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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

PATRICIA ADAMS, et al.,

Plaintiffs,

vs.

CINCINNATI CHILDREN’S 

HOSPITAL MEDICAL CENTER,

Defendant.

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Case No. 1:18-cv-475

Judge Timothy S. Black

ORDER DENYING PLAINTIFFS’ MOTION

FOR LEAVE TO AMEND (Doc. 8) and 

GRANTING DEFENDANT’S MOTION TO DISMISS (Doc. 5)

This case is before the Court on Plaintiffs’ motion to amend the Complaint (Doc. 

8) and the parties’ responsive memoranda (Docs. 9, 10), as well as Defendant’s motion to 

dismiss Plaintiffs’ Complaint (Doc. 5) and the parties’ responsive memoranda (Docs. 6, 

7). 

I. INTRODUCTION

From on or about January 1, 2009, until on or about September 13, 2009, and at all 

times relevant, Plaintiffs were residents of states other than Ohio and had surgery 

performed at West Chester Hospital, Good Samaritan Hospital, The Christ Hospital, and 

other hospitals in Hamilton County or Butler County, Ohio, by Dr. Abubakar Atiq 

Durrani. (Doc. 8-1 at ¶ 2). Plaintiffs allege all of their surgeries were unnecessary, 

nonindicated, and induced by Durrani through fraud. (Id.)
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Durrani was an employee of Defendant Cincinnati Children’s Hospital Medical 

Center (“Children’s”) from 2005 through on or about December 31, 2008, when his 

admitting privileges terminated. (Doc. 8-1 at ¶¶ 6, 9). During this time, Plaintiffs allege 

Durrani performed hundreds of medically unnecessary, negligent, reckless, fraudulent, 

and improper surgeries on children and adult patients, and Children’s received numerous 

complaints and lawsuits concerning Durrani’s professional negligence and improper and 

fraudulent medical treatment, including from its own physicians. (Id. at ¶ 8). 

Plaintiffs claim Children’s knew that, during his time at Children’s, Durrani had a 

practice of performing unnecessary and fraudulent surgeries and that his patients had 

experienced a disproportionate number of severe complications, including death and 

paralysis, that would be deemed unacceptable by the medical community. (Doc. 8-1 at 

¶ 15). Plaintiffs allege Children’s knew Durrani planned to continue performing spine 

surgeries at other Cincinnati-area hospitals after leaving Children’s, should have known 

Durrani had no intention of changing his practice of performing fraudulent surgeries, and 

should have foreseen that Durrani’s practices would injure Plaintiffs. (See Doc. 8-1 at 

¶¶ 22-23). 

Plaintiffs were not patients of Durrani’s at Children’s; each Plaintiff underwent 

surgery from Durrani at other Cincinnati-area hospitals after he left Children’s. Plaintiffs 

claim Children’s concealed the wrongful conduct Durrani engaged in while he was at 

Children’s and misrepresented the reason for his departure. Plaintiffs argue that, had 

Children’s reported and not concealed Durrani’s wrongful conduct, he would not have 
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gone on to receive privileges at other Cincinnati-area hospitals after his departure, and 

accordingly, “Plaintiffs would not have received treatment from Durrani.” (Doc. 8-1 at 

¶ 60). 

On July 18, 2018, Plaintiffs commenced this lawsuit by filing a Complaint with 

one count, for fraud. (Doc. 1). Defendants subsequently moved to dismiss the Complaint 

(Doc. 5). 

After Defendants’ motion to dismiss was briefed, Plaintiffs requested leave to file 

an Amended Complaint. (Doc. 8). Plaintiffs’ Amended Complaint asserted claims for 

constructive fraud and failure to report Durrani. (Doc. 8-1). 

Accordingly, the issues before the Court are: (1) whether Plaintiffs should be 

granted leave to file the Amended Complaint and (2) if not, whether Plaintiffs’ original 

Complaint states a plausible claim for relief. 

II. STANDARD

Pursuant to Fed. R. Civ. P. 15(a), “leave to amend a pleading shall be freely given 

when justice so requires.” Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (citing Brooks v. 

Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). Rule 15(a) embodies “a liberal policy of 

permitting amendments to ensure the determinations of claims on their merits.” Marks v. 

Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987). In deciding a party’s motion for leave to 

amend, the Court of Appeals for the Sixth Circuit has instructed that district courts must 

consider several elements, including “[u]ndue delay in filing, lack of notice to the 

opposing party, bad faith by the moving party, repeated failure to cure deficiencies by 
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previous amendments, undue prejudice to the opposing party, and futility of amendments 

. . . .” Id.

A court may deny a motion for leave to amend for futility if the amendment could 

not withstand a motion to dismiss. Riverview Health Inst., LLC v. Med. Mut. Of Ohio, 

601 F.3d 505, 512 (6th Cir. 2010). For purposes of a motion to dismiss, the Court must 

view the complaint in the light most favorable to the non-moving party and take all wellpleaded factual allegations as true. Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th 

Cir. 2009). To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009).

