Janson v. Durrani

J
        [Cite as Janson v. Durrani, 2021-Ohio-1467.]


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

TRACY JANSON,                                   :      APPEAL NO. C-200047
                                                       TRIAL NO. A-1505049
 and                                            :

PAMELA JANSON,                                  :         O P I N I O N.

       Plaintiffs-Appellants,                   :

 vs.                                            :

THE CHRIST HOSPITAL, INC.,                      :

       Defendant-Appellee,                      :

 and                                            :

ABUBAKAR ATIQ DURRANI, M.D., et :
al.,

     Defendants.                   :
________________________________________________________________________

RYAN HENSLEY,                                   :      APPEAL NO. C-200048
                                                       TRIAL NO. A-1700316
 and                                            :

LAURA HENSLEY,                                  :         O P I N I O N.

       Plaintiffs-Appellants,                   :

 vs.                                            :

CHRIST HOSPITAL,                                :

       Defendant-Appellee,                      :

 and                                            :

ABUBAKAR ATIQ DURRANI, M.D., et :
al.,

     Defendants.                   :
________________________________________________________________________
                      OHIO FIRST DISTRICT COURT OF APPEALS


SHANNON KOEHLER,                       :       APPEAL NO. C-200050
                                               TRIAL NO. A-1700297
       Plaintiff-Appellant,            :

 vs.                                   :          O P I N I O N.

THE CHRIST HOSPITAL,                   :

       Defendant-Appellee,             :

 and                                   :

ABUBAKAR ATIQ DURRANI, M.D., et :
al.,

     Defendants.                   :
________________________________________________________________________

CHRISTINA GOLDSTEIN,                   :       APPEAL NO. C-200052
                                               TRIAL NO. A-1700299
       Plaintiff-Appellant,            :

 vs.                                   :          O P I N I O N.

CHRIST HOSPITAL,                       :

       Defendant-Appellee,             :

 and                                   :

ABUBAKAR ATIQ DURRANI, M.D., et :
al.,

     Defendants.                   :
________________________________________________________________________

CONNIE UNDERWOOD,                      :       APPEAL NO. C-200053
                                               TRIAL NO. A-1700312
 and                                   :

JOSPEH UNDERWOOD,                      :          O P I N I O N.

       Plaintiffs-Appellants,          :

 vs.                                   :

CHRIST HOSPITAL,                       :

       Defendant-Appellee,             :

                                           2
                      OHIO FIRST DISTRICT COURT OF APPEALS



 and                                   :

ABUBAKAR ATIQ DURRANI, M.D., et :
al.,

     Defendants.                   :
________________________________________________________________________

SUSAN SCHOCK,                          :       APPEAL NO. C-200054
                                               TRIAL NO. A-1700291
 and                                   :

PAUL SCHOCK,                           :          O P I N I O N.

       Plaintiffs-Appellants,          :

 vs.                                   :

CHRIST HOSPITAL,                       :

       Defendant-Appellee,             :

 and                                   :

ABUBAKAR ATIQ DURRANI, M.D., et :
al.,

     Defendants.                   :
________________________________________________________________________

KERRY MCNEAL,                          :       APPEAL NO. C-200055
                                               TRIAL NO. A-1700328
 and                                   :

ANJANETTE MCNEAL,                      :          O P I N I O N.

       Plaintiffs-Appellants,          :

 vs.                                   :

THE CHRIST HOSPITAL,                   :

       Defendant-Appellee,             :

 and                                   :

ABUBAKAR ATIQ DURRANI, M.D., et :
al.,

                                           3
                       OHIO FIRST DISTRICT COURT OF APPEALS


     Defendants.                   :
________________________________________________________________________

KATHY JILL HERSLEY,                     :       APPEAL NO. C-200056
                                                TRIAL NO. A-1700288
        Plaintiff-Appellant,            :

  vs.                                   :          O P I N I O N.

