Johnson v. ErbeckJohnson v. Erbeck
Bruce D. Knabe, for appellee.
S. POWELL, P.J.
{¶ 1} Appellant, Christina Johnson, appeals the decision of the Mason Municipal Court granting the
{¶ 2} On April 6, 2021, Johnson filed a complaint against Dr. Erbeck‘s dental
a complaint that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in
R.C. 2305.113 , shall be accompanied by one or more affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability.
{¶ 3} On April 26, 2021, Erbeck Family Dental moved to dismiss Johnson‘s complaint pursuant to
{¶ 4} On July 16, 2021, the trial court issued a decision dismissing Johnson‘s complaint without prejudice. In so doing, the trial court noted its agreement with the argument advanced by Erbeck Family Dental, stating:
Having reviewed the motion and memoranda, the Court concludes that Defendant is correct about the nature of Plaintiff‘s claim and the defect in her Complaint. Specifically, regardless of how Plaintiff postured the claim, it ultimately sounds in dental malpractice and is governed by the mandate
in * * * Civil Rule 10(D)(2) . Consequently, for reasons stated in Defendants’ memoranda * * * this action is hereby dismissed without prejudice at Plaintiff‘s costs.
(Emphasis sic.)
{¶ 5} On August 2, 2021, Johnson filed a notice of appeal from the trial court‘s decision. The following month, on September 13, 2021, this court dismissed Johnson‘s appeal for lack of a final appealable order. Johnson v. Erbeck Family Dental Company, 12th Dist. Warren No. CA2021-08-070 (Sept. 13, 2021) (Entry of Dismissal). In so ruling, this court stated:
An order is a final appealable order that may be reviewed, affirmed, modified, or reversed when the order affects a substantial right in an action which in effect determines the action and prevents a judgment.
R.C. 2505.02(B)(1) . Because the municipal court‘s order dismissed appellant‘s complaint without prejudice, the order does not determine the action or prevent a judgment and there is not a final appealable order. This court does not have jurisdiction to review orders that are not final.
{¶ 6} On October 25, 2021, Johnson filed an amended complaint, this time against both Dr. Erbeck and Erbeck Family Dental, alleging the same basic claims as in her original April 6, 2021 complaint. Johnson also included within her amended complaint a claim of defamation against Dr. Erbeck. That same day, on October 25, 2021, Johnson filed a motion for an extension of time to file an affidavit of merit in accordance with
The plaintiff may file a motion to extend the period of time to file an affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good cause shown and in accordance with division (c) of this rule, the court shall grant the plaintiff a reasonable period of time to file an affidavit of merit, not to exceed ninety days, except the time may be extended beyond ninety days if the court determines that a defendant or non-party has failed to cooperate with discovery or that other circumstances warrant extension.
{¶ 7} On November 22, 2021, both Dr. Erbeck and Erbeck Family Dental filed
{¶ 8} Several months later, and after Johnson filed a motion requesting the trial court to issue a ruling on the matter, a trial court magistrate issued a decision granting both Dr. Erbeck‘s and Erbeck Family Dental‘s motions to dismiss. In so doing, the magistrate determined that, in regard to Erbeck Family Dental‘s motion to dismiss:
By any reading of the
Rule 12(B)(6) standards for dismissal, Johnson‘s claim against [Erbeck Family Dental] is easy to decide. Johnson seeks to recover against a corporation that did not exist until November 16, 2020. Yet, as stated in Paragraph 3 of Johnson‘s Amended Complaint, “All of the events recounted in this complaint took place between December 19 and July 2020 BEFORE registration as a corporation.” (Original emphasis).Because the non-existent [Erbeck Family Dental] could have played no role in the events underlying Johnson‘s claims from late 2019 through July 2020, Johnson has not stated a claim against [Erbeck Family Dental, and its] motion to dismiss under
Civil Rule 12(B)(6) is granted.
