Densler v. Durrani

[Cite as Densler v. Durrani, 2024-Ohio-14.]

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

BETHANY DENSLER, Administrator : APPEAL NO. C-230016
of the Estate of Robert Densler, TRIAL NO. A-1706561

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: January 5, 2024

Robert A. Winter, Jr., James F. Maus and Benjamin M. Maraan II, for Plaintiff-
Appellee,

Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig, Russel S.
Sayre, Alex Van Dyke, Anna M. Greve, Lindhorst & Dreidame Co., L.P.A., James F.
Brockman and Paul Vollman, for Defendants-Appellants.
 OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Defendants-appellants Abubakar Atiq Durrani, M.D., and the Center for

Advanced Spine Technologies, Inc., (“CAST”) (collectively “defendants”) appeal the

judgments of the Hamilton County Court of Common Pleas, which denied their motion

for judgment notwithstanding the verdict and for a new trial and awarded former

plaintiff Robert Densler1 compensatory and punitive damages consistent with the

jury’s verdict in his favor on his fraudulent-misrepresentation claim in the amount of

$162,021.20. In a single assignment of error, defendants assert that the trial court

erred in denying their motion for judgment notwithstanding the verdict and/or for a

new trial. For the following reasons, we sustain the assignment of error, reverse the

trial court’s judgment, and remand the cause for further proceedings consistent with

this opinion and the law.

I. Brief Factual and Procedural Background

{¶2} The instant malpractice action stems from a spinal surgery performed

by Dr. Durrani on Robert Densler. Mr. Densler was referred to Dr. Durrani by his

primary-care physician in 2012 after conservative treatment attempts for back pain

were unsuccessful. Mr. Densler testified that, at his first visit with Dr. Durrani, x-rays

were completed, and Dr. Durrani put the x-rays “up on that light” and told him that

his back was broken and he had a lower-lumbar fracture. Dr. Durrani then allegedly

told him that he would be paralyzed without surgery. Dr. Durrani ultimately

performed the recommended spinal surgery on Mr. Densler that same year.

{¶3} Mr. Densler subsequently brought claims against Dr. Durrani relating

to the surgery for negligence, battery, fraudulent misrepresentation, and lack of

1 Bethany Densler, Administrator of the Estate of Robert Densler, was ultimately substituted as the
plaintiff in this action in place of Robert Densler on August 29, 2022, by order of the trial court.

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informed consent, and against CAST for vicarious liability. After a nine-day trial where

both sides presented extensive expert testimony, as well as other evidence, regarding

all the issues, the jury rendered a verdict in favor of Mr. Densler on the fraudulent-

misrepresentation claim and awarded Mr. Densler $62,021.20 in compensatory

damages for past medical expenses and $100,000 in punitive damages. The verdict

was based on the jury’s finding that Dr. Durrani fraudulently misrepresented the

necessity or medical indication for the surgery. Relative to punitive damages, the jury

found that Dr. Durrani “acted with malice and aggravated or egregious fraud” by

telling Mr. Densler “that he would be paralyzed without the surgery and lose control

of bodily functions.”

{¶4} Defendants subsequently moved for judgment notwithstanding the

verdict and/or for a new trial, asserting several grounds of error including, among

others, that the trial court erred in allowing Mr. Densler to pursue a claim for past

medical expenses at trial. The trial court ultimately denied the motion on all grounds,

except to order that the compensatory-damages award for past medical expenses—if

and when paid—be retained by the court “until the issue of what amount of the

$62,021.20 is due to Medicare is resolved.” Defendants now appeal. In a single

assignment of error, defendants argue that the trial court erred in denying their

motion for judgment notwithstanding the verdict and/or for a new trial.

II. Law and Analysis

A. Standing to Seek Past Medical Damages

{¶5} Defendants argue that Mr. Densler lacked standing to seek past medical

damages at trial because Mr. Densler’s insurer, Medicare, paid the remaining amount

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owed on Mr. Densler’s medical bills after certain adjustments were made.2 See

generally Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶

17-18 (distinguishing between the amount originally billed and the amount ultimately

accepted as payment by the medical provider and holding that both are admissible to

prove the reasonableness and necessity of the charges rendered for medical and

hospital care as the jury may decide that the reasonable value of the medical care is

the amount originally billed, the amount the medical provider accepted as payment or

some amount in between). Because defendants present this argument as an issue of

standing, we consider this issue first.

