[Cite as Janson v. Christ Hosp., Inc., 2021-Ohio-1467.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
TRACY JANSON, : APPEAL NO. C-200047
TRIAL NO. A-1505049
and :
PAMELA JANSON, : O P I N I O N.
Plaintiffs-Appellants, :
vs. :
THE CHRIST HOSPITAL, INC., :
Defendant-Appellee, :
and :
ABUBAKAR ATIQ DURRANI, M.D., et :
al.,
Defendants. :
________________________________________________________________________
RYAN HENSLEY, : APPEAL NO. C-200048
TRIAL NO. A-1700316
and :
LAURA HENSLEY, : O P I N I O N.
Plaintiffs-Appellants, :
vs. :
CHRIST HOSPITAL, :
Defendant-Appellee, :
and :
ABUBAKAR ATIQ DURRANI, M.D., et :
al.,
Defendants. :
________________________________________________________________________
OHIO FIRST DISTRICT COURT OF APPEALS
SHANNON KOEHLER, : APPEAL NO. C-200050
TRIAL NO. A-1700297
Plaintiff-Appellant, :
vs. : O P I N I O N.
THE CHRIST HOSPITAL, :
Defendant-Appellee, :
and :
ABUBAKAR ATIQ DURRANI, M.D., et :
al.,
Defendants. :
________________________________________________________________________
CHRISTINA GOLDSTEIN, : APPEAL NO. C-200052
TRIAL NO. A-1700299
Plaintiff-Appellant, :
vs. : O P I N I O N.
CHRIST HOSPITAL, :
Defendant-Appellee, :
and :
ABUBAKAR ATIQ DURRANI, M.D., et :
al.,
Defendants. :
________________________________________________________________________
CONNIE UNDERWOOD, : APPEAL NO. C-200053
TRIAL NO. A-1700312
and :
JOSPEH UNDERWOOD, : O P I N I O N.
Plaintiffs-Appellants, :
vs. :
CHRIST HOSPITAL, :
Defendant-Appellee, :
2
OHIO FIRST DISTRICT COURT OF APPEALS
and :
ABUBAKAR ATIQ DURRANI, M.D., et :
al.,
Defendants. :
________________________________________________________________________
SUSAN SCHOCK, : APPEAL NO. C-200054
TRIAL NO. A-1700291
and :
PAUL SCHOCK, : O P I N I O N.
Plaintiffs-Appellants, :
vs. :
CHRIST HOSPITAL, :
Defendant-Appellee, :
and :
ABUBAKAR ATIQ DURRANI, M.D., et :
al.,
Defendants. :
________________________________________________________________________
KERRY MCNEAL, : APPEAL NO. C-200055
TRIAL NO. A-1700328
and :
ANJANETTE MCNEAL, : O P I N I O N.
Plaintiffs-Appellants, :
vs. :
THE CHRIST HOSPITAL, :
Defendant-Appellee, :
and :
ABUBAKAR ATIQ DURRANI, M.D., et :
al.,
3
OHIO FIRST DISTRICT COURT OF APPEALS
Defendants. :
________________________________________________________________________
KATHY JILL HERSLEY, : APPEAL NO. C-200056
TRIAL NO. A-1700288
Plaintiff-Appellant, :
vs. : O P I N I O N.
CHRIST HOSPITAL, :
Defendant-Appellee, :
and :
ABUBAKAR ATIQ DURRANI, M.D., et :
al.,
Defendants. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From are: Affirmed
Date of Judgment Entry on Appeal: April 28, 2021
Robert A. Winter Jr., Benjamin M. Maraan II, The Deters Law Firm Co. II, P.A.,
James F. Maus and Alex Petraglia, for Plaintiffs-Appellants.
Dinsmore & Shohl LLP, Jennifer Orr Mitchell, Matthew S. Arend and R. Samuel
Gilley, for Defendant-Appellee.
