         [Cite as Freeman v. Durrani, 2019-Ohio-3643.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



JULIE FREEMAN,                                   :       APPEAL NO. C-180197
                                                         TRIAL NO. A-1504131
        Plaintiff-Appellant,                     :
                                                            O P I N I O N.
  vs.                                            :

ABUBAKAR ATIQ DURRANI, M.D.,                     :

THE CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
                               :
CINCINNATI          CHILDREN’S
HOSPITAL MEDICAL CENTER, INC., :

 and                                             :

THE CHRIST HOSPITAL, INC.,                       :

    Defendants-Appellees.                        :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 11, 2019


The Deters Law Firm, Fred Freeman and Robert A. Winter Jr., for Plaintiff-
Appellant,

Bonezzi Switzer Polito & Hupp Co., LPA, Paul W. McCartney, Thomas F. Glassman,
Lindhorst & Dreidame Co., LPA, Michael F. Lyon, James F. Brockman and James L.
O’Connell, for Defendants-Appellees Abubakar Atiq Durrani, M.D., and the Center
for Advanced Spine Technologies, Inc.,

Dinsmore & Shohl LLP, J. David Brittingham and Thomas P. Kemp, Jr., for
Defendant-Appellee Cincinnati Children’s Hospital Medical Center, Inc.,
                  OHIO FIRST DISTRICT COURT OF APPEALS


Dinsmore & Shohl LLP, Jennifer Orr Mitchell, Matthew S. Arend and R. Samuel
Gilley for Defendant-Appellee The Christ Hospital, Inc.




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C ROUSE , Judge.

        {¶1}    Plaintiff-appellant Julie Freeman appeals the trial court’s denial of her

motion for leave to amend her complaint, and the trial court’s grant of the Cincinnati

Children’s Hospital Medical Center, Inc.’s, (“Cincinnati Children’s”) motion to dismiss

the complaint and the Center for Advanced Spine Technologies, Inc., (“CAST”) and

Abubakar Atiq Durrani, M.D.’s, (“Durrani”) motion for judgment on the pleadings.

For the reasons that follow, we affirm the judgment of the trial court.

                                I. Facts and Procedure

        {¶2}    Freeman first sought treatment from Durrani in 2008. Durrani allegedly

recommended C6-C7 anterior cervical discectomy and fusion surgery. On June 4, 2008,

Freeman underwent the surgery at The Christ Hospital, Inc. Immediately thereafter,

Freeman’s pain increased in intensity. Freeman contends that her intensified pain

resulted from Durrani’s medically unnecessary and improperly performed surgery.

        {¶3}    On August 4, 2015, Freeman filed a complaint against Durrani, CAST,

and Cincinnati Children’s.1 Freeman asserted claims of negligence, battery, lack of

informed consent, intentional infliction of emotional distress, fraud, spoliation of

evidence, and products liability, and violations of the Ohio Consumer Sales Protection

Act.

        {¶4}    On September 8, 2015, Cincinnati Children’s filed a motion to dismiss the

complaint. On July 25, 2017, Durrani and CAST filed a motion for judgment on the

pleadings. All parties asserted that Freeman’s claims were barred by the applicable

statute of repose.    On September 4, 2017, Freeman filed a motion to amend her

complaint to detail additional allegations on the issue of fraud. Freeman asserted no

new claims.

1 Freeman also filed claims against The Christ Hospital, Inc.; however, the parties resolved the
matter prior to the entry of this opinion.


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          {¶5}   On March 1, 2018, the trial court entered judgment, granting both the

motion to dismiss and the motion for judgment on the pleadings.                The court

simultaneously denied the motion for leave to amend. This timely appeal followed.

    II. Motion to Dismiss and Motion for Judgment on the Pleadings

          {¶6}   We review de novo the grant of a motion for judgment on the

pleadings and the grant of a motion to dismiss for failure to state a claim. Citicasters

Co. v. Bricker & Eckler, L.L.P., 149 Ohio App.3d 705, 2002-Ohio-5814, 778 N.E.2d

663, ¶ 5 (1st Dist.); Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-

4362, 814 N.E.2d 44, ¶ 5.

