[Cite as McNeal v. Durrani,

.]

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

KAMERON MCNEAL, APPEAL NOS. C-180554 : C-180634 and TRIAL NO. A-1503653 : LAUREN MCNEAL, : Plaintiffs-Appellants, : vs. : ABUBAKAR ATIQ DURRANI, M.D., : CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., :

CINCINNATI CHILDREN’S : HOSPITAL MEDICAL CENTER, : and : TRIHEALTH, INC., f.d.b.a. “GOOD SAMARITAN HOSPITAL,” :

Defendants-Appellees. :

BRADLEY ARNOLD, : APPEAL NO. C-180566 TRIAL NO. A-1504450 Plaintiff-Appellant, :

vs. :

ABUBAKAR ATIQ DURRANI, M.D., :

CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC., : and : CINCINNATI CHILDREN’S HOSPITAL MEDICAL CENTER, : OHIO FIRST DISTRICT COURT OF APPEALS

Defendants-Appellees. :

R. DAVID SCOTT, APPEAL NO. C-180641 : TRIAL NO. A-1506865 and : MISSY SCOTT, O P I N I O N. : Plaintiffs-Appellants, : vs. : ABUBAKAR ATIQ DURRANI, M.D., : CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., :

WEST CHESTER HOSPITAL, LLC, :

and :

UC HEALTH, LLC, :

Defendants-Appellees. :

Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed in C-180554, C-180634 and C-180566; Reversed and Cause Remanded in C-180641

Date of Judgment Entry on Appeal: December 27, 2019

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

Strauss Troy Co. LPA and Robert R. Sparks and Nicholas M. Nighswander, PLLC, and Nicholas M. Nighswander, for Plaintiffs-Appellants R. David Scott and Missy Scott,

2 OHIO FIRST DISTRICT COURT OF APPEALS

Bonezzi, Switzer, Polito & Hupp Co., Paul W. McCartney and Thomas F. Glassman and 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.,

Rendigs, Fry, Kiely & Dennis, LLP, Michael P. Foley, Thomas M. Evans and Jessica L. Worth, for Defendant-Appellee TriHealth, Inc., f.d.b.a Good Samaritan Hospital,

Rendigs, Fry, Kiely & Dennis, LLP, Jeffrey M. Hines, Karen A. Carrol and Ryan J. Dwyer, for Defendants-Appellees West Chester Hospital, LLC, and UC Health, LLC,

Dinsmore & Shohl LLP, J. David Brittingham, Thomas P. Kemp, Jr., and Allison G. Knerr, for Defendant-Appellee Cincinnati Children’s Hospital Medical Center.

3 OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} In this collection of appeals, consolidated for opinion purposes, we

apply our recent decisions in Freeman v. Durrani, 1st Dist. Hamilton No. C-180197,

, and Wilson v. Durrani, 1st Dist. Hamilton Nos. C-180196 and C-

180194,

, to resolve similar issues stemming from alleged pervasive

malpractice committed by Dr. Abubakar Atiq Durrani. Both sides, to varying

degrees, urge us to retreat from these decisions on which the ink is still drying. We

resist those invitations, and find the outcome in these appeals largely dictated by our

recent precedent. For the reasons explained below, we affirm dismissals in the

Arnold and McNeal appeals because the initial suits were commenced outside of the

window for the four-year statute of repose, but reverse dismissal in the Scott appeal

because the initial complaint was filed within the statute of repose and Ohio’s

“savings statute” saved the subsequent complaint.

I.

{¶2} Plaintiff-appellant, Bradley Arnold, suffered serious injuries in 2005

upon dislocating his hip in an accident. This injury brought Mr. Arnold within the

orbit of Dr. Durrani, who would ultimately perform surgery on his spine in March

2008 at Cincinnati Children’s Hospital Medical Center (“CCMHC”). Though a minor

when the accident occurred, Mr. Arnold reached adulthood by the time of the

surgery.

