Two years ago, I wrote a blog regarding Ohio's medical claims statute of repose (R.C. 2305.113(C)) based on the Ohio Supreme Court's decision in Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448. Wilson held that Ohio's Savings Statute (R.C. 2305.19) did not apply to medical claims that were re-filed after the statute of repose for the claims had passed. The Ohio Supreme Court stated in Wilson that "R.C. 2305.113(C) is a true statute of repose that, except as expressly stated in R.C. 2305.113(C) and (D), clearly and unambiguously precludes the commencement of a medical claim more than four years after the occurrence of the alleged act or omission that forms the basis of the claim." Id. at ¶ 38 (Emphasis added). On December 6, 2022, (almost precisely two years from the decision in Wilson, and notwithstanding Wilson), the Ohio Supreme Court rendered its decision in Elliot v. Durrani, 2022-Ohio-4190, where it held that Ohio's tolling statute (R.C. 2305.15) actually applies to the medical claims statute of repose. Thus, I have to take it back (and so does the Ohio Supreme Court). Ohio's medical claims statute of repose is not a true statute of repose, in that, in the Court's view, the tolling statute can allow a claim that is otherwise barred by the language of the statute of repose to proceed.
As many know, Wilson and Elliot are just two of hundreds of medical malpractice cases filed against Dr. Abubakar Durrani over the past 10 years arising out of surgeries allegedly performed negligently by Dr. Durrani. (He was even indicted by the United States government in 2013 for criminal fraud relating to his medical practice). As many know as well, Dr. Durrani fled the country and went to Pakistan in 2013, and he has never returned. The issue presented in Elliot was whether Ohio's Tolling Statute, R.C. 2305.15, applied to toll the Medical Claims Statute of Repose, R.C. 2305.113(C). In a 4-3 split decision, the Ohio Supreme Court determined that the tolling statute, does, in fact, apply to the medical claims statute of repose. The time in which a physician is out of Ohio tolls the running of the four-year period, and therefore "the statute of repose does not bar the filing of a claim during the defendant's absence." Elliot at ¶ 1.
In the opinion, authored by Judge Donnelly, the Court began by reminding us of its 2020 decision in Wilson v. Durrani, 2020-Ohio-6827, explaining:
"In Wilson, the plaintiffs had filed medical-malpractice claims against Dr. Durrani within four years of their surgeries. After the statute of repose had run, however, the plaintiffs dismissed their complaints…[and] then refiled their lawsuits in another county, believing that R.C. 2305.19, which protects a complaint from the statute of limitations if it is refiled within a year of dismissal, tolled the statute of repose. This court held that the statute of repose in R.C. 2305.113(C) 'clearly and unambiguously precludes the commencement of a medical claim more than four years after the occurrence of the alleged act of omission that forms the basis of the claim.'" Elliot at ¶ 5. (Internal citations omitted).
Notwithstanding this pronouncement, the court remanded Wilson back to the trial court to decide "whether the repose period was tolled under R.C.2305.15(A)" (Ohio's tolling statute for absent defendants). Id. at ¶ 6. In the meantime, the First District Court of Appeals rendered a decision in Elliot on this precise point, holding that the tolling statute (or absent defendant statute) tolled the repose period with respect to Dr. Durrani who left Ohio in 2013. The Supreme Court accepted review and has now affirmed that holding.
In reaching its conclusion that the tolling statute applies to the statute of repose, it began by reviewing the several statutes involved (just like it did in Wilson). R.C. 2305.113(A) provides the statute of limitations for medical claims to be one year after the cause of action accrues, which is when the injury giving rise the claim is discovered. R.C. 2305.113(C) is the statute of repose for medical claims, which provides:
"Except as to persons within the age of minority or of unsound mind as provided by section 2305.16 of the Revised Code, and except as provided in division (D) of this section, both of the following apply:
(1) No action upon a medical…claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical…claim.
(2) If an action upon a medical…claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical…claim, then, any action upon that claim is barred.
(D)
(1) If a person making a medical claim, dental claim, optometric claim, or chiropractic claim, in the exercise of reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within three years after the occurrence of the act or omission, but, in the exercise of reasonable care and diligence, discovers the injury resulting from that act or omission before the expiration of the four-year period specified in division (C)(1) of this section, the person may commence an action upon the claim not later than one year after the person discovers the injury resulting from that act or omission.