4
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} In this collection of appeals, consolidated for opinion purposes,
appellants ask us to overturn our prior authority concerning what constitutes a
medical claim, as defined in R.C. 2305.113, for the purpose of the medical-
malpractice statute of repose. We find no reason to overturn our prior precedent,
and we apply our recent decision in Couch v. Durrani, 1st Dist. Hamilton Nos. C-
1906703, C-190704, C-190705, C-190706 and C-190707, 2021-Ohio-726, to resolve
these comparable issues stemming from The Christ Hospital’s alleged involvement in
the alleged widespread malpractice committed by Dr. Abubakar Atiq Durrani.
Therefore, we affirm the judgments of the trial court.
Factual and Procedural Background
{¶2} These consolidated appeals represent eight of over hundreds of cases
filed against Dr. Abubakar Atiq Durrani and the area hospitals where he performed
hundreds of allegedly improper and unnecessary surgeries over the course of several
years. The following facts were set forth by the appellants in their respective
complaints.
{¶3} Plaintiff-appellant Tracy Janson first met with Durrani in the spring of
2008 after he experienced back pain which prevented him from standing up straight.
Durrani immediately recommended surgery and performed the surgery on Janson at
The Christ Hospital (“TCH”) in September of 2008. Ultimately, Janson’s pain only
increased after the surgery. Durrani recommended Janson undergo another surgery
but Janson refused. Janson brought suit against TCH, among other defendants, on
September 18, 2015, alleging claims for negligence, negligent credentialing and
retention, fraud, spoliation of evidence, and loss of consortium.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Plaintiff-appellant Ryan Hensley first met with Durrani in early 2009
after he experienced back pain which prevented him from working. Durrani
immediately recommended surgery and performed the surgery at TCH on May 4,
2009. After the surgery, Hensley began to experience severe pain in his legs and lost
a lot of his previous flexibility. Hensley later underwent two additional surgeries by
Durrani at another area hospital. Hensley brought suit against TCH, among other
defendants, on September 25, 2015, alleging claims for negligence, negligent
credentialing and retention, fraud, spoliation of evidence, violation of the Ohio
Consumer Sales Practices Act, products liability, and loss of consortium.
{¶5} Plaintiff-appellant Shannon Koehler first met with Durrani in 2007
after she experienced pain in her neck and shoulders which caused numbness and
tingling in her arms and hands. Durrani told her she needed surgery; however, he
was unable to immediately complete the surgery himself so another doctor within his
office performed the surgery on Koehler in September of 2008. After the first
surgery, Koehler’s pain returned so she again met with Durrani. Durrani told her he
would need to either repair the work of the other doctor or “re-do” the work himself.
Koehler agreed to let him “re-do” the work himself and Durrani performed surgery
on Koehler at TCH on July 13, 2009. Durrani then performed two additional
surgeries on Koehler at another area hospital. Unfortunately, Koehler’s pain
continued to get worse, and she had to wear a neck brace and use a walker to get
around. Koehler brought suit against TCH, among other defendants, on September
15, 2015, alleging claims for negligence, negligent credentialing, supervision and
retention, fraud, violation of the Ohio Consumer Sales Practices Act, products
liability, and spoliation of evidence.
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Plaintiff-appellant Christina Goldstein first met with Durrani in 2008
after she experienced severe lower back pain. Durrani recommended surgery and
performed surgery on Goldstein at TCH on December 3, 2008. Durrani later
performed four additional surgeries on Goldstein at another area hospital.
Goldstein’s cervical spine is now unstable, and she is unable to turn her head due to
pain and sounds of grinding bone. Goldstein brought suit against TCH, among other
defendants, on September 30, 2015, alleging claims for negligence, negligent
credentialing, supervision and retention, fraud, spoliation of evidence, violation of
the Ohio Consumer Sales Practices Act, and products liability.
