[Cite as Walls v. Durrani, 2021-Ohio-4329.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

KATHERINE WALLS, 

 Plaintiff-Appellee, 

 VS. 

ABUBAKAR ATIQ DURRANI, M.D., 

 and 

CENTER FOR ADVANCED SPINE 

TECHNOLOGIES, INC., 

 Defendants-Appellants. 

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APPEAL NO. C-200167

TRIAL NO. A-1506955 

 O P I N I O N.

 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: December 10, 2021 

Robert A. Winter Jr., and The Deters Law Firm Co. II, P.A., James F. Maus and Alex 

Petraglia, for Plaintiff-Appellee. 

Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig, Russell S. 

Sayre, and Anna M. Greve, and Lindhorst & Dreidame Co., LPA, Michael F. Lyon

and James F. Brockman, for Defendants-Appellants. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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BERGERON, Judge. 

{¶1} This is a medical malpractice case with a twist. The surgeon found 

liable by the jury, defendant-appellant Dr. Abubakar Atiq Durrani, did not actually 

perform the surgery causing the injury. Instead, he recommended a more invasive 

form of surgery that the operating surgeon and plaintiff-appellee Katherine Walls 

opted not to pursue, electing for a more conservative surgical path. These facts create 

a dispositive causation problem given that Dr. Durrani neither wielded the surgical 

knife nor recommended the operation that was actually performed. We accordingly 

reverse the trial court’s judgment in favor of Ms. Walls and remand for entry of 

judgment in favor of defendants. 

I. 

{¶2} Ms. Walls suffered a back injury in 1995 during her service in the 

United States Army, resulting in chronic back and leg pain for most of her adult life. 

Having aggravated her back injury at work around Christmas of 2010, and desperate 

for relief that conservative care through the Veteran’s Administration could not 

provide, Ms. Walls began to explore her private treatment options through Medicaid. 

In late 2011, a neurosurgeon at the Mayfield Brain and Spine Clinic found 

degenerative disc disease in Ms. Walls’s lower back. He advised her that she could 

either undergo a fusion surgery or she could continue conservative therapy and learn 

to live with the pain. But Ms. Walls, understandably nervous about the risks involved 

with back surgery, sought out a second opinion. At that point, Ms. Walls connected 

with the doctors at defendant-appellant Center for Advanced Spine Technologies, 

Inc., (“CAST”), and Dr. Nael Shanti became her physician. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶3} According to Ms. Walls, at the end of her first appointment (and most 

subsequent appointments), Dr. Durrani came into the room and advised her she 

needed a fusion surgery—the exact treatment she was trying to avoid. As a result of 

Ms. Walls’s hesitancy to undergo invasive back surgery, Dr. Shanti treated her for the 

first eight months using a conservative approach involving epidurals and physical 

therapy. When that failed to alleviate the pain, Ms. Walls agreed to let Dr. Shanti 

perform a less-invasive laminectomy decompression surgery in 2012 with the 

understanding that the more invasive full fusion surgery (advocated by Dr. Durrani) 

might still be necessary down the road. The laminectomy relieved some of Ms. 

Walls’s pain and she started physical therapy with the intent to undergo the fusion in 

approximately six months. However, before that could happen, Medicaid cancelled 

Ms. Walls’s insurance when her son turned 18, leaving her without adequate 

insurance to cover her physical therapy or to pursue the follow-up fusion surgery with 

Dr. Shanti. Ms. Walls attempted, to no avail, to have the Veteran’s Administration 

step in and pay for the follow up treatments with CAST. Deprived of the option to 

have the needed fusion surgery and stabilize her back, and in light of CAST “dropping 

her like a hot potato” because she lacked insurance, Ms. Walls began to experience 

adverse results from the laminectomy. 

{¶4} Typically, when someone sues over malpractice, she sues the doctor 

who performed the surgery or procedure in question. But that did not happen here. 

Instead, Ms. Walls entered into a release with Dr. Shanti that absolved him of any 

liability and obligated him to testify against Dr. Durrani. She eventually filed suit 

against Dr. Durrani for negligence, battery, lack of informed consent, intentional 
OHIO FIRST DISTRICT COURT OF APPEALS 

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infliction of emotional distress, and fraud; and filed claims against CAST for vicarious 

liability based on CAST’s alleged negligent hiring and supervision. 

