As I explained in my blog "Be Careful About the Ohio Saving Statute -- It Does Not Save All", in 2019, in Portee v. Cleveland Clinic Foundation, 155 Ohio St.3d 1, 2018-Ohio-3263, 118 N.E.3d 214, the Ohio Supreme Court decided the issue of whether the Ohio saving statute, R.C. 2305.19 saved a medical malpractice action that was filed in federal court in Indiana but dismissed for lack of personal jurisdiction and then was refiled in Ohio. The Ohio Supreme Court answered in the negative: "If an action is commenced in another state in either state or federal court and fails otherwise than upon the merits, and the statute of limitations for commencement of such action has expired, the Ohio saving statute does not apply to permit commencement of a new action within one year." Id. at syllabus.
On December 23, 2020, in Wilson v. Durrani, 2020-Ohio-6827, the Ohio Supreme Court again decided an issue over the applicability of the savings statute – this time, with respect to its applicability to Ohio's medical claims statute of repose, R.C. 2305.113(C) – whether "a plaintiff may take advantage of Ohio's saving statute to refile a medical claim after the applicable one-year statute of limitations has expired if the four-year statute of repose for medical claims has also expired." In an opinion written by Justice French,[1] the court again held that the savings statute did not apply, based on the "plain and unambiguous language of the statute of repose". Wilson v. Durrani, 2020-Ohio-6827, ¶ 1.
In Wilson v. Durrani, the plaintiffs filed medical claims against Dr. Durrani and the hospitals arising out of surgeries performed in April 2010 and April and February 2011. (The plaintiffs are just a few of the hundreds of patients on which Dr. Durrani performed surgeries alleged to have been malpractice in hospitals in the southwestern Ohio. Dr. Durrani fled from Ohio to Pakistan in December 2013, at which time criminal investigations and loss of his medical license were already well underway, and he remains to this day absconded from the state.) The plaintiffs filed their cases in late 2013. Ohio's statute of repose, R.C. 2305.113, with respect to "medical claims," states:
"(A) Except as otherwise provided in this section, an action upon a medical, dental, optometric, or chiropractic claim shall be commenced within one year after the cause of action accrued.
* * *
(C) 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).
Under the medical claims statute of repose, the plaintiffs' original complaints were timely filed. The plaintiffs, however, thereafter voluntarily dismissed their cases under Civ.R. 41(A)(1)(a) in late 2015 and then refiled them in December 2015 but in a different county and court of common pleas. Dr. Durrani and the hospitals "moved for judgment on the pleadings in both refiled cases, arguing that Ohio's medical statute of repose, R.C. 2305.113(C), barred [plaintiffs'] refiled claims because they arose out of surgeries that had been performed more than four years before appellees refiled. The trial court agreed." Wilson, 2020-Ohio-6827 at ¶ 4. The First District Court Appeals disagreed and reversed. The Ohio Supreme Court accepted a discretionary appeal "to address whether the saving statute permits the refiling of actions beyond the expiration of the medical statute of repose." Id. at ¶ 6.
In holding that the plain and unambiguous language of the statute of repose precluded the applicability of the saving statute, the Ohio Supreme Court analyzed the "interplay between three distinct types of statutes: (1) statutes of limitations, (2) statutes of repose, and (3) savings statutes." Id. at ¶ 7. The court explained,
"[a] statute of limitations establishes a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered). A statute of limitations operates on the remedy, not on the existence of the cause of action itself. A statute of repose, on the other hand, bars any suit that is brought after a specified period of time since the defendant acted even if this period ends before the plaintiff has suffered a resulting injury. A statute of repose bars the claim—the right of action—itself."
Id. at ¶ 9 (citation and internal quotations omitted).
"In contrast to statutes of limitations and statutes of repose, both of which limit the time in which a plaintiff may file an action, savings statutes extend that time. Savings statutes are remedial and are intended to provide a litigant an adjudication on the merits. Generally, a saving statute will provide that where an action timely begun fails in some manner described in the statute, other than on the merits, another action may be brought within a stated period of time from such failure."
