Woods v. Riverside Methodist Hosp.Woods v. Riverside Methodist Hosp.
Rendered on July 10, 2012
Anthony A. Moraleja, for appellants.
Bricker & Eckler LLP, Anne Marie Sferra, and Bobbie S. Sprader, for appellees Riverside Methodist Hospital, Geoffrey Eubank, M.D., Ken Mankowski, D.O., T. Alexander, C.S.T., Jennifer Christman, M.D., and Megan Durbin, M.D.; Reminger Co., LPA, G. Michael Romanello, and Lisa R. House, for appellee Ken Mankowski, D.O.
Lane, Alton & Horst, LLC, Gregory D. Rankin, and Ray S. Pantle, for appellee Stephen R. Vijan, M.D.
Arnold Todaro & Welch Co., LPA, Maryellen C. Spirito, and Karen L. Clouse, for appellee Philip H. Taylor, Jr., M.D.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, P.J.
{¶ 1} Joseph Woods (individually “Woods“) and Tina Woods, plaintiffs appellants, appeal from a judgment of the Franklin County Court of Common Pleas, in which the trial court dismissed appellants’ complaint for medical malpractice.
{¶ 3} On June 5, 2009, appellants filed a medical malpractice and loss of consortium action against Riverside Methodist Hospitаl (“Riverside“); Geoffrey Eubank, M.D.; Kenneth Mankowski, M.D.; T. Alexander, C.S.T.; Jennifer Christman, M.D.; Megan Durbin, M.D.; K. Jenkins, M.D.; Stephen R. Vijan, M.D.; and Philip Taylor, Jr., M.D., defendants-appellees. Appellants failed to attach an affidavit of merit to the complaint. Appellants requested a 90-day extension to file the affidavit but never filed one. After several appellees filed motions to dismiss, pursuant to
{¶ 4} On June 4, 2010, appellants refiled their complaint, which included an attached affidavit of merit from Michael E. Jones, D.O., a neurologist. Thereafter, several appellees filed motions to dismiss the refiled complaint based upon appellants’ failurе to file an affidavit that complied with
{¶ 5} On December 20, 2010, the trial court issued an entry conditionally granting appellees’ motions and gave appellants until March 1, 2011 to serve and file supplemental interrogatory answers, specifically identifying which doctors they claim were negligent and how they were negligent or, in the alternative, to file a new affidavit of merit identifying the same. Several appellees filed motions for reconsideration of the trial court‘s December 20, 2010 entry seeking an immediate dismissal, and appellants did not respond to any of them.
{¶ 6} On February 25, 2011, appеllants filed a “Notice of Compliance,” which included Woods’ medical records, Woods’ interpretation of the medical records, and various medical publications. Appellants also included amended responses to interrogatories, which were signed by Woods.
[I.] THE TRIAL COURT ERRED BY GRANTING DEFENDANTS-APPELLEES’ MOTIONS TO DISMISS FOR FAILURE TO COMPLY WITH
CIV.R. 10(D)(2) , WHEN PLAINTIFFS-APPELLANTS HAD FILED AN AFFIDAVIT OF MERIT WITH THEIR MEDICAL CLAIM.[II.] THE TRIAL COURT ERRED BY DISMISSING PLAINTIFFS-APPELLANTS’ COMPLAINT BASED ON SUFFICIENCY OF THE PLEADINGS WHEN AN AFFIDAVIT OF MERIT ALONG WITH SUPPLEMENTAL INFORMATION WAS FILED BY PLAINTIFFS-APPELLANTS.
[III.] THE TRIAL COURT ERRED BY REQUIRING PLAINTIFFS-APPELLANTS TO FILE SUPPLEMENTS, INCLUDING EXPERT TESTIMONY, TO THE AFFIDAVIT OF MERIT IN ORDER TO AVOID DISMISSAL WHEN SUCH SUPPLEMENTS ARE BEYOND WHAT IS REQUIRED BY
CIV.R. 10(D)(2)(a) .[IV.] THE TRIAL COURT ERRED BY DISMISSING PLAINTIFFS-APPELLANTS’ COMPLAINT WITHOUT A HEARING IN VIOLATION OF THEIR RIGHTS TO DUE PROCESS.
{¶ 8} Appellants argue in their first assignment of error that the trial court erred when it dismissed their medical claim for failing to comply with
(2) Affidavit of merit; medical liability claim.
