[Cite as Deck v. Durrani, 2020-Ohio-3790.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO


DAMON DECK,                                  :      APPEAL NO. C-180685
                                                    TRIAL NO. A-1506307
        Plaintiff-Appellant,                 :
                                                         O P I N I O N.
  vs.                                        :

ABUBAKAR ATIQ DURRANI, M.D.,                 :

CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
                            :
WEST CHESTER HOSPITAL, LLC,
                            :
  and
                            :
UC HEALTH,

        Defendants-Appellees.                :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: July 22, 2020



Robert A. Winter, Jr., and The Deters Law Firm, P.S.C., and Benjamin M. Maraan,
II, for Plaintiff-Appellant,

Taft Stettinius & Hollister LLP, Russell S. Sayre, Aaron M. Herzog and Philip D.
Williamson, for Defendants-Appellees.
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M OCK , Presiding Judge.

       {¶1}    The trial court improperly determined that the medical claims in this

case were untimely filed because the saving statute can be invoked in conjunction

with the statute of repose to allow for the timely refiling of a complaint within one

year of the voluntary dismissal of a complaint filed within the statute of repose. For

the reasons below, we reverse the trial court’s judgment.

                   Claim of Botched Surgery Results in Litigation

       {¶2}    Plaintiff-appellant Damon Deck visited defendant-appellee Abubakar

Atiq Durrani to seek treatment for his chronic back pain. Durrani performed surgery

on Deck on November 3, 2010. Deck eventually sued Durrani, as well as defendants-

appellees Center for Advanced Spine Technologies, Inc., West Chester Hospital, LLC,

and UC Health (hereinafter “appellees”), for claims arising from that surgery. The

complaint was originally filed in the Butler County Court of Common Pleas on April

1, 2013. That complaint was voluntarily dismissed on December 22, 2014, pursuant

to Civ.R. 41(A). Deck then refiled the suit below on November 19, 2015.

       {¶3}    Appellees filed a motion to dismiss the complaint pursuant to Civ.R.

12(C). Appellees claimed that the refiled suit was untimely as the statute of repose

had expired. Deck argued that the suit was timely filed because the suit had been

refiled within one year of the prior dismissal, and such refiling is permitted pursuant

to R.C. 2305.19(A). The trial court dismissed the refiled complaint and denied a

pending request by Deck to amend his complaint.

       {¶4}    In two assignments of error, Deck now appeals. Deck first makes a

number of arguments in support of his assertion that the trial court improperly

dismissed his refiled complaint. In the second assignment of error, Deck claims that

the trial court improperly denied his request to amend his complaint. We will



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address the arguments within the first assignment of error in the order they were

presented.

                                The Claims Made Were
                                   Medical Claims

       {¶5}      In his first argument, Deck contends that his claims against Durrani

were based on nonmedical fraud allegations because Durrani “lied to [Plaintiff]

about the need for surgery. They lied again about the true state of [Plaintiff’s] post-

surgery conditions and [his prognoses].”

       {¶6}      This court has already addressed the question of whether fraud claims

alleged by Durrani patients are medical. As we have recently stated,

             In Freeman [v. Durrani, 2019-Ohio-3643, 144 N.E.3d 1067 (1st

       Dist.)], * * * we explained that fraud claims relating to treatment fall

       under the broad umbrella of “medical claim” as defined in R.C.

       2305.113. R.C. 2305.113(E)(3) defines medical claims as “[c]laims that

       arise out of the medical diagnosis, care, or treatment of any person”

       and “[d]erivative claims for relief that arise from the medical

       diagnosis, care, or treatment of a person[.]” We traced the history of

       this provision and applied it against the backdrop of our prior cases

       addressing similar issues.