Ultimately, determination of whether justice requires the amendment is entrusted 

to the sound discretion of a district court. Moore v. City of Paducah, 790 F.2d 557, 559 

(6th Cir. 1986). 

III. ANALYSIS

A. The claims in Plaintiffs’ Amended Complaint are barred by the statute 

of repose. 

Defendants argue Plaintiffs’ claims are time-barred by Ohio’s four-year statute of 

repose for, inter alia, “medical claims:”

No action upon a medical, dental, optometric, or chiropractic 

claim shall be commenced more than four years after the 

occurrence of the act or omission constituting the alleged 

basis of the medical, dental, optometric, or chiropractic claim.

Ohio Revised Code § 2305.113(C). 

A “medical claim” is defined as:
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[A]ny claim that is asserted in any civil action against a 

physician, podiatrist, hospital, home, or residential facility, 

against any employee or agent of a physician, podiatrist, 

hospital, home, or residential facility, or against a licensed 

practical nurse, registered nurse, advanced practice registered 

nurse, physical therapist, physician assistant, emergency 

medical technician-basic, emergency medical technicianintermediate, or emergency medical technician-paramedic, 

and that arises out of the medical diagnosis, care, or treatment 

of any person. 

Ohio Revised Code 2305.113(E)(3). 

Ohio’s First District Court of Appeals has held, on multiple occasions, that tort 

claims premised on a lack of obtain informed consent constitute “medical claims.” 

In Hensley v. Durrani, 1st Dist. Hamilton No. C-130005, 2013-Ohio-4711, the trial 

court granted summary judgment on plaintiff’s medical malpractice claim against 

Durrani, finding the claim barred by the statute of limitations. Plaintiff appealed, arguing 

inter alia that the trial court erred in not allowing plaintiff to amend her complaint to add 

a fraud claim (which is subject to a longer statute of limitations). Plaintiff’s proposed 

fraud claim alleged “Durrani committed fraud by misrepresenting her need for surgery, 

by failing to disclose that BMP would be used and also the risks associated with BMP, 

and by failing to disclose information relating to his competence to practice medicine and 

professional history.” Hensley, 2013-Ohio-4711 at ¶ 17. 

The Hensley court held plaintiff’s proposed fraud claim, though styled as a tort, 

was actually a “medical claim” because it challenged the lack of informed consent:
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Here, Ms. Hensley’s allegations go squarely to her diagnosis, 

care and treatment. In essence, she alleges that Dr. Durrani

committed fraud by recommending unnecessary surgery and 

by not telling her that the procedure he intended to use was 

risky and untested, and that his record as a doctor was not 

unblemished. Clever pleading cannot transform what are 

in essence medical claims into claims for fraud. The 

allegation about misrepresentations concerning the medical 

necessity of surgery is simply an attack on Dr. Durrani’s 

‘medical diagnosis.’ R.C. 2305.113(E)(3). And questions 

about additional disclosures and representations about 

BMP and Dr. Durrani’s past record go to whether Dr. 

Durrani failed to disclose ‘material risks and dangers’ of 

the procedure, or in other words, whether he obtained her 

informed consent. See White v. Leimbach, 131 Ohio St. 

3d 21, 2011-Ohio-6238, 959 N.E. 2d 1033, P 46. A claim of 

lack of informed consent is a medical claim. Id.

Id. at ¶ 19 (emphasis added).

Similarly, the First District held that claims against Durrani for, inter alia, battery 

and intentional infliction of emotional distress premised on Durrani’s performing 

unnecessary surgeries for which he did not properly obtain informed consent were 

“medical claims” subject to the four-year statute of repose. Crissinger v. Christ Hosp., 1st

Dist. Hamilton Nos. C-150796, C-160157, C. 160034, C-160182, C-160053, C.160067, 

C. 160087, C. 160113, 2017-Ohio-9256, ¶¶ 17-19. 

In 2016, the First District relied on the reasoning set forth in Hensley to hold that 

claims for negligence, fraud, violation of the OCSPA, and products liability asserted 

against a hospital premised on the hospital’s concealment and misrepresentation of facts 

that resulted in plaintiffs receiving unnecessary surgeries from Durrani were “medical 

claims” for purposes of Ohio Rev. Code § 2305.113(C). Young v. UC Health, West 

Chester Hosp., LLC, 2016-Ohio-5526, 61 N.E 3d 34 (1st Dist.). The First District held 
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plaintiff’s claims, though plead as various torts, were actually “medical claims” because 

they were all premised on plaintiff’s lack of informed consent. Id. at ¶¶ 22-25. 

