O'Stricker v. Robinson Mem'l Hosp. Found.
2017 Ohio 2600
| Ohio Ct. App. | 2017Background
- In April 2008 O’Stricker sustained a femur fracture; during surgical fixation by Dr. Michael Pryce (orthopedist) the plaintiff violently kicked under anesthesia, allegedly causing a second hip fracture that required another surgery.
- O’Stricker filed suit (originally in 2009, voluntarily dismissed in 2010), refiled in 2011 against Robinson Memorial Hospital, Dr. Pryce, Stow‑Kent Orthopedics, and unnamed Doe defendants for medical negligence.
- Pryce and Stow‑Kent moved to dismiss the refiled complaint for failure to attach a sufficient affidavit of merit under Civ.R. 10(D)(2); the trial court ultimately granted their renewed motion after allowing an amended affidavit that the court found deficient.
- Robinson obtained partial summary judgment on anesthesia‑related claims because the anesthesiologist and nurse anesthetist (independent contractors) were not timely named; the plaintiff did not appeal that ruling.
- At trial (July 2016) against Robinson alone, plaintiff presented testimony of Dr. Oscar Nicholson (general surgeon) and the plaintiff, then rested; Robinson moved for directed verdict, which the trial court granted for plaintiff’s failure to elicit expert testimony establishing the hospital’s standard of care or breach.
- The court affirmed dismissal of Pryce and Stow‑Kent (insufficient affidavit of merit) and affirmed the directed verdict for Robinson (no evidence of hospital breach or causation introduced at trial).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for deficient affidavit of merit complied with Civ.R. 10(D)(2) | O’Stricker: amended affidavit cured defects and complied with Civ.R.10(D)(2) | Pryce/Stow‑Kent: affidavit was deficient because expert Nicholson was not an orthopedic surgeon and did not identify which defendant(s) breached the standard | Affirmed dismissal: affidavit insufficient because it generically alleged “one or more defendants” breached the standard and did not relate the opinion to each named defendant requiring expert proof |
| Whether plaintiff received adequate notice/hearing before dismissal of Pryce & Stow‑Kent | O’Stricker: trial court failed to give notice and hearing under Civ.R.41(B)(1) | Defendants: plaintiff was given extensions, allowed to file amended affidavit and had a hearing | Court: plaintiff received notice and opportunity to cure; no error in procedure |
| Whether res judicata barred reconsideration of dismissal motion after plaintiff’s voluntary dismissal and refiling | O’Stricker: prior trial‑court denial of motion precluded redisposition | Pryce/Stow‑Kent: voluntary dismissal rendered the earlier interlocutory order a nullity | Court: Denham controls — voluntary dismissal under Civ.R.41(A) treats prior proceedings as if never filed; res judicata does not apply |
| Whether directed verdict for Robinson was proper after plaintiff rested | O’Stricker: Nicholson (general surgeon) could testify as to hospital/orthopedic standard of care and breach | Robinson: plaintiff failed to elicit testimony establishing hospital’s standard of care or breach; anesthesia providers were independent contractors previously dismissed | Affirmed directed verdict: plaintiff failed to present any expert testimony proving Robinson’s duty breach or causation; reasonable minds could only find for defendant |
Key Cases Cited
- Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167 (2008) (affidavit‑of‑merit requirement and effect on medical claims)
- Erwin v. Bryan, 125 Ohio St.3d 519 (2010) (purpose of affidavit‑of‑merit rule to deter unsupported medical claims)
- Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988) (pleading construed in favor of plaintiff on motions to dismiss)
- O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975) (standard for dismissal under Civ.R. 12(B)(6))
- Denham v. New Carlisle, 86 Ohio St.3d 594 (1999) (effect of voluntary dismissal under Civ.R. 41(A))
- Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512 (2002) (standard of review for directed verdict — Civ.R. 50(A)(4))
- Hester v. Dwivedi, 89 Ohio St.3d 576 (2000) (elements required to prove medical malpractice)