                          1. Exceptions to the Statute of Repose

          {¶7}   In her first assignment of error, Freeman asks us to recognize a fraud

exception and an equitable-estoppel exception to Ohio’s medical malpractice statute of

repose.

          {¶8}   Pursuant to R.C. 2305.113(C), an action upon a medical claim must be

commenced within four years after the occurrence of the act constituting the basis of the

claim. If an action is not commenced within the four-year limit, then any action upon

that claim is barred. R.C. 2305.113(C)(2). Here, the act constituting the basis of

Freeman’s claims occurred on June 4, 2008, when Durrani performed the C6-C7

anterior cervical discectomy and fusion surgery. Freeman filed the current action on

August 4, 2015, more than seven years after the surgery. Because Freeman commenced

the current action after the four-year statute of repose, the action is barred unless an

exception applies.

          {¶9}   The statute of repose provides for limited exceptions in cases of persons

within the age of minority, persons of unsound mind, malpractice discovered during

the fourth year after treatment, and malpractice involving foreign objects left in a



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patient’s body. R.C. 2305.113(C), (D)(1), and (D)(2). However, Freeman does not

argue that any of these statutory exceptions apply. Rather, Freeman argues for a

judicially-created fraud exception and/or equitable-estoppel exception. In doing so,

Freeman asks us to overrule Crissinger v. Christ Hospital, 2017-Ohio-9256, 106

N.E.3d 798 (1st Dist.).

       {¶10} In Crissinger, this court held that the statute of repose is constitutional

without a fraud exception. To support its holding, this court relied on the plain language

of R.C. 2305.113 and the intent of the General Assembly. As determined by the Ohio

Supreme Court in Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-

7432, 71 N.E.3d 974, ¶ 23, the plain language of R.C. 2305.113 is “clear, unambiguous,

and means what it says. If a lawsuit bringing a medical * * * claim is not commenced

within four years after the occurrence of the act or omission constituting the basis for the

claim, then any action on that claim is barred.” The statute does not, either expressly or

impliedly, provide for a fraud exception.

       {¶11} When viewed in light of the statutory scheme as a whole, it appears that

the failure to include a fraud exception was not inadvertent. As detailed above, the

General Assembly carved out specific exceptions within R.C. 2305.113, none of which

include fraudulent conduct or equitable estoppel. In addition, the General Assembly

provided fraud exceptions for other statutes of repose, but not for the medical

malpractice statute of repose.     See, e.g., R.C. 2305.131(C) (“[The premises-liability

statute of repose] is not available as an affirmative defense * * * if the defendant engages

in fraud * * * [.]”). This demonstrates that the General Assembly intentionally chose not

to create a fraud exception or an equitable-estoppel exception for medical claims.

       {¶12} “The General Assembly has the right to define the contours of a cause of

action.” Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 26.



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By enacting R.C. 2305.113(C), the General Assembly chose up to four years for an action

on a medical claim to arise. Although some claims would be foreclosed before a plaintiff

had the opportunity to pursue them, “the General Assembly has struck a rational

balance between the rights of prospective claimants to pursue their allegations and the

rights of prospective defendants to have protection from stale litigation.” Id. at ¶ 28. As

the judiciary, “[i]t is our duty to apply the statute as the General Assembly has drafted it;

it is not our duty to rewrite it.” Doe v. Marlington Local School Dist. Bd. of Edn., 122

Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29. Therefore, despite the harsh

results the statute of repose yields in this case, “[t]his court should not substitute its

judgment for that legislative choice.” Id.

       {¶13} The trial court did not err by declining to recognize a fraud exception or

equitable-estoppel exception to the statute of repose.

                             2. Definition of Medical Claims

       {¶14} Freeman contends that her claims of fraud are independent nonmedical

claims, and therefore, not barred by the statute of repose.

       {¶15} “In determining which limitation period will apply, courts must look to

the actual nature or subject matter of the case, rather than to the form in which the

action is pleaded.” Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d

1298 (1984). A “medical claim” is “any claim that is asserted in any civil action against a

physician [or] hospital * * * that arises out of the medical diagnosis, care, or treatment of

any person.” R.C. 2305.113(E)(3). “Medical claims” also include derivative claims for

relief that arise from the medical diagnosis, care, or treatment of a person.           R.C.