CHRIST HOSPITAL,                        :

        Defendant-Appellee,             :

 and                                    :

ABUBAKAR ATIQ DURRANI, M.D., et :
al.,

        Defendants.                     :


Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From are: Affirmed

Date of Judgment Entry on Appeal: April 28, 2021


Robert A. Winter Jr., Benjamin M. Maraan II, The Deters Law Firm Co. II, P.A.,
James F. Maus and Alex Petraglia, for Plaintiffs-Appellants.

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




                                            4
                      OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Presiding Judge.


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

appellants ask us to overturn our prior authority concerning what constitutes a

medical claim, as defined in R.C. 2305.113, for the purpose of the medical-

malpractice statute of repose. We find no reason to overturn our prior precedent,

and we apply our recent decision in Couch v. Durrani, 1st Dist. Hamilton Nos. C-

1906703, C-190704, C-190705, C-190706 and C-190707, 2021-Ohio-726, to resolve

these comparable issues stemming from The Christ Hospital’s alleged involvement in

the alleged widespread malpractice committed by Dr. Abubakar Atiq Durrani.

Therefore, we affirm the judgments of the trial court.

                           Factual and Procedural Background

         {¶2}   These consolidated appeals represent eight of over hundreds of cases

filed against Dr. Abubakar Atiq Durrani and the area hospitals where he performed

hundreds of allegedly improper and unnecessary surgeries over the course of several

years.    The following facts were set forth by the appellants in their respective

complaints.

         {¶3}   Plaintiff-appellant Tracy Janson first met with Durrani in the spring of

2008 after he experienced back pain which prevented him from standing up straight.

Durrani immediately recommended surgery and performed the surgery on Janson at

The Christ Hospital (“TCH”) in September of 2008. Ultimately, Janson’s pain only

increased after the surgery. Durrani recommended Janson undergo another surgery

but Janson refused. Janson brought suit against TCH, among other defendants, on

September 18, 2015, alleging claims for negligence, negligent credentialing and

retention, fraud, spoliation of evidence, and loss of consortium.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    Plaintiff-appellant Ryan Hensley first met with Durrani in early 2009

after he experienced back pain which prevented him from working.             Durrani

immediately recommended surgery and performed the surgery at TCH on May 4,

2009. After the surgery, Hensley began to experience severe pain in his legs and lost

a lot of his previous flexibility. Hensley later underwent two additional surgeries by

Durrani at another area hospital. Hensley brought suit against TCH, among other

defendants, on September 25, 2015, alleging claims for negligence, negligent

credentialing and retention, fraud, spoliation of evidence, violation of the Ohio

Consumer Sales Practices Act, products liability, and loss of consortium.

       {¶5}    Plaintiff-appellant Shannon Koehler first met with Durrani in 2007

after she experienced pain in her neck and shoulders which caused numbness and

tingling in her arms and hands. Durrani told her she needed surgery; however, he

was unable to immediately complete the surgery himself so another doctor within his

office performed the surgery on Koehler in September of 2008. After the first

surgery, Koehler’s pain returned so she again met with Durrani. Durrani told her he

would need to either repair the work of the other doctor or “re-do” the work himself.

Koehler agreed to let him “re-do” the work himself and Durrani performed surgery

on Koehler at TCH on July 13, 2009.        Durrani then performed two additional

surgeries on Koehler at another area hospital.        Unfortunately, Koehler’s pain

continued to get worse, and she had to wear a neck brace and use a walker to get

around. Koehler brought suit against TCH, among other defendants, on September

15, 2015, alleging claims for negligence, negligent credentialing, supervision and

retention, fraud, violation of the Ohio Consumer Sales Practices Act, products

liability, and spoliation of evidence.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶6}   Plaintiff-appellant Christina Goldstein first met with Durrani in 2008

after she experienced severe lower back pain. Durrani recommended surgery and

performed surgery on Goldstein at TCH on December 3, 2008.              Durrani later

performed four additional surgeries on Goldstein at another area hospital.

Goldstein’s cervical spine is now unstable, and she is unable to turn her head due to

pain and sounds of grinding bone. Goldstein brought suit against TCH, among other

defendants, on September 30, 2015, alleging claims for negligence, negligent

credentialing, supervision and retention, fraud, spoliation of evidence, violation of

the Ohio Consumer Sales Practices Act, and products liability.