              Messrs. Arnold and McNeal attempt to distinguish their fraud

       claims from medical claims by positing that the decision to misstate

       the facts was not “medical in nature.” But such an exception would

       swallow the rule, as we recognized in Freeman. Just as in Freeman,

       these plaintiffs’ “fraud allegations echo the statutory definition of

       ‘medical claim’ under R.C. 2305.113(E)(3).”       Here, both plaintiffs’

       complaints framed the alleged fraud claims in terms of their


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       treatment: “Dr. Durrani made material, false representations to

       Plaintiffs * * * related to Plaintiff’s treatment including: stating the

       surgeries were necessary, that [he] ‘could fix’ Plaintiff[.]” Despite their

       current portrayal of the fraud claims as independent, nonmedical

       claims, we ultimately find that “[c]lever pleading cannot transform

       what are in essence medical claims into claims for fraud.” Thus, the

       fraud claims raised here constitute “medical claims” for purposes of

       the statute of repose.

(Citations omitted.) McNeal v. Durrani, 2019-Ohio-5351, 138 N.E.3d 1231, ¶ 17-18

(1st Dist.). Deck has not presented a reason to deviate from this determination, and

we declined to do so.

                                Date of Surgery Used
                            To Compute Statute of Repose

       {¶7}      In his second argument, Deck claims that the trial court erred when it

determined that the statute of repose began to run from the date of the surgery,

rather than the last date of his treatment. This court also addressed this issue in

McNeal:

              But plaintiffs’ arguments take these cases out of context and

       cannot be squared with the plain language of R.C. 2305.113(C)(1),

       which specifies that no action on a medical claim “shall be commenced

       more than four years after the occurrence of the act or omission

       constituting the alleged basis of the medical * * * claim.” In Wilson [v.

       Durrani, 2019-Ohio-3880, 145 N.E.3d 1071 (1st Dist.)], we quoted that

       very language right after the “last culpable act” comment, and certainly

       we did not intend to broaden the statutory language. Nor does Bugh

       [v. Ohio Dept. of Rehab., and Corr., 2019-Ohio-112, 128 N.E.3d 906


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       (10th Dist.)] help these plaintiffs because it dealt with a medical claim

       premised on the failure to diagnose, in which the court sought to

       ascertain the last date the patient was eligible for corrective treatment

       to determine whether the statute of repose barred the medical claims.

       The court necessarily needed to determine the latest date on which

       proper diagnosis could have helped the patient, given that an omission

       formed the basis of the patient’s medical claim.

              These cases fail to provide Messrs. Arnold and McNeal a ticket for

       reversal because their claims revolve around affirmative actions—the

       alleged negligently-performed surgeries by Dr. Durrani. To be sure,

       both individuals saw Dr. Durrani subsequent to their surgeries, but

       these subsequent visits do not form the basis for their medical claims.

       A tour of their complaints reveals instead that the underlying claims

       rest on the contention that Dr. Durrani improperly and unnecessarily

       performed surgery on them. Thus, the “act” from which the statute of

       repose necessarily runs here is from the date of the surgeries because

       they constitute the alleged basis of the medical claims.

(Citations omitted.) McNeal at ¶ 14-15. Again, Deck has presented no argument

requiring this court to reconsider that issue.

                           A Complaint May Be Refiled Outside
                   the Statute of Repose Under Certain Circumstances

       {¶8}      Within his second argument, Deck also argues that the trial court

erred because the savings statute allowed his original complaint, which had been

timely filed within the medical statute of repose, to be voluntarily dismissed

pursuant to Civ.R. 41(A) and then refiled as long as it was refiled within one year.

Deck is correct.


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       We recently explored this issue in depth in Wilson [v. Durrani, 2019-

       Ohio-3880, 145 N.E.3d 1071 (1st Dist.)]. In Wilson, we held that R.C.

       2305.19(A) could save a party’s claim dismissed without prejudice and

       refiled within one year, even after the statute of repose in R.C.

       2305.113(C) ran, when the initial claim was timely filed within the

       four-year statute of repose period. Thus, the savings statute saved the

       plaintiffs’ refiled suits in Wilson not only because the requisites of R.C.