{¶7} Plaintiff-appellant Connie Underwood met with Durrani in early 2008
after she experienced pain in her neck and back. Durrani recommended surgery and
performed the surgery at TCH on December 11, 2008. Durrani then performed a
second surgery on Underwood at TCH on February 9, 2009. Durrani later
performed a third and a fourth surgery on Underwood at another area hospital.
Underwood now suffers from severe pain in her lower back and pervasive numbness
that extends from her neck to her feet. Underwood brought suit against TCH, among
other defendants, on September 28, 2015, alleging claims for negligence, negligent
credentialing and retention, fraud, spoliation of evidence, violation of the Ohio
Consumer Sales Practices Act, products liability, and loss of consortium.
{¶8} Plaintiff-appellant Susan Schock first met with Durrani in 2007 after
she experienced mild back pain. Durrani recommended surgery and the surgery was
performed at TCH on November 11, 2008. Schock experienced increased pain after
the surgery and Durrani told her the fusion done during the surgery had broken.
Durrani then performed another surgery on Schock to correct the fusion at another
area hospital. Schock experienced constant and extreme pain after the surgeries, and
7
OHIO FIRST DISTRICT COURT OF APPEALS
was ultimately told by another doctor that she would eventually need additional
surgery because there is a broken screw in her back. Schock brought suit against
TCH, among other defendants, on September 1, 2015, alleging claims for negligence,
negligent credentialing and retention, fraud, spoliation of evidence, and loss of
consortium.
{¶9} Plaintiff-appellant Kerry McNeal first met with Durrani in 2009 after
he experienced pain in his neck, chest, left arm, thumb and index finger. Durrani
recommended surgery and performed surgery on McNeal at TCH on April 1, 2009.
McNeal continued to experience the same pain after the surgery. Durrani performed
three additional surgeries on McNeal at various area hospitals. McNeal now
experiences more pain than he did before the surgeries. McNeal brought suit against
TCH, among other defendants, on September 28, 2015, alleging claims for
negligence, negligent credentialing, supervision, and retention, fraud, violation of the
Ohio Consumer Sales Practices Act, products liability, spoliation of evidence, and
loss of consortium.
{¶10} Plaintiff-appellant Kathy Jill Hersley first met with Durrani in early
2006 after she experienced sharp pain in her lower back. Durrani recommended
surgery and performed surgery on Hersley at TCH on February 28, 2007. Hersley
continues to suffer from the same pain she did prior to surgery and now additionally
suffers from pain in her hips and lower limbs. Hersley brought suit against TCH,
among other defendants, on September 30, 2015, alleging claims for negligence,
negligent credentialing, supervision, and retention, fraud, spoliation of evidence, and
violation of the Ohio Consumer Sales Practices Act.
{¶11} In all cases, TCH moved to dismiss the plaintiffs’ complaints pursuant
to Civ.R. 12(B)(6), asserting, among other things, that all of plaintiffs’ claims, with
8
OHIO FIRST DISTRICT COURT OF APPEALS
the exception of the spoliation-of-evidence claims, were medical claims that were
time barred by the medical-malpractice statute of repose. In addition, TCH asserted
that dismissal of the time-barred claims would accordingly eliminate any basis for
the spoliation-of-evidence claims. The trial court agreed with TCH and granted the
motion to dismiss in each case. Plaintiffs-appellants now bring these appeals.
Law and Analysis
{¶12} Plaintiffs-appellants, collectively, bring a sole assignment of error
alleging that the trial court committed reversable error by granting TCH’s motions to
dismiss and dismissing appellants’ negligent credentialing and fraud claims. In
support of their contention, they raise four issues for review: (1) whether appellants’
negligent-credentialing claims against TCH are “medical claims” under R.C.
2305.113; (2) whether the doctrines of fraud and equitable estoppel apply against
R.C. 2305.113; (3) whether appellants’ fraud claims are “medical claims” or
independent nonmedical fraud claims; and (4) whether the trial court erred by
dismissing appellants’ spoliation-of-evidence claims.