       {¶7}   Plaintiff-appellant Connie Underwood met with Durrani in early 2008

after she experienced pain in her neck and back. Durrani recommended surgery and

performed the surgery at TCH on December 11, 2008. Durrani then performed a

second surgery on Underwood at TCH on February 9, 2009.                Durrani later

performed a third and a fourth surgery on Underwood at another area hospital.

Underwood now suffers from severe pain in her lower back and pervasive numbness

that extends from her neck to her feet. Underwood brought suit against TCH, among

other defendants, on September 28, 2015, alleging claims for negligence, negligent

credentialing and retention, fraud, spoliation of evidence, violation of the Ohio

Consumer Sales Practices Act, products liability, and loss of consortium.

       {¶8}   Plaintiff-appellant Susan Schock first met with Durrani in 2007 after

she experienced mild back pain. Durrani recommended surgery and the surgery was

performed at TCH on November 11, 2008. Schock experienced increased pain after

the surgery and Durrani told her the fusion done during the surgery had broken.

Durrani then performed another surgery on Schock to correct the fusion at another

area hospital. Schock experienced constant and extreme pain after the surgeries, and

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                      OHIO FIRST DISTRICT COURT OF APPEALS



was ultimately told by another doctor that she would eventually need additional

surgery because there is a broken screw in her back. Schock brought suit against

TCH, among other defendants, on September 1, 2015, alleging claims for negligence,

negligent credentialing and retention, fraud, spoliation of evidence, and loss of

consortium.

       {¶9}   Plaintiff-appellant Kerry McNeal first met with Durrani in 2009 after

he experienced pain in his neck, chest, left arm, thumb and index finger. Durrani

recommended surgery and performed surgery on McNeal at TCH on April 1, 2009.

McNeal continued to experience the same pain after the surgery. Durrani performed

three additional surgeries on McNeal at various area hospitals.           McNeal now

experiences more pain than he did before the surgeries. McNeal brought suit against

TCH, among other defendants, on September 28, 2015, alleging claims for

negligence, negligent credentialing, supervision, and retention, fraud, violation of the

Ohio Consumer Sales Practices Act, products liability, spoliation of evidence, and

loss of consortium.

       {¶10} Plaintiff-appellant Kathy Jill Hersley first met with Durrani in early

2006 after she experienced sharp pain in her lower back. Durrani recommended

surgery and performed surgery on Hersley at TCH on February 28, 2007. Hersley

continues to suffer from the same pain she did prior to surgery and now additionally

suffers from pain in her hips and lower limbs. Hersley brought suit against TCH,

among other defendants, on September 30, 2015, alleging claims for negligence,

negligent credentialing, supervision, and retention, fraud, spoliation of evidence, and

violation of the Ohio Consumer Sales Practices Act.

       {¶11} In all cases, TCH moved to dismiss the plaintiffs’ complaints pursuant

to Civ.R. 12(B)(6), asserting, among other things, that all of plaintiffs’ claims, with

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                     OHIO FIRST DISTRICT COURT OF APPEALS



the exception of the spoliation-of-evidence claims, were medical claims that were

time barred by the medical-malpractice statute of repose. In addition, TCH asserted

that dismissal of the time-barred claims would accordingly eliminate any basis for

the spoliation-of-evidence claims. The trial court agreed with TCH and granted the

motion to dismiss in each case. Plaintiffs-appellants now bring these appeals.

                                 Law and Analysis

       {¶12} Plaintiffs-appellants, collectively, bring a sole assignment of error

alleging that the trial court committed reversable error by granting TCH’s motions to

dismiss and dismissing appellants’ negligent credentialing and fraud claims. In

support of their contention, they raise four issues for review: (1) whether appellants’

negligent-credentialing claims against TCH are “medical claims” under R.C.

2305.113; (2) whether the doctrines of fraud and equitable estoppel apply against

R.C. 2305.113; (3) whether appellants’ fraud claims are “medical claims” or

independent nonmedical fraud claims; and (4) whether the trial court erred by

dismissing appellants’ spoliation-of-evidence claims.

