Walls v. Durrani ( 2021 )

[Cite as Walls v. Durrani, 2021-Ohio-4329.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
KATHERINE WALLS, : APPEAL NO. C-200167
TRIAL NO. A-1506955
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
ABUBAKAR ATIQ DURRANI, M.D., :
and :
CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
:
Defendants-Appellants.
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
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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶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
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OHIO FIRST DISTRICT COURT OF APPEALS
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-in-
chief 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
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OHIO FIRST DISTRICT COURT OF APPEALS
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
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OHIO FIRST DISTRICT COURT OF APPEALS
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 non-
moving 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
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OHIO FIRST DISTRICT COURT OF APPEALS
(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. C-
190591, 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
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OHIO FIRST DISTRICT COURT OF APPEALS
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
1Unfortunately, Ms. Walls’s counsel failed to provide a substantive defense of causation in their
appellate brief, which has complicated our review of this matter.
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶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
2Ms. Walls acknowledged that, had her Medicaid not been terminated, she would have proceeded
with the fusion surgery.
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OHIO FIRST DISTRICT COURT OF APPEALS
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
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶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
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OHIO FIRST DISTRICT COURT OF APPEALS
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
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