{¶13} “A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon
which relief can be granted tests the sufficiency of the complaint.” Makrauer v. Hal
Holmes, Inc., 1st Dist. Hamilton No. C-190256, 2020-Ohio-945, ¶ 6, citing Thomas
v. Othman, 1st Dist. Hamilton No. C-160827, 2017-Ohio-8849, ¶ 18. “When ruling
on a Civ.R. 12(B)(6) motion, the trial court is confined to the allegations in the
complaint.” Id. “It must accept the complaint’s factual allegations as true and must
draw all reasonable inferences in favor of the nonmoving party.” Id. “A complaint
should not be dismissed for failure to state an actionable claim unless it appears
beyond doubt from the complaint that the plaintiff can prove no set of facts entitling
him to recovery.” Id., citing Thomas at ¶ 19.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} “This court reviews the granting of a Civ.R. 12(B)(6) motion de novo,
and, like the trial court, we are constrained to take all of the allegations in the
complaint as true, drawing all reasonable inferences in the plaintiff’s favor.”
Battersby v. Avatar, Inc., 157 Ohio App.3d 648, 2004-Ohio-3324, 813 N.E.2d 46, ¶ 5
(1st Dist.), citing Tri-State Computer Exchange, Inc. v. Burt, 1st Dist. Hamilton No.
C-020345, 2003-Ohio-3197, ¶ 11.
{¶15} Ohio’s medical-malpractice statute of repose prohibits an action upon
a “medical claim” from commencing more than four years from the occurrence of the
act or omission that constitutes the alleged basis of the medical claim. R.C.
2305.113(C)(1). Consequently, if a “medical claim” is not commenced within four
years of the alleged act or omission which constitutes the basis of that claim, then
any action upon that claim is barred. R.C. 2305.113(C)(2). The Ohio Revised Code
defines a “medical claim” as:
[A]ny claim that is asserted in any civil action against a physician,
podiatrist, hospital, home, or residential facility, against any employee
or agent of a physician, podiatrist, hospital, home, or residential
facility, or against a licensed practical nurse, registered nurse,
advanced practice registered nurse, physical therapist, physician
assistant, emergency medical technician-basic, emergency medical
technician-intermediate, or emergency medical technician-paramedic,
and that arises out of the medical diagnosis, care, or treatment of any
person. “Medical claim” includes the following:
(a) Derivative claims for relief that arise from the medical
diagnosis, care, or treatment of a person;
10
OHIO FIRST DISTRICT COURT OF APPEALS
(b) Derivative claims for relief that arise from the plan of care
prepared for a resident of a home;
(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.
(d) Claims that arise out of the plan of care, medical diagnosis,
or treatment of any person and that are brought under
section 3721.17 of the Revised Code;
(e) Claims that arise out of the skilled nursing care or personal
care services provided in a home pursuant to the plan of
care, medical diagnosis, or treatment.
R.C. 2305.113(E)(3).
{¶16} In these consolidated appeals, each plaintiff-appellant brought suit
against TCH more than four years from their respective surgeries performed by
Durrani at TCH. Therefore, any claim against TCH that is considered to be a
“medical claim” under R.C. 2305.113 would be barred by the medical-malpractice
statute of repose.
11
OHIO FIRST DISTRICT COURT OF APPEALS
Negligent-Credentialing Claims
{¶17} A hospital typically has several different categories of physicians
practicing medicine within its facility: (1) private physicians who are granted staff
privileges, which includes the right to use the facility and admit and discharge their
own private patients; (2) physicians still in training; and (3) employed, full-time
salaried physicians. (Citation omitted.) Albain v. Flower Hosp., 50 Ohio St.3d 251,
553 N.E.2d 1038 (1990), fn. 5, overruled on other grounds, 68 Ohio St.3d 435, 628
N.E.2d 46 (1994).