       {¶13} “A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon

which relief can be granted tests the sufficiency of the complaint.” Makrauer v. Hal

Holmes, Inc., 1st Dist. Hamilton No. C-190256, 2020-Ohio-945, ¶ 6, citing Thomas

v. Othman, 1st Dist. Hamilton No. C-160827, 2017-Ohio-8849, ¶ 18. “When ruling

on a Civ.R. 12(B)(6) motion, the trial court is confined to the allegations in the

complaint.”

Id. “It must accept

the complaint’s factual allegations as true and must

draw all reasonable inferences in favor of the nonmoving party.”

Id. “A complaint

should

not be dismissed for failure to state an actionable claim unless it appears

beyond doubt from the complaint that the plaintiff can prove no set of facts entitling

him to recovery.”

Id., citing Thomas at

¶ 19.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} “This court reviews the granting of a Civ.R. 12(B)(6) motion de novo,

and, like the trial court, we are constrained to take all of the allegations in the

complaint as true, drawing all reasonable inferences in the plaintiff’s favor.”

Battersby v. Avatar, Inc., 

157 Ohio App. 3d 648

, 2004-Ohio-3324, 

813 N.E.2d 46

, ¶ 5

(1st Dist.), citing Tri-State Computer Exchange, Inc. v. Burt, 1st Dist. Hamilton No.

C-020345, 2003-Ohio-3197, ¶ 11.

       {¶15} Ohio’s medical-malpractice statute of repose prohibits an action upon

a “medical claim” from commencing more than four years from the occurrence of the

act or omission that constitutes the alleged basis of the medical claim.           R.C.

2305.113(C)(1). Consequently, if a “medical claim” is not commenced within four

years of the alleged act or omission which constitutes the basis of that claim, then

any action upon that claim is barred. R.C. 2305.113(C)(2). The Ohio Revised Code

defines a “medical claim” as:

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

       podiatrist, hospital, home, or residential facility, against any employee

       or agent of a physician, podiatrist, hospital, home, or residential

       facility, or against a licensed practical nurse, registered nurse,

       advanced practice registered nurse, physical therapist, physician

       assistant, emergency medical technician-basic, emergency medical

       technician-intermediate, or emergency medical technician-paramedic,

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

       person. “Medical claim” 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



              (b) Derivative claims for relief that arise from the plan of care

                     prepared for a resident of a home;

              (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.

              (d) Claims that arise out of the plan of care, medical diagnosis,

                     or treatment of any person and that are brought under

                     section 3721.17 of the Revised Code;

              (e) Claims that arise out of the skilled nursing care or personal

                     care services provided in a home pursuant to the plan of

                     care, medical diagnosis, or treatment.

R.C. 2305.113(E)(3).

       {¶16} In these consolidated appeals, each plaintiff-appellant brought suit

against TCH more than four years from their respective surgeries performed by

Durrani at TCH.        Therefore, any claim against TCH that is considered to be a

“medical claim” under R.C. 2305.113 would be barred by the medical-malpractice

statute of repose.




                                                  11
                       OHIO FIRST DISTRICT COURT OF APPEALS



                             Negligent-Credentialing Claims

       {¶17} A hospital typically has several different categories of physicians

practicing medicine within its facility: (1) private physicians who are granted staff

privileges, which includes the right to use the facility and admit and discharge their

own private patients; (2) physicians still in training; and (3) employed, full-time

salaried physicians. (Citation omitted.) Albain v. Flower Hosp., 

50 Ohio St. 3d 251

,

553 N.E.2d 1038

(1990), fn. 5, overruled on other grounds, 

68 Ohio St. 3d 435

, 

628

N.E.2d 46

(1994).

       {¶18} R.C. 3701.351 provides that “the governing body of every hospital shall

set standards and procedures to be applied by the hospital and its medical staff in

considering and acting upon applications for staff membership or professional

privileges.”

