Several months ago, we discussed the ongoing medical malpractice saga of Dr. Abubakar Atiq Durrani. As we explained in our previous post, Durrani is a spinal surgeon who previously worked in Mason, Ohio. Six years ago, a grand jury indicted Durrani on ten counts of medical fraud, prompting the doctor to skip the country and return to his native Pakistan.
Hamilton Court Holds One-Year “Saving Statute” Applies to Medical Malpractice Claims
The crux of the government’s case against Durrani was that he lied to patients in order to obtain their consent for medically unnecessary surgical procedures. As you might imagine, a number of these ex-patients have filed medical malpractice lawsuits against Durrani and those who enabled him. Several of these cases remain pending despite Durrani’s fugitive status.
For example, an Ohio appeals court recently reinstated two malpractice lawsuits brought against Durrani and several co-defendants. In the first case, Wilson v. Durrani, Durrani performed back surgery on the plaintiff in November 2010. The plaintiff now alleges the surgery failed to correct his chronic back pain and that, in fact, the procedure was medically unnecessary.
The second lawsuit, Sand v. Durrani, similarly alleges an April 2010 surgery performed by Durrani failed to address the plaintiff’s underlying symptoms and was “medically unnecessary and improperly performed.”
The defendants moved to dismiss both lawsuits on the grounds they were filed after the expiration of Ohio’s four-year statute of repose for medical malpractice actions. Both lawsuits were properly filed in December 2015, which was more than five years after each plaintiff’s respective surgery.
The Hamilton County Court of Common Pleas sided with the defense and dismissed both lawsuits, which were then consolidated on appeal. In a September 25 decision, the Ohio First District Court of Appeals reversed the dismissals, holding both lawsuits were timely filed due to Ohio’s “saving statute.”
What is the saving statute? It is an Ohio law that essentially provides a plaintiff can voluntarily dismiss a lawsuit and then refile it within one year. Here, both the Sand and Wilson lawsuits were initially filed within the four-year statute of repose. The plaintiffs then voluntarily dismissed their cases and refiled them within one year, albeit after the statute of repose had elapsed.
So the question here was whether the saving statute actually applied to medical malpractice cases. The Court of Common Pleas said it did not. The First District said that it did. The appeals court noted a federal judge recently considered this same question in connection with another Durrani-related medical malpractice lawsuit and ruled in favor of applying the saving statute. Although not technically binding precedent, the First District said it found the federal judge’s ruling in the earlier case “persuasive” and adopted much of its reasoning.
Contact the Cleveland Medical Malpractice Lawyers at Tittle & Perlmutter Today
Anytime that you think you have a potential medical malpractice claim, you need to realize the clock is ticking. Ohio law imposes strict deadlines to file such lawsuits. So it is critical to speak with a qualified Cleveland medical malpractice attorney as soon as possible. Call Tittle & Perlmutter at (216) 308-1522 today if you need to speak with a lawyer right away.