Diane Amos, Plaintiff-Appellant, v. Scott Van Aman, M.D. et al., Defendants-Appellees.
No. 19AP-164 (C.P.C. No. 18CV-7648)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 24, 2019
2019-Ohio-5324
KLATT, P.J.; LUPER SCHUSTER and NELSON, JJ., concur.
(REGULAR CALENDAR)
On brief: Poling Law, Brant E. Poling and Sabrina S. Sellers, for appellees. Argued: Sabrina S. Sellers.
APPEAL from the Franklin County Court of Common Pleas
D E C I S I O N
KLATT, P.J.
{¶ 1} Plaintiff-appellant, Diane Amos, appeals a judgment of the Franklin County Court of Common Pleas that dismissed her complaint against defendants-appellees, Scott Van Aman, M.D., and Orthopedic One, Inc. Because we lack jurisdiction, we dismiss this appeal.
{¶ 2} On September 12, 2018, Amos filed a complaint alleging that Van Aman performed surgery on toes on Amos’ left foot without her consent. Amos further alleged that the surgery caused the affected toes to become disfigured and painful. According to Amos, by operating on her toes without consent, Van Aman committed battery. Alternatively, Amos asserted that Van Aman acted negligently by “fail[ing] to recall, prior
{¶ 3} Defendants answered the complaint and then moved for judgment on the pleadings pursuant to
{¶ 4} Amos now appeals the February 21, 2019 judgment, and she assigns the following error:
The Trial Court erred when it granted Defendants-Appellees‘motion [sic] for Judgment on the Pleadings when it held that an issue capable of understanding by lay persons required expert testimony.
{¶ 5} At oral argument, appellees asserted that this court lacks subject-matter jurisdiction to hear this appeal because the February 21, 2019 judgment is not a final, appealable order.
{¶ 6} A dismissal for failure to comply with
{¶ 7} “Ordinarily, a dismissal ‘otherwise than on the merits’ does not prevent a party from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable order.” Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, ¶ 8. Because dismissals for failure to comply with
{¶ 8} Thus, whether the February 21, 2019 judgment is a final, appealable order turns upon whether Amos can refile her action against defendants. Only the applicable statute of limitations could potentially bar Amos from refiling. Therefore, we must determine what statute of limitations applies to Amos’ claims.
{¶ 9}
{¶ 10} According to the complaint, Van Aman performed the surgery on Amos’ toes on September 12, 2017. Amos timely filed suit on September 12, 2018. While the statute of limitations has now expired, that does not impede refiling.
[i]n any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of the reversal of the judgment or the plaintiff‘s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.
{¶ 11} Amos, therefore, may still refile her claims. Accordingly, we conclude that the February 21, 2019 judgment is not a final, appealable order, and we dismiss this appeal. Because our decision is jurisdictional, it should not be construed as ruling in any way on whether, under the facts as alleged in Amos’ complaint, expert testimony is or is not necessary to establish liability.
Appeal dismissed.
LUPER SCHUSTER and NELSON, JJ., concur.