       {¶19} R.C. 2305.251(B)(1) creates a presumption that a hospital is not

negligent in the credentialing of an individual who has, or has applied for, staff

membership or professional privileges at the hospital pursuant to R.C. 3701.351, if

the hospital can prove by a preponderance of the evidence that, at the time of the

alleged negligent credentialing of an individual, the hospital was accredited by one of

the following: (1) the joint commission on accreditation of healthcare organizations;

(2) the American osteopathic association; (3) the national committee for quality

assurance; or (4) the utilization review accreditation commission. However, that

presumption may be rebutted by proof, by a preponderance of the evidence, of any of

the following:

       (a)       The credentialing and review requirements of the accrediting

             organization did not apply to the hospital, * * *, the individual, or



                                                12
                          OHIO FIRST DISTRICT COURT OF APPEALS



             the type of professional care that is the basis of the claim against

             the hospital * * *.

       (b)       The hospital * * * failed to comply with all material

             credentialing    and        review    requirements       of     the    accrediting

             organization that applied to the individual.

       (c)       The hospital * * *, through its medical staff executive

             committee or its governing body and sufficiently in advance to take

             appropriate action, knew that a previously competent individual

             had    developed        a   pattern    of        incompetence     or    otherwise

             inappropriate behavior, either of which indicated that the

             individual’s    staff       membership,          professional    privileges,   or

             participating as a provider should have been limited or terminated

             prior to the individual’s provision of professional care to the

             plaintiff.

       (d)       The hospital * * *, through its medical staff executive

             committee or its governing body and sufficiently in advance to take

             appropriate action, knew that a previously competent individual

             would provide fraudulent medical treatment but failed to limit or

             terminate      the    individual’s     staff       membership,        professional

             privileges, or participation as a provider prior to the individual’s

             provision of professional care to the plaintiff.

R.C. 2305.251(B)(2).

       {¶20} This court has found that negligent-credentialing claims are medical

claims under R.C. 2305.113(E)(3)(c)(ii), and are therefore subject to the statute of

repose. Young v. Durrani, 2016-Ohio-5526, 

61 N.E.3d 34

, ¶ 21 (1st Dist.), appeal

                                                         13
                     OHIO FIRST DISTRICT COURT OF APPEALS



not accepted, 

149 Ohio St. 3d 1406

, 2017-Ohio-2822, 

74 N.E.3d 464

; Crissinger v.

Durrani, 2017-Ohio-9256, 

106 N.E.3d 798

, ¶ 17 (1st Dist.); McNeal v. Durrani,

2019-Ohio-5351, 

138 N.E.3d 1231

, ¶ 19 (1st Dist.), rev’d on other grounds, Slip

Opinion No. 2020-Ohio-6932; Couch, 1st Dist. Hamilton Nos. C-190703, C-190704,

C-190705, C-190706 and C-190707, 2021-Ohio-726. Most recently, in Couch, we

addressed substantially the same argument that appellants now assert here and

determined that “appellants have not presented a compelling reason to overrule our

holdings in Young, Crissinger, and McNeal.” Couch at ¶ 22. In our analysis, we

recognized that the Ohio Supreme Court recently defined claims for negligent hiring,

supervision, and retention as “ ‘claims[s] against an employer * * * that would not

have occurred but for the employer’s failure to properly hire, supervise, or retain the

employee,’ ” and that this definition reflects the amended definition of a “medical

claim” under R.C. 2305.113. Couch at ¶ 19, quoting Evans v. Akron Gen. Med. Ctr.,

Slip Opinion No. 2020-Ohio-5535, ¶ 10. Therefore, although the Ohio Supreme

Court did not directly determine whether a negligent-credentialing claim is a

“medical claim,” we concluded that Evans supports this finding because “it has

defined related claims to reflect the amended definition of a ‘medical claim.’ ”

Id.