{¶5} The litigation strategy was apparently premised on holding CAST and 

Dr. Durrani vicariously liable for Dr. Shanti’s actions, a path subsequently foreclosed 

by another case with strikingly similar facts. See White v. Durrani, 2021-Ohio-566, 

168 N.E.3d 597, ¶ 32 (1st Dist.). Dr. Durrani and CAST accordingly moved for 

summary judgment on the vicarious liability claims, and the trial court agreed—it 

entered partial summary judgment in favor of the defendants on that issue, holding 

that releasing Dr. Shanti from liability meant that CAST could be secondarily liable 

only if Dr. Durrani himself was found directly liable in negligence. 

{¶6} Although Ms. Walls had previously testified and responded to 

discovery that her primary treating doctor was Dr. Shanti, on the eve of summary 

judgment, anticipating the problems with the vicarious liability theory occasioned by 

White, she changed her tune and recalled Dr. Durrani’s involvement in her treatment. 

Notwithstanding the inconsistency in her testimony, the trial court found this 

sufficient to stave off summary judgment on the direct liability claim, and the case 

accordingly proceeded to trial. Ultimately, the jury found Dr. Durrani negligent for 

recommending a surgery outside the standard of care and for failing to obtain 

informed consent. Dr. Durrani moved for a directed verdict after Ms. Walls’s case-inchief and at the close of all the evidence, and moved for judgment notwithstanding 

the verdict after the jury’s verdict, arguing that Dr. Durrani was not the cause of Ms. 

Walls’s injuries. The trial court denied all three motions. Dr. Durrani now appeals, 

bringing three assignments of error. In his first assignment of error, Dr. Durrani 

asserts that the trial court should have entered a directed verdict in his favor because 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Ms. Walls did not present evidence that Dr. Durrani proximately caused the injury. 

We ultimately find this assignment dispositive in light of a record barren of any 

evidence establishing causation on Dr. Durrani’s part. 

II. 

{¶7} The traditional duty-breach-causation common law analysis applies to 

medical negligence claims. See Kurzner v. Sanders, 89 Ohio App.3d 674, 681, 627 

N.E.2d 564 (1st Dist.1993). Causation requires both “a factual nexus between the 

breach and injury (i.e., actual cause) and a significant degree of connectedness that 

justifies imposing liability (i.e., proximate cause).” Schirmer v. Mt. Auburn 

Obstetrics & Gynecologic Assocs., 108 Ohio St.3d 494, 2006-Ohio-942, 844 N.E.2d 

1160, ¶ 40 (Moyer, C.J., concurring in syllabus and judgment only), citing Hester v. 

Dwivedi, 89 Ohio St.3d 575, 581, 733 N.E.2d 1161 (2000). See Sizemore v. Deemer, 

2021-Ohio-1934, 174 N.E.3d 5, ¶ 21 (3d Dist.) (“Importantly, ‘cause in fact’ is not the 

same as proximate cause and does not fulfill the entirety of the negligence causation 

requirement.”). In determining causation, a court first considers whether cause in 

fact has been established. See Ackison v. Anchor Packing Co., 120 Ohio St.3d 228, 

2008-Ohio-5243, 897 N.E.2d 1118, ¶ 48. “Once cause in fact is established, a plaintiff 

must then establish proximate cause in order to hold a defendant liable.” Id. 

Although Dr. Durrani insists, invoking White, that he owed no duty of care to Ms. 

Walls because no physician-patient relationship existed between them, we ultimately 

need not ponder that issue in light of the clarity of the causation question. 

{¶8} In both of his directed verdict motions and his motion for judgment 

notwithstanding the verdict, Dr. Durrani argued that Dr. Shanti alone bore 

responsibility because he operated on Ms. Walls and that any potential liability on the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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part of Dr. Durrani for recommending a fusion surgery ended when Dr. Shanti 

intervened and performed a different surgery. A motion for a directed verdict should 

be granted when, after construing the evidence most strongly in favor of the nonmoving party, the trial court finds that upon any determinative issue, “reasonable 

minds could come to but one conclusion upon the evidence submitted and that 

conclusion is adverse to such party.” White v. Leimbach, 131 Ohio St.3d 21, 2011-

Ohio-6238, 959 N.E.2d 1033, ¶ 22. In order for Ms. Walls’s claims to reach the jury, 

she must establish evidence for each element of them, including causation. See Ruta 

v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 68-69, 430 N.E.2d 935 (1982). And 

where, as here, some crucial causal link is missing, the court should direct a verdict 

rather than allow the jury to reach a decision based on speculation or conjecture. See 

Westinghouse Elec. Corp. v. Dolly Madison Leasing & Furniture Corp., 42 Ohio St.2d 

122, 126-127, 326 N.E.2d 651 (1975) (“[T]he court is to direct a verdict 

where * * * some crucial link in the evidence is missing.”). Because “[a] motion for a 

directed verdict raises a question of law,” we review the trial court’s decision de novo. 

