CINCINNATI (CN) — Forty patients sued a spinal surgeon, his insurer and his attorneys, claiming they encouraged the doctor to flee the country to duck hundreds of charges in what some have called one of the largest medical-malpractice cases in Ohio's history. Hundreds of other plaintiffs meanwhile have pushed for the recusal of two judges overseeing the cases.
Filed on Dec. 15 by attorney Benjamin Maraan II, the federal complaint adds a new twist to the criminal and civil actions against Dr. Abubakar Atiq Durrani, who fled to Pakistan after a grand jury charged him in 2013 with billing federal health programs for hundreds of unnecessary spinal surgeries.
In the same district on Monday, 452 plaintiffs filed a separate complaint for injunctive relief against Chief Justice Maureen O’Connor, with the Ohio Supreme Court, and Judge Mark Schweikert, with the Hamilton County Court of Pleas whom O’Connor specially appointed in August to hear the civil claims against Durrani. Represented by Matthew Hammer, of Independence, Kentucky, the 452 plaintiffs in this case accuse both judges of bias, saying O'Connor is too cozy with the medical industry and is influencing Schweikert.
The complaint against Durrani is led by patient Thomas Atkinson. He says the doctor left the United States in late 2013 before his first criminal trial and is living and working in Pakistan. Durrani was facing millions of dollars of damages in excess of his liability coverage, according to the complaint, when his insurer, Medical Protective Co., and his attorney, Michael Lyon, encouraged him to leave the country.
Though there is a warrant out for Durrani's arrest, there has been no criminal trial, and there is no extradition treaty between the United States and Pakistan.
“Defendants encouraged the flight in an attempt to void Dr. Durrani’s/CAST’s liability insurance coverage, and therefore, avoid payments of claims on behalf of those asserting professional negligence against Dr. Durrani and CAST,” the complaint states, abbreviating the name of the defendant Center for Advanced Spine Technologies, of Lahore, Pakistan and Kentucky.
Also sued are Durrani, the Medical Protective Company, the doctor’s Kentucky-based private practice Center for Advanced Spine Technologies, attorney Lyon, and his law firm, Lindhorst & Dreidame, of Cincinnati.
Medical Protective Company did not respond to requests for comment Monday. Lyon returned a call late Monday and left a voicemail message. Courthouse News could not immediately reach him for comment on Tuesday.
The patients have dismissed their claims in federal court but say they were forced to refile because their claims remain unresolved.
The patients say their case is bolstered by a transcript of a 2013 phone call between Lyon and attorney Eric Deters, who has represented hundreds of Durrani’s patients. The call allegedly took place the Saturday after it became known that Dr. Durrani fled.
In early 2014, the patients say, they asked the insurer and attorney to preserve all their email communications and letters with Durrani. They say those conversations will reveal that Lyons and the insurer were behind Durrani’s decision to flee.
The patients say it is “disingenuous” for the insurer to claim that Durrani’s inability or unwillingness to testify in the civil and criminal cases puts it at a disadvantage.
His absence precludes cross-examination and does not allow a jury to study his demeanor or identify inconsistencies in his testimony, the patients say. Durrani has won four trials in Butler County, Ohio since he fled, they add.
Durrani recently stated that he would give a deposition, but only one per month, despite the availability of video and telephone calls to record his testimony.
“At that rate, it would take approximately 40 years to depose Dr. Durrani for each of plaintiffs’ cases. An impossibility,” the complaint states.
The patients say the insurer’s and Lyon’s actions are essential to the claims of plaintiff Crystal Pierce, who claims damages of $790,000. Other plaintiffs have made similar claims.
“The plaintiffs also have and will suffer damages, including the lack of coverage, if Medical Protective is successful in its fraudulent attempts to deny coverage and the delay in resolving the claims and likelihood they will not receive the full amount of coverage,” the complaint states.
Monday’s complaint against Chief Justice O'Connor meanwhile accuses the judge of having received millions of dollars in campaign contributions from the health care and insurance industries. Here donors allegedly include hospitals where Durrani practiced and law firms embroiled in the medical-malpractice cases against the fugitive surgeon.
“It’s not criminal. It's not unethical. But, it's fact,” the complaint states. “And it's a fact which is not acceptable to Dr. Durrani's victims. Impartiality is crucial for our civil justice system.”
O’Connor initially appointed Jennifer Sargus, a retired Belmont County judge, to expedite handling of the civil cases. After Sargus retired this year, however, the chief justice appointed Judge Schweikert. The complaint claims Schweikert is taking “orders" from O’Connor at the trial-court level.
"It appears those orders are to take a machete to the cases," the filing states.
A spokesman for the Ohio Supreme Court said the case had been referred to the Office of Attorney General Mike DeWine, who will represent O'Connor.
“The AG's office will review the pleadings and file the appropriate responses," spokesman Ed Miller wrote.
In October 2013, West Chester Hospital in Cincinnati and its parent company UC Health agreed to pay $4.1 million to settle claims that it had billed Medicaid and Medicare for Durrani’s surgeries.
The patients seek punitive damages for conspiracy, fraud, malice, misrepresentation, concealment, criminal torts, detrimental reliance and other charges.
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