When the Surgeon Skips the Country: Elliot v. Durrani and Tolling Ohio's Medical Repose Deadline

Published September 28, 2021 · Ohio Appeals Courts

Imagine a surgeon who operates on you, the surgery goes badly, and before you have filed suit he is indicted and boards a plane out of the country. Should the clock on your malpractice claim keep ticking while he sits beyond the reach of Ohio courts? For many former patients of Cincinnati-area spine surgeon Abubakar Atiq Durrani, that is not a hypothetical.

On September 3, 2021, the First District Court of Appeals in Hamilton County answered the question in Elliot v. Durrani, 2021-Ohio-3055: no. A doctor's flight from Ohio pauses the four-year medical statute of repose. For patients whose claims were thrown out after last December's Wilson v. Durrani decision, this is the most important development of the year.

How we got here

Ohio gives most medical-malpractice claims two separate time limits. Under R.C. 2305.113(A), a claim generally must be filed within one year after it accrues. Under R.C. 2305.113(C), the statute of repose, no medical claim may be filed more than four years after the act or omission that caused the harm, with narrow exceptions for minors, people of unsound mind, injuries that could not reasonably have been discovered sooner, and foreign objects left in the body. Our guide chapter on deadlines and the timeline of an Ohio injury case explains both clocks.

In December 2020, the Supreme Court of Ohio held in Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, that Ohio's saving statute, R.C. 2305.19, cannot be used to refile a medical claim once the four-year repose period has expired. Many Durrani patients had filed on time, voluntarily dismissed, and refiled within a year, exactly as the saving statute had long allowed. Wilson closed that path. I explained the decision and its consequences in our post on the four-year repose deadline.

The Wilson patients then asked the Supreme Court to reconsider. According to the Elliot opinion, on March 2, 2021, the Court declined to reconsider its saving-statute ruling but sent the case back to the First District to decide a different question in the first instance: whether the four-year period was tolled under R.C. 2305.15(A) because Dr. Durrani had left the state. It sent a number of other Durrani cases back on the same issue. The First District chose Elliot as the lead case.

The facts of Elliot

Richard Elliot had lumbar spinal-fusion surgery with Dr. Durrani on March 1, 2010, at Good Samaritan Hospital in Cincinnati. His surgical wounds became infected, and he needed extensive treatment afterward. He sued in June 2014, voluntarily dismissed in September 2014, and refiled in August 2015, more than five years after the surgery. The trial court dismissed the case under the statute of repose.

In December 2013, less than four years after Elliot's surgery, Dr. Durrani, who was under federal indictment, fled to Pakistan.

What the court held

R.C. 2305.15(A) is Ohio's absent-defendant tolling statute. As it read in 2021, it provides that if 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 begin to run, and that time a defendant spends away after the claim accrues is not counted as any part of the period within which the action must be brought. The medical statute, R.C. 2305.113, falls within that range.

The First District held that this language reaches the four-year repose period, not just the one-year statute of limitations. The court relied on the statute's plain words, on Wilson's own recognition that a "period of limitation" can encompass a statute of repose, on the tolling statute's long history, and on the parallel language of R.C. 2305.16, the disability tolling provision that the repose statute expressly incorporates. Because Dr. Durrani fled before the four years ran out, the repose period was tolled, and Elliot's claims against him were reinstated.

Saving statute versus tolling statute

The court explained why Wilson did not control, and the distinction matters to anyone with a claim near a deadline.

• A saving statute gives a plaintiff a limited window to refile a case that was dismissed without a decision on the merits. It does not stop the clock; it lets a new case be filed after the clock has run. Wilson held that this kind of extension cannot defeat the repose period.
• A tolling statute stops the clock itself. As the First District put it, R.C. 2305.15(A) "tolls the time to commence a timely action." The filing is not late at all, because the time the defendant was gone never counted.

The limits of the ruling

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

• It protects claims against the doctor who left. The tolling did not extend to the doctor's practice, the Center for Advanced Spine Technologies, which was not itself out of state, or to the hospital. Those claims stayed dismissed.
• The injury must be discovered within the repose period. The court explained that tolling can be invoked only if the cause of action is discovered during the four years.
• Other arguments still fail. The court reaffirmed that the saving statute cannot extend repose, that post-surgical care does not restart the four years when the surgery itself is the basis of the claim, that a doctor's later license revocation does not change the nature of the claim, and that fraud and negligent-credentialing claims are still "medical claims" subject to repose.

The decision binds trial courts in the First District, which covers Hamilton County, and further review is always possible.

What this means for you

If you were a patient of Dr. Durrani and your claim against him was dismissed on repose grounds, Elliot may give that claim new life, and you should have a lawyer review its timeline promptly. Collecting from a doctor who has left the country raises its own questions, which is one more reason to get advice now. We have written about the Durrani litigation before; see our earlier post on a Durrani verdict upheld on appeal.

More broadly, Elliot is a reminder that time limits in medical cases are complicated, unforgiving, and full of exceptions that only apply if the facts are developed early. The one-year limitations period is short. The four-year repose period is nearly absolute. Whether a tolling statute applies in any other case depends heavily on the facts. The safest course is to talk to a lawyer as soon as you suspect a medical error, not when the deadline is close; Why You Should Talk to a Lawyer Early explains why. We handle serious medical-negligence claims as part of our personal injury practice.