2305.113(E)(3).

       {¶16} In Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 56, 514 N.E.2d

709 (1987), the Ohio Supreme Court held that “[a] physician's knowing



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misrepresentation of a material fact concerning a patient's condition * * * may give rise

to a cause of action in fraud independent from an action in medical malpractice.” An

action in fraud is separate and distinct from an action in medical malpractice “where the

decision to misstate the facts cannot be characterized as medical in nature.” Id.

       {¶17} In her initial complaint, Freeman alleged that Durrani committed fraud

by recommending unnecessary surgery and failing to disclose the risks of surgery. In

Hensley v. Durrani, 1st Dist. Hamilton No. C-130005, 2013-Ohio-4711, this court held

that claims of fraud for recommending unnecessary surgery and failing to disclose the

risks of surgery are medical in nature. In Hensley, this court held that both allegations

“go squarely to [the] diagnosis, care and treatment”—allegations concerning the medical

necessity of surgery are “simply an attack on Durrani’s ‘medical diagnosis’ ” and

questions about undisclosed risks associated with the surgery are claims of lack of

informed consent. Id. at ¶ 19.

       {¶18} Freeman argues that we are not bound by Hensley because Durrani,

CAST, and Cincinnati Children’s decision to misstate the facts was not “medical in

nature.” However, Freeman’s fraud allegations echo the statutory definition of “medical

claim” under R.C. 2305.113(E)(3). In her initial complaint, Freeman claimed “Durrani

made material, false representations to [Freeman] and her insurance company related

to [Freeman’s] treatment.” (Emphasis added.) Freeman’s fraud allegations are also

virtually identical to her negligence allegations. Specifically, Freeman contends that

Durrani, CAST, and Cincinnati Children’s misrepresented the nature of the spinal

surgery and the particular risks that were involved therein to induce her to undergo

surgery and induce payment by her insurance company. By alleging an independent

fraud claim, Freeman is simply attempting to recast her medical-malpractice claims.

Therefore, these claims of fraud are “medical claims” within the statute of repose.



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       {¶19} In her proposed amended complaint, Freeman also alleged that Durrani

committed fraud by misinforming her about the outcome of the surgery and concealing

information to avoid civil liability. Freeman argues that Gaines, 33 Ohio St.3d 54, 514

N.E.2d 709, is controlling as to these claims. In Gaines, the plaintiff-patient consulted

the defendant-medical facility to have her pregnancy terminated and her intrauterine

device (“IUD”) removed.       Gaines at 54.      Although the abortion was successfully

completed, the IUD was not recovered. Id. Notwithstanding the physician’s inability to

locate and remove the IUD, the physician told the plaintiff-patient that the IUD had

been removed. Id. Finding a separate and distinct cause of action, the court determined

that the physician’s decision to misstate the facts was not “motivated by any medical

consideration” or medical concerns. (Emphasis added.) Id. at 56.

       {¶20} Unlike the physician in Gaines, we cannot say that Durrani’s decision to

misstate the facts was not “motivated by any medical consideration” or medical

concerns. In this case, Durrani made representations related to Freeman’s continued

follow-up treatment.     Specifically, Freeman contended that Durrani, CAST, and

Cincinnati Children’s misrepresented the results of post-operation radiology which

reflected the failure of the surgery, and informed her that it took time to heal no matter

the condition or the reason for the condition. Based on these representations, Freeman

continued to follow-up with Durrani. Therefore, these allegations are medical in nature

and we are not bound by Gaines.

       {¶21} Notably, the court in Gaines failed to distinguish independent fraud

claims from “medical claims” as that term is defined in the statute of repose. When

Gaines was decided, R.C. 2305.11(D)(3) simply defined a “medical claim” as “any claim

asserted in any civil action against a physician, podiatrist, or hospital arising out of the

diagnosis, care, or treatment of any person.” However, in the 32 years following the



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Gaines decision, the General Assembly has vastly broadened the definition of “medical

claim.”