{¶18} R.C. 3701.351 provides that “the governing body of every hospital shall
set standards and procedures to be applied by the hospital and its medical staff in
considering and acting upon applications for staff membership or professional
privileges.”
{¶19} R.C. 2305.251(B)(1) creates a presumption that a hospital is not
negligent in the credentialing of an individual who has, or has applied for, staff
membership or professional privileges at the hospital pursuant to R.C. 3701.351, if
the hospital can prove by a preponderance of the evidence that, at the time of the
alleged negligent credentialing of an individual, the hospital was accredited by one of
the following: (1) the joint commission on accreditation of healthcare organizations;
(2) the American osteopathic association; (3) the national committee for quality
assurance; or (4) the utilization review accreditation commission. However, that
presumption may be rebutted by proof, by a preponderance of the evidence, of any of
the following:
(a) The credentialing and review requirements of the accrediting
organization did not apply to the hospital, * * *, the individual, or
12
OHIO FIRST DISTRICT COURT OF APPEALS
the type of professional care that is the basis of the claim against
the hospital * * *.
(b) The hospital * * * failed to comply with all material
credentialing and review requirements of the accrediting
organization that applied to the individual.
(c) The hospital * * *, through its medical staff executive
committee or its governing body and sufficiently in advance to take
appropriate action, knew that a previously competent individual
had developed a pattern of incompetence or otherwise
inappropriate behavior, either of which indicated that the
individual’s staff membership, professional privileges, or
participating as a provider should have been limited or terminated
prior to the individual’s provision of professional care to the
plaintiff.
(d) The hospital * * *, through its medical staff executive
committee or its governing body and sufficiently in advance to take
appropriate action, knew that a previously competent individual
would provide fraudulent medical treatment but failed to limit or
terminate the individual’s staff membership, professional
privileges, or participation as a provider prior to the individual’s
provision of professional care to the plaintiff.
R.C. 2305.251(B)(2).
{¶20} This court has found that negligent-credentialing claims are medical
claims under R.C. 2305.113(E)(3)(c)(ii), and are therefore subject to the statute of
repose. Young v. Durrani, 2016-Ohio-5526, 61 N.E.3d 34, ¶ 21 (1st Dist.), appeal
13
OHIO FIRST DISTRICT COURT OF APPEALS
not accepted, 149 Ohio St.3d 1406, 2017-Ohio-2822, 74 N.E.3d 464; Crissinger v.
Durrani, 2017-Ohio-9256, 106 N.E.3d 798, ¶ 17 (1st Dist.); McNeal v. Durrani,
2019-Ohio-5351, 138 N.E.3d 1231, ¶ 19 (1st Dist.), rev’d on other grounds, Slip
Opinion No. 2020-Ohio-6932; Couch, 1st Dist. Hamilton Nos. C-190703, C-190704,
C-190705, C-190706 and C-190707, 2021-Ohio-726. Most recently, in Couch, we
addressed substantially the same argument that appellants now assert here and
determined that “appellants have not presented a compelling reason to overrule our
holdings in Young, Crissinger, and McNeal.” Couch at ¶ 22. In our analysis, we
recognized that the Ohio Supreme Court recently defined claims for negligent hiring,
supervision, and retention as “ ‘claims[s] against an employer * * * that would not
have occurred but for the employer’s failure to properly hire, supervise, or retain the
employee,’ ” and that this definition reflects the amended definition of a “medical
claim” under R.C. 2305.113. Couch at ¶ 19, quoting Evans v. Akron Gen. Med. Ctr.,
Slip Opinion No. 2020-Ohio-5535, ¶ 10. Therefore, although the Ohio Supreme
Court did not directly determine whether a negligent-credentialing claim is a
“medical claim,” we concluded that Evans supports this finding because “it has
defined related claims to reflect the amended definition of a ‘medical claim.’ ” Id.
