        [Cite as Wilson v. Durrani, 2019-Ohio-3880.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



ROBERT WILSON,                                   :     APPEAL NO. C-180196
                                                       TRIAL NO. A-1506860
       Plaintiff-Appellant,                      :

 vs.                                             :

ABUBAKAR ATIQ DURRANI, M.D.,                     :

CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,

WEST CHESTER HOSPITAL, LLC,                      :

  and                                            :

UC HEALTH,                                       :

   Defendants-Appellees.                         :



MIKE SAND,                                       :     APPEAL NO. C-180194
                                                       TRIAL NO. A-1506694
  and                                            :
                                                        O P I N I O N.
AMBER SAND,                                      :

       Plaintiffs-Appellants,                    :

 vs.                                             :

ABUBAKAR ATIQ DURRANI, M.D.,                     :

CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,

WEST CHESTER HOSPITAL, LLC,                      :

  and                                            :

UC HEALTH,                                       :

   Defendants-Appellees.                         :
                    OHIO FIRST DISTRICT COURT OF APPEALS



Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 25, 2019


Robert A. Winter Jr., The Deters Law Firm, P.S.C., and Fred Johnson for Plaintiffs-
Appellants,

Lindhorst & Dreidame Co., LPA, Michael F. Lyon, James F. Brockman and James L.
O’Connell, for Defendants-Appellees Abubakar Atiq Durrani and Center for
Advanced Spine Technologies, Inc.,

Frost Brown Todd, LLC, Douglas R. Dennis and Austin W. Musser, for Defendants-
Appellees West Chester Hospital, LLC, and UC Health.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


Z AYAS , Presiding Judge.

       {¶1}   Appellants Robert Wilson, Mike Sand and his wife, Amber Sand

(collectively, the “appellants”), appeal from judgments entered by the Hamilton

County Court of Common Pleas granting judgment on the pleadings to appellees Dr.

Abubakar Atiq Durrani, the Center for Advanced Spine Technologies, Inc., West

Chester Hospital, LLC, and UC Health. Although the appellants instituted separate

appeals from separate judgments and we previously denied motions to consolidate

their appeals, the appellants advance identical assignments of error pertaining to

very similar facts. We, therefore, consolidate their appeals for purposes of this

opinion.

       {¶2}   These consolidated appeals are two of many appeals involving alleged

malpractice by Dr. Durrani, a spine surgeon who fled the country for his native

Pakistan following a federal indictment. In both cases before us, Dr. Durrani, his

clinic, and a hospital argued in the trial court that the claims filed against them by a

patient were untimely under the medical malpractice statute of repose, a statute

which bars medical claims filed more than four years after the alleged malpractice,

and that Ohio’s saving statute does not apply to allow actions to survive beyond this

expiration. The trial court agreed, holding in each case that the saving statute did

not apply, and therefore, the patient’s claims were barred.

       {¶3}   The Ohio Supreme Court explicitly reserved judgment on this issue in

Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d

974.   The United States District Court for the Southern District of Ohio was

presented with this very question recently though, and upon surveying Antoon, Ohio

appellate court decisions, and other state court results, concluded that Ohio’s saving

statute does apply despite the expiration of the statute of repose. See Atwood v. UC

Health, S.D.Ohio No. 1:16CV593, 2018 WL 3956766 (August 17, 2018). We find

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                     OHIO FIRST DISTRICT COURT OF APPEALS


Atwood persuasive and reverse the trial court’s judgments. In a matter of first

impression for this court, we hold that Ohio’s saving statute, properly invoked,

allows actions to survive beyond expiration of the medical malpractice statute of

repose, and acts to save the patients’ claims in the cases before us.

                        I.   Background and Procedural History

                                    A. Robert Wilson

       {¶4}   In November 2010, plaintiff-appellant Robert Wilson began seeing Dr.

