the plaintiff-patient consulted
the defendant-medical facility to have her pregnancy terminated and her intrauterine
device (“IUD”) removed. Gaines at 54. Although the abortion was successfully
completed, the IUD was not recovered. Id. Notwithstanding the physician’s inability to
locate and remove the IUD, the physician told the plaintiff-patient that the IUD had
been removed. Id. Finding a separate and distinct cause of action, the court determined
that the physician’s decision to misstate the facts was not “motivated by any medical
consideration” or medical concerns. (Emphasis added.) Id. at 56.
{¶20} Unlike the physician in Gaines, we cannot say that Durrani’s decision to
misstate the facts was not “motivated by any medical consideration” or medical
concerns. In this case, Durrani made representations related to Freeman’s continued
follow-up treatment. Specifically, Freeman contended that Durrani, CAST, and
Cincinnati Children’s misrepresented the results of post-operation radiology which
reflected the failure of the surgery, and informed her that it took time to heal no matter
the condition or the reason for the condition. Based on these representations, Freeman
continued to follow-up with Durrani. Therefore, these allegations are medical in nature
and we are not bound by Gaines.
{¶21} Notably, the court in Gaines failed to distinguish independent fraud
claims from “medical claims” as that term is defined in the statute of repose. When
Gaines was decided, R.C. 2305.11(D)(3) simply defined a “medical claim” as “any claim
asserted in any civil action against a physician, podiatrist, or hospital arising out of the
diagnosis, care, or treatment of any person.” However, in the 32 years following the
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OHIO FIRST DISTRICT COURT OF APPEALS
Gaines decision, the General Assembly has vastly broadened the definition of “medical
claim.”
{¶22} In 1987, the same year that Gaines was decided, the General Assembly
amended R.C. 2305.11 to redefine the term “medical claim” as:
[A]ny claim that is asserted in any civil action against a physician,
podiatrist, or hospital, against any employee or agent of a physician,
podiatrist, or hospital, or against a registered nurse or physical therapist,
and that arises out of the medical diagnosis, care, or treatment of any
person.
Significantly, the 1987 amendment also defined “medical claim” to include “derivative
claims for relief that arise from the medical diagnosis, care, or treatment of a person.”
Prior to this amendment, derivative claims were not governed by the four-year statute of
repose.
{¶23} In 2018, the General Assembly passed the most recent legislation on the
definition of “medical claim.” Under current legislation, R.C. 2305.113(E)(3) defines the
term “medical claim” to specifically include, among other examples:
(a) Derivative claims for relief that arise from the medical diagnosis, care,
or treatment of a person;
***
(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.
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OHIO FIRST DISTRICT COURT OF APPEALS
(ii) The claim results from the hiring, training, supervision,
retention, or termination of caregivers providing medical
diagnosis, care, or treatment.
Freeman’s claims of post-surgery fraud fall under R.C. 2305.113(E)(3)(c)(i)–the claims
arise out of medical treatment and result from acts or omissions in providing medical
care. Accordingly, Freeman’s claims of fraud are “medical claims” within the statute of
repose.
{¶24} Ultimately, Freeman’s claims of fraud sound not in a separate and
distinct action of fraud, but rather in equitable estoppel. “Clever pleading cannot
transform what are in essence medical claims into claims for fraud.” Hensley, 1st Dist.
Hamilton No. C-130005, 2013-Ohio-4711, at ¶ 19. By enacting the medical statute of
repose, the General Assembly chose up to four years for an action on a medical claim to
arise. As we have noted, the General Assembly intentionally decided not to create a
fraud exception or an equitable-estoppel exception for medical claims. Given the
implications of Durrani’s actions, perhaps the General Assembly should consider a fraud
or equitable-estoppel exception to the statute of repose. However, we cannot substitute
our judgment for the legislature’s choice. Freeman’s first assignment of error is
overruled.
III. Motion for Leave to Amend the Complaint
{¶25} In her second assignment of error, Freeman contends that the trial court
erred by denying her motion for leave to file an amended complaint.
{¶26} The denial of leave to amend a pleading is reviewed under an abuse-of-
discretion standard. Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 576, 589 N.E.2d
1306 (1992).
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{¶27} “[A] trial court properly refuses to grant leave to amend when
amendment would be futile.” Hensley at ¶ 14, citing Natl. City Bank v. Citizens Natl.
Bank of Southwest Ohio, 2d Dist. Montgomery No. 20323, 2004-Ohio-6060, ¶ 26.
Here, Freeman filed a motion to amend her complaint to set forth additional allegations
pertaining to the claims of fraud. In its decision denying the motion to amend, the trial
court held that “allowing [Freeman] to amend her complaint to add such allegations
would be futile.”2 Because the claims of fraud were medical claims, they were subject to
the same four-year statute of repose. Therefore, amendment to elaborate the claims
would have been futile, and denial of leave to amend was properly entered. Freeman’s
second assignment of error is overruled.
IV. Conclusion
{¶28} For the foregoing reasons, we overrule Freeman’s assignments of error
and affirm the judgment of the trial court.
Judgment affirmed.
M OCK , P.J., and B ERGERON , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
2Freeman also contends that the trial court denied her the ability to file a nonmedical claim
under Ohio’s RICO statute, R.C. 2923.32. Although Freeman accurately relates the trial court’s
decision, the amended complaint proposed to the trial court did not include a claim under Ohio’s
RICO statute. Therefore, the issue is not properly before this court.
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