{¶21}

We note that appellants asserted at oral argument that “credentialing”

is not encompassed in this case within the “hiring, training, supervision, retention, or

termination” language in R.C. 2305.113(E)(3)(c)(ii), because that language only

applies to “employees,” and not independent contractor physicians such as Durrani

who (1) have independent decision-making power and (2) are “credentialed for

reappointment” rather than hired. Appellants did not make this argument in their

brief. The only argument made in their brief about Durrani’s status as a private

contractor was an attempt to distinguish a “physician” from a “caregiver” for the

                                              14
                       OHIO FIRST DISTRICT COURT OF APPEALS



purposes of R.C. 2305.113(E)(3)(c)(ii).1 They never presented the argument that this

subsection only applies to “employees.” An issue that is raised for the first time

during oral argument and not addressed in the appellate brief is waived. Hensel v.

Childress, 2019-Ohio-3934, 

145 N.E.3d 1159

, ¶ 21 (1st Dist.), quoting Andreyko v.

Cincinnati, 

153 Ohio App. 3d 108

, 2003-Ohio-2759, 

791 N.E.2d 1025

, ¶ 20 (1st Dist.).

Therefore, this argument is waived.

        {¶22} Finding no reason we should overturn our precedent, we reaffirm our

previous decisions on this issue and determine that negligent-credentialing claims

are “medical claims” under R.C. 2305.113. Appellants’ negligent-credentialing claims

are barred by the state of repose, since each action was commenced more than four

years from the respective surgeries at TCH.

                       Doctrines of Fraud and Equitable Estoppel

        {¶23} Appellants next ask us to recognize a fraud or equitable estoppel

exception to the medical-malpractice statute of repose. This court has addressed this

issue in Crissinger, 2017-Ohio-9256, 

106 N.E.3d 79

; Freeman v. Durrani, 2019-

Ohio-3643, 

144 N.E.3d 1067

(1st Dist.), appeal not accepted, 

158 Ohio St. 3d 1436

,

2020-Ohio-877, 

141 N.E.3d 250

; and Couch, 1st Dist. Hamilton Nos., C-190703, C-

190704, C-190705, C-190706 and C-190707, 2021-Ohio-726.                    In Crissinger, we

recognized that the General Assembly provided fraud exceptions to other statues of

repose, but not for the medical-malpractice statute of repose. Crissinger at ¶ 24. In

Freeman, we recognized that “the General Assembly carved out specific exceptions

within R.C. 2305.113, none of which include fraudulent conduct or equitable

estoppel.” Freeman at ¶ 11. In Couch, we considered the same arguments that


1This court addressed this issue in Couch and found that “caregiver” includes a physician. Couch
at ¶ 21.

                                                  15
                      OHIO FIRST DISTRICT COURT OF APPEALS



appellants assert here and found no reason to stray from our prior determinations.

Couch at ¶ 25. Thus, under our duty to apply the statute as written by the General

Assembly, this court has consistently declined to recognize a fraud or equitable

estoppel exception to the medical-malpractice statute of repose. Crissinger at ¶ 24;

Freeman at ¶ 13; Couch at ¶ 27.

       {¶24} Appellants have brought forth no new arguments here. Therefore, we

hold that there is no fraud or equitable estoppel exception to the medical-malpractice

statute of repose.

                                    Fraud Claims

       {¶25} Relying on the Ohio Supreme Court’s decision in Gaines v. Preterm-

Cleveland, Inc., 

33 Ohio St. 3d 54

, 

514 N.E.2d 709

(1987), appellants assert that their

fraud claims are independent nonmedical claims rather than medical claims subject

to the statute of repose. They argue their fraud claims “arise directly out of a scheme

or artifice between Durrani and TCH whereby: (i) Durrani knowingly makes

materially false statements to TCH’s and his patients of their spine condition [sic] to

induce/coerce them to undergo medically unnecessary and fraudulent surgeries, (ii)

TCH is fully aware of Durrani’s fraudulent business practices, acquiesces and

consents to them, and does nothing to stop him, (iii) Durrani performs the medically

unnecessary surgeries at TCH, (iv) TCH conceals from its patients all its knowledge

that is adverse about Durrani, and (v) Durrani’s and TCH’s materially false

statements or concealments of his condition remained ongoing and continued after

the surgeries at issue.”

       {¶26} In Gaines, the plaintiff-appellant, Evelyn Gaines, went to a healthcare

facility, Pretern-Cleveland, Inc., in 1980 to have her pregnancy terminated and to

have her intrauterine device (“IUD”) removed.