Ruta at 69. 

{¶9} Ms. Walls begins her defense of the verdict by claiming that Dr. 

Durrani failed to broach the causation issue at the trial level when he advanced the 

motions for directed verdict. Our review of the record indicates otherwise. While 

counsel might not have used the exact words “intervening” or “superseding” causation 

during the hearing on the motions for a directed verdict, Dr. Durrani asserted the 

legal theory of proximate cause multiple times in his motions for a directed verdict, 

which sufficed to preserve it. See Trax Constr. Co. v. Village of Reminderville, 11th 

Dist. Lake Nos. 2020-L-113, 2020-L-127, and 2021-L-008, 2021-Ohio-3481, ¶ 30 
OHIO FIRST DISTRICT COURT OF APPEALS 

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(finding issue properly preserved despite not using exact nomenclature). During the 

directed verdict hearing, counsel framed the issue as one of causation, emphasizing 

“the issue of Dr. Durrani’s actual involvement in the surgery * * * because the proof 

before this Court is that Ms. Walls does not know who performed the surgery.” This 

argument built upon the objections raised in Dr. Durrani’s answer, at summary 

judgment, and throughout the trial that he did not perform or recommend the surgery 

and thus cannot be held liable. See State v. Whitfield, 1st Dist. Hamilton No. C190591, 2020-Ohio-2929, ¶ 15 (“Although perhaps not the main thrust of his 

argument before the trial court, [defendant] sufficiently challenged the frisk for 

purposes of preserving his right to raise the issue on appeal.”). Finding this issue 

preserved, we turn to the merits of the question. 

III. 

{¶10} Let’s start with the issue of cause in fact and whether Dr. Durrani 

performed the surgery in question. The test for actual causation is referred to in legal 

circles as the “but for” test, meaning that the defendant’s conduct is the actual cause if 

the harm would not have occurred “but for” the defendant’s act. Ackison, 120 Ohio 

St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, at ¶ 48 (“This requirement is, in 

essence, a ‘but for’ test of causation, which is the standard test for 

establishing cause in fact.”). On appeal, somewhat inconsistent with her trial 

approach, Ms. Walls seems to speculate that perhaps Dr. Durrani had a hand in the 

surgery. This belief rests on two premises: first, that Dr. Durrani’s name was listed as 

the assistant on the initial schedule of the operating room, and second, that Dr. 

Durrani visited her room after the surgery. Neither supposition puts the scalpel in Dr. 

Durrani’s hands. It is not enough for Ms. Walls to speculate that Dr. Durrani “might 
OHIO FIRST DISTRICT COURT OF APPEALS 

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have” caused her injury. See Gedra v. Dallmer Co., 153 Ohio St. 258, 91 N.E.2d 256 

(1950), paragraph two of the syllabus (“In a negligence action, it is not sufficient for 

plaintiff to prove that the negligence of defendant might have caused an injury to 

plaintiff.”). While Dr. Durrani was listed as a possible assistant when CAST booked 

the operating room, the nursing logs from the actual surgery confirm that he never 

entered the operating room during the procedure. Dr. Shanti’s post-operative notes 

make no mention of Dr. Durrani participating in the operation, a point ratified in his 

testimony, wherein Dr. Shanti explained that he alone performed the surgery. No 

witness testified, and no document established, that Dr. Durrani played any role in 

the actual surgery. That may explain why, during the trial, all of the witnesses, and 

even counsel and the court, proceeded on the premise that Dr. Shanti was the 

surgeon. 

{¶11} Nor do we need to speculate on this point because the jury did not find 

that Dr. Durrani performed the surgery. Instead, it explained, in response to 

interrogatories, that it based its negligence conclusion on Dr. Durrani’s causing injury 

to Ms. Walls through his recommendation of surgery: “Defendant suggested surgery 

for Ms. Walls outside the standard of care.” Therefore, we reject any notion that the 

jury could have found Dr. Durrani to be the actual cause of Ms. Walls’s injuries by 

performing the surgery. If causation exists, we must find it elsewhere.1

{¶12} Now, let’s shift the focus to the surgical recommendation. Before 

diving in, however, we pause to note a somewhat confusing interaction that 

undoubtedly muddied the waters on this issue. While providing instructions to the 

1 Unfortunately, Ms. Walls’s counsel failed to provide a substantive defense of causation in their 

appellate brief, which has complicated our review of this matter. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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jury, the trial court correctly counseled jurors that liability for any negligence could 

only be imposed if the negligence directly and proximately caused the injury. 