{¶6} We recently addressed a similar argument in McCann v. Durrani, 1st

Dist. Hamilton Nos. C-220025 and C-220033, 2023-Ohio-3953. We clarified in

McCann that an injured party does not lose his or her standing to sue merely because

he or she did not suffer certain economic damages. Id. at ¶ 22. This is because, in a

medical-malpractice case, where various alleged economic and noneconomic losses

arise out of the same tortious act, only a single cause of action arises from those

injuries and—regardless of the separate items of damage that may be awarded for such

act—we do not consider a plaintiff’s claim for those various types of damages under

the rubric of standing to invoke the court’s jurisdiction. Id.

{¶7} Rather, where there is a question of whether an injured party may seek

certain economic damages paid by the insurer, the proper consideration is whether

the joinder rules have been satisfied as to the real party in interest. See id. at ¶ 27.

Every action must be prosecuted in the name of the real party in interest. Civ.R. 17(A).

However, “[n]o action shall be dismissed on the ground that it is not prosecuted in the

2 Evidence was submitted at trial showing that, while Medicare was billed for medical expenses in
the amount of $277,813.99, Medicare ultimately paid only $62,021.20 on Mr. Densler’s behalf.

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name of the real party in interest until a reasonable time has been allowed after

objection for ratification of commencement of the action by, or joinder or substitution

of, the real party in interest.” Id.

{¶8} “ ‘The purpose behind the real party in interest rule is * * * to enable the

defendant to avail himself of evidence and defenses that the defendant has against the

real party in interest, and to assure him finality of the judgment, and that he will be

protected against another suit brought by the real party at interest on the same

matter.’ ” McCann at ¶ 21, quoting Setters v. Durrani, 2020-Ohio-6859, 164 N.E.3d

1159, ¶ 54 (1st Dist.).

{¶9} Here, Medicare possesses a statutory right of subrogation under 42

U.S.C. 1395y(b)(2)(B)(iv), which provides, “The United States shall be subrogated (to

the extent of payment made under this title [42 U.S.C. 1395 et seq.] for such an item

or service) to any right under this subsection of an individual or other entity to

payment with respect to such item or service under a primary plan.” See 42 C.F.R.

411.26(a). Thus, no party disputes that Medicare was a real party in interest to the

extent of the payments made on Mr. Densler’s behalf. Rather, the disputed issue is

whether Medicare was the sole real party in interest as to Mr. Densler’s claim of past

medical expenses.

{¶10} Defendants argue that Medicare paid the entire amount of Mr. Densler's

medical expenses and therefore is the sole real party in interest as to those expenses.

In support of this assertion, they cite to Shealy v. Campbell, 20 Ohio St.3d 23, 485

N.E.2d 701 (1985). In Shealy, tortfeasor 1 filed suit against tortfeasor 2 asserting that

each was jointly liable for damages to another, McClain, in tort and tortfeasor 1 had

paid the entire amount of the judgment to McClain. Shealy at 23. Tortfeasor 1 sought

contribution from tortfeasor 2 for his proportionate share of the common liability. Id.

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Tortfeasor 2 challenged the action on the grounds that the action was not being

prosecuted by the real party in interest as the insurance company which paid the full

judgment was the sole real party in interest. Id. The Ohio Supreme Court ultimately

held that the insurance company who paid the full judgment was the sole real party in

interest. Id. at 24. The court defined a “real party in interest” as “ ‘one who has a real

interest in the subject matter of the litigation, and not merely an interest in the action

itself, i.e., one who is directly benefitted or injured by the outcome of the case.’ ”

(Emphasis sic.) Id. The court then found, after looking to the substantive law creating

the subrogation right of the insurance company, that the insurance company, as the

party who paid the entire claim to McClain, was the party possessing a right to be

enforced and the only party that would directly be benefited or be injured by the

outcome of the suit. Id. at 25. The court found this holding to be “in accord with the

general rule that a fully subrogated insurer is the real party in interest and must bring

suit in its own name, for when the loss is fully paid by an insurer and the insurer

becomes subrogated to the insured’s claim against the wrongdoer, the insured no

longer has a right of action against the wrongdoer.” (Emphasis added.) Id.

