949 N.E.2d 606
Court Of Common Pleas Of Ohio2011Background
- This is a personal-injury action including medical malpractice claims; defendants moved to dismiss under Civ.R. 10(D)(2) and 12(B)(6) for failure to plead an affidavit of merit for each defendant.
- Dr. Lisa Keder, M.D., prepared the affidavit of merit stating that the standard of care was breached by physicians and staff who treated Tiffany Bonkowski at Fairfield Medical Center from November 26–29, 2009.
- The court addressed a supplemental authority filed by defendants and overruled plaintiffs’ strike motion.
- Civ.R. 10(D)(2) requires an affidavit of merit for medical claims; it may be necessary to address the standard of care and breach for each defendant as to whom liability is asserted.
- The court held that one affidavit may suffice for multiple defendants if appropriate, and the Woods v. Riverside decision is distinguishable; discovery has just begun and the pleadings may support relief.
- The court treated the motion as a judgment on the pleadings under Civ.R. 12(C) since pleadings had closed, and overruled the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Civ.R. 10(D)(2) require a separate affidavit for each defendant? | Bonkowski asserts the affidavit can cover all treating defendants. | Defendants contend a separate affidavit is required for each defendant. | One affidavit may suffice for multiple defendants if appropriate. |
| Does Dr. Keder's affidavit meet Civ.R. 10(D)(2) content requirements? | Affidavit identifies standard-of-care breach by all treating physicians. | Affidavit must specify the breach by each defendant. | Affidavit satisfies content requirements and extends to all defendants. |
| Is Woods v. Riverside Methodist Hosp. controlling on specificity of breaches? | The Woods decision is distinguishable and not required to itemize every breach. | Woods requires explicit delineation of breaches. | Woods is distinguished; Civ.R. 10(D)(2) requires only a general breach statement. |
| Should the motion be treated as a Civ.R. 12(C) judgment on the pleadings rather than a 12(B)(6) dismissal? | Pleadings were active and the action should proceed to discovery. | Motion to dismiss should be under 12(B)(6). | Motion properly construed as a judgment on the pleadings under Civ.R. 12(C). |
Key Cases Cited
- Fletcher v. Univ. Hosp. of Cleveland, 120 Ohio St.3d 167 (2008-Ohio-5379) (affidavit-of-merit requirements for medical claims)
- State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992) (standard for dismissal on motion to dismiss; pleadings must show a claim)
- Midwest Pride IV v. Pontious, 75 Ohio St.3d 565 (1996) (dismissal standards; heightened pleading rules relevance)