Specifically, the Young court held: (1) plaintiff’s allegation that Christ Hospital 

“intentionally concealed and/or misrepresented said material facts with the intent to 

defraud Plaintiff in order to induce plaintiff to undergo the surgery” was “simply an 

attack on Dr. Durrani’s ‘medical diagnosis’ and an allegation of lack of informed 

consent;” (2) plaintiff’s OCSPA claim relied on representations concerning “Dr. 

Durrani’s qualifications as a spine surgeon and the use of Infuse/BMP-2 during surgery” 

and was accordingly a “dressed-up medical claim;” and (3) plaintiff’ products liability 

claim was, in essence, a claim based on Christ Hospital’s failure to warn that 

Infuse/BMP-2 would be used in her surgery and accordingly went to informed consent. 

Id.

Here, Plaintiffs’ claims are medical claims. Just like in Young, Plaintiffs’ claims 

are that “[Children’s] Hospital . . . concealed and/or misrepresented said material facts” 

and that Plaintiffs underwent unnecessary surgeries as a result. See Young, 2016-Ohio5526, at ¶ 23. Though plead as torts, Plaintiffs’ claims are premised on their allegation 

that Children’s silence concerning Durrani’s wrongdoings caused Plaintiffs’ to undergo 

“unnecessary, nonindicated” surgeries to which they did not provide informed consent. 

A lack of informed consent is a medical claim. Young, 2016-Ohio-5526 at ¶¶ 22-25. 

Plaintiffs argue their claims are not medical claims because they do not arise out 

of Children’s plan of care, medical diagnosis, or treatment. (Doc. 10 at 10). This 

argument is not availing. The Ohio Revised Code defines a medical claim as any civil 
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action against a “hospital. . . that arises out of the medical diagnosis, care, or treatment of 

any person.” Plaintiffs’ asserted this action against a hospital, and their claims very 

clearly “arise[] out of” Plaintiffs’ “medical diagnosis, care, or treatment,” in that 

Plaintiffs allege Children’s misrepresentations and omissions caused them to receive 

improper medical treatment from Durrani. Because the surgeries Plaintiffs claim they 

underwent in reliance on Children’s silence occurred more than four years ago, Plaintiffs’ 

claims are time-barred. Ohio Revised Code § 2305.113(C). 

Because the claims in Plaintiffs’ proposed Amended Complaint are futile, 

Plaintiffs’ motion for leave to assert them (Doc. 8) is DENIED. 

B. Plaintiffs’ original Complaint is similarly barred by the statute of 

repose.

Having denied Plaintiffs’ motion to amend, the Court turns to Children’s motion 

to dismiss Plaintiffs’ original complaint (Doc. 5). Defendants allege the sole claim 

asserted in the original Complaint—for fraud—is a medical claim and barred by the 

statute of repose. 

For the reasons asserted in Section III(A), supra, the Court agrees. The fraud 

claim asserted in Plaintiffs’ original complaint alleges that Children’s concealed and 

misrepresented information about Durrani, and as a result, Plaintiffs underwent surgeries 

that “were all unnecessary and induced by Dr. Durrani through fraud.” (Doc. 1 at ¶ 2, see 

also doc. 1 at ¶ 20 (alleging “[n]ot one of these surgeries would have taken place if 

Plaintiffs and the public were warned” about Durrani)). Again, allegations that a

hospital’s misrepresentations and concealments prevented a patient from giving informed 
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consent is a medical claim. Young, 2016-Ohio-5526 at ¶¶ 22-25. Accordingly, 

Defendants’ motion to dismiss (Doc. 5) is GRANTED. 

IV. CONCLUSION

The Court is cognizant that statutes of repose, by nature, may result in outcomes 

that are perceived as harsh. The constitutionality of Ohio’s statute of repose for medical 

claims has been questioned (and affirmed) on multiple occasions. See Young, 2016-

Ohio-5526 at ¶¶ 26-32; Crissinger, 2017-Ohio-9256 at ¶¶ 22-24. This Court’s duty is to 

“apply the statute as the General Assembly has drafted it.” Crissinger, 2017-Ohio-9256, 

at ¶ 23. Plaintiffs’ claims in this case are “medical claims” under the language of Ohio 

Revised Code § 2305.113(C) as well as the subsequent line of Ohio cases interpreting 

that statute as applied to Dr. Durrani’s conduct. Accordingly, Plaintiffs’ claims are 

subject to, and barred by, Ohio’s four-year statute of repose for medical claims. 

For the foregoing reasons, Plaintiffs’ motion to amend (Doc. 8) is DENIED and 

Defendants’ motion to dismiss (Doc. 5) is GRANTED.

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 The Clerk shall enter judgment 

accordingly, whereupon this case is TERMINATED on the docket of this Court. 

IT IS SO ORDERED.

Date: 3/8/19 s/ Timothy S. Black

Timothy S. Black

United States District Judge

 

1 Defendant’s motion for a protective order and to quash subpoenas (Doc. 15) shall be terminated 

as moot.