{¶ 9} The magistrate thereafter also granted Dr. Erbeck‘s motion to dismiss Johnson‘s defamation claim. The magistrate did this because, as set forth in the magistrate‘s decision:
Johnson cannot identify any statement made by Dr. Erbeck that would qualify as defamation. Not only is Johnson unable to identify a false statement, she cannot identity any statement uttered by Dr. Erbeck. Johnson has her beliefs and she has made her assumptions, but none of that is evidence for a defamation claim.
(Bold text sic.)
{¶ 10} The magistrate then ruled, as it relates to Dr. Erbeck‘s motion to dismiss
As noted on page one above, Johnson filed a motion for extension of time to file her Affidavit of Merit on the same day she filed her Amended Complaint. With this Magistrate unpersuaded that dismissal is required at this stage for any defense raised by Dr. Erbeck [i.e., a statute of limitations violation], the question of the necessity of the Affidavit of Merit remains.
Consistent with a recent decision of this Court in another case addressing the necessity of an Affidavit of Merit where the need for expert testimony was disputed by the plaintiff, this Magistrate will grant Johnson 30 days from the date of the file stamp on this Decision or, if either party files an objection to this decision, 30 days from the date on the file stamp on any Order disposing of the Objections, to file [an] Affidavit of Merit in compliance with
Civ.R. 10(D) .
{¶ 11} On November 28, 2022, Johnson filed a motion entitled “Motion to Set Aside Magistrate‘s Order.” In this motion, Johnson argued the magistrate erred by granting Dr. Erbeck‘s motion to dismiss her defamation claim against him. Johnson also noted within this motion that she would begrudgingly “comply” with the magistrate‘s decision requesting she provide the trial court with an affidavit of merit “so that the case can proceed.” Johnson noted that she would do this even though she disagreed with the magistrate‘s decision finding her claims did not fall under the “common knowledge exception” to the affidavit of merit requirement set forth in
{¶ 12} On January 17, 2023, the trial court issued an entry denying Johnson‘s motion to set aside the magistrate‘s decision. The trial court instead affirmed and adopted the magistrate‘s decision in its entirety. In so holding, the trial court stated:
This matter is before the court on [Johnson‘s] motion to set aside magistrate‘s order, filed November 28, 2022. The motion is overruled. The court agrees with the magistrate‘s analysis of the defamation claim and conclusion that the claim should be dismissed. The court also agrees with the magistrate‘s order that [Johnson] file her affidavit of merit within 30 days of the file stamp date on this order. However, this order is without prejudice to [Johnson‘s] seeking additional time if she can demonstrate her inability to obtain the affidavit within the 30-day period notwithstanding her diligent efforts to do so.
(Bold text sic.)
{¶ 13} On February 6, 2023, Johnson filed a motion entitled “Plaintiff Response to Judgment Entry to Adopt Magistrate Decision and Plaintiff Motion to Request Court to Issue Final Order.” In this motion, Johnson expressly stated that she would not be providing the trial court with the necessary affidavit of merit so that her dental malpractice claims to proceed as required by
With Plaintiff now on record affirmatively stating her intention not to file an Affidavit of Merit, it is clear that Plaintiff has not met the condition for keeping her malpractice claims alive, and those claims should be dismissed. Consequently, Dr. Erbeck‘s motion to dismiss Plaintiff‘s claim for dental malpractice is hereby granted and this action is hereby dismissed with prejudice at Plaintiff‘s costs.
{¶ 14} On April 6, 2023, Johnson filed a notice of appeal from the trial court‘s decision. Johnson‘s appeal now properly before this court for decision, Johnson has raised three assignments of error for review.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT[‘S] MOTION
{¶ 17} In her first assignment of error, Johnson argues the trial court erred by denying her October 25, 2021 motion requesting a 90-day extension to file an affidavit of merit in accordance with
{¶ 18} Assignment of Error No. 2:
{¶ 19} THE TRIAL COURT ERRED BY CONSIDERING APPELLANT‘S ORIGINAL COMPLAINTS OF NEGLIGENCE AND BREACH OF CARE AS MEDICAL MALPRACTICE REQUIRING AN AFFIDAVIT OF MERIT.