(a) Except as provided in division (D)(2)(b) of this rule, a complaint that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in section
2305.113 of the Revised Code , shall include one or more affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability. Affidavits of merit shall be provided by an expert witness pursuant toRules 601(D) and702 of the Ohio Rules of Evidence. Affidavits of merit shall include all of the following: (i) A statement that the affiant has reviewed all medical records reasonably availаble to the plaintiff concerning the allegations contained in the complaint;
(ii) A statement that the affiant is familiar with the applicable standard of care;
(iii) The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to thе plaintiff.
{¶ 9} The failure to file a
{¶ 10} In the present case, it is undisputed that appellants’ claim was a medical claim, and they filed an affidavit of merit from Dr. Jones, a neurologist. In the affidavit, Dr. Jones averred, in full:
- I am a physician licensed to practice medicine in the State of Ohio.
- As a medical doctor, I am currently engaged in the practice of medicine, and based on my education and experience in the medical field, I am familiar with the applicable standard of care.
I have reviewed all of the medical records of the Plaintiff, Joseph Allen Woods, reasonably available to thе Plaintiff concerning the allegations contained in the complaint. - It is my opinion, to a reasonable degree of medical certainty, that the standard of care was breached by one or more of the Defendants to the action, and that the breach caused injury to the Plaintiff.
{¶ 11} Appellants argue that Dr. Jones’ affidavit includеs exactly what is required by
{¶ 12}
{¶ 13} In the present case, Dr. Jones’ affidavit does not satisfy all of the requirements of
{¶ 15} In support of their respective arguments on this issue, both appellants and appellees rely upon Bonkowski v. Fairfield Med. Ctr., 163 Ohio Misc.2d 21, 2011-Ohio-2777. In Bonkowski, a trial court decision from the Franklin County Court of Common Pleas, the defendant doctors moved to dismiss a medical negligence action based upon
Defendants’ argument is that
Civ.R. 10(D)(2) requires an affidavit of merit as to each named defendant. That argument is based on the “relative to each defendant” language in the rule. To the extent that the defendant argues that the rule requires a separate affidavit of merit for each defendant, that interpretation is clearly incorrect. It fails to account forCiv.R. 10(D)(2)(a)(iii) , which requires that an affidavit of merit contain an opinion that “the standard of care was breached by one or more of the defendants.” (Emphasis added.)The phrase “relative to each defendant,” read in light of the rest of the rule, means that a medical claim is not properly made against any defendant concerning whom there is not an affidavit of merit. That requirement can be met a number of ways. In a claim alleging negligence during a complex surgery, for example, it mаy be that a single expert is not qualified to address both the standard of care applicable to the defendant surgeon and the standard of care applicable to the defendant anesthesiologist. In that event, the plaintiff would be required to obtain a separate affidavit as to each. In another case, it may be that a single expert is qualified to address the standard
of care applicable to multiple defendants. In that event, only a single affidavit is needed, which will be “relative to” “one or more of the defendants.” Just as “more than one affidavit may be required as to a particular defendant,” one affidavit may suffice as to several defendants. See
Civ.R. 10 , Staff Note (July 1, 2007 Amendments). From the materials presently before the court, this action appears to be in the latter category. As stated above, defendants have raised no question as to Dr. Keder‘s qualifications.
Id. at ¶ 7-8.
{¶ 16} Initially, we agree that
{¶ 17} Appellants argue in their second assignment of error that the trial court erred when it dismissed their complaint based upon the sufficiency of the pleadings when they filed an affidavit of merit, along with the supplemental information. The only argument appellants address in any depth is that the trial court erred when it concluded that the supplemental information they submitted was merely gеneric material. Appellants maintain that the trial court failed to understand that these publications were “learned treatises,” which are admissible to impeach an expert, and they provided the applicable standard of care by way of experts in the field of strokes.
{¶ 18} We disagree with appellants. None of the suрplemental material, and specifically the publications from the American Health Association and National Institute
{¶ 19} Appellants argue in their third assignment of error that the trial court erred when it required appellants to file supplements, including expert testimony, to the affidavit of merit in order to avoid dismissal when such supplements were beyond what was required by
{¶ 20} We find the trial court did not err. The supplemental answers here did not cure thе defect in the initial affidavit of merit because neither appellants nor their counsel were qualified as an expert witness, and the answers to the interrogatories did not refer to any opinion by any doctor as to the negligence of each medical provider. Although appellants complain that
{¶ 22} Accordingly, appellants’ four assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BRYANT and CONNOR, JJ., concur.