Doctor Fled the Country? Ohio's Supreme Court Says the Malpractice Clock Stops (Elliot v. Durrani)

Published December 15, 2022 · Ohio Supreme Court

Ohio gives injured patients a short and unforgiving window to bring medical-malpractice claims. But what happens when the doctor responsible leaves the country before a patient can sue? On December 6, 2022, the Supreme Court of Ohio answered that question in favor of patients.

In Elliot v. Durrani, 171 Ohio St.3d 213, 2022-Ohio-4190, the Court held 4-3 that Ohio's absent-defendant tolling statute pauses the four-year medical statute of repose while the defendant is out of the state. For the many former patients of Dr. Abubakar Atiq Durrani in Southwest Ohio, and for any patient whose doctor has left Ohio, it is the most important medical-deadline decision of the year.

Limitations versus repose, in plain English

Two separate clocks apply to most medical claims in Ohio:

• The statute of limitations, R.C. 2305.113(A), generally requires a medical claim to be filed within one year after it accrues, which is usually when the patient discovers, or should have discovered, the injury.
• The statute of repose, R.C. 2305.113(C), sets an outer limit: no medical claim may be filed more than four years after the act or omission that caused the harm, with narrow exceptions written into the statute.

A statute of limitations is about the injured person's diligence. A statute of repose is about giving defendants a final cutoff, no matter what the patient knew. That is why repose is so harsh: a patient can lose a claim before discovering it. Our guide chapter on deadlines and the timeline of an Ohio injury case walks through both.

How the Durrani cases got here

Dr. Durrani performed spine surgeries in the Cincinnati area. In August 2013 he was indicted on federal fraud charges related to his practice, and in late 2013 he fled to Pakistan. He has not returned.

Hundreds of patients sued. In December 2020, in Wilson v. Durrani, the Supreme Court held that Ohio's saving statute, which normally lets a plaintiff refile a dismissed case within a year, cannot be used to refile a medical claim after the four-year repose period has run. I explained that ruling in our post on Wilson v. Durrani. Many patients who had filed on time, dismissed and refiled were suddenly out of court.

Richard Elliot was one of them. Dr. Durrani operated on his spine in March 2010 at Good Samaritan Hospital in Cincinnati. Elliot filed suit in June 2014, dismissed the case, and refiled in August 2015, more than five years after the surgery. Last year the First District Court of Appeals held that the repose period was tolled as to Dr. Durrani because he had left the state, as I discussed in our September 2021 post on the appellate decision. Dr. Durrani appealed.

What the Supreme Court held

The tolling statute, R.C. 2305.15(A), provides that when a defendant is out of the state, has absconded or is concealing himself, the period of limitation for actions under R.C. 2305.04 to 2305.14 does not run during that absence. The medical-claim statute, R.C. 2305.113, falls within that range.

Writing for the majority, Justice Michael Donnelly held that by its plain language, R.C. 2305.15(A) tolls the medical statute of repose, so the repose period does not bar a claim filed while the defendant is absent. The Court's reasoning:

• The words control. The statute is clear and unambiguous, and the Court has no authority to read part of it out of the Revised Code or apply it only in part.
• "Period of limitation" is a broad term. Dr. Durrani argued that the phrase refers only to statutes of limitations. The Court noted that in Wilson itself it had treated "period of limitation" as broader than "statute of limitations," broad enough to encompass a statute of repose.
• Wilson is different. In Wilson, nothing in the saving statute mentioned the repose period, so there was no statutory basis to extend it. Here, the tolling statute expressly reaches the sections that contain the medical repose period.
• It fits the purpose of repose. A statute of repose identifies when a defendant is entitled to be free from liability. The General Assembly made clear that an absconding defendant is not entitled to that protection while he is gone.

Chief Justice O'Connor dissented, and Justice Kennedy, joined by a visiting judge, wrote a dissent arguing that the only exceptions to repose are those written into R.C. 2305.113 itself and that the tolling statute speaks only of limitations periods.

The limits of the ruling

Elliot is a significant win, but it is not unlimited:

• It applies to the defendant who left. The First District held that tolling did not extend to Dr. Durrani's clinic or the hospital, which were not absent from Ohio, and the Supreme Court affirmed the First District's judgment.
• It does not revive saving-statute arguments. Wilson still holds that refiling under the saving statute cannot extend the repose period. The tolling statute works differently: it stops the clock itself, so the time the defendant was gone never counts.
• Other deadline questions remain open. As I explained in August, Ohio's appellate courts are divided on whether the four-year repose period applies to wrongful-death claims at all; see our post on that split.

What this means for you

If you were a patient of Dr. Durrani and your claim against him was dismissed under the four-year repose statute, Elliot may give that claim new life. Have a lawyer review the dates now. Some Southwest Ohio patients have already taken Durrani cases to verdict, as we noted in January in our post on a Durrani fraud verdict upheld on appeal.

More broadly, if the doctor who harmed you has moved out of Ohio, do not assume the four-year deadline has passed, and do not assume you have unlimited time either. Tolling depends on facts that have to be proven, including when the doctor left and whether the claim was discovered within the repose period. The safest course is always to act as early as possible. We handle serious medical-negligence claims as part of our personal injury practice.