{¶3} Unfortunately, the surgery failed to alleviate Mr. Arnold’s medical

issues or the severe pain he continued to experience. Based on the surgery’s failure

to achieve the anticipated results, and bolstered by another doctor’s assessment that

one of the screws from the surgery appeared to be touching a nerve, Mr. Arnold

eventually brought suit against Dr. Durrani, The Center for Advanced Spine

4 OHIO FIRST DISTRICT COURT OF APPEALS

Technologies, Inc., (“CAST”) and CCMHC in the Hamilton County Court of Common

Pleas in 2013, alleging various claims related to medical malpractice, negligence, and

fraud. Mr. Arnold voluntarily dismissed the complaint pursuant to Civ.R. 41(A) in

September 2014, refiling it in August 2015 (in reliance on the savings statute).

{¶4} Similarly, plaintiff-appellant Kameron McNeal injured his back in

2004 during a wrestling match and, through a doctor’s referral, sought the assistance

of Dr. Durrani. Mr. McNeal first underwent surgery with Dr. Durrani in 2005 at

CCMHC. Though a minor at the time of the 2005 surgery, Mr. McNeal reached the

age of majority in 2008.

{¶5} After the 2005 surgery, however, Mr. McNeal continued to experience

pain and eventually underwent a second surgery with Dr. Durrani in April 2009.

Instead of fixing the issues, however, the second surgery produced new pain and

numbness in Mr. McNeal’s hips, legs, and knees. Due to the unsuccessful nature of

the surgeries, Mr. McNeal, along with his wife Lauren, ultimately filed suit against

Dr. Durrani, CAST, CCMHC and TriHealth, Inc., (formerly Good Samaritan

Hospital) in the Hamilton County Court of Common Pleas in May 2014, but then

voluntarily dismissed the suit under Civ.R. 41(A) a few months later in August 2014.

Mr. McNeal eventually refiled the complaint in July 2015.

{¶6} The last plaintiff-appellant at issue here, Ralph David Scott,

underwent six separate surgeries with Dr. Durrani spanning from 2006 through

2011. The two earliest surgeries occurred in 2006 and 2008 at a hospital not a party

to this appeal. The four later surgeries, occurring in 2010 and 2011, were all

performed at West Chester Hospital. In 2013, Mr. Scott, and his wife Missy Scott,

filed the first complaint based on these surgeries in the Common Pleas Court of

Butler County and named Dr. Durrani, CAST, West Chester Hospital, LLC, (“WCH”)

5 OHIO FIRST DISTRICT COURT OF APPEALS

and UC Health, Inc., (which manages WCH) as defendants. Mr. Scott voluntarily

dismissed the case in December 2014 and eventually refiled in Hamilton County the

following December 2015.

{¶7} Dr. Durrani, CAST, and the various other defendant hospitals in each

case ultimately all moved to dismiss the complaints against them in Hamilton

County. In Mr. Arnold’s and Mr. McNeal’s cases, the defendants moved pursuant to

Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted, and in

Mr. Scott’s case, they moved for judgment on the pleadings under Civ.R. 12(C).

While slightly different procedurally, the substance of the arguments was largely

indistinguishable—the defendants in each case asserted that the claims were time-

barred by virtue of Ohio’s medical malpractice statute of repose. The trial court

ultimately agreed with the defendants, dismissing each case on that ground.

{¶8} Messrs. Arnold, McNeal, and Scott (and their respective spouses) all

now appeal the respective dismissals of their cases. Mr. Arnold and Mr. McNeal

assert two assignments of error, challenging both the dismissal of their cases and the

denial of their motions for leave to amend their complaints. Mr. Scott presents three

assignments of error, challenging the dismissal of his case as erroneous, the trial

court’s grant of leave to WCH to amend its answer to add a statute of repose defense,

and finally, asserting that the trial court abused its discretion by applying the statute

of repose, as Dr. Durrani was no longer a licensed physician.

