Cincinnati Jury's $1 Million Verdict Against Fugitive Spine Surgeon Durrani Stands Up on Appeal

Published July 27, 2015 · Verdicts & Settlements · Ohio Appeals Courts

Many people in the Dayton area have followed the story of Dr. Abubakar Atiq Durrani, the Cincinnati spine surgeon who lost his license, was indicted, and then left the country for Pakistan while hundreds of former patients' lawsuits were pending. On July 15, the First District Court of Appeals in Hamilton County affirmed one of the first of those cases to reach a jury. The decision, Pierce v. Durrani, 2015-Ohio-2835, is worth reading closely, because it shows how a patient proves that a surgery was not just done badly but should never have been done at all, and how Ohio's damage cap changes the number at the end.

What happened to Crystal Pierce

The facts come from the appellate opinion. Crystal Pierce had a history of neck and back pain and a prior cervical fusion performed by another surgeon in 2007. When her symptoms returned in 2009, that surgeon recommended conservative treatment first: steroids and physical therapy, with more surgery only if those failed.

Pierce went to Durrani for a second opinion. According to the court, he told her she would be paralyzed if he did not operate. He performed one neck surgery on January 28, 2009. She reported afterward that her symptoms had improved a great deal. He told her she still needed a second surgery, or she would be paralyzed. Two days later he operated again.

She woke from the second surgery in what the court described as excruciating pain. Physical therapy did not help. She had to take a leave from her job. An emergency room CT scan eventually showed a displaced screw. When she went back to Durrani, he told her the other providers did not know what they were talking about and that he had meant to put the screw that way. She finally returned to her original surgeon, who removed Durrani's hardware in October 2009. Her pain resolved a short time later.

What the jury found

At trial in January 2014, Pierce's expert testified that the second surgery was unnecessary, that Durrani had frightened her into it, and that it fell below the standard of care for a spine surgeon. Durrani did not attend his own trial; the court told the jury only that he had elected not to be present and was represented by counsel.

The jury found for Pierce on both negligence and fraud. In the written answers that accompanied the verdict, the jurors gave their reasons for finding negligence, including that no less-aggressive options were considered, that there was insufficient time between surgeries to evaluate the first, and, in their words, a "scare tactic used to advance idea of quick surgery." They separately found that Durrani had fraudulently misrepresented the need for the second surgery and that the misrepresentation caused her injury.

The awards were:

• $40,000 in economic damages (lost wages)
• $500,000 in noneconomic damages (pain, suffering, and loss of enjoyment of life)
• $500,000 in punitive damages (to punish the fraud)

That is a $1.04 million verdict. The trial court then applied Ohio's medical-malpractice cap and reduced the noneconomic award to $250,000, entering judgment for $790,000. Durrani's lawyers asked for a new trial and for judgment in his favor; the trial court refused, and the First District has now affirmed on every point.

Why the cap cut $250,000 from the verdict

Ohio caps noneconomic damages in medical claims under R.C. 2323.43. For a patient without a permanent catastrophic injury, the cap is the greater of $250,000 or three times economic loss, with a hard ceiling of $350,000 per plaintiff. Three times Pierce's $40,000 in economic loss is only $120,000, so the $250,000 floor applied. The statute's exception for permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system did not apply because, thankfully, her pain resolved once the hardware came out.

We have written before about how these caps work in practice, including last year's post on a Cincinnati malpractice verdict cut from $1 million to $250,000 and an earlier overview of Ohio's caps on pain-and-suffering damages. The lesson repeats here: the jury's view of what the suffering was worth, $500,000, was cut in half by the legislature before the patient ever saw a dollar.

Why the fraud claim mattered so much

Notice what the cap did not touch. Economic damages are uncapped, and so are punitive damages in this situation. The $500,000 punitive award survived intact, and it exists only because Pierce's lawyers proved fraud, not merely negligence.

Fraud requires proof that the doctor made a false statement of fact, knowing it was false or with reckless disregard for the truth, intending the patient to rely on it, and that the patient reasonably did rely on it to her injury. "You will be paralyzed without this surgery," said to a patient who had just reported that she felt much better, is exactly that kind of statement. Punitive damages are available when a defendant acts with malice, and a jury can find malice in a deliberate lie told to put a patient on an operating table.

Durrani's main argument on appeal was that the jury contradicted itself: it found that Pierce gave informed consent to the second surgery, yet also found she was fraudulently induced into it. The court of appeals held the two findings could be reconciled. Informed consent asks whether the risks of a procedure were disclosed; fraud asks whether the patient was lied to about whether she needed the procedure at all. One judge wrote separately to say the findings were hard to square logically, but agreed that the jury's intent was plain: Durrani talked a patient into an unnecessary surgery and should be held responsible.

The lost-wage award

Durrani also argued there was no evidence to support $40,000 in lost wages. The court disagreed. Pierce testified that she worked full time before the surgeries, did not work for a year afterward, and was earning $19.18 per hour when she later took another leave. One year at that wage is roughly $40,000. That testimony was enough. It is a useful reminder that wage loss is proven with specifics, which we covered in our post on documenting lost wages and earning capacity.

What this means for you

If a surgeon told you that you faced paralysis or some other catastrophe without an operation, and the operation left you worse, the question is not only whether the surgery was performed competently. It is whether you were told the truth about needing it. That second question can open the door to punitive damages that Ohio's caps do not reach. Proving it takes your complete records from every provider, the opinions of the doctors who treated you before and after, and an expert willing to say the surgery was unnecessary. Those records should be gathered now, while they are complete and before the one-year deadline that applies to most medical claims in Ohio runs out.