{¶21} We note that appellants asserted at oral argument that “credentialing”
is not encompassed in this case within the “hiring, training, supervision, retention, or
termination” language in R.C. 2305.113(E)(3)(c)(ii), because that language only
applies to “employees,” and not independent contractor physicians such as Durrani
who (1) have independent decision-making power and (2) are “credentialed for
reappointment” rather than hired. Appellants did not make this argument in their
brief. The only argument made in their brief about Durrani’s status as a private
contractor was an attempt to distinguish a “physician” from a “caregiver” for the
14
OHIO FIRST DISTRICT COURT OF APPEALS
purposes of R.C. 2305.113(E)(3)(c)(ii).1 They never presented the argument that this
subsection only applies to “employees.” An issue that is raised for the first time
during oral argument and not addressed in the appellate brief is waived. Hensel v.
Childress, 2019-Ohio-3934, 145 N.E.3d 1159, ¶ 21 (1st Dist.), quoting Andreyko v.
Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 20 (1st Dist.).
Therefore, this argument is waived.
{¶22} Finding no reason we should overturn our precedent, we reaffirm our
previous decisions on this issue and determine that negligent-credentialing claims
are “medical claims” under R.C. 2305.113. Appellants’ negligent-credentialing claims
are barred by the state of repose, since each action was commenced more than four
years from the respective surgeries at TCH.
Doctrines of Fraud and Equitable Estoppel
{¶23} Appellants next ask us to recognize a fraud or equitable estoppel
exception to the medical-malpractice statute of repose. This court has addressed this
issue in Crissinger, 2017-Ohio-9256, 106 N.E.3d 79; Freeman v. Durrani, 2019-
Ohio-3643, 144 N.E.3d 1067 (1st Dist.), appeal not accepted, 158 Ohio St.3d 1436,
2020-Ohio-877, 141 N.E.3d 250; and Couch, 1st Dist. Hamilton Nos., C-190703, C-
190704, C-190705, C-190706 and C-190707, 2021-Ohio-726. In Crissinger, we
recognized that the General Assembly provided fraud exceptions to other statues of
repose, but not for the medical-malpractice statute of repose. Crissinger at ¶ 24. In
Freeman, we recognized that “the General Assembly carved out specific exceptions
within R.C. 2305.113, none of which include fraudulent conduct or equitable
estoppel.” Freeman at ¶ 11. In Couch, we considered the same arguments that
1This court addressed this issue in Couch and found that “caregiver” includes a physician. Couch
at ¶ 21.
15
OHIO FIRST DISTRICT COURT OF APPEALS
appellants assert here and found no reason to stray from our prior determinations.
Couch at ¶ 25. Thus, under our duty to apply the statute as written by the General
Assembly, this court has consistently declined to recognize a fraud or equitable
estoppel exception to the medical-malpractice statute of repose. Crissinger at ¶ 24;
Freeman at ¶ 13; Couch at ¶ 27.
{¶24} Appellants have brought forth no new arguments here. Therefore, we
hold that there is no fraud or equitable estoppel exception to the medical-malpractice
statute of repose.
Fraud Claims
{¶25} Relying on the Ohio Supreme Court’s decision in Gaines v. Preterm-
Cleveland, Inc., 33 Ohio St.3d 54, 514 N.E.2d 709 (1987), appellants assert that their
fraud claims are independent nonmedical claims rather than medical claims subject
to the statute of repose. They argue their fraud claims “arise directly out of a scheme
or artifice between Durrani and TCH whereby: (i) Durrani knowingly makes
materially false statements to TCH’s and his patients of their spine condition [sic] to
induce/coerce them to undergo medically unnecessary and fraudulent surgeries, (ii)
TCH is fully aware of Durrani’s fraudulent business practices, acquiesces and
consents to them, and does nothing to stop him, (iii) Durrani performs the medically
unnecessary surgeries at TCH, (iv) TCH conceals from its patients all its knowledge
that is adverse about Durrani, and (v) Durrani’s and TCH’s materially false
statements or concealments of his condition remained ongoing and continued after
the surgeries at issue.”