{¶11} The difference between Shealy and the instant case is that the bounds

of liability were firmly established in Shealy—as a judgment had already been

entered—and therefore, when looking to the insurer’s subrogation right, it was clear

that tortfeasor 1 had no interest to claim at the time the action was filed as the insurer

had paid the entire amount of the loss. Here, the bounds of liability had yet to be

established at the time this action was filed. Notably, Mr. Densler’s claim for past

medical expenses was not limited to the amount ultimately accepted as payment from

Medicare by his medical providers. Rather, he was entitled to present a claim to the

jury for reasonable medical expenses up to the amount originally billed by his medical

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providers as permitted in Robinson, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d

1195.

{¶12} Defendants point to no authority for the proposition that an insurer—

who pays only the portion of the medical expenses ultimately accepted as payment by

the health care provider—becomes the sole real party in interest as to a claim for past

medical expenses, despite no specific statutory or contractual subrogation provision

providing as such. Such a rule would cause a plaintiff to uniformly lose the ability to

present a claim for reasonable medical expenses under Robinson.

{¶13} Rather, as recognized in Cleveland Paint & Color Co. v. Bauer Mfg. Co.,

155 Ohio St. 17, 25, 97 N.E.2d 545 (1951), where an insurer has paid only part of a loss,

both the insured and insurer have substantive rights against the tortfeasor, which

qualify them as real parties in interest. Accord, e.g., Johnson v. Stachel, 2020-Ohio-

3015, 154 N.E.3d 577, ¶ 62 (5th Dist.), citing Cleveland Paint at 24-25. (“If the insurer

has paid only part of a claim, both the insurer and the insured have substantive rights

against the tortfeasor which qualify them as real parties in interest.”). In other words,

where an insurer pays only part of a loss, the insurer and the insured are parties united

in interest and both must be joined in the action. Id.; Banford v. State Farm Ins. Co.,

2d Dist. Montgomery No. 18464, 2001 Ohio App. LEXIS 2752, 16-17 (June 22,2001),

citing Holibaugh v. Cox, 167 Ohio St. 340, 148 N.E.2d 677 (1958).

{¶14} Because Mr. Densler maintained an interest in his claim for past

medical expenses at the time of trial, Medicare was not the sole real party in interest

under Civ.R. 17 as to the claim for past medical expenses. Rather, Mr. Densler and

Medicare were parties united in interest as to this claim. Beyond that, defendants do

not present any challenge to the trial court’s joinder determination under Civ.R. 19.

Therefore, we hold that the trial court did not err in allowing Mr. Densler to pursue a

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claim for past medical expenses at trial. Accordingly, this portion of the assignment

of error is overruled. However, for the reasons that follow, we nevertheless hold that

a new trial is warranted in this case.

B. Admission of Improper Evidence Relied Upon by the Jury

{¶15} Defendants raise several issues for review relating to asserted

evidentiary errors made by the trial court which warrant a new trial. Motions for a

new trial are governed by Civ.R. 59, which provides, in relevant part, that a new trial

may be granted upon any irregularity “in the proceedings of the court, jury, magistrate,

or prevailing party, or any order of the court or magistrate, or abuse of discretion, by

which an aggrieved party was prevented from having a fair trial.” Civ.R. 59(A)(1).

