The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
VICTORIA LANDRUM : Case Nos. 1:18-cv-807
Plaintiff, : Judge Susan J. Dlott
v. ORDER DENYING PLAINTIFF’S
: MOTION FOR RECONSIDERATION
ABUBAKAR ATIQ DURRANI, et ai., :
Defendants.
This matter is before the Court on Plaintiff's Motion for Reconsideration of the Court’s
Order Granting Judgment on the Pleadings to Defendants Good Samaritan Hospital and Center
for Advanced Spine Technologies (Doc. 39, 40).! Defendants oppose the motion (Doc. 43, 44).
Plaintiff alleges that the Court erroneously concluded that negligent credentialing claims are
“medical claims” under Ohio Revised Code § 2305.113 and that the statute of repose bars claims
against the Center for Advanced Spine Technologies (“CAST”). For the reasons set forth below,
the Court will DENY Plaintiff's Motion.
I. BACKGROUND
Following a car accident, Plaintiff Victoria Landrum sought treatment from Defendant
Abubakar Durrani, then a licensed medical doctor with a specialization in spine surgery. Durrani
allegedly lied about the necessity of surgery and injected an off-label bone protein, injuring
Plaintiff, in June of 2010. Plaintiff filed her initial suit against Durrani, CAST, and Trihealth,
Inc. d/b/a Good Samaritan Hospital (“GSH”) on October 30, 2015. GSH, CAST, and Durrani all!
1 Plaintiff refiled the same motion the same day with an additional attachment. The Court will address both filings as
one motion.
moved for judgment on the pleadings arguing that Ohio’s statute of repose bars Plaintiff's
claims. In the Order Granting Judgment on the Pleadings, this Court granted the motions as to
CAST and GSH but denied the motion as to Durrani. (Doc. 38.) The Court concluded that
Plaintiff's negligent credentialing claims are medical claims, and therefore barred by Ohio’s
four-year statute of repose. The Court also held that while Durrani’s abscondment did toll the
statute of repose for the claims against him, it did not toll the statute of repose as to his employer,
CAST. Plaintiff now moves for reconsideration as to the negligent credentialing and spoliation
claims against GSH and the negligent hiring, retention, supervision, and vicarious liability claims
against CAST.
Il. LEGAL STANDARD
Motions to reconsider “are properly treated as motions to alter or amend a judgment under
Rule 59(e).” McDowell v. Dynamics Corp. of Am., 931 F.2d 380, 382 (6th Cir. 1991). “A court
may grant a Rule 59(e) motion to alter or amend if there is: (1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent
manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005). Plaintiff does
not allege any newly discovered evidence or intervening change in law. To prevail on her
motion, then, Plaintiff must demonstrate a clear error of law.
Ill. ANALYSIS
A. Negligent Credentialing Claims are “Medical Claims” under Ohio Law
Ohio Revised Code § 2305.113 contains a statute of repose which prevents any medical
claim being brought more than four years after the act or omission giving rise to the claim.
“Medical claim” is defined in Ohio Revised Code § 2305.113(E)(3). Defendant argued, and this
Court previously ruled, that Plaintiff's negligent credentialing claims are “medical claims”
within the meaning of Ohio Revised Code § 2305.113(E)(3)(c)(2). Pursuant to
§ 2305.1 13(E)(3)(c)(2), a claim resulting “from the hiring, training, supervision, retention, or
termination of caregivers providing medical diagnosis, care, or treatment” is a “medical claim”
for statute of repose purposes. Plaintiff continues to dispute the Court’s conclusion. The court
will address each of the arguments in turn.
1. Ohio Supreme Court Precedent is Not Applicable
Plaintiff, citing Browning v. Burt, 66 Ohio St. 3d 544, 613 N.E.2d 993 (1993), contends
that the Court improperly relied on Ohio appellate court decisions rather than Browning and its
progeny in concluding that Plaintiff's claims against GSH and CAST are barred by the Ohio
statute of repose. The Court disagrees.
In Browning, the Ohio Supreme Court concluded that negligent credentialing claims were
outside the definition of “medical claim” for purposes of Ohio Revised Code § 2305.11, the
statute of limitations that applied to malpractice and other medical claims in 1993. /d. at 556-
557. While the court in Browning ruled concerning the statute of limitations, the statute of
limitations and the statute of repose now share the same definition of “medical claim,” and so
case law concerning one is applicable to the other.