Durrani at his clinic in Blue Ash, Ohio, the Center for Advanced Spine Technologies,

Inc., (“CAST”) seeking relief from headaches and back pain.             Dr. Durrani

recommended that Wilson undergo back surgery to repair discs along his spine. In

February and April 2011, Dr. Durrani performed spine surgeries on Wilson at West

Chester Hospital, which is owned by UC Health. Following the surgeries, Wilson

experienced worsened pain and immobility. Wilson eventually decided to sue Dr.

Durrani, claiming that the surgeries were medically unnecessary and improperly

performed.

       {¶5}   On April 9, 2013, Wilson filed a complaint against Dr. Durrani, CAST,

and West Chester Hospital/UC Health in the Butler County Court of Common Pleas.

Wilson sued Dr. Durrani for negligence, battery, intentional infliction of emotional

distress, fraud, and spoliation of evidence. Wilson sued CAST for vicarious liability

for the negligent and improper acts of Dr. Durrani, negligent hiring, retention and

supervision of Dr. Durrani, fraud, intentional infliction of emotional distress, and

spoliation of evidence. Wilson sued West Chester Hospital/UC Health for negligence,

negligent credentialing, supervision and retention, fraud, intentional infliction of

emotional distress, and spoliation of evidence.

       {¶6}   On December 11, 2015, Wilson voluntarily dismissed his complaint

filed in the Butler County Court of Common Pleas under Civ.R. 41(A)(1)(a), and, on

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                       OHIO FIRST DISTRICT COURT OF APPEALS


December 16, 2015, filed a similar, albeit much longer, complaint in the Hamilton

County Court of Common Pleas. Wilson added more specific factual allegations

based upon discovery disclosed in the Butler County case, and added a claim against

Dr. Durrani for lack of informed consent for the use of a product called Infuse/BMP-

2 during both surgeries, and claims against CAST and West Chester Hospital/UC

Health for violations of the Ohio Consumer Sales Practices Act.

       {¶7}    Dr. Durrani and CAST, and West Chester Hospital/UC Health moved

separately for judgment on the pleadings, asserting that Wilson’s claims against

them were medical claims that were time-barred pursuant to Ohio’s medical

malpractice statute of repose, R.C. 2305.113(C), because the complaint alleges that

the last surgery performed by Dr. Durrani was in or around April 2011, more than

four years before Wilson filed suit in the Hamilton County Court of Common Pleas.

The defendants argued that the 2013 filing in the Butler County Court of Common

Pleas was a nullity.

       {¶8}    Wilson moved to amend his complaint to elaborate on the fraud claims

and to add a RICO claim. The trial court entered decisions granting the motions for

judgment on the pleadings and denying Wilson’s motion for leave to amend his

complaint.

                              B. Mike and Amber Sand

       {¶9}    In or around 2008 or 2009, plaintiff-appellant Mike Sand began

seeing Dr. Durrani to address weakness in his left leg. Dr. Durrani urged Sand to

undergo back surgery to repair discs along his spine, or else lose the use of his leg.

On April 5, 2010, Dr. Durrani performed spine surgery on Sand at West Chester

Hospital. Following his surgery, Sand experienced the same leg pain he had prior to

the surgery, and began experiencing back pain which severely limited his mobility.



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                       OHIO FIRST DISTRICT COURT OF APPEALS


Like Wilson, Sand decided to sue Dr. Durrani, claiming that the surgery was

medically unnecessary and improperly performed.

       {¶10} On March 28, 2013, Sand, and his wife, Amber Sand (collectively, “the

Sands”), filed a complaint against Dr. Durrani, CAST, and West Chester Hospital/UC

Health in the Butler County Court of Common Pleas. The Sands sued Dr. Durrani for

negligence, battery, intentional infliction of emotional distress, fraud, spoliation of

evidence, and loss of consortium. The Sands sued CAST for intentional infliction of

emotional distress, spoliation of evidence, and loss of consortium. The Sands sued

West Chester Hospital/UC Health for negligence, vicarious liability, negligent hiring,

credentialing, supervision and retention, fraud, intentional infliction of emotional

distress, spoliation of evidence, and loss of consortium.

