Ohio's Four-Year Medical Repose Deadline Just Got Harder: Wilson v. Durrani

Published December 30, 2020 · Ohio Supreme Court

Imagine doing everything right. You file your malpractice lawsuit on time. Later, for strategic or practical reasons, your lawyer dismisses it without prejudice and refiles it within the year that Ohio's savings statute allows, exactly as lawyers have done for generations. Then you learn that the refiled case is dead because more than four years have passed since the surgery.

That is what happened to patients of former Cincinnati-area spine surgeon Abubakar Atiq Durrani. On December 23, the Supreme Court of Ohio ruled against them in Wilson v. Durrani, Slip Opinion No. 2020-Ohio-6827. This is a bad decision for injured patients, and anyone with a possible medical-negligence claim needs to understand it.

Two different clocks: limitations and repose

Ohio medical claims run on two clocks at once, and the difference between them is the heart of this case.

The statute of limitations is the familiar deadline. Under R.C. 2305.113(A), a medical claim generally must be filed within one year after the cause of action accrues, meaning the point at which the claim legally arises. A written notice letter can extend it by 180 days. A limitations period focuses on the injured person and how diligently the claim is pursued.

The statute of repose is an outer wall. R.C. 2305.113(C) provides that no medical claim may be commenced more than four years after the act or omission that caused the injury, and that any claim not commenced within four years is barred. The Court described a repose statute as one that bars a suit brought after a set time since the defendant acted, even if that period ends before the injured person has suffered any resulting injury. It focuses on the defendant's interest in being free from claims after a fixed period.

As I explained in our 2012 post on the four-year repose period, the Supreme Court has already upheld that wall. Wilson answers a different question: can the savings statute get a claim over it?

What happened in Wilson

According to the opinion, Dr. Durrani performed spinal surgery on one patient in April 2010 and on another in February and April 2011. The patients filed malpractice claims in Butler County in the spring of 2013, well within four years of their surgeries. In late 2015 they voluntarily dismissed those cases without prejudice and promptly refiled in Hamilton County in December 2015.

Ohio's savings statute, R.C. 2305.19(A), allows a plaintiff whose case fails "otherwise than upon the merits," including by a voluntary dismissal, to file a new action within one year. The defendants did not dispute that the savings statute overcame the statute of limitations. Their argument was that it could not overcome the four-year repose period, which had expired before the refiling. The First District Court of Appeals sided with the patients. The Supreme Court reversed.

What the Court decided

Writing for a five-justice majority, Justice French held that R.C. 2305.113(C) is "a true statute of repose" and that once the four years have run, the savings statute cannot be used to commence a refiled claim. The majority reasoned that the General Assembly wrote specific exceptions into the repose statute, and a savings-statute exception is not one of them. Those written exceptions are:

• Minors and people of unsound mind, whose time is tolled as provided in R.C. 2305.16.
• Late-discovered injuries, under R.C. 2305.113(D)(1), where a patient using reasonable care could not have discovered the injury within three years but discovers it before the four years run, and then has one year from discovery to sue.
• Foreign objects left in the body, under R.C. 2305.113(D)(2), where the patient has one year from when the object was or should have been discovered.

Outside those exceptions, the Court held, the four-year period is a hard stop. Because the patients' refiled cases were commenced more than four years after their surgeries, they were barred.

Justice Stewart, joined by Justice Donnelly, dissented. She argued that giving a plaintiff one more year to refile a case that was already timely filed does not create the kind of open-ended liability a repose statute is meant to prevent, and that the two statutes could easily operate together. That view did not carry the day.

Why this matters so much

Before Wilson, a voluntary dismissal and refiling was a common, accepted tool. Lawyers used it when an expert withdrew, when a key witness became unavailable, when a judge denied a continuance, or when a case needed to be restructured. The savings statute gave a full year to start again.

After Wilson, that tool is gone for medical claims once the four-year mark passes. If a malpractice case is dismissed without prejudice for any reason after the repose period has run, there may be no second chance. This applies whether the dismissal was voluntary or ordered by the court.

This decision comes only four months after Moore v. Mt. Carmel Health Sys., in which the Court held that the savings statute could not rescue a malpractice case that was filed but never properly served. I wrote about Moore in our September post. Together, the two cases send a clear signal: in medical-negligence cases, Ohio's deadlines will be applied strictly, and procedural safety nets will not stretch beyond their exact terms.

What injured patients and families should do

Start early. The four-year clock begins on the date of the surgery, the missed diagnosis, or the medication error, not on the date you realize something went wrong. Our guide chapter on deadlines and the timeline of an Ohio injury case explains how the one-year and four-year periods interact.

Write down the dates. Note the date of every procedure, appointment, test, and prescription connected to your injury. If there were several surgeries, each may start its own clock.

Expect your lawyer to run both clocks from the first call. A careful lawyer calculates the limitations deadline and the repose deadline at the very start, and builds the case so it does not depend on a dismissal and refiling near the four-year line.

Do not wait for the full picture. Medical cases require records review and an expert's opinion before filing, and that takes time. That is the core of our guide chapter on why you should talk to a lawyer early.

What this means for you

• Ohio medical claims must generally be filed within one year, and no later than four years after the act or omission, subject only to narrow written exceptions.
• After Wilson v. Durrani, the savings statute cannot be used to refile a medical claim once the four-year repose period has expired.
• A case dismissed without prejudice after the four-year mark may be lost for good.
• The safest course is to have a lawyer evaluate the claim long before either deadline approaches.