II.

{¶9} As Mr. Arnold’s and Mr. McNeal’s appeals implicate the same issues

against similar procedural backdrops, we will address them together. The trial court

dismissed both of their cases on Civ.R. 12(B)(6) grounds for failure to state a claim

upon which relief could be granted. We review a grant of a motion to dismiss

6 OHIO FIRST DISTRICT COURT OF APPEALS

pursuant to Civ.R. 12(B)(6) de novo. Logossou v. AdvancePierre Foods, Inc., 1st

Dist. Hamilton No. C-170672,

. In undertaking this review, we

must accept as true all the factual allegations in the complaints, construing them in

favor of the nonmoving party, and determine whether, beyond doubt, the plaintiffs

can prove no set of facts that would support their claims to the relief sought.

A.

{¶10} We begin with their first assignments of error, which challenge the

trial court’s determination that R.C. 2305.113(C), Ohio’s statute of repose for medical

malpractice claims, bars their claims. R.C. 2305.113(C) precludes medical claims

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

constituting the alleged basis of the medical * * * claim,” providing that any such

action “not commenced within four years after the occurrence of the act or omission

constituting the alleged basis of the medical claim * * * is barred.” Messrs. Arnold

and McNeal believe they have found the path around the statute of repose, claiming

that Ohio’s savings statute, R.C. 2305.19(A), salvages their claims. R.C. 2305.19(A)

allows a party to refile a suit in which the case “fails otherwise than upon the merits *

* * within one year after the date of * * * the plaintiff’s failure otherwise than upon

the merits[.]” This provision thus implements a one-year clock between dismissal

and refiling to “save” an otherwise untimely claim.

{¶11} We recently explored this issue in depth in Wilson, 1st Dist. Hamilton

Nos. C-180196 and C-180194,

. 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. See

at ¶ 31-

32. Thus, the savings statute saved the plaintiffs’ refiled suits in Wilson not only

7 OHIO FIRST DISTRICT COURT OF APPEALS

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. Id. at ¶ 21, 31. We

accordingly concluded “that the saving statute, properly invoked, allows actions to

survive beyond the expiration of the medical malpractice statute of repose.” Id. at ¶

31. In other words, the refiled suits, although falling outside of the repose period,

related back to the timely-filed initial complaints. See id.; see also Frysinger v.

Leech,

,

(1987) (“Where R.C. 2305.19 applies,

the date for filing the new action relates back to the filing date for the preceding

action for limitations purposes.”).

{¶12} But Wilson does not come to these plaintiffs’ aid and resurrect their

claims because both of their initial complaints were filed after the four-year repose

period in R.C. 2305.113(C) ran. The surgery underlying Mr. Arnold’s claims occurred

in 2008, yet he did not commence suit until 2013, more than four years beyond the

date of the surgery. Similarly, the operative dates for Mr. McNeal are 2008 (date of

obtaining majority1) and 2009 (date of surgery), but he did not file his first suit until

2014.

{¶13} Perhaps anticipating this problem, both plaintiffs try to expand the

statute of repose by relying on Bugh v. Ohio Dept. of Rehab., and Corr., 2019-Ohio-

112,

(10th Dist.), to support their proposition that “the trial court

erred by using the surgery date lockstep” in determining that the statute of repose

barred their claims. Instead, they propose that the statute of repose runs from the

date of the “last” act or omission, which they contend was the date that Mr. Arnold

and Mr. McNeal were last seen by Dr. Durrani, thus rendering their initial suits

1 R.C. 2305.16 provides that if a person entitled to bring an action under R.C. 2305.113 “is, at the

time the cause of action accrues, within the age of minority * * * the person may bring it within the respective times limited by [R.C. 2305.113], after the disability is removed.”; See Crissinger v. Christ Hosp.,

,

(1st Dist.) (noting that the four-year repose period did not begin to run until the plaintiff’s 18th birthday because R.C. 2305.16 applied).