Confused about the distinction between those concepts, during deliberations, the jury 

asked for clarification on the word “directly” in the interrogatory, which charged them 

with determining whether Dr. Durrani’s negligence directly and proximately caused 

the injury at issue. The trial court responded that “[d]irect and proximate mean the 

same” thing and ordered the jury to strike the word “direct” from the interrogatory, 

leaving only proximate cause to be decided. In a case with causation at center stage, 

this conflation of two important concepts certainly created the potential for 

confusion. But without any objection from Dr. Durrani, we must presume that actual 

causation was satisfied, and we accordingly shift our attention to proximate 

causation. 

{¶13} To find that Dr. Durrani’s actions represented the proximate cause of 

Ms. Walls’s injuries in this manner, the harm she suffered as a result of the 

laminectomy must be the natural and probable consequence of Dr. Durrani’s 

suggested fusion surgery. See Strother v. Hutchinson, 67 Ohio St.2d 282, 287, 423 

N.E.2d 467 (1981). Practically speaking, proximate cause limits Dr. Durrani’s liability 

in negligence to the foreseeable consequences of his actions. Johnson v. Univ. Hosps. 

of Cleveland, 44 Ohio St.3d 49, 57, 540 N.E.2d 1370 (1989) (“[L]egal responsibility 

must be limited to those causes which are so closely connected with the result and of 

such significance that the law is justified in imposing liability.”). The burden of 

proving proximate cause rests with Ms. Walls. See Wallace v. Ohio Dept. of 

Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 38. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶14} The negligence alleged by Ms. Walls during trial was that Dr. Shanti’s 

failure to perform the full fusion “left her spine in such a situation that it was doomed 

to collapse,” resulting in her suffering from post-laminectomy syndrome. Yet Ms. 

Walls emphasized at trial that Dr. Durrani suggested a fusion surgery from the 

outset—“he recommended fusion, and he said that fusion was a very well-known 

technique and they had gotten much better at perfecting it.” Later in her testimony, 

she reiterated the point: “he had always wanted me to get a fusion.” She, however, 

adamantly opposed this option: “I didn’t want to do a full fusion * * * I wanted to try 

to do more conservative surgery if that was possible.” We are confounded to 

understand how Dr. Durrani’s suggested fusion surgery could be both outside the 

standard of care and the solution to her chronic pain. During closing arguments, Ms. 

Walls’s counsel asserted that even though she didn’t want the fusion, Dr. Durrani 

should have told her, “You need a fusion.” Yet that is precisely what he did, on 

multiple occasions apparently. Ms. Walls testified that Dr. Durrani told her fusion 

surgery was the best answer because “there were some bone spurs that would 

continue getting worse” unless she had the surgery at that point. Despite that, Ms. 

Walls “wanted to wait and try other options first to see if anything else worked.” 

{¶15} Try as he might, Dr. Durrani could not convince Ms. Walls to skip 

conservative treatments and proceed straight to the more invasive surgery. It was 

certainly within Ms. Walls’s prerogative to follow one path before traveling down the 

other. But she cannot then blame Dr. Durrani if, by the time she was ready to try his 

approach, a series of unfortunate events unfolded to preclude that option.2 In other 

2 Ms. Walls acknowledged that, had her Medicaid not been terminated, she would have proceeded 

with the fusion surgery. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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words, Ms. Walls made an informed decision to disregard Dr. Durrani’s advice and 

follow Dr. Shanti’s more conservative surgical approach. Any initial negligence 

flowing from the recommendation of fusion surgery was cut off by Dr. Shanti’s 

independent recommendation and performance of the laminectomy. There is no 

causal link between the two and we find it impossible to see how any injury Ms. Walls 

suffered from the laminectomy could be the natural and probable consequence of Dr. 

Durrani recommending a fusion surgery. 

{¶16} In a similar vein, the jury’s informed consent decision suffers from the 

same proximate cause problem. To prevail on this claim, Ms. Walls bears the burden 

of identifying the risks of Dr. Durrani’s recommended medical procedure through 

expert testimony and showing that the risk identified materialized and proximately 

caused her injury. White, 131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033, at ¶ 2. 

It goes without saying that because Ms. Walls did not heed Dr. Durrani’s advice to 

undergo a fusion surgery, no injury from a fusion materialized. Beyond that, explicit 

in the tort of lack of informed consent is the assumption that the patient actually 

underwent the procedure at hand. See id. at ¶ 26-29 (“The tort of lack of informed 

consent is established when * * * a reasonable person in the position of the patient 

would have decided against the therapy had the material risks and dangers inherent 

and incidental to treatment been disclosed to him or her prior to the therapy.”). And 

if there is one piece of certainty on this record, it is that Ms. Walls repeatedly refused 

the surgery urged by Dr. Durrani. 