However, since Browning was decided, the Ohio General Assembly amended Ohio
Revised Code § 2305.11 to significantly expand the definition of “medical claims.” Specifically,
House Bill 412 added the following language (in bold) to § 2305.11:
“Medical claim” includes the following: . . .
(b) Claims that arise out of the medical diagnosis, care, or
treatment of any person and to which either of the following
Orhe claim results from acts or omissions in providing medical
(ii) The claim results from the hiring, training, supervision,
retention, or termination of caregivers providing medical
diagnosis, care, or treatment.
2002 Ohio Laws File 185 (H.B. 412). The Ohio General Assembly later removed the definition
of “medical claim” from § 2305.11 and created § 2305.113, entitled “Time limitations for
bringing medical, dental, optometric, or chiropractic claims,” and further expanded the “medical
claim” definition in ways that are not germane to this case. 2002 Ohio Laws File 250 (S.B. 281).
Because the Ohio General Assembly significantly expanded the definition of “medical claim”
after the Ohio Supreme Court’s Browning decision, that decision is neither helpful nor
controlling in the case at bar.
Plaintiff contends that two post-amendment Ohio Supreme Court decisions, Schelling v.
Humphrey, 123 Ohio St. 3d 387, 2009-Ohio-4175, 916 N.E.2d 1029, and Schmitz v. NCAA, 155
Ohio St. 3d 389, 2018-Ohio-4391, 122 N.E.3d 80, reaffirm the Ohio Supreme Court’s decision in
Browning. Again, the Court disagrees.
In Schelling, the Ohio Supreme Court described negligent credentialing as “lack of care
in the . . . retention of the doctor.” Schelling at J 18. The current and applicable version of Ohio
Revised Code § 2305.113(E)(3)(c)(ii) explicitly includes within the definition of “medical claim”
for statute of repose purposes, a claim that “results from the . . . retention . . . of caregivers
providing medical diagnosis, care, or treatment.” Thus, the Ohio Supreme Court’s decision in
Schelling actually supports the Court’s earlier Order.
In Schmitz, the Ohio Supreme Court referenced Browning, but it does not find that
negligent credentialing is a “medical claim.” Rather, it contained a lengthy discussion of the
discovery rule which even Plaintiff concedes applies only to the statute of limitations, not the
statute of repose at issue in the instant case. Therefore, the Ohio Supreme Court has not ruled on
the issue since the Ohio General Assembly amended and expanded the definition of “medical
claim.” Thus, this Court properly relied on recent Ohio appellate decisions in nearly identical
cases.
2. Legislative History Indicates that the Ohio Legislature Intended to
Include Negligent Credentialing in the Definition of Medical Claims
Plaintiff next argues that the legislative history of Ohio Revised Code § 2305.113(E)(3)
indicates that the legislature did not intend to include negligent credentialing claims within the
definition of “medical claims.” The legislative history, however, indicates no such thing.
Once Browning interpreted the statute to exclude negligent credentialing claims from the
definition of “medical claim,” the Ohio legislature amended the “medical claim” definition
explicitly to include negligent credentialing. In State ex rel. Ohio Trial Lawyers v. Sheward, 86
Ohio St.3d 451, 715 N.E.2d 1062 (1999), the Ohio Supreme Court held that the law which added
“negligent credentialing” to the definition of “medical claims” violated the one-subject rule and
was unconstitutional in its entirety. In addressing the procedural deficiency, the legislature re-
expanded the definition of “medical claim” to include claims arising from “the hiring, training,
supervision, retention, or termination of caregivers providing medical diagnosis, care, or
treatment.” Ohio Rev. Code § 2305.113(E)(3)(c)(2). Plaintiff's argument fails because the Ohio
legislature—in response to a judicial decision eliminating the statute—reinstated the “medical
claim” definition using even more expansive language than before.
3. First District Precedent is the Most Persuasive
Plaintiff concedes that the Ohio First District Court of Appeals has repeatedly held that
negligent credentialing claims are “medical claims.” However, Plaintiff contends that this Court
should not rely on First District authority because nine other districts have held to the contrary.
The Court again disagrees.