       {¶11} On November 25, 2015, the Sands voluntarily dismissed their

complaint filed in the Butler County Court of Common Pleas under Civ.R.

41(A)(1)(a), and, on December 9, 2015, filed a similar complaint in the Hamilton

County Court of Common Pleas. The Sands added more specific factual allegations

based upon discovery disclosed in the Butler County case, and added a claim against

Dr. Durrani for lack of informed consent and claims against CAST for vicarious

liability, and negligent hiring, credentialing, supervision and retention.

       {¶12} Asserting the same arguments from Wilson’s case, Dr. Durrani and

CAST, and West Chester Hospital/UC Health moved separately for judgment on the

pleadings. The Sands moved to amend their complaint to elaborate on the fraud

claims and to add a RICO claim. The trial court entered decisions granting the

motions for judgment on the pleadings and denying the Sands’ motion for leave to

amend their complaint.

       {¶13} Wilson and the Sands now appeal, asserting the same two assignments

of error for review.

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                     OHIO FIRST DISTRICT COURT OF APPEALS


                                  II. Legal Analysis

       {¶14} In their first assignment of error, the appellants assert that the trial

court erred in granting judgment on the pleadings, arguing that Ohio’s saving

statute, R.C. 2305.19(A), allows their claims to survive beyond the expiration of the

four-year medical malpractice statute of repose, R.C. 2305.113(C). The appellants

also argue that the trial court misapplied Antoon v. Cleveland Clinic Found., 148

Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, when it determined that the

voluntary dismissal of their Butler County complaints precluded the filing of their

Hamilton County complaints when the later filings were outside of the four-year time

period.

       {¶15} In order to grant a judgment on the pleadings, “the trial court must

construe the material allegations in the complaint, as well as reasonable inferences

arising from them, in favor of the plaintiff and conclude beyond a doubt that the

plaintiff can show no set of facts that would entitle him to relief.” (Internal citations

omitted.) Euvrard v. The Christ Hosp., 141 Ohio App.3d 572, 575, 752 N.E.2d 326,

329 (1st Dist.2001).     Our review is de novo, which requires an independent

determination of whether judgment has properly been entered as a matter of law. Id.

                                  Statute of Repose

       {¶16} A statute of repose bars “any suit that is brought after a specified time

since the defendant acted * * * even if this period ends before the plaintiff has

suffered a resulting injury.”    Antoon, 148 Ohio St. 3d 483, 2016-Ohio-7432, 71

N.E.3d 974, at ¶ 8, quoting Black’s Law Dictionary 1637 (10th Ed.2014).               By

contrast, a statute of limitations establishes “a time limit for suing in a civil case,

based on the date when the claim accrued (as when the injury occurred or was

discovered).” Id., quoting Black’s Law Dictionary 1636 (10th Ed.2014). While both

share the “goal of limiting the time for which a putative wrongdoer must be prepared

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                     OHIO FIRST DISTRICT COURT OF APPEALS


to defend a claim,” a statute of repose measures this liability from the date of the last

culpable act. Id., citing CTS Corp. v. Waldburger, 573 U.S. 1, 8, 134 S.Ct. 2175, 189

L.Ed.2d 62 (2014).

       {¶17} Ohio’s medical malpractice statute of repose provides:

       Except as to persons within the age of minority or of unsound mind as

       provided by section 2305.16 of the Revised Code, and except as

       provided in division (D) of this section, both of the following apply:

       (1) No action upon a medical, dental, optometric, or chiropractic claim

       shall be commenced more than four years after the occurrence of the

       act or omission constituting the alleged basis of the medical, dental,

       optometric, or chiropractic claim.