{¶17} When pressed during oral arguments to point us in the direction of any 

evidence connecting Dr. Durrani to the laminectomy recommendation, Ms. Walls’s 

counsel steered us to a question of who recommended the laminectomy 
OHIO FIRST DISTRICT COURT OF APPEALS 

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decompression surgery, in which she responded: “That would be Dr. Shanti and Dr. 

Durrani. I think Dr. Shanti * * * agreed with me on the more conservative measures, 

and Dr. Durrani agreed to try that * * * because I didn’t want to do the full-out 

fusion.” This comment, however, perpetuates the distinction Ms. Walls drew in her 

testimony between Dr. Shanti recommending a more conservative path, and Dr. 

Durrani insisting on the more invasive option. This is a bridge too far to establish 

causation on Dr. Durrani’s part—the tortfeasor in this instance was Dr. Shanti, who 

not only recommended but performed the surgery that counsel described as 

“completely unnecessary” during closing arguments. In addition, proximate cause, by 

definition, does not include acts interrupted by another person’s tortious conduct. 

See Dubose v. McCloud, 1st Dist. Hamilton No. C-190690, 2020-Ohio-4972, ¶ 10 

(“Courts define proximate cause as ‘that which in a natural and continuous sequence, 

unbroken by any new, independent cause, produces that event and without which 

that event would not have occurred.’ ”) (Emphasis added.), quoting Aiken v. Indus 

Comm., 143 Ohio St. 113, 117, 53 N.E.2d 1018 (1994). Thus, if another responsible 

agent—such as Dr. Shanti—intervened and committed a new and independent act, Dr. 

Durrani is relieved from liability. See Shaw Steel, Inc. v. Ronfeldt Mfg., 8th Dist. 

Cuyahoga No. 102665, 2016-Ohio-1117, ¶ 44. That is precisely the situation here. Dr. 

Shanti was a conscious and responsible agent who not only could have, but in fact did, 

eliminate any hazard from a fusion surgery by performing an entirely different 

procedure and thus relieving Dr. Durrani of liability. Indeed, if Ms. Walls had 

followed Dr. Durrani’s recommendation, she would have undergone the precise 

surgery she finds herself seeking to this day. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶18} Even though the trial court granted summary judgment on the claims 

of vicarious liability, shadows of that theory permeated the trial. Ms. Walls and her 

counsel dubbed Dr. Shanti the “assistant” to Dr. Durrani, portraying him as a 

neophyte surgeon and seeking to hold Dr. Durrani responsible for Dr. Shanti’s 

actions. But with vicarious liability off the table (Ms. Walls did not cross appeal that 

issue), Ms. Walls needed to do more to establish causation than simply characterize 

Dr. Shanti as the understudy. And that is where the trial record comes up empty. 

{¶19} Bolstering this conclusion is apparent tension in the jury interrogatory 

responses. On the one hand, the jury found that Dr. Durrani’s recommendation of a 

surgery constituted negligence that proximately caused Ms. Walls’s harm. On the 

other, the jury found that Dr. Durrani made fraudulent misrepresentations to her 

about the need for surgery, but concluded that those representations did not

proximately cause her harm. It’s difficult to understand how both of these 

propositions could be true on this record. Neither side challenged any inconsistency 

in the interrogatory responses, but we simply highlight how this reinforces our 

assessment of the trial record. 

{¶20} Because Ms. Walls’s harm (based on the theory pursued at trial) is 

attributable to the rejection of Dr. Durrani’s advice, she has not met her burden of 

proving that Dr. Durrani proximately caused her injury. The trial court accordingly 

should have granted a directed verdict because there was insufficient evidence of 

causation as a matter of law to support the claims of negligence and informed consent 

against Dr. Durrani. 

{¶21} We conclude by acknowledging the very real pain and suffering that 

Ms. Walls has suffered as a result of her chronic back conditions and by virtue of her 
OHIO FIRST DISTRICT COURT OF APPEALS 

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surgery. Nothing in this opinion should be viewed as detracting from that reality. But 

the cause of her injury flowing from her surgery was Dr. Shanti, not Dr. Durrani, and 

we cannot allow our sympathies to substitute for evidence. 

* * * 

{¶22} We accordingly sustain the first assignment of error, decline to address 

the others as moot, and reverse the trial court’s judgment and remand the cause for 

entry of judgment in favor of defendants. 

Judgment reversed and cause remanded. 

MYERS, P. J. and CROUSE, J., concur. 

Please note: 

The court has recorded its entry on the date of the release of this opinion