{¶26} In Gaines, the plaintiff-appellant, Evelyn Gaines, went to a healthcare
facility, Pretern-Cleveland, Inc., in 1980 to have her pregnancy terminated and to
have her intrauterine device (“IUD”) removed. Id. at 54. Her medical records
16
OHIO FIRST DISTRICT COURT OF APPEALS
indicated that the abortion was successfully completed. Id. Her medical records also
indicated that the IUD could not be recovered, apparently because it could not be
located, even though the physician estimated its possible location. Id. Gaines
alleged that agents or employees of Preterm negligently failed to remove the IUD as
she requested and that she was told by agents or employees of Preterm that the IUD
had been removed. Id. Gaines further alleged that she did not seek additional
medical attention to remove the IUD in reliance on these misrepresentations. Id.
Gains did not discover the IUD remained in her body until over three years later
when she underwent a tubal ligation in 1983 and discovered that the IUD had
perforated her uterus and become embedded in her left ligament. Id. Gaines filed
suit in 1985 and Preterm moved for summary judgment, arguing that the action was
barred by the previous version of the medical-malpractice statute of repose found in
R.C. 2305.11(B). Id. at 54-55. The trial court granted the motion and the court of
appeals affirmed, reasoning that Gaines’s allegations did not state an independent
cause of action in fraud because the “gist” of the allegations was medical malpractice.
Id.
{¶27} The Ohio Supreme Court disagreed that the allegations “sounded only
in malpractice.” 2 Id. at 56. The court stated:
A physician’s knowing misrepresentation of a material fact concerning
a patient’s condition, on which the patient justifiably relies to his
detriment, may give rise to a cause of action in fraud independent from
an action in medical malpractice. Annotation (1973), 49 A.L.R.3d 501,
2As we noted in Freeman, the Ohio Supreme Court decided Gaines when “medical claim” was
defined in R.C. 2305.11(D)(3), prior to the vast expansion of the definition by the General
Assembly in R.C. 2305.113(E)(3). Freeman, 2019-Ohio-3643, 144 N.E.3d 1067, at ¶ 21.
17
OHIO FIRST DISTRICT COURT OF APPEALS
506; Leach v. Shapiro (1984), 13 Ohio App.3d 393, 397, 13 OBR 377.
482, 469 N.E.2d 1047, 1054. The fraud action is separate and distinct
from the medical malpractice action which stems from the
surrounding facts where the decision to misstate the facts cannot be
characterized as medical in nature. In the instant case, it cannot be
said that the statement to appellant that her IUD had been removed
when in fact it had not was motivated by any medical consideration.
Cases may exist where the withholding of information may be
medically justified, e.g., where the patient’s known tendency to react
hysterically to bad news would interfere with vital treatment.
Reasonable minds could certainly conclude that the misstatement in
the instant cause was not prompted by medical concerns but by
motivations unrelated and even antithetical to appellant’s physical
well-being.
Id. Thus, a fraud claim is only independent where the claim cannot be characterized
as “medical in nature.” See id.
{¶28} This court first addressed this issue in Hensley v. Durrani, 1st Dist.
Hamilton No. C-130005, 2013-Ohio-4711, appeal not accepted, 138 Ohio St.3d 1435,
2014-Ohio-889, 4 N.E.3d 1051. In Hensley, we found that where the claims, in
essence, alleged that Durrani committed fraud by recommending unnecessary
surgery and by not telling the patient that the procedure he intended to use was risky
and untested, and that his record as a doctor was not unblemished, the allegations
went squarely to the patient’s diagnosis, care, and treatment and could only be
characterized as “medical in nature.” Hensley at ¶ 19-20.