(2) If the alleged basis of a medical claim, dental claim, optometric claim, or chiropractic claim is the occurrence of an act or omission that involves a foreign object that is left in the body of the person making the claim, the person may commence an action upon the claim not later than one year after the person discovered the foreign object or not later than one year after the person, with reasonable care and diligence, should have discovered the foreign object." (Emphasis added).
Next, the court looked at the tolling statute, R.C. 2305.15, which states:
"(A) When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action as provided in Sections 2305.04 to 2305.14… does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person's absence or concealment shall not be computed as any part of the period within which the action must be brought.
(B) When a person is imprisoned for the commission of any offense, the time of the person's imprisonment shall not be computed as any part of any period of limitation, as provided in section 2305.09, 2305.10, 2305.11, 2305.113 or 2305.14 of the Revised Code, within which any person must bring any action against the imprisoned person." (Emphasis added).
The court pointed out that there was a difference between the medical claims statute of limitations and the medical claims statute of repose, in that the statute of limitations begins when the claim accrues. In contrast, the statute of repose begins upon the act or occurrence regardless of whether the injury has been discovered, except for the explicit exceptions mentioned R.C. 2305.113(D), two of which allow one additional year upon discovery of the injury in certain specific conditions. In addition, it interpreted the phrase "period of limitation" found in the tolling statute to encompass both the statute of repose and statute of limitations as the phrase is broader than "statute of limitations" (which is the phrase used in the savings statute). Thus, because the exceptions in the statute of repose include a sort-of "accrual" approach (allowing for one year of additional time upon discovery of injury or foreign object left in the body), and because the tolling statute is written in terms of when a claim accrues, uses the phrase "period of limitation," and mentions 2305.113, the tolling statute applies to the statute of repose for medical claims. Elliot at ¶ 13.
In distinguishing Elliot from Wilson, the court said:
"As in this case, our analysis in Wilson turned on the language of the statute. In Wilson we were asked to read into the savings statute an exception to the statute of repose. But the court held that neither the statute of repose nor the saving statute afforded it an avenue to do so. The statute of repose delineates discrete exceptions, none of which incorporate the saving statute. And the saving statute specifically mentions the circumstance that will stretch the statute of limitations, but it says nothing about the statute of repose. Accordingly, the court held in Wilson that R.C. 2305.113(C) 'clearly and unambiguously' precludes refiling a claim beyond the limits of the statute of repose." Id. at ¶ 17. (Emphasis added).
Although Wilson emphasized that only the explicit exceptions in the statute of repose are to be applied (Wilson, at ¶ 38), the court in Elliot scolds that "the explicit directives in other statutes matter just as much as the directives in the statute of repose and are not to be ignored." Elliot, at ¶ 18. Thus, while the savings statute does not mention the statute of repose, the tolling statute, R.C. 2305.15(A) and (B), "explicitly make the tolling statute an exception to the statute of repose. In other words, in Wilson, the court held that nothing in the saving statute rescued the cause of action in that case from the statute of repose. But here, the tolling statute explicitly rescues [the medical claim] cause of action from the statute of repose." Id. "The legislature has made clear in R.C. 2305.15 that an absconding defendant is not entitled to a four-year statute of repose that is not tolled." Id. at ¶ 25.
Justice Kennedy wrote a dissenting opinion. In her analysis, she explained that the absconding defendant statute and the medical claims statute of repose are not in conflict. "The absconding-defendant statute, R.C. 2305.15(A), establishes when an action must be commenced. The medical-claim statute of repose, R.C. 2305.113(C), establishes the point at which a person is completely barred from ever pursuing a medical-malpractice claim." Id. at ¶ 28. Further, the absconding defendant statute:
"does not create an exception to the medical-claim statute of repose [because] [i]t uses the phrase 'period of limitation' which is synonymous with 'statute of limitations.' R.C. 2305.15(A) does refer to the period of limitation in R.C. 2305.113, because R.C. 2305.113(A) creates a one-year statute of limitations for medical-malpractice claims. R.C. 2305.15(A) therefore may expand the statute of limitations set forth in R.C. 2305.113(A). But it does not expand the specific provisions of R.C. 2305.113 that establish the complete bar to commencing a medical-malpractice action…. A plain reading of R.C. 2305.15(A) and its cross-references to the affected periods of limitations reveals that the absconding-defendant statute does not create an express exception to the medical-claim statute of repose…." Id. at ¶¶ 30-31.