       (2) If an action upon a medical, dental, optometric, or chiropractic

       claim is not commenced within four years after the occurrence of the

       act or omission constituting the alleged basis of the medical, dental,

       optometric, or chiropractic claim, then, any action upon that claim is

       barred.

R.C. 2305.113(C). Under division (D), an additional year to file suit is provided for

those who could not have discovered the injury within three years but discover it in

the fourth year, and those with a foreign object left in their bodies. R.C. 2305.113(D).

       {¶18} A medical claim is defined as: “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). It includes the

following:

       (a) Derivative claims for relief that arise from the medical diagnosis,

       care, or treatment of a person;

                                          ***

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                     OHIO FIRST DISTRICT COURT OF APPEALS


       (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.

Id.

       {¶19} In another Durrani case, brought against all but one of these same

defendants, this court determined that similar claims for negligence, negligent

credentialing and retention, fraud, and violations of the Ohio Consumer Sales

Practices Act were “medical claims” subject to the statute of repose.          Young v.

Durrani, 2016-Ohio-5526, 61 N.E.3d 34, ¶ 18-25 (1st Dist.).           In that case, we

concluded that the claims ultimately arose out of the care or treatment of the patient

and were thus medical claims consistent with the statutory definition. Id.; see also

Hensley v. Durrani, 1st Dist. Hamilton No. C-130005, 2013-Ohio-4711 (concluding

that claims for fraud and lack of informed consent were medical claims).

Accordingly, the claims asserted by the appellants in these consolidated appeals are

medical claims.

                                    Saving Statute

       {¶20} Ohio’s saving statute provides:

       In any action that is commenced or attempted to be commenced, if in

       due time a judgment for the plaintiff is reversed or if the plaintiff fails

       otherwise than upon the merits, the plaintiff or, if the plaintiff dies and

       the cause of action survives, the plaintiff’s representative may

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                      OHIO FIRST DISTRICT COURT OF APPEALS


       commence a new action within one year after the date of the reversal

       of the judgment or the plaintiff's failure otherwise than upon the

       merits or within the period of the original applicable statute of

       limitations, whichever occurs later. This division applies to any claim

       asserted in any pleading by a defendant.

R.C. 2305.19(A). Under division (C), the saving statute does not apply to certain

actions in probate. R.C. 2305.19(C).

       {¶21} Where the saving statute applies, “the date for filing the new action

relates back to the filing date for the preceding action for limitations purposes.”

Frysinger v. Leech, 32 Ohio St.3d 38, 42, 512 N.E.2d 337 (1987). The Ohio Supreme

Court has held that, as a remedial statute, the saving statute “should be given a

liberal construction to permit the decision of cases upon their merits rather than

upon mere technicalities of procedure.” Cero Realty Corp. v. Am. Mfrs. Mut. Ins.

Co., 171 Ohio St. 82, 85, 167 N.E.2d 774 (1960); see Gruelich v. Monnin, 142 Ohio St.

113, 116, 50 N.E.2d 310 (1943) (holding likewise that a saving statute should be

liberally construed so as not to deny a litigant the right to commence a new action

after a previous one has failed otherwise than upon the merits); see also Kinney v.

Ohio Dept. of Adm. Svcs., 30 Ohio App.3d 123, 126, 507 N.E.2d 402 (10th Dist.1986)

(describing the policy considerations for liberally construing the saving statute to

apply to a statute of limitations).

            The Saving Statute Applies to Medical Malpractice Claims

       {¶22} In Atwood v. UC Health—incidentally, another Durrani case—the

court noted that “[i]n several instances, Ohio courts have assumed without any

discussion that Ohio’s savings statute is applicable to medical malpractice claims.”