18
OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} We later addressed this issue in Freeman, 2019-Ohio-3643, 144
N.E.3d 1067, appeal not accepted, 158 Ohio St.3d 1436, 2020-Ohio-877, 141 N.E.3d
250. In Freeman, the claims alleged that Durrani, TCH and other defendants, in
order to conceal information and avoid civil liability, had (1) misrepresented the
results of the post-operation radiology, which reflected the failure of the surgery, and
(2) informed the patient that it took time to heal, no matter the condition or the
reason for the condition. Freeman at ¶ 20. We held that the allegations were
medical in nature because they related to the patient’s continued follow-up
treatment. Id.
{¶30} Most recently, this court addressed this issue in Couch, 1st Dist.
Hamilton Nos. C-190703, C-190704, C-190705, C-190706 and C-190707, 2021-Ohio-
726. Speaking to the same argument that appellants now assert here, we held that
the allegations were the same as those encompassed within the allegations asserted
in Freeman and McNeal and thus found that the fraud claims asserted were medical
claims subject to the statute of repose. Couch at ¶ 29-30.
{¶31} Appellants presented no new arguments here to persuade us to depart
from this holding. Appellants’ claims go squarely to the medical diagnosis, care and
treatment of each respective patient and can only be characterized as medical in
nature. Thus, we find that appellants’ fraud claims are “medical claims” subject to
the statute of repose.3
3 We note the inclusion of fraudulent-billing claims against TCH in appellants’ complaints;
however, appellants have not assigned this issue as error or raised it in their briefs or oral
arguments. Therefore, we must consider the argument to have been abandoned. See App.R. 12.
19
OHIO FIRST DISTRICT COURT OF APPEALS
Spoliation-of-Evidence Claims
{¶32} This court has found that a spoliation-of-evidence claim does not arise
out of the medical diagnosis, care, or treatment of a plaintiff and is therefore not a
“medical claim.” Crissinger, 2017-Ohio-9256, 106 N.E.3d 798, at ¶ 20. However, in
order to prevail on a claim for interference or destruction of evidence, a plaintiff
must be able to show (1) pending or probable litigation, (2) knowledge on the part of
the defendant that litigation exists or is probable, (3) willful destruction of evidence
by the defendant designed to disrupt the plaintiff’s case, (4) disruption of the
plaintiff’s case, and (5) damages proximately caused by the defendant’s acts.
(Emphasis added.) Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 29, 615
N.E.2d 1037 (1993). In the cases at hand, all other claims brought against TCH were
properly dismissed under Civ.R. 12(B)(6). Thus, plaintiffs would be unable to prove
disruption of their respective cases and their spoliation-of-evidence claims would
inevitably fail. Therefore, dismissal of the spoliation-of-evidence claims was proper
as it appears beyond doubt from the complaint that plaintiffs could prove no set of
facts entitling them to recovery on the spoliation-of-evidence claims.
Remaining Claims
{¶33} Appellants did not assert any argument that the trial court erred in
dismissing their respective remaining claims against TCH. Errors not argued in the
brief will be regarded as being abandoned. State v. Smith, 1st Dist. Hamilton No. C-
170028, 2018-Ohio-2504, ¶ 68, citing App.R. 16(A)(1)(b), and Loukinas v. Roto-
Rooter Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 9 (1st
Dist.); Thomas v. Cohr, Inc., 197 Ohio App.3d 145, 2011-Ohio-5916, 966 N.E.2d 915,
¶ 4 (1st Dist.), citing App.R. 12(A)(2), and Loukinas; Hawley v. Ritley, 35 Ohio St.3d
157, 159, 519 N.E.2d 390 (1988), citing Uncapher v. Baltimore & O.R. Co., 127 Ohio
20
OHIO FIRST DISTRICT COURT OF APPEALS
St. 351, 356, 188 N.E. 553 (1933). Therefore, we must find that appellants
abandoned any argument in regard to their respective remaining claims.
Conclusion
{¶34} For the foregoing reasons, we overrule appellants’ sole assignment of
error and affirm the judgments of the trial court.
Judgments affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.
21