{¶ 20} In her second assignment of error, Johnson argues the trial court erred by construing her two claims, one styled as a breach of an implied contract and the other as a
{¶ 21} This is why, in order to establish a claim of dental malpractice, the plaintiff can demonstrate either that the injury was proximately caused by a dentist‘s act or by a dentist‘s omission. Morgan v. Ohio State Univ. College of Dentistry, 10th Dist. Franklin No. 13AP-287, 2014-Ohio-1846, ¶ 23 (setting forth the specific elements of a dental malpractice claim to include a requirement that mandates the plaintiff show by a preponderance of the evidence that “injury was proximately caused by a dentist‘s act or omission” and that “the act or omission was one that a dentist of ordinary skill, care, and diligence would not have taken under like or similar conditions or circumstances“). Therefore, regardless of how Johnson may have styled her two claims within her complaint, the trial court did not err by recasting her breach of an implied contract and negligence claims as claims of dental malpractice that required her to file an affidavit of merit with the trial court in accordance with
{¶ 23} THE TRIAL COURT ERRED BY DISREGARDING THE COMMON KNOWLEDGE EXCEPTION PRESENTED BY THE APPELLANT.
{¶ 24} In her third assignment of error, seemingly as an alternative to the argument raised in her second assignment of error, Johnson argues the trial court erred by not applying the “common knowledge exception” to her dental malpractice claims, thereby obviating the need for her to file an affidavit of merit with the trial court pursuant to
{¶ 25} As noted above,
a complaint that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in
R.C. 2305.113 , shall be accompanied by one or more affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability.
{¶ 26} This requirement is designed to prevent the filing of medical claims that are not supported by an expert‘s opinion and deter plaintiffs from filing actions against all medical providers who furnished them with care. Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, ¶ 19. It is also “designed to ease the burden on the dockets of Ohio‘s courts and to ensure that only those plaintiffs truly aggrieved at the hands of the medical profession have their day in court.” Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, ¶ 10. The purpose behind the rule is therefore clear. Washburn v. Ohiohealth Corp., 3d Dist. Marion No. 9-22-08, 2022-Ohio-4453, ¶ 19. It is “to deter the filing of frivolous medical-malpractice claims.” Fletcher.
{¶ 28} Given these principles, it should come as no surprise that “‘[r]elatively few courts in Ohio have found the common knowledge exception applicable so as to obviate the need for expert witness testimony on the malpractice issue.‘” Cunningham v. Children‘s Hosp., 10th Dist. Franklin No. 05AP-69, 2005-Ohio-4284, ¶ 20, quoting Buerger v. Ohio Dept. of Rehab. & Corr., 64 Ohio App.3d 394, 399 (10th Dist.1989). This is likely because, as noted by the Tenth District Court of Appeals nearly 20 years ago, we live in a world of “increasing medical complexity.” Id. Rather, “[m]ost of the cases in which courts have
{¶ 29} The field of dentistry also involves professional skill and highly technical scientific questions that are not within the common knowledge of jurors. This would include the question of whether Dr. Erbeck‘s refusal to provide Johnson with the dental treatment she requested he perform on June 25, 2020 fell below the appropriate standard of care. This would also include the question of whether Dr. Erbeck‘s refusal was the proximate cause of Johnson‘s purported injuries. This is because, generally speaking, the standard of care and skill expected of a dentist must be determined from the testimony of dental experts. Adkinson v. Alex Bell Dental – Daniel Cobb DDS, L.L.C., 2d Dist. Montgomery No. 28708, 2020-Ohio-5269, ¶ 19.
{¶ 30} Turning then to the facts of this case, we find the trial court did not err by failing to apply the “common knowledge exception” to Johnson‘s dental malpractice claim levied against Dr. Erbeck. The trial court was instead correct in its decision finding Johnson was required to file an affidavit of merit pursuant to
{¶ 31} Accordingly, finding no merit to any of Johnson‘s three assignments of error raised herein, Johnson‘s appeal from the trial court‘s decision granting Dr. Erbeck‘s
{¶ 32} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.