Atwood, S.D.Ohio No. 1:16CV593, 2018 WL 3956766, at *6. See Saunders v. Choi,

12 Ohio St.3d 247, 250, 466 N.E.2d 889 (1984) (stating that R.C. 2305.19 “provided

                                         10
                    OHIO FIRST DISTRICT COURT OF APPEALS


[the] appellant with another opportunity to revive her cause of action which would

have been otherwise time-barred, but for this savings provision.”); Frysinger, 32

Ohio St.3d 38, 512 N.E.2d 337 (holding that R.C. 2305.19 applied to save a medical-

malpractice action dismissed under Civ.R. 41(A)(1)(a)); Rall v. Arora, 3d Dist.

Marion No. 9-12-56, 2013-Ohio-1392, ¶ 20 (concluding that R.C. 2305.19 could not

save medical-malpractice claims in plaintiffs’ third complaint as the saving statute

can only be used once).

       {¶23} This was also true for Antoon, 148 Ohio St. 3d 483, 2016-Ohio-7432,

71 N.E.3d 974. The Ohio Supreme Court assumed that the saving statute applied to

medical claims in Antoon, but specifically declined to go into further discussion due

to the facts presented. In Antoon, the court upheld the constitutionality of the

medical malpractice statute of repose, reaffirming its earlier position in Ruther v.

Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291. In Ruther, the court

explained that R.C. 2305.113(C) is “a true statute of repose,” which “ ‘exists to give

medical providers certainty with respect to the time within which a claim can be

brought and a time after which they may be free from the fear of litigation.’ ” Antoon

at ¶ 22, quoting Ruther at ¶ 19. The court reasoned that otherwise, “ ‘if the General

Assembly cannot legislate a statute of repose, medical providers are left with the

possibility of unlimited liability indefinitely.’ ” Id. Ultimately, the court held the

four-year expiration permissible because “a party need not be granted an unlimited

amount of time to bring a vested cause of action, but must receive only a ‘reasonable’

amount of time in order for a law to pass constitutional muster.” (Internal citations

omitted.) Antoon at ¶ 28.

       {¶24} The plaintiffs in Antoon had originally filed their complaint in the

Cuyahoga County Court of Common Pleas in 2010 alleging medical malpractice and

derivative claims against a clinic and the doctors who provided them care in 2008. A

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                     OHIO FIRST DISTRICT COURT OF APPEALS


year later, the plaintiffs dismissed their claims without prejudice. While the case was

pending, the plaintiffs filed a number of actions in federal court and with federal

agencies—all related to the surgeries, but not alleging medical malpractice and not

seeking damages.     The federal claims were eventually dismissed.         In 2013, the

plaintiffs refiled their complaint in the Cuyahoga County Court of Common Pleas,

again alleging medical malpractice.

       {¶25} The court found the plaintiffs’ claims barred by the statute of repose,

rejecting the plaintiffs’ assertion that “filing then dismissing a claim will indefinitely

suspend the statute of repose by ‘commencing’ the suit on the date of the first filing.”

Id. at ¶ 24. Rather, no action “commenced” until the complaint was filed in 2013,

more than four years after the act or omission constituting the alleged basis of the

medical claim. In clarifying this holding, and reserving judgment on the issue now

before us, the court reiterated that “the Ohio saving statute applies only if a party

files a substantially similar action within one year of the dismissal without

prejudice.” Id. at ¶ 31, citing Children’s Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio

St.2d 523, 525, 433 N.E.2d 187 (1982). Because the plaintiffs’ federal actions did not

expressly assert medical-malpractice claims, they were not “substantially the same”

as the state court action, and the saving statute did not apply. Id. at ¶ 32.

       {¶26} In the cases before us, by contrast, the appellants’ claims in their

Butler County complaints and their Hamilton County complaints are nearly

identical.   The appellants merely added a claim against Dr. Durrani for lack of

informed consent to the surgeries, and, in the Sands’ case, added claims against

CAST for vicarious liability and negligent hiring, and, in Wilson’s case, added claims

against West Chester Hospital/UC Health for violations of the Ohio Consumer Sales

Practices Act. All of the parties named in the voluntarily-dismissed Butler County

complaints were named again in the Hamilton County complaints—that is, every

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                        OHIO FIRST DISTRICT COURT OF APPEALS


party named in the appellants’ new actions had been put on notice in the initial

action. Thus, the appellants avoided the allegation that their complaints were not

substantially the same.