Id. at 54.

Her medical records

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                      OHIO FIRST DISTRICT COURT OF APPEALS



indicated that the abortion was successfully completed.

Id. Her medical records

also

indicated that the IUD could not be recovered, apparently because it could not be

located, even though the physician estimated its possible location.

Id. Gaines

alleged that

agents or employees of Preterm negligently failed to remove the IUD as

she requested and that she was told by agents or employees of Preterm that the IUD

had been removed.

Id. Gaines further alleged

that she did not seek additional

medical attention to remove the IUD in reliance on these misrepresentations.

Id.

Gains did not

discover the IUD remained in her body until over three years later

when she underwent a tubal ligation in 1983 and discovered that the IUD had

perforated her uterus and become embedded in her left ligament.

Id. Gaines filed

suit

in 1985 and Preterm moved for summary judgment, arguing that the action was

barred by the previous version of the medical-malpractice statute of repose found in

R.C. 2305.11(B).

Id. at 54-55.

The trial court granted the motion and the court of

appeals affirmed, reasoning that Gaines’s allegations did not state an independent

cause of action in fraud because the “gist” of the allegations was medical malpractice.

Id.

{¶27}

The Ohio Supreme Court disagreed that the allegations “sounded only

in malpractice.” 2

Id. at 56.

The court stated:

       A physician’s knowing misrepresentation of a material fact concerning

       a patient’s condition, on which the patient justifiably relies to his

       detriment, may give rise to a cause of action in fraud independent from

       an action in medical malpractice. Annotation (1973), 

49 A.L.R. 3d 501

,




2As we noted in Freeman, the Ohio Supreme Court decided Gaines when “medical claim” was
defined in R.C. 2305.11(D)(3), prior to the vast expansion of the definition by the General
Assembly in R.C. 2305.113(E)(3). Freeman, 2019-Ohio-3643, 

144 N.E.3d 1067

, at ¶ 21.

                                                  17
                     OHIO FIRST DISTRICT COURT OF APPEALS



       506; Leach v. Shapiro (1984), 

13 Ohio App. 3d 393

, 397, 13 OBR 377.

       482, 

469 N.E.2d 1047

, 1054. The fraud action is separate and distinct

       from the medical malpractice action which stems from the

       surrounding facts where the decision to misstate the facts cannot be

       characterized as medical in nature. In the instant case, it cannot be

       said that the statement to appellant that her IUD had been removed

       when in fact it had not was motivated by any medical consideration.

       Cases may exist where the withholding of information may be

       medically justified, e.g., where the patient’s known tendency to react

       hysterically to bad news would interfere with vital treatment.

       Reasonable minds could certainly conclude that the misstatement in

       the instant cause was not prompted by medical concerns but by

       motivations unrelated and even antithetical to appellant’s physical

       well-being.

Id. Thus, a fraud

claim is only independent where the claim cannot be characterized

as “medical in nature.” See

id.

{¶28}

This court first addressed this issue in Hensley v. Durrani, 1st Dist.

Hamilton No. C-130005, 2013-Ohio-4711, appeal not accepted, 

138 Ohio St. 3d 1435

,

2014-Ohio-889, 

4 N.E.3d 1051

. In Hensley, we found that where the claims, in

essence, alleged that Durrani committed fraud by recommending unnecessary

surgery and by not telling the patient that the procedure he intended to use was risky

and untested, and that his record as a doctor was not unblemished, the allegations

went squarely to the patient’s diagnosis, care, and treatment and could only be

characterized as “medical in nature.” Hensley at ¶ 19-20.



                                             18
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶29} We later addressed this issue in Freeman, 2019-Ohio-3643, 

144

N.E.3d 1067

, appeal not accepted, 

158 Ohio St. 3d 1436

, 2020-Ohio-877, 

141 N.E.3d

250

. In Freeman, the claims alleged that Durrani, TCH and other defendants, in

order to conceal information and avoid civil liability, had (1) misrepresented the

results of the post-operation radiology, which reflected the failure of the surgery, and

(2) informed the patient that it took time to heal, no matter the condition or the

reason for the condition. Freeman at ¶ 20. We held that the allegations were

medical in nature because they related to the patient’s continued follow-up

treatment.