“Upon a trial court’s denial of a motion for a new trial, ‘we “construe the evidence in a

light favorable to the trial court’s action,” ’ while applying an abuse of discretion

standard of review.” Stephenson v. Durrani, 1st Dist. Hamilton Nos. C-220020 and

C-220036, 2023-Ohio-2500, ¶ 15, quoting Adams v. Durrani, 2022-Ohio-60, 183

N.E.3d 560, ¶ 20 (1st Dist.). “ ‘An abuse of discretion connotes more than a mere error

of judgment; rather, “it implies that the court’s attitude is arbitrary, unreasonable, or

unconscionable.” ’ ” Id. at ¶ 16, quoting Hayes v. Durrani, 1st Dist. Hamilton No. C-

190617, 2021-Ohio-725, ¶ 8. “An abuse of discretion occurs when ‘a court exercise[es]

its judgment, in an unwarranted way, in regard to a matter over which it has

discretionary authority.’ ” Id., quoting Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-

Ohio-3304, 187 N.E.3d 463, ¶ 35.

{¶16} Defendants first argue that the trial court abused its discretion by

admitting the testimony of Dr. Zeeshan Tayeb as his testimony was inadmissible as

habit evidence under Evid.R. 406. We review the evidentiary decisions of a trial court

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for an abuse of discretion. Id. at ¶ 27, citing State v. White, 2015-Ohio-3512, 37 N.E.3d

1271, ¶ 36 (2d Dist.).

{¶17} Dr. Tayeb—a physician who previously worked with Dr. Durrani at

CAST—testified as follows:

Q: Did you hear that Durrani – Dr. Durrani told her that she could

be paralyzed if she did not have this surgery? Was that

something that you routinely heard him tell patients?

A: So, again, during the shadowing time, it is something that I did

hear here and there, but it was definitely from, again, working

with the patients that we shared. That was definitely a phrase

that was utilized.

Q: And would Dr. Durrani ever classify surgery as an emergency?

A: Yes, he did.

Q: And when he would classify the surgery as an emergency, would

it actually be an emergency?

A: Well, that’s a call for a surgeon to make, you know, making

statements like a patient’s head is going to fall off or they’re going

to be paralyzed, or, you know, you’re not going to be able to walk

again or you’re going to lose control of your bowel or bladder.

These are all, according to basic textbooks, that you have a

surgical emergency.

And a lot of those cases, you know, these individuals had been

living like this for so long, and, you know, all of a sudden now

they see Dr. Durrani and they’re being told, you know,

something.

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And so they were put into a lot of fear essentially. And even when

I would see these people afterwards, these unfortunate souls,

they would go on and tell me, like, I would have tried this or I

would have tried that, but I was essentially told that there was no

other way around this, that I have to go down this path or else

I’m going to suffer severely down the road.

Q: And when you reference patients’ heads falling off and paralyzed

and stuff like that, would the patients at CAST be told that by

somebody?

A: Yes. It was told by Dr. Durrani himself.

Q: And in your experience, how frequently did that happen?

A: Well, it happened a fair amount because I would hear this from

a number of patients. I mean, even to this day, I follow a couple.

I follow a few of these patients, and they still remember those

phrases being told to them, you know, about paralysis and/or

their heads falling off, and just some of the things we just

mentioned previously.

***

Q: Doctor, did Dr. Durrani ever coerce patients into having surgery?

A: When you tell a person that their head is going to fall off or

they’re going to be paralyzed or they’re not going to walk again

or they’re going to lose control of their bowel and bladder and

pooping and peeing on themselves, I think you’re basically

telling that person: you need to do this.

***

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Q: And you personally—would you ever hear Dr. Durrani tell a

patient those things?

A: I only shadowed him for the first couple weeks, so I was not in

the room when those exact statements were said. However,

having seen many of the patients during the workup for the

surgery or right before surgery or even after surgery, the ones

that – whether they were successful or not, when they would

come back and say this and I heard the same statements over and

over again, that led me to believe that, obviously, these

statements were being made.

{¶18} This court recently addressed substantially similar testimony to the

testimony now before us in Stephenson, 1st Dist. Hamilton Nos. C-220020 and C-

220036, 2023-Ohio-2500. We held that the trial court abused its discretion in

admitting the testimony as habit evidence as a sufficient foundation was not

established for the testimony to be admissible as habit evidence. Id. at ¶ 27-37. We

reaffirm that position here and hold that the trial court abused its discretion in

admitting Dr. Tayeb’s testimony for the same reasons provided in Stephenson.