"The language of R.C. 2305.113(C) is plain and unambiguous; therefore, it must be applied as written. Except for these three things –legal incapacity, the accrual of the claim during the last year of the statute of repose, and the discovery of a foreign object left in the body—'no action upon a medical claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical claim.'" Id. at ¶ 34.
"And since the General Assembly has created three express exceptions to the medical-claim statute of repose in R.C. 2305.113(C), no other exceptions should be recognized unless there is a statute that creates those exceptions clearly and unambiguously." Id. at ¶ 36. (Emphasis added).
In finding no "particular indication" (or nothing that was "clear and unambiguous") that the absconding defendant statute created another exception to the statute of repose, Justice Kennedy explained that the absconding defendant statute uses language referring to a statute of limitations and cross-references R.C. 2305.113(A) because that is the medical claims statute of limitations. Id. at ¶ 37. (However, as the majority opinion referenced, Wilson relied on the interpretation of the phrase "period of limitations" to be broader than "statute of limitations" and to encompass both the statute of limitations and statute of repose when if found that the savings clause did not apply to the statute of repose).
Justice Kennedy also provided another reason (and in my opinion, a stronger one) as to why the statute of repose is not tolled by the tolling statute based on a comparison of R.C. 2305.15(A) with R.C. 2305.16 (tolling due to minority or unsound mind).
"Both statutes cross-reference the periods of limitation enacted in the same range of statutes: R.C. 2305.04 to R.C. 2305.14, 1302.98, and 1304.35. R.C. 2305.15(A) and 2305.16 therefore toll the exact same period of limitations. One would therefore expect both statutes to apply the same way to the medical-claim statute of repose, yet they do not. R.C. 2305.113(C) makes the tolling provisions of R.C. 2305.16 an express exception to the medical-claim statute of repose, but it does not create an express exception for an absconding defendant under R.C. 2305.15(A). Why? Because the General Assembly understood that the language of R.C. 2305.15(A) and 2305.16 does not limit the statute of repose. The General Assembly then made R.C. 2305.16 an express limitation because it intended that tolling provision to apply to the statute of repose. It did not do the same thing for R.C. 2305.15(A) because it did not mean for the time that a defendant is absconded to toll the statute of repose." Id. at ¶ 38.
As Justice Kennedy warns us in her dissent, the majority opinion ignores the purposes of a statute of repose and the far-reaching ramifications of its decision.
"The statute of repose exists to give medical providers certainty with respect to the time within which a claim can be brought and a time after which they may be free from the fear of litigation. The majority today overrides that statutory purpose and tolls the running of the statute of repose whenever the medical provider simply leaves the state – even if he or she departs Ohio without the intention to evade a malpractice action. Under the majority's holding today, when a medical provider leaves Ohio to practice in another state or to retire, he or she potentially has unending exposure to suit for injuries that occurred years or even decades earlier. That result is contrary to the legislative intent of R.C. 2305.113(C). The General Assembly provided a statute of repose to address the problems caused by stale litigation, including the loss of evidence and witnesses, changes in standards of care over long periods, and the 'unacceptable burden to hospitals and health care practitioners' of maintaining records 'for periods of time in excess of the time period presented in the statute of repose.'" Id. at ¶ 39. (Internal citations omitted).
The majority opinion's response to Justice Kennedy's analysis and her portent of the implications of the majority's decision is simply: "our task is to apply unambiguous statutes as written" and "[w]e do not second guess the legislature's policy choices." Id. at ¶ 21. (Citations omitted). Nevertheless, as Justice Kennedy concludes "[t]his court does not have the final word regarding the interpretation of a statute….If the majority today has misinterpreted R.C. 2305.113 and R.C. 2305.15, as I believe it has, the General Assembly has the prerogative to correct the court's mistake." Id. at ¶ 40. Will the Ohio General Assembly do anything? Time – that funny little thing at the heart of all of this – will only tell.
