AMCNO Files Amicus Brief in Case that Could Impact Ohio’s Tort Reform Law

The AMCNO recently filed a friend-of-the-court (amicus) brief in the cases of Durrani v. Sand and Durrani v. Wilson, both of which are before the Ohio Supreme Court. Central to these cases is the following question: How long after the fact can a physician be sued for his or her treatment of a patient? Depending on how the Supreme Court decides the case, the answer could be either (a) four years, or (b) decades.

Durrani involves two malpractice lawsuits filed against a surgeon and a surgery center. In reviewing these cases, the Supreme Court will attempt to reconcile two Ohio laws that appear to be in conflict. One law, the Savings Statute (R.C. 2305.19), provides that a civil lawsuit that fails “otherwise than upon the merits” can be refiled within one year of the case’s dismissal, even if that one-year period extends beyond the statute of limitations. In practical terms, this means that plaintiffs often voluntarily dismiss their lawsuits, knowing that they have one year to refile the case and start the lawsuit over again. The other law, the Medical Claim Statute of Repose (R.C. 2305.113(C)), passed as part of the 2003 tort reform laws, states that, aside from a few exceptions (such as the patient being a child), no medical malpractice claim can be filed more than four years after the alleged negligent event occurred. The Statute of Repose is different from a statute of limitations in that the clock on the latter will not start running until plaintiffs “discover” their injury, while the former operates as an absolute time bar, regardless of whether a plaintiff would have reason to know of a potential claim.

The Durrani plaintiffs originally filed suit, on time, in Butler County, but after several years of litigation, the plaintiffs voluntarily dismissed the suits and refiled them several days later in neighboring Hamilton County. This was an apparent strategic effort by the plaintiffs to move the case to a jurisdiction where they might have a more plaintiff-friendly jury pool, after four similar trials against the same defendant resulted in four defense verdicts in Butler County. The problem for these plaintiffs is that the date on which they refiled their cases in Hamilton County was more than four years after their allegedly-negligent surgeries took place; this meant their refiled suits were barred by the Statute of Repose, and the trial court dismissed their cases. However, the Court of Appeals reversed the trial court’s ruling, saying that, under the Savings Statute, the plaintiffs had one year to refile their cases, regardless of whether that one year was beyond the four-year deadline imposed by the Statute of Repose.

The AMCNO filed its brief in support of the defendants on April 23, 2020, arguing that the Statute of Repose should take precedence over the Savings Statute in this scenario. Although the arguments of both sides are focused heavily on statutory construction and legislative history, the impact of the Court’s decision for physicians will be real. If the Court rules for the plaintiffs, medical providers could be forced to defend themselves in cases—such as these—where the events took place more than 10 years beforehand, meaning records may not be available and memories may be faded. Conversely, if the Court agrees with the AMCNO’s arguments, it would be a win for fairness—the principle that, at some point, doctors can rest easy and not worry about being sued for something that happened in the distant past. It would also be an affirmation of tort reform, which has been overwhelmingly beneficial in reducing the costs of professional liability insurance for physicians in Ohio, ensuring that Ohio has an ample number of physicians in all specialties who can deliver quality care to Ohioans without being priced out of practicing in the state. Oral arguments will likely occur this summer or fall, and a decision is expected by year’s end.

This is the fourth amicus brief that the AMCNO has filed with the Ohio Supreme Court in the past six months. The AMCNO regularly participates as an amicus party in selected state court cases, at times at the request of the request of an interested party or through the review of the AMCNO Medical Legal Liaison Committee.

The AMCNO Board of Directors has determined that the AMCNO should consider filing an amicus brief if a case were going to impact the current tort reform law in Ohio and the case involves the care of a physician, preferably from the Northern Ohio community.  The AMCNO will also consider filing a brief in the case of a healthcare-related issue that could impact the health of patients in our state or the community.