8 OHIO FIRST DISTRICT COURT OF APPEALS

timely. In this respect, they also feature a quote from Wilson where we included

language about how the “last culpable act” can trigger the statute.

.

{¶14} 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, 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 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. Id. at ¶ 32.

{¶15} 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.

{¶16} Further attempting to avoid application of the statute of repose, both

plaintiffs assert that Dr. Durrani’s absconding to Pakistan should toll the repose

9 OHIO FIRST DISTRICT COURT OF APPEALS

period under R.C. 2305.15(A). The force of this contention, however, is blunted by

that fact that this event occurred only after the statute of repose expired. These

plaintiffs posit that Dr. Durrani fled to Pakistan in December 2013, yet the repose

period on Mr. Arnold’s claims ran in 2012, and the latest that Mr. McNeal could have

brought a claim was April 2013. Therefore, even if we agreed with them both on the

premise of their legal argument (on which we take no position today), it would not

rescue their complaints.

{¶17} As their next entreaty to avoid the statute of repose, Mr. Arnold and

Mr. McNeal insist that their fraud and negligent credentialing claims are in fact

nonmedical claims (and thus beyond the scope of the statute of repose), but these

arguments cannot be squared with our recent precedent. In Freeman, 1st Dist.

Hamilton No. C-180197,

, we explained that fraud claims relating to

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

2305.113. Id. at ¶ 24. 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.

{¶18} 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).” See

. Here, both plaintiffs’ complaints framed the alleged fraud claims in terms of

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

10 OHIO FIRST DISTRICT COURT OF APPEALS

related to Plaintiff’s treatment including: stating the surgeries were necessary, that

[he] ‘could fix’ Plaintiff[.]” (Emphasis added.) 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.”

, quoting Hensley v. Durrani, 1st Dist. Hamilton No. C-130005,

. Thus, the fraud claims raised here constitute “medical claims”

for purposes of the statute of repose.

{¶19} Similarly, we have previously held that negligent credentialing claims

constitute “medical claims” under the statute of repose. See Crissinger v. Christ

Hosp.,

,

(1st Dist.) (“Our previous holding in

Young established that the claims for negligence, negligent credentialing, and fraud

were ‘medical claims’ within the statute of repose[.]”); Young v. Durrani, 2016-

Ohio-5526,

, ¶ 21 (1st Dist.) (“Similarly the Youngs’ claim for negligent

credentialing and retention is a medical claim because it results from the ‘hiring,

training, supervision, retention, or termination of caregivers providing medical

diagnosis, care, or treatment.’ ”), citing R.C. 2305.113(E)(3)(b)(ii)). We see no reason

to depart from this line of cases and accordingly find these plaintiffs’ negligent

credentialing claims likewise present “medical claims” barred here by the statute of

repose.

B.

{¶20} Turning to Mr. Arnold’s and Mr. McNeal’s second assignments of

error, they both challenge the trial court’s denial (on futility grounds) of their

motions for leave to amend their complaints. We generally review the denial of a

motion to amend a complaint for an abuse of discretion. Danopulos v. Am. Trading

II, L.L.C.,

,

, ¶ 23 (1st Dist.). Because we already

11 OHIO FIRST DISTRICT COURT OF APPEALS

determined that the statute of repose bars their claims, this resolves most of the

issues raised in their second assignments of error that rest on the premise of a

contrary ruling. We therefore overrule these aspects of their second assignments of

error and focus our analysis on their state RICO claims under R.C. 2923.32 (which

implicates a question we left open in Freeman. See Freeman, 1st Dist. Hamilton No.

C-180197,

).

{¶21} R.C. 2923.32(A)(1) prohibits persons from directly or indirectly,

conducting or participating in the affairs of an enterprise through a pattern of

corrupt activity. Pleading a civil claim for a state RICO action requires the plaintiff

show:

(1) that conduct of the defendant involves the commission of two or

more specifically prohibited state or federal criminal offenses; (2) that

the prohibited criminal conduct of the defendant constitutes a pattern;

and (3) that the defendant has participated in the affairs of an

enterprise or has acquired and maintained an interest in or control of

an enterprise.

