Fate of Medical Malpractice Lawsuit in Hands of Ohio Supreme Court

The fate of a retired Air Force colonel’s medical malpractice lawsuit against the Cleveland Clinic rests in the hands of the Ohio Supreme Court. The plaintiff claims that the Clinic’s alleged delaying tactics should hold the statute of limitations open so that he can pursue his claim.

Plaintiff David Antoon, of Beavercreek, near Dayton, Ohio, underwent surgery to remove his prostate gland after he was diagnosed with cancer.

Antoon and his wife claim that the Clinic’s mistakes left him impotent, incontinent, and unable to continue his career flying a commercial 747.

Patient argues statute of limitations should be held open

Ohio has a four-year statute of limitations to file a medical malpractice claim. Antoon had his surgery in January 2008 but did not file his current lawsuit until 2015. The Clinic maintains in court papers that the Antoons waited too long to file their suit and “chose to let a vested right expire.”

According to the Antoons, though, they did not choose to wait to file their lawsuit. Instead, they filed their original case in 2010, well within the time limitation, but dismissed the case in 2011 after the Clinic denied them access to records and other discovery, drawing an expensive legal battle that the Antoons were forced to put on hold.

Identity of surgeon at issue in malpractice claim

A major source of dispute between the plaintiffs and the Clinic is who actually performed the prostate removal procedure. According to his court papers, Antoon thought surgery would be performed by Dr. Jihad Kaouk but he claims Kaouk was not even present. Instead, he claims, surgery was performed by Dr. Raj Goel and Dr. Michael Lee, both just doctors-in-training.

Both the Clinic and Dr. Kaouk have maintained that Kaouk attended Antoon’s procedure. The doctor reported to the U.S. Centers for Medicare and Medicaid Services (CMS) that he was present and, in fact, performed the entire surgery. The Clinic has stated that Kaouk performed two separate surgeries that day but that they did not overlap and had a 45-minute break between them.

Complicating matters, Antoon claims that CMS found in another investigation that Dr. Kaouk was in “concurrent surgery”, attending two procedures at the same time; he also claims that the logs do not show Kaouk at his surgery at all. The Clinic denies concurrent surgery took place in Antoon’s case.

The Clinic also maintains that Antoon’s injuries are not the result of surgical errors but are well-known risks of the procedure.

Supreme Court to decide whether to allow lawsuit

Antoon has not taken a leisurely rest for the past six years. He has filed state and federal lawsuits and complaints with regulatory agencies. The complaints led to a 2010 citation of the Clinic by CMS for not properly resolving his complaints, withholding information from an inspector, and not maintaining necessary consent forms for surgical patients. According to the Clinic, it withheld the information because a medical negligence lawsuit was imminent and later agreed to provide the file to CMS.

The Ohio Supreme Court accepted the case in September and has yet to issue a ruling. Several medical associations have filed amicus briefs urging the court to enforce the four-year statute of limitations. The Antoons, however, have on their side the state court of appeals that, earlier this year, decided in favor of letting the case continue.

Resources Resources