       {¶27} However, the trial court, citing to Antoon, determined that the

appellants’ voluntary dismissal of their Butler County complaints pursuant to Civ.R.

41 meant the action was a nullity and was not to be considered for purposes of the

four-year computation under the statute of repose. Antoon indeed states, in applying

the statute of repose, that an action that has been dismissed without prejudice is

deemed to never have existed. Antoon at ¶ 24, citing De Ville Photography, Inc. v.

Bowers, 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959). This statement was in

reference to the plaintiffs’ argument that filing and then dismissing a claim will

indefinitely suspend the statute of repose by “commencing” the suit on the date of

the first filing—it was not in reference to the saving statute. After all, the saving

statute could effectively never apply if an action that has been dismissed without

prejudice is deemed to never have existed: the filing date for the new action could not

relate back to the filing date for the preceding action if the preceding action was

considered a nullity.

       {¶28} Only one appellate court has addressed the application of the saving

statute to medical claims in light of the statute of repose. Wade v. Reynolds, 34 Ohio

App.3d 61, 517 N.E.2d 227 (10th Dist.1986), involved an earlier version of the statute

of repose, which applied to medical claims “regardless of legal disability and

notwithstanding section 2305.16 of the Revised Code.” In Wade, the plaintiff timely

filed her complaint for medical malpractice on October 31, 1980. The complaint was

dismissed for reasons other than failure upon the merits on March 21, 1984, and was

then refiled on March 21, 1985. The Tenth District determined that because the



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                     OHIO FIRST DISTRICT COURT OF APPEALS


statute of repose contained enumerated exceptions which did not include the saving

statute, the saving statute must apply to save the plaintiff’s claim. Id. at 62.

       {¶29} Atwood pointed out, however, that “[t]he express exceptions, or lack

thereof, say little about legislative intent.” Atwood, S.D.Ohio No. 1:16CV593, 2018

WL 3956766, at *7. Quoting a decision critical of Wade from the United States Court

of Appeals for the Seventh Circuit, the court noted that the exceptions rationale

“‘could have just as easily cut the other way’ ” because the “ ‘legislature apparently

knew how to write exceptions into [the statute of repose], but failed to except the

saving statute.’ ” Id., quoting Hinkle by Hinkle v. Henderson, 85 F.3d 298, 304 (7th

Cir.1996). Dr. Durrani and CAST made the argument in Atwood, as they do here,

that the statute of repose for product-liability claims, R.C. 2305.10(C)(1), contains a

specific exception for the saving statute. The Atwood court responded that in 2009

the General Assembly added exceptions to the saving statute, explicitly stating that

the saving statute does not apply to certain probate proceedings. Atwood at *7. In

other words, just as the legislature could have included the saving statute as an

exception in the statute of repose, the legislature could have included the statute of

repose as an exception in the saving statute—but unfortunately, it did neither. Thus,

we likewise find arguments regarding legislative intent unpersuasive.

       {¶30} While legislative intent is indeterminate, the policy considerations are

not. As Judge Barrett noted in Atwood, the Ohio Supreme Court has explained that

“the General Assembly made a policy decision to grant Ohio medical providers the

right to be free from litigation based on alleged acts of medical negligence occurring

outside a specified time period.” Ruther, 134 Ohio St.3d 408, 2012-Ohio-5686, 983

N.E.2d 291, at ¶ 21.     The medical malpractice statute of repose gives “medical

providers certainty with respect to the time within which a claim can be brought and

a time after which they may be free from the fear of litigation.” Id. at ¶ 19.