Wilk v. Discover Bank, 11th Dist. Lake No. 2019-L-006,

,

quoting Morrow v. Reminger & Reminger Co., L.P.A.,

, 2009-

Ohio-2665,

(10th Dist.). After a review of the proposed

amended complaint, however, the allegations primarily consist of conclusory

statements that the defendant hospitals engaged in a pattern of corrupt activity by

allowing Dr. Durrani to continue the surgeries, which is insufficient for purposes of

R.C. 2923.32. See

(“The complaint alleges neither a pattern of corrupt

activity nor the commission of two or more prohibited state or federal criminal

offenses, and none is discernible.”);

(finding no pattern of corrupt

12 OHIO FIRST DISTRICT COURT OF APPEALS

activity where the allegations “demonstrate[d], at best, a single scheme of narrow

scope” and “a single type of predicate act, i.e., perjury.”).

{¶22} The allegations underlying the claims under R.C. 2923.32 merely

present “medical claims” in different attire. The proposed amended complaints

indicate that the defendant hospitals allowed “Dr. Durrani to perform the

unnecessary surgery on the Plaintiffs” and that the hospitals “profited from Dr.

Durrani’s unnecessary surgeries.” Despite cloaking these claims under R.C. 2923.32,

the language of the complaint indicates that the genesis of the RICO claims remains

the surgeries, placing them firmly within the ambit of “medical claims” for purposes

of the statute of repose. See Hensley, 1st Dist. Hamilton No. C-130005, 2013-Ohio-

4711, at ¶ 19 (noting that “clever pleadings” do not transform medical claims into

nonmedical claims); Freeman, 1st Dist. Hamilton No. C-180197,

(patient’s fraud claims still medical claims); Aaron v. Durrani, S.D. Ohio Nos.

1:13-cv-202 and 1:13-cv-214,

, *5 (Mar. 13, 2014) (“Plaintiffs are

simply attempting to recast their medical malpractice claims as RICO claims.”).

{¶23} We therefore conclude that amendment under these circumstances

would have been futile, and the trial court did not err in denying the motions to

amend the complaints. See

(amendment futile where underlying

claims were “medical claims” subject to four-year statute of repose).

III.

{¶24} As to Mr. Scott’s case, the trial court ultimately granted judgment on

the pleadings under Civ.R. 12(C) in favor of Dr. Durrani, CAST, WCH and UC Health,

which he now challenges. Initially, a trial court may grant judgment on the pleadings

pursuant to Civ.R. 12(C) “where no material issue of fact exists and the moving party

is entitled to judgment as a matter of law.” Amadasu v. O’Neal,

OHIO FIRST DISTRICT COURT OF APPEALS

217,

,

(1st Dist.). We review the trial court’s

grant of judgment on the pleadings de novo.

Like Messrs. Arnold and McNeal,

Mr. Scott’s first assignment of error also asserts that R.C. 2305.19(A) applies to save

his refiled complaint after the four-year repose period ran. Unlike in our analysis

above, however, R.C. 2305.19(A) is available and saves Mr. Scott’s timely-

commenced claims. The difference in outcomes hinges on the filing date for the first

complaints in each of the cases.

{¶25} Mr. Scott underwent surgeries in 2006, 2008, 2010, and 2011, and

filed his first complaint in Butler County in 2013. He subsequently voluntarily

dismissed that suit and refiled within a year in Hamilton County, but outside of the

medical malpractice repose period in R.C. 2305.113(C). Applying Wilson, despite the

fact that the second refiled complaint fell outside the statute of repose period, R.C.