Id. at ¶ 11 (citation and internal quotations omitted).
Here, R.C. 2305.113 sets out a one-year statute of limitations and a four-year statute of repose for medical claims. R.C. 2305.19(A), Ohio's saving statute provides: "[i]n any action that is commenced…if the plaintiff fails otherwise than upon the merits, the plaintiff…may commence a new action within one year after the date of … plaintiff's failure… or within the period of the original applicable statute of limitations."
The Court then explained why the saving statute did not save the plaintiffs' refiled actions. While the plaintiffs filed their original complaints within four years of the surgeries, they voluntarily dismissed those complaints without prejudice. "A dismissal without prejudice gives the complaining party the right to state a new case, if he can. But it takes away no right of defense to such suit save that which might be based on the bar of the first action. A dismissal with prejudice leaves the parties as if no action had been brought at all. When a complaint has been dismissed without prejudice, the action is deemed to never have existed." Wilson, 2020-Ohio-6827 at ¶ 20 (citations and internal quotations omitted).
In holding that the saving statute did not create an exception to the statute of repose, the court
"first turn[ed] to the language of [of the statute of repose] which clearly and unambiguously states, '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 for' the claim. R.C. 2305.113(C) means what it says. If a lawsuit bringing a medical … claim is not commenced within four years after the occurrence of the act or omission constituting the basis of a claim, then any action upon that claim is barred. We must apply clear and unambiguous statutory language as the General Assembly wrote it."
2020-Ohio-6827 at ¶ 24 (citations and internal quotations omitted). The court rejected the plaintiffs' argument that because they refiled their claims within one year of their voluntary dismissal, their new actions "relate back" to the dates they initially filed their claims, based on a statement in Frysinger v. Leech, 32 Ohio St.3d 38, 512 N.E.2d 337 (1987) that "where R.C. 2305.19 applies, the date for filing the new action relates back to the filing date for the preceding action for limitations purposes." Wilson, 2020-Ohio-6827 at ¶ 26. The Court acknowledged the statement in Frysinger, but found the statement to be merely dicta, with no consequence to the determination of the issues in that case, and therefore the court was "not obligated to give it binding effect." Id. at ¶ 27.
Furthermore, the court explained that "in light of the purpose of a statute of repose – to create a bar on a defendant's temporal liability – exceptions to a statute of repose require 'a particular inclination that the legislature did not intend the statute to provide complete repose but instead anticipated the extension of the statutory period under certain circumstances as when the statute of repose itself contains an express exception." Id. at ¶ 29 (citation omitted and internal quotations omitted). Here, Ohio's medical claims statute of repose contains two express exceptions – for those under the age of minority or of unsound mind and for those claims based on a foreign object being left in the body. "R.C. 2305.113(C) notably does not contain an exception for application of the saving statute, and we may not read one into the statute by implication." Id.
The Court went on to explain that the absence of an express exception to the statute of repose based on the saving statute "takes on additional import" when one compares the medical claims statute of repose with the products liability statute of repose, which does expressly state an exception for the saving statute. Id. at ¶ 30. "Not only does the General Assembly's incorporation of the saving statute in the product liability statute, R.C. 2305.10(C), demonstrate that the General Assembly knew how to create an exception to the statute of repose for application of the saving statute when it intended to do so, but it also demonstrates the General Assembly's understanding that without an express indication to the contrary, the saving statute would not override the statutes of repose." Id. at ¶ 31.
The Court thus concluded:
"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. Expiration of the statute of repose precludes the commencement, pursuant to the saving statute, of a claim that has previously failed otherwise than on the merits in a prior action. Had the General Assembly intended the saving statute to provide an extension of the medical statute of repose, it would have expressly said so in R.C. 2305.113(C), as it did in [] R.C. 2305.10(C), the statute of repose that governs product-liability claims."