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                     OHIO FIRST DISTRICT COURT OF APPEALS


       Forcing medical providers to defend against medical claims that

       occurred 10, 20, or 50 years before presents a host of litigation

       concerns, including the risk that evidence is unavailable through the

       death or unknown whereabouts of witnesses, the possibility that

       pertinent documents were not retained, the likelihood that evidence

       would be untrustworthy due to faded memories, the potential that

       technology may have changed to create a different and more stringent

       standard of care not applicable to the earlier time, the risk that the

       medical providers’ financial circumstances may have changed—i.e.,

       that practitioners have retired and no longer carry liability insurance,

       the possibility that a practitioner’s insurer has become insolvent, and

       the risk that the institutional medical provider may have closed.

Id. at ¶ 19-20. Thus, the two goals of the statute of repose are “to eliminate indefinite

potential liability and to give defendants greater certainty and predictability.” Hinkle

by Hinkle, 85 F.3d at 303.

       {¶31} These policy considerations are not at odds with those of the saving

statute. As discussed above, the saving statute is given a liberal construction to

permit the decision of cases upon their merits rather than technicalities. Since the

saving statute is only available to plaintiffs who timely commenced their claims, the

statute is compatible with the first goal of the statute of repose—at most, extending

the statute of repose by one year. With regard to the second goal, certainty and

predictability are only affected where the defendant is unaware that the first action

was filed. Id.

       Where the defendant knows that plaintiff has brought an action,

       usually from receiving service, he must be presumed to understand

       that a procedural defect in the action may cause a delay of up to one

                                           15
                       OHIO FIRST DISTRICT COURT OF APPEALS


        year pursuant to the savings statute.          In such a case, his level of

        certainty and predictability is no less than in any other litigated

        matter, and the purpose of the statute of repose is still realized.

(Internal citations omitted.) Id. Accordingly, we conclude that the saving statute,

properly invoked, allows actions to survive beyond expiration of the medical

malpractice statute of repose.1

        {¶32} The appeals before us are perhaps a better illustration of the policy

considerations for the application of the saving statute than the statute of repose.

These appeals involve the same plaintiffs suing the same defendants for almost

identical causes of action in complaints that were voluntarily dismissed in one

jurisdiction and filed in another jurisdiction in five days’ time, in Wilson’s case, and

15 days’ time, in the Sands’ case. While restricting indefinite liability is a reasonable

policy consideration, it was barely a consideration of the defendants here, who knew

they were being sued in a timely-filed action in Butler County. And, as far as

certainty and predictability go, the same is true. The defendants knew the plaintiffs

brought actions against them, as they were evidently served the complaints and had

engaged in discovery in the actions maintained in Butler County. Consequently, as

the resolution of cases upon technicalities of procedure is disfavored, see Cero Realty

Corp., 171 Ohio St. 82, 167 N.E.2d 774, we hold that the saving statute applies to save

the appellants’ claims and sustain the appellants’ first assignment of error.

        {¶33} Finally, in their second assignment of error, the appellants assert that

the trial court erred in denying their motions for leave to file amended complaints.



1 We note that this case is different from the recently-decided case of Freeman v. Durrani, 1st
Dist. Hamilton No. C-180197, 2019-Ohio-3643, wherein this court was asked to create a fraud
exception and equitable-estoppel exception to Ohio’s medical malpractice statute of repose but
refused. In this case, unlike Freeman, we are tasked with harmonizing coexisting statutes that do
not definitively speak to the question at hand. The only harmonious construction that does not
frustrate the purpose of either statute is to create a saving-statute exception to the medical
malpractice statute of repose.

                                               16
                     OHIO FIRST DISTRICT COURT OF APPEALS


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.

                                      Conclusion

       {¶34} We sustain the appellants’ first and second assignments of error,

reverse the trial court’s judgments, and remand the cause for further proceedings

consistent with the law and this opinion.


                                             Judgments reversed and cause remanded.



BERGERON 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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