2305.19(A) operates to save the claims still within the four-year repose period at the

time of the initial filing in 2013, namely the four surgeries that occurred in 2010 and

2011.2 See Wilson, 1st Dist. Hamilton Nos. C-180196 and C-180194, 2019-Ohio-

3880, at ¶ 31.

{¶26} Thus, so long as the two suits were “substantially similar” the savings

statute may be properly invoked. Children’s Hosp. v. Ohio Dept. of Pub. Welfare,

,

(1982) (“The savings statute applies when the

original suit and the new action are substantially the same.”). And here the parties in

the original and refiled action are identical, the complaints assert similar causes of

action based on the same surgeries, and both suits seek monetary damages.

Compare

(appeals substantially similar when involving the “same

2 From our review of the complaint, those surgeries represent the focal point of the medical malpractice (and related) claims. The complaint does not present substantive claims based on the 2006 and 2008 surgeries, and thus we need not evaluate whether Mr. Scott might have a viable theory for how claims based on those older surgeries would be timely.

14 OHIO FIRST DISTRICT COURT OF APPEALS

defendants for almost identical causes of action[.]”) with Children’s Hosp. at 525

(claims not substantially similar when the parties in the new action were different

parties than the ones in the original suit and the relief sought was different); Antoon

v. Cleveland Clinic Found.,

,

,

(claims were not “substantially the same” when the second complaint included over a

dozen additional parties and was pleaded solely as a qui tam action and did not

expressly assert malpractice claims). Furthermore, none of the remaining

defendants contest the similarity of the complaints on appeal. We thus have no

hesitation in finding that the original and refiled actions are substantially similar for

purposes of invoking the savings statute.

{¶27} The defendants here appreciate that Wilson is fatal to their statute of

repose argument, and request that we overrule it. But we see no basis that would

justify overruling an opinion that we handed down just months ago. A simple plea of

“you got it wrong” falls well short of the demands for jettisoning recent precedent.

See Bouher v. Aramark Servs., Inc.,

,

,

(1st Dist.) (elaborating on the specific circumstances which justify

overruling prior precedent). Indeed, in several of these Durrani-related cases, when

the plaintiffs have complained about one of our rulings and requested a revisiting of

it, the defendants have assured us of the impropriety of reconsidering rulings of such

recent vintage. We accordingly sustain Mr. Scott’s first assignment of error based on

Wilson.

{¶28} Mr. Scott’s second and third assignments of error challenge the trial

court’s decision to allow WCH to amend its answer to include the statute of repose

defense and the trial court’s application of R.C. 2305.113 despite Dr. Durrani’s loss of

his medical license. Because we find his first assignment of error to be meritorious

15 OHIO FIRST DISTRICT COURT OF APPEALS

and conclude that the statute of repose does not bar his claims, these assignments of

error are moot. See App.R. 12(A)(1)(c).

IV.

{¶29} In light of the foregoing analysis, in the appeal numbered C-180566 we

overrule both of Mr. Arnold’s assignments of error and affirm the judgment of the

trial court. In the appeals numbered C-180554 and C-180634, we overrule Mr.

McNeal’s two assignments of error and affirm the judgment of the trial court. Finally,

as to Mr. Scott’s appeal numbered C-180641 we sustain his first assignment of error,

reverse the judgment of the trial court and remand the cause to the trial court for

further proceedings consistent with this opinion. We do not address his second and

third assignments of error because they are mooted by our disposition of his first

assignment of error.

Judgment accordingly.

MYERS, J., concurs. MOCK, P.J., concurs separately.

MOCK, P.J., concurring separetely.

{¶30} While I agree that the savings statute applies to preserve the Scott

claims while not doing so for the Arnold or McNeal claims, I write separately because

I believe the reasoning for such a result is different than what was announced in

Wilson v. Durrani, 1st Dist. Hamilton Nos. C-180196 and C-180194, 2019-Ohio-

3880, and Atwood v. UC Health, S.D.Ohio No. 1:16cv593,

(August

17, 2018).