Id.

{¶30}

Most recently, this court addressed this issue in Couch, 1st Dist.

Hamilton Nos. C-190703, C-190704, C-190705, C-190706 and C-190707, 2021-Ohio-

726. Speaking to the same argument that appellants now assert here, we held that

the allegations were the same as those encompassed within the allegations asserted

in Freeman and McNeal and thus found that the fraud claims asserted were medical

claims subject to the statute of repose. Couch at ¶ 29-30.

       {¶31} Appellants presented no new arguments here to persuade us to depart

from this holding. Appellants’ claims go squarely to the medical diagnosis, care and

treatment of each respective patient and can only be characterized as medical in

nature. Thus, we find that appellants’ fraud claims are “medical claims” subject to

the statute of repose.3




3  We note the inclusion of fraudulent-billing claims against TCH in appellants’ complaints;
however, appellants have not assigned this issue as error or raised it in their briefs or oral
arguments. Therefore, we must consider the argument to have been abandoned. See App.R. 12.

                                                 19
                     OHIO FIRST DISTRICT COURT OF APPEALS



                            Spoliation-of-Evidence Claims

       {¶32} This court has found that a spoliation-of-evidence claim does not arise

out of the medical diagnosis, care, or treatment of a plaintiff and is therefore not a

“medical claim.” Crissinger, 2017-Ohio-9256, 

106 N.E.3d 798

, at ¶ 20. However, in

order to prevail on a claim for interference or destruction of evidence, a plaintiff

must be able to show (1) pending or probable litigation, (2) knowledge on the part of

the defendant that litigation exists or is probable, (3) willful destruction of evidence

by the defendant designed to disrupt the plaintiff’s case, (4) disruption of the

plaintiff’s case, and (5) damages proximately caused by the defendant’s acts.

(Emphasis added.) Smith v. Howard Johnson Co., Inc., 

67 Ohio St. 3d 28

, 29, 

615

N.E.2d 1037

(1993). In the cases at hand, all other claims brought against TCH were

properly dismissed under Civ.R. 12(B)(6). Thus, plaintiffs would be unable to prove

disruption of their respective cases and their spoliation-of-evidence claims would

inevitably fail. Therefore, dismissal of the spoliation-of-evidence claims was proper

as it appears beyond doubt from the complaint that plaintiffs could prove no set of

facts entitling them to recovery on the spoliation-of-evidence claims.

                                  Remaining Claims

       {¶33} Appellants did not assert any argument that the trial court erred in

dismissing their respective remaining claims against TCH. Errors not argued in the

brief will be regarded as being abandoned. State v. Smith, 1st Dist. Hamilton No. C-

170028, 2018-Ohio-2504, ¶ 68, citing App.R. 16(A)(1)(b), and Loukinas v. Roto-

Rooter Servs. Co., 

167 Ohio App. 3d 559

, 2006-Ohio-3172, 

855 N.E.2d 1272

, ¶ 9 (1st

Dist.); Thomas v. Cohr, Inc., 

197 Ohio App. 3d 145

, 2011-Ohio-5916, 

966 N.E.2d 915

,

¶ 4 (1st Dist.), citing App.R. 12(A)(2), and Loukinas; Hawley v. Ritley, 

35 Ohio St. 3d

157

, 159, 

519 N.E.2d 390

(1988), citing Uncapher v. Baltimore & O.R. Co., 

127 Ohio

20

                     OHIO FIRST DISTRICT COURT OF APPEALS



St. 351, 356, 

188 N.E. 553

(1933).        Therefore, we must find that appellants

abandoned any argument in regard to their respective remaining claims.

                                     Conclusion

       {¶34} For the foregoing reasons, we overrule appellants’ sole assignment of

error and affirm the judgments of the trial court.

                                                              Judgments affirmed.
BERGERON and CROUSE, JJ., concur.

Please note:

       The court has recorded its own entry this date.




                                              21

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