COLUMBUS, Ohio (Legal Newsline) - An Ohio law barring medical-malpractice lawsuits more than four years after an injury doesn’t apply to cases against a surgeon who fled the country and is now living in Pakistan, the Ohio Supreme Court ruled.
While the state’s medical liability statute of repose has a strict four-year limit, the court ruled, another statute tolls, or suspends, “the period of limitation” when a defendant has absconded and left the state. The Dec. 1 decision drew dissents from three of the seven justices, who said it conflicted with the court’s own decision in a related case and improperly combines two different statutes.
Richard Elliott sued Dr. Abubakar Atiq Durrani in August 2015, more than five years after Dr. Durrani operated on him at Good Samaritan Hospital in Cincinnati. Elliott was among hundreds of patients who later accused the doctor of malpractice. Federal prosecutors indicted him in 2013 for criminal fraud and he fled to Pakistan, where he remains.
In 2020, the Ohio Supreme Court ruled in Wilson v. Durrani, another case against the doctor, that the medical statute of repose “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.” But the high court remanded the case to the trial court to decide whether the separate statute on absconded defendants applied.
In the meantime, the trial court ruled against Elliott, citing the Ohio Supreme Court’s 2020 language. But on appeal, the high court said it never precluded applying the exception for absconding defendants and allowed Elliott’s case to proceed.
Durrani’s lawyers in Ohio argued all cases filed after four years against him should be dismissed under the court’s reasoning in Wilson. His lawyers also cited a 2017 decision by the U.S. Supreme Court finding statutes of repose to be generally binding, unless the legislature explicitly states a reason for tolling them.
“This is exactly our situation here,” the majority held, in an opinion by Justice Michael Donnelly.
Chief Justice Justice Maureen O’Conner dissented, along with Justice Sharon Kennedy and Judge William Klatt. They said the medical statute of repose has three exceptions, but absconding from the state isn’t one of them.