          {¶22} In 1987, the same year that Gaines was decided, the General Assembly

amended R.C. 2305.11 to redefine the term “medical claim” as:

          [A]ny claim that is asserted in any civil action against a physician,

          podiatrist, or hospital, against any employee or agent of a physician,

          podiatrist, or hospital, or against a registered nurse or physical therapist,

          and that arises out of the medical diagnosis, care, or treatment of any

          person.

Significantly, the 1987 amendment also defined “medical claim” to include “derivative

claims for relief that arise from the medical diagnosis, care, or treatment of a person.”

Prior to this amendment, derivative claims were not governed by the four-year statute of

repose.

          {¶23} In 2018, the General Assembly passed the most recent legislation on the

definition of “medical claim.” Under current legislation, R.C. 2305.113(E)(3) defines the

term “medical claim” to specifically include, among other examples:

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

          or treatment of a person;

                                              ***

          (c) Claims that arise out of the medical diagnosis, care, or treatment of

          any person or claims that arise out of the plan of care prepared for a

          resident of a home and to which both types of claims either of the

          following applies:

                 (i) The claim results from acts or omissions in providing medical

                 care.



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                 (ii) The claim results from the hiring, training, supervision,

                 retention, or termination of caregivers providing medical

                 diagnosis, care, or treatment.

Freeman’s claims of post-surgery fraud fall under R.C. 2305.113(E)(3)(c)(i)–the claims

arise out of medical treatment and result from acts or omissions in providing medical

care. Accordingly, Freeman’s claims of fraud are “medical claims” within the statute of

repose.

          {¶24} Ultimately, Freeman’s claims of fraud sound not in a separate and

distinct action of fraud, but rather in equitable estoppel. “Clever pleading cannot

transform what are in essence medical claims into claims for fraud.” Hensley, 1st Dist.

Hamilton No. C-130005, 2013-Ohio-4711, at ¶ 19. By enacting the medical statute of

repose, the General Assembly chose up to four years for an action on a medical claim to

arise. As we have noted, the General Assembly intentionally decided not to create a

fraud exception or an equitable-estoppel exception for medical claims.         Given the

implications of Durrani’s actions, perhaps the General Assembly should consider a fraud

or equitable-estoppel exception to the statute of repose. However, we cannot substitute

our judgment for the legislature’s choice.         Freeman’s first assignment of error is

overruled.

                  III. Motion for Leave to Amend the Complaint

          {¶25} In her second assignment of error, Freeman contends that the trial court

erred by denying her motion for leave to file an amended complaint.

          {¶26} The denial of leave to amend a pleading is reviewed under an abuse-of-

discretion standard. Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 576, 589 N.E.2d

1306 (1992).




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        {¶27} “[A] trial court properly refuses to grant leave to amend when

amendment would be futile.” Hensley at ¶ 14, citing Natl. City Bank v. Citizens Natl.

Bank of Southwest Ohio, 2d Dist. Montgomery No. 20323, 2004-Ohio-6060, ¶ 26.

Here, Freeman filed a motion to amend her complaint to set forth additional allegations

pertaining to the claims of fraud. In its decision denying the motion to amend, the trial

court held that “allowing [Freeman] to amend her complaint to add such allegations

would be futile.”2 Because the claims of fraud were medical claims, they were subject to

the same four-year statute of repose. Therefore, amendment to elaborate the claims

would have been futile, and denial of leave to amend was properly entered. Freeman’s

second assignment of error is overruled.

                                     IV. Conclusion

        {¶28} For the foregoing reasons, we overrule Freeman’s assignments of error

and affirm the judgment of the trial court.

                                                                          Judgment affirmed.


M OCK , P.J., and B ERGERON , J., concur.


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




2Freeman also contends that the trial court denied her the ability to file a nonmedical claim
under Ohio’s RICO statute, R.C. 2923.32. Although Freeman accurately relates the trial court’s
decision, the amended complaint proposed to the trial court did not include a claim under Ohio’s
RICO statute. Therefore, the issue is not properly before this court.


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