Of the nine cases Plaintiff cites, four cases predate the applicable amended definition of
“medical claims.” See United States Fid. & Guar. Co. v. St. Elizabeth Med. Center, 129 Ohio
App. 3d 45, 716 N.E.2d 863 (2nd Dist. 1998), Grandillo v. Montesclaros, 137 Ohio App. 3d 45,
716 N.E.2d 1201 (3rd Dist. 1998); Dicks v. U.S. Health Corp., 4th Dist. Scioto No. 95 CA 2350,
1996 WL 263239 (May 10, 1996); Allinder v. Mount Carmel Health, 10th Dist. Franklin No. 9
3AP-156, 1994 WL 49792 (Feb. 17, 1994). Three other cases concern not negligent
credentialing, but other types of negligence. See McFarren v. Canton, 2016-Ohio-484, 59
N.E.3d 652 (5th Dist.), (ordinary negligence because the plaintiff was not receiving any medical
care); Haskins v. 7112 Columbia Inc., 2014-Ohio-4154, 20 N.E.3d 287 (7th Dist.), (ordinary
negligence because changing sheets does not require any medical knowledge or skill); Hill v.
Wadsworth-Rittman, 185 Ohio App. 3d 788, 2009-Ohio-5421, 925 N.E.2d 1012 (9th Dist.)
(negligent transportation of patient by an untrained volunteer as part of discharge).
Only two districts, the Sixth and the Eleventh, have held that negligent credentialing
claims are not “medical claims” under the amended statute. In Malcolm v. Duckett, 6th Dist.
Lucas No. L-10-1110, 2011-Ohio-865 (Feb. 25, 2011), the Sixth District, applying Browning,
held that the statute of limitations for negligent credentialing is two years, as it is not a “medical
claim.” In Erickson v. Management & Training Corp., 1\th Dist. Ashtabula No. 2012—A-0059,
2013-Ohio-3864 (Sept. 9, 2013), the court likewise held that negligent credentialing claims are
subject to a two-year statute of limitations rather than the one-year statute of limitations
applicable to “medical claims.” The Malcolm and Erickson courts’ discussion of whether or not
negligent credentialing claims are “medical claims” is so cursory as to be unpersuasive. To the
contrary this Court finds the reasoning of the First District thoughtful, thorough, and directly on
point.
4. The Term “Caregiver” Includes Physicians
Finally, the Court is not persuaded by Plaintiff's argument that the term “caregiver”
cannot include physicians. The term “caregiver”’—unlike terms such as “physician,” “registered
nurse,” and “physician assistant”—is not defined in the statute. Therefore, the Legislature’s
failure to include the term “physician” in the non-existent definition of “caregiver” does not
clarify the meaning of the term.
B. Durrani’s Abscondment Does Not Toll the Statute of Repose as to CAST
Plaintiff argues that, because Durrani’s abscondment to Pakistan tolled the statute of
repose as to Durrani, the statute of repose should also be tolled for Plaintiff's vicarious liability
claim against CAST. In support of this claim, Plaintiff cites Tausch v. Riverview Health
Institute, 187 Ohio App. 3d 173, 2010-Ohio-502, 931 N.E.2d 613. The court in Tausch
concluded that when a statute of limitations is tolled for a doctor, related vicarious liability
claims are also tolled. However, the court limited its ruling to tolling due to a continuing
relationship with the physician. The court reasoned in Tausch that it would be unreasonable to
require a plaintiff to commence a suit against a hospital alleging negligence by a physician while
still being treated by that physician. This reasoning applies only to tolling due to a continuing
patient-physician relationship. Therefore, as that case is inapposite here, the Court again
concludes that the statute of repose bars Plaintiff's claims against CAST.
C. Plaintiff Cannot Succeed on a Spoliation of Evidence Claim if the Statute of Repose
Bars the Underlying Claim
A spoliation of evidence claim requires a plaintiff to demonstrate actual “disruption of
the plaintiff's case.” Smith v. Howard Johnson Co., 67 Ohio St. 3d 28, 615 N.E.2d 1037 (1993).
Because the statute of repose bars Plaintiff's claims against GSH, Plaintiff cannot show the
required disruption. Therefore, the Court correctly dismissed Plaintiffs spoliation of evidence
claim once the underlying claim was dismissed.
IV. CONCLUSION
Accordingly, the court hereby DENIES Plaintiffs Motion for Reconsideration (Doc. 39, 40).
IT IS SO ORDERED.
Dated: 29 26240
' Judge Susan J. Dlot
United States District‘Court