{¶19} Nevertheless, “ ‘ “[a]n improper evidentiary ruling constitutes reversible

error only when the error affects the substantial rights of the adverse party or the

ruling is inconsistent with substantial justice.” ’ ” Id. at ¶ 78, quoting Setters, 2020-

Ohio-6859, 164 N.E.3d 1159, at ¶ 22. “ ‘In determining whether substantial justice has

been done, a reviewing court must weigh the prejudicial effect of the errors and

determine whether the trier of fact would have reached the same conclusion had the

errors not occurred.’ ” Id., citing Setters at ¶ 22.

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{¶20} Here, Dr. Tayeb’s testimony was the only testimony which established

that Dr. Durrani told his patients that they would lose control of their bodily functions

absent surgery. Mr. Densler’s testimony was limited to stating that Dr. Durrani told

him he would be paralyzed without the surgery. Yet, the jury interrogatories reveal

that the jury awarded Mr. Densler punitive damages after finding that Dr. Durrani

“acted with malice and aggravated or egregious fraud” by telling Mr. Densler “that he

would be paralyzed without the surgery and lose control of bodily functions.” Because

the record provides clear confirmation that the jury relied on the improperly admitted

testimony when making its decision in this case, we cannot say that the jury—as the

fact finder—would have reached the same conclusion absent the admission of Dr.

Tayeb’s testimony. Therefore, we hold that the defendants are entitled to a new trial

and the trial court abused its discretion in finding otherwise. Accordingly, the

assignment of error is sustained.

{¶21} Because we find that resolution of the first evidentiary issue presented

for review is dispositive of this appeal, the remaining evidentiary and trial issues raised

by the defendants are now moot and we decline to address them.3

3 We note that one of the issues raised by defendants in this case was the trial court’s instruction to
the jury regarding Dr. Durrani’s absence which allowed the jury to “make whatever inferences and
conclusions” it found warranted from Dr. Durrani’s failure to attend the trial. This court has
recently held that such an instruction was an abuse of discretion and that the cumulative effect of
the jury instruction with other errors amounted to reversible error. See Hounchell v. Durrani, 1st
Dist. Hamilton No. C-220021, 2023-Ohio-2501, ¶ 65-70, appeal not accepted, ___ Ohio St.3d
____, 2023-Ohio-4410, ___ N.E.2d ___; Greene v. Durrani, 1st Dist. Hamilton Nos. C-220023
and C-220037, 2023-Ohio-3069, ¶ 17-18; Stratman v. Durrani, 1st Dist. Hamilton Nos. C-220027
and C-220032, 2023-Ohio-3035, ¶ 19-20. Here, based on our resolution, we need not determine
whether the jury instruction on its own amounts to reversible error because this issue is mooted by
our resolution of this case.

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III. Conclusion

{¶22} For all the foregoing reasons, we sustain the sole assignment of error,

reverse the trial court’s judgment, and remand the cause for a new trial on the

fraudulent-misrepresentation claim consistent with this opinion and the law.

Judgment reversed and cause remanded.

BOCK, J., concurs.
BERGERON, J., concurs separately.

BERGERON, J., concurring separately.

{¶23} I concur in the majority’s judgment reversing this cause for a new trial,

but I write separately because I would reverse on the additional ground that the trial

court abused its discretion by denying defense counsel an opportunity to cross-

examine Mr. Densler about a prior inconsistent statement.

{¶24} At trial, Mr. Densler’s counsel asked him to explain his initial consult

with Dr. Durrani: “Can you tell me what happened at that first visit?” In his response,

he shared his recollections of first seeing Dr. Durrani, including this critical point:

“[Dr. Durrani] told me that I would be paralyzed” if he did not have surgery on his

back. That fact proved to be a crucial one for the jury, as noted in the majority opinion.

{¶25} But the trial court unfairly cut off cross-examination on this point that

would have allowed defense counsel to test the accuracy of Mr. Densler’s recollection.

