2019 Ohio 5324
Ohio Ct. App.2019Background
- On September 12, 2017, Diane Amos underwent surgery by Dr. Scott Van Aman; she later sued (Sept. 12, 2018) alleging Van Aman operated on toes without her consent, causing disfigurement and pain (battery and negligence); Orthopedic One sued as vicariously liable.
- Defendants moved for judgment on the pleadings under Civ.R. 12(C), arguing Amos failed to comply with Civ.R. 10(D)(2) by not filing an affidavit of merit (or a motion for extension).
- The trial court granted the motion and dismissed the complaint without prejudice on February 21, 2019, citing Civ.R. 10(D)(2)(d).
- Amos appealed, arguing the trial court erred by treating an issue that lay persons could understand as requiring expert testimony.
- Defendants argued the appeal should be dismissed for lack of jurisdiction because the February 21, 2019 dismissal was not a final, appealable order.
- The court held the claims were "medical claims" subject to the one-year statute (R.C. 2305.113) but concluded the savings statute (R.C. 2305.19(A)) permits refiling within one year after a dismissal otherwise than on the merits; therefore the dismissal was not final and the appeal was dismissed for lack of jurisdiction (court did not rule on the expert-testimony issue).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Feb. 21, 2019 dismissal is a final, appealable order | Amos: no affidavit of merit required because the contested issue is understandable by lay persons (so dismissal was erroneous) | Defendants: dismissal for failure to file affidavit under Civ.R.10(D)(2) is without prejudice and not final; if not final, appellate court lacks jurisdiction | The dismissal was without prejudice and not final because the savings statute allows refiling; appeal dismissed for lack of jurisdiction (court reserved ruling on expert testimony necessity) |
Key Cases Cited
- Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514 (2007) (appellate courts lack jurisdiction to review orders that are not final, appealable)
- National City Commercial Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82 (2007) (dismissals otherwise than on the merits ordinarily are not final, appealable orders)
- Fletcher v. Univ. Hosps., 120 Ohio St.3d 167 (2008) (dismissal for failure to file affidavit of merit operates as a dismissal without prejudice)