{¶31} Both Wilson and Atwood rely on policy considerations to determine

the interplay between the statute of repose for medical claims and the savings

statute. But I believe that the language of the repose statute itself dictates the result.

16 OHIO FIRST DISTRICT COURT OF APPEALS

If a statute is ambiguous, a court must then interpret the statute to determine the

General Assembly’s intent; but if it is not ambiguous, then a court need not interpret

it but must simply apply it. Wilson v. Lawrence,

, 2017-Ohio-

1410,

.

{¶32} R.C. 2305.113(C) states that two separate provisions can apply in

order for the statute of repose to bar a claim. First, the statute provides that “no

action upon a [medical claim] shall be commenced more than four years

after the occurrence of the [act constituting the basis of the claim.]” (Emphasis

added.) R.C. 2305.113(C)(1). The legislature then went on state that “If an action

upon a [medical claim] is not commenced within four years after the

occurrence of the [act constituting the basis of the claim], then, any action upon

that claim is barred.” (Emphasis added.) R.C. 2305.113(C)(2).

{¶33} The first provision is simple enough to understand, and that provision

applies to all three sets of claims here. In all three sets of claims, the refiled actions

were filed outside the four-year period. But, under the second provision, we see a

distinction. The second provision sets forth that if an action is not commenced

within four years, then any action is barred. As to the Arnold and McNeal claims, no

action had been commenced within the four-year period. The Arnold claims were

initially filed in 2013 in reference to a 2008 surgery. The McNeal claims were

initiated in 2014 in reference to, at the latest, a 2009 surgery. Therefore, according

to R.C. 2305.113(C)(2), any actions based upon on those claims were barred.

{¶34} On the other hand, the Scott claims were commenced within the four-

year period. Therefore, the statute does not apply to their claims.

{¶35} R.C. 2305.113(C)(1) and (2) are drafted to address different concerns.

2305.113(C)(1) addresses the situation in which a claim is not filed within the four-

17 OHIO FIRST DISTRICT COURT OF APPEALS

year period. The language in 2305.113(C)(2), however, is conditional. If an action is

not commenced within four years, then any action is barred. These provisions are

separate, and we must assume that they operate differently. As the Ohio Supreme

Court stated:

A basic rule of statutory construction requires that “words in

statutes should not be construed to be redundant, nor should any

words be ignored.” E. Ohio Gas Co. v. Pub. Util. Comm.[,

,

(1988)]. Statutory language “must

be construed as a whole and given such interpretation as will give

effect to every word and clause in it. No part should be treated as

superfluous unless that is manifestly required, and the court

should avoid that construction which renders a provision

meaningless or inoperative.” [State ex rel. Myers v. Bd. of

Education of Rural School Dist. of Spencer Twp. Lucas Cty.,

, 372-373,

, 517 (1917).]

D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health,

, 2002-Ohio-

4172,

, ¶ 26.

{¶36} I believe that the only reading of R.C. 2305.113(C)(2) that does not

make it redundant when compared to R.C. 2305.113(C)(1) is one in which an

subsequent action is not barred if an action based on the same claims had been filed

within the four-year period. The legislature chose the language “an action” and then

“any action” in R.C. 2305.113(C)(2) with a purpose. If the phrase “an action” at the

beginning of the provision did not refer to a distinct action from the “any action”

referenced at the end, then the (C)(2) provision would cover the same situations as

(C)(1).

18 OHIO FIRST DISTRICT COURT OF APPEALS

{¶37} In this case, the Scott claims were filed within four years of the

occurrence constituting the alleged basis of the claim. For that reason, the statute of

repose in R.C. 2305.113(C) does not apply to the claim. And since the claims were

refiled within one year of their dismissal pursuant to Civ.R. 41(A), R.C. 2305.19(A)

allows that action to relate back to the date of the initial filing for purposes of

calculating the statute of limitations.

Please note:

The court has recorded its own entry on this date.

19