       2305.19(A) were met, but also because they timely initiated their suits

       within the four-year repose period. We accordingly concluded “that

       the saving statute, properly invoked, allows actions to survive beyond

       the expiration of the medical malpractice statute of repose.” In other

       words, the refiled suits, although falling outside of the repose period,

       related back to the timely-filed initial complaints.

(Citations omitted.) McNeal at ¶ 11.

       {¶9}    In this case, Deck filed his suit within the statute of repose. Deck’s

surgery was performed on November 3, 2010, and the suit was filed on April 1, 2013.

His suit was dismissed pursuant to Civ.R. 41(A) in December of 2014 and was refiled

within one year on November 19, 2015. Pursuant to this court’s holding in Wilson,

the suit was timely filed and then timely refiled. Therefore, the trial court erred

when it dismissed the suit as untimely.

                         Arguments We Decline to Address

       {¶10}   Deck has raised a number of additional arguments that we need not

address at this time. First, Deck argues that Durrani’s flight to Pakistan in December

2013 tolled the running of the statute of repose for medical claims. He also argues

that appellees were equitably estopped from asserting the defense of the running of

the statute of repose because of fraud.        He additionally argues that the refiled

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complaints were not “medical claims” because Durrani was not a doctor when the

complaints were refiled as he lost his license in 2014. Finally, Deck argues that the

statute of limitations should have been tolled because it was based on Durrani

leaving a foreign object in his body during surgery, and such claims are timely when

filed within one year of the discovery of the foreign object.

       {¶11}   We need not determine whether the statute of repose would have

been tolled because of Durrani’s flight since we have determined that the refiled

complaint was timely without such tolling.         Similarly, we need not determine

whether the appellees should be equitably estopped from making the argument that

the complaint has been untimely filed as we have rejected that argument on its

merits. We also need not determine whether claims filed after Durrani lost his

license are “medical claims” as we have determined that the refiled complaint was

timely, and that refiled complaint related back to the original complaint that had

been filed while Durrani was still licensed in 2013. See McNeal, 2019-Ohio-5351, 138

N.E.3d 1231, at ¶ 11.    Finally, we need not decide here if Ohio’s foreign-object

exception set forth under R.C. 2905.113(D)(2) applies because we have determined

that the claims were timely filed without it.

                              Spoliation Claims Remain

       {¶12}   Finally, within his first assignment of error, Deck claims that the trial

court improperly dismissed his spoliation claims. The trial court dismissed the

spoliation-of-evidence claims based on its conclusion that the underlying claims had

been untimely presented and, as a result, there was no harm from the alleged

destruction of evidence because there were no timely-filed, substantive claims. But

since the trial court erred in finding that the substantive claims were untimely filed,

the spoliation claims remain as well. For the reasons set forth above, we sustain the

first assignment of error.

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                             Motion to Amend Complaint

        {¶13}   In his second assignment of error, Deck claims that the trial court

abused its discretion when it refused to allow him to file an amended complaint. We

addressed this precise situation in Wilson. In that case, this court held that the trial

court had improperly dismissed claims based on the complaint having been filed

outside the statute of repose. Having made that determination, we went on to state

that:

        in their second assignment of error, the appellants assert that the trial

        court erred in denying their motions for leave to file amended

        complaints. 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.

Wilson v. Durrani, 2019-Ohio-3880, 145 N.E.3d 1071, ¶ 33. As in Wilson, the trial

court erred when it dismissed the claims based on the determination that they had

been untimely filed.     Therefore, as we did in Wilson, we sustain the second

assignment of error and remand for further consideration of the motion for leave.

                                      Conclusion

        {¶14}   We hold that the trial court improperly granted appellees’ motion to

dismiss Deck’s refiled complaint on the basis that it had been untimely filed, and we

sustain Deck’s first assignment of error on that basis. We also sustain Deck’s second

assignment of error and remand this cause for further consideration of the motion

for leave to file an amended complaint.


                                               Judgment reversed and cause remanded.


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ZAYAS and CROUSE, JJ., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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