After he repeated Dr. Durrani’s paralysis warning on cross-examination, defense

counsel queried, “By the way, you never testified to that in your deposition at all, did

you?” The trial court sustained an objection from Mr. Densler’s counsel and struck

the question. Based on my review of the record, this is inconsistent with the

requirements and purpose of Evid.R. 613(B).

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{¶26} Evid.R. 613(B) allows a party to introduce extrinsic evidence, such as a

deposition transcript, of a testifying witness’s prior inconsistent statement so long as

proper foundation is laid and the witness receives an opportunity to explain the

inconsistency. Evid.R. 613(B); Garry v. Borger, 1st Dist. Hamilton No. C-220069,

2023-Ohio-905, ¶ 29. Looking at the above-quoted question and answer in a vacuum,

it might not appear that such a foundation was laid. But as one flips a few pages earlier

in the trial transcript, Dr. Durrani’s counsel laid the requisite foundation for

introducing statements from the deposition, identifying the date and circumstances of

the deposition and establishing that Mr. Densler remembered giving it and taking an

oath to tell the truth. Defense counsel proceeded to ask several questions based on

Mr. Densler’s deposition testimony, highlighting inconsistencies and at times reading

questions and answers directly from the deposition transcript. Apart from the

question about the “paralyzed” comment and a couple of brief instances where the

court limited the questioning, the trial court allowed most, if not all, of defense

counsel’s impeachment efforts relying on the deposition transcript.

{¶27} It is unclear why the trial court refused the question at issue in light of

the string of impeachment queries leading up to that point. Reading the transcript in

context, there is no question that the purpose of asking Mr. Densler about omitting

the “paralyzed” comment in his deposition was impeachment. The witness was on the

stand and had the chance to explain or deny the omission. And his counsel had the

opportunity to ask him about it on redirect examination, because he had not yet been

dismissed. Further, defense counsel presented the witness with the prior statement

by laying the foundation about the deposition and asking him multiple questions

about it. Counsel also asked whether he made the statement and remembered giving

it, which he did and confirmed. See Civ.R. 32(A)(1) (“Any deposition may be used by

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any party for the purpose of contradicting or impeaching the testimony of deponent

as a witness.”).

{¶28} I conclude there was an inconsistency between Mr. Densler’s trial

testimony stating that Dr. Durrani told him he would be paralyzed without surgery

and his deposition testimony in which he never recites such an admonition. During

the deposition, counsel repeatedly probed about the contents of his conversations with

Dr. Durrani prior to agreeing to the surgery:

Do you remember anything you discussed with him?

When you had that first visit with Dr. Durrani you went through with

him everything that had led up to that point and why you were coming

to see him; is that fair?

And what did he say about any kind of treatment plan or what did he

recommend?

[A]nd he said he had a long chat with you about what you were going to

do, about what he was recommending for you? * * * Do you remember

him talking about that with you?

He went over the benefits and risks of the surgery with you at that time;

is that fair?

{¶29} Mr. Densler at no point mentioned that Dr. Durrani told him he would

be paralyzed without surgery, despite multiple opportunities to respond to these

prompts about their presurgery consultations. By then recalling the “paralyzed”

comment at trial nine years later, in response to an open-ended question about his

first meeting with Dr. Durrani resembling questions asked at his deposition, Mr.

Densler’s testimony was inconsistent within the meaning of Evid.R. 613(B). Blocking

cross-examination about this inconsistency unfairly tips the scales here because it

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concerns a dramatic, highly prejudicial comment that appears to have influenced the

jury to conclude that Dr. Durrani perpetrated a fraud. It was an abuse of discretion

for the trial court to not allow defense counsel to interrogate him about it. The jury

should have had the opportunity to sort through these disparate statements and

evaluate credibility accordingly.

{¶30} In addition to the improper testimony by Dr. Tayeb and the jury

instruction issue mentioned in the majority’s footnote, I would reverse on this ground

as well.

Please note:

The court has recorded its own entry this date.

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