Id. at ¶ 38.
Interestingly, the Ohio Supreme Court accepted review of a similar appeal involving Dr. Durrani and the application of the saving statute to the medical claims statute of repose in Durrani v. Scott, Supreme Court Case No. 2020-0206. Like Wilson, in Scott, the court of appeals held that the saving statute applied to the medical claims statute of repose. The parties in Scott and Wilson moved for consolidation of the two appeals, but the Ohio Supreme Court denied that motion. Oral argument in Scott was scheduled for March 3, 2021. However, on December 31, 2020, the Ohio Supreme Court reversed the decision of the First District Court of Appeals in Scott on the authority of Wilson and remanded the case to that court to consider the arguments that it had previously deemed as moot. The two arguments that the court of appeals deemed as moot in Scott were whether the trial court erred in (1) allowing the hospital defendant to amend its answer to assert the statute of repose defense and (2) its application of the medical claims statute of repose despite Dr. Durrani's loss of his medical license.
On January 4, 2021, the plaintiffs in Wilson filed a motion for reconsideration with the Supreme Court, and three amicus briefs in support of reconsideration were also filed. The Wilson plaintiffs argued that the Court incorrectly interpreted the statute and that the Court should have considered the argument that "Ohio's statute of repose, R.C. 2305.113(C), has not expired against [plaintiffs] and their medical claims because of the operation of Ohio's tolling statute, R.C. 2305.15(A), as Durrani fled Ohio in December 2013 and has not returned. The statute of repose is not capable of lapsing against [plaintiffs] until Durrani returns to Ohio." They also argued that the decision should be given prospective application only.
On January 8, 2021, the Scott plaintiffs filed a similar motion for reconsideration in the Ohio Supreme Court. In their motion, they argued that the decision should be reconsidered because the saving statute was necessary for these plaintiffs because, among other arguments (1) their first counsel had been disbarred in Kentucky and they lost an expert witness (which allegedly required the voluntary dismissal and refiling albeit in a different county), (2) in Wilson, the court interpreted the statute incorrectly and in direct contradiction to the majority of states that have determined the issue, resulting in doctors receiving special treatment especially if they abscond the state, and (3) Wilson should be applied only prospectively. The Scott plaintiffs also argued that the Supreme Court should make clear that on remand, the court of appeals consider the argument that the flight or absconder exception in R.C. 2305.15(A) applies to the statue of repose, i.e., "can a physician avoid the consequences of his illegal and negligent misconduct by absconding to a foreign country for at least four years?"
What will be interesting to see is what the fall-out, if any will be, given that Justice French, who authored Wilson, was not re-elected to the bench in 2020 and has been replaced by Justice Jennifer Brunner. Indeed, the Wilson plaintiffs were not shy in calling out Justice French in their motion for reconsideration, stating at the opening of their brief:
"On December 30, 2020, Justice French was quoted in Court News Ohio at the time of her departure from the bench, 'No matter what the issue is, you have to ask, ''What’s in the best interest of the people of Ohio? What do they expect and deserve?'' I like answering those questions, because they have a broader meaning and purpose.' Sukosd, C., Justice French Reflects on a Tenure of ‘Energy and Devotion’, Court News Ohio (12/30/20). Justice French's words comprise political double talk. Not ONE Ohio citizen, including appellees, would conclude Justice French's decision follows her 'exalted maxim.' These appellees only need the law followed on flight tolling and otherwise as discussed below. They do not need a 'favor' of equity."
Wilson was a split decision, five to two. Of the justices that considered Wilson, the four justices who concurred in Justice French's decision remain on the bench, although for purposes of Wilson, Justices DeWine and Fischer had other judges sitting in for them. The two judges that dissented also remain on the Court. Will new Justice Brunner have any sway? That remains to be seen.
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[1] Justice French was not re-elected to the bench in the 2020 election.
