IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiff, : Case No. 12 CV 422. v. : Judge Berens

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO MARY LEMASTER, : Plaintiff, : Case No. 12 CV 422 v. : Judge Berens BERGER HEALTH SYSTEM ET AL., : ENTRY Granting Defendant s Motion to Dismiss Defendants. : This matter is before the Court upon Defendants Motion to Dismiss, filed May 14, For the following reasons, Defendants motion is GRANTED. STATEMENT OF THE CASE This is a medical malpractice action arising from events occurring in April and May of Plaintiff originally filed a Complaint in this matter on October 8, 2008 (Fairfield Court of Common Pleas Case No. 08-CV-1247). Plaintiff subsequently voluntarily dismissed the action on April 16, On April 26, 2012, Plaintiff re-filed her Complaint pursuant to R.C , Ohio s saving statute. Defendants filed a Motion to Dismiss on May 14, 2012, setting forth three central arguments as the basis of their Motion. The Defendants first argue that Plaintiff s claim as to Defendant Berger Health Wound Care is barred by the statute of limitations. Next, the Defendants allege that Plaintiff failed to file an affidavit with her Complaint as required by Ohio Civ. R. 10(D)(2). Third, the Defendants argue that even if Plaintiff was in procedural compliance with Ohio Civ. R. 10, the affidavit of Jill Stas, R.N. does not substantively satisfy the requirements of the Rule. LAW AND ANALYSIS 1

2 Defendant s motion arises under Civ. R. 12(B)(6). In determining whether a complaint fails to state a claim upon which relief can be granted, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). However, the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements. Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009). Specific to the case now before the Court, when a party fails to file an affidavit of merit as required by the Rules of Civil Procedure, a motion to dismiss for failure to state a claim upon which relief can be granted is the proper remedy. Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St. 3d 167, 2008-Ohio-5379, 897 N.E.2d 147, 13. I. Statute of Limitations In their Motion to Dismiss, Defendants argued that Plaintiff s claim as to Defendant Berger Health Wound Care Center was time barred under R.C On June 20, 2012, the Plaintiff filed a Notice of Voluntary Dismissal of Defendant Berger Health Wound Care Center. Therefore, Defendant s first argument is moot, as Berger Health Wound Care Center is no longer a party to this action. II. Procedural Compliance with Ohio Civ. R. 10 Ohio Civ. R. 10(D)(2) places a heightened pleading requirement on parties alleging medical claims. Fletcher at 12. Specifically, Ohio Civ. R. 10 states, in pertinent part: Rule 10 Form of Pleadings (D) Attachments to Pleadings (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 2

3 claim, as defined in section 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 to Rules 601(D) and 702 of the Ohio Rules of Evidence. Thus, when a plaintiff alleges a medical claim in his or her Complaint, he or she must supplement the complaint with an affidavit of merit. Otherwise, the Court is left with a bare complaint, which includes only mere conclusions that a defendant has committed malpractice. Fletcher at 14. When a party fails to file an affidavit of merit as required by Ohio Civ. R. 10(D)(2), a motion to dismiss pursuant to Ohio Civ. R. 12(B)(6) is the proper remedy. Id. Dismissal on these grounds is an adjudication otherwise than on the merits, and therefore, is without prejudice. Id. at 20. It is undisputed that the case before the Court involves medical claims. Thus, Plaintiff was required to file an affidavit of merit with the complaint pursuant to Ohio R. Civ. 10(D). Defendants assert that Plaintiff failed to attach an affidavit of merit to the re-filed complaint, filed on April 26, Plaintiff states that she attached an affidavit to her re-filed complaint in compliance with Ohio Civ. R. 10(D)(2). See Plaintiff s Motion in Opposition, Exhibit 1. However, after reviewing the official case file and record of proceedings, no affidavit of merit was filed in this Court with the re-filed complaint on April 26, Further, the affidavit labeled as Exhibit 1A attached to Plaintiff s Motion in Opposition is time stamped October 29, 2008, with no indication that it had been re-filed with Plaintiff s complaint on April 26, Therefore, the Court finds Plaintiff failed to attach an affidavit of merit pursuant to the requirements set forth in Ohio Civ. R. 10(D)(2). For this reason, the Court grants Defendants Motion to Dismiss pursuant to Ohio Civ. R. 12(B)(6). 3

4 III. Substantive Compliance with Ohio Civ. R. 10 Even if Plaintiff had attached the affidavit of Jill Stas to the complaint filed April 26, 2012, Defendants are nonetheless entitled to relief under Ohio Civ. R. 12(B)(6). Ohio Civ. R. 10(D)(2) requires an affidavit of merit that is attached to a complaint based on medical claims to be provided by an expert witness pursuant to Rules 601(D) and 702 of the Ohio Rules of Evidence. Further, the Rule requires the affidavit include all of the following: (1) a statement that the affiant has reviewed all medical records reasonably available; (2) a statement that the affiant is familiar with the standard of care; and (3) the affiant s opinion that the standard of care was breached and that the breach caused injury to the plaintiff. See Ohio Civ. R. 10(D)(2)(a). In short, the affiant must be an expert pursuant to Rule 601(D), qualified to speak as to the standard of care, the review of available records, and proximate cause. The Defendants argue that the affidavit of Jill Stas, a Registered Nurse, does not satisfy the requirements set forth in Ohio Civ. R. 10(D). Specifically the Defendants allege that Ms. Stas was not qualified to give an opinion as to the proximate cause of Plaintiff s injury. The Court agrees. Ohio R. Evid. 601 states in pertinent part: Every person is competent to be a witness except A person giving expert testimony on the issue of liability in any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless the person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state, and unless the person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school. (emphasis added). Thus, the Rule makes clear that any person not licensed to practice medicine 4

5 and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery is incompetent to testify as to the issue of liability. As a registered nurse, the affiant was incompetent to testify to the issue of proximate cause as she is certified to practice nursing and not medicine. Keck v. Metrohealth Med. Ctr., 8th Dist, No. No , 2008-Ohio-801 (Feb. 28, 2008) (finding a certified nurse practitioner was not qualified as an expert under Ohio R. Evid. 601(D) because she was not authorized to practice medicine without collaborating with one or more physicians, within the nurse's nursing specialty, and consistent with the nurse's education, certification, and in accordance with the rules adopted by the board ); Chapman v. S. Pointe Hosp., 186 Ohio App. 3d 430, 2010-Ohio-152, 928 N.E.2d 777, 22 (holding that the affidavit of a registered nurse did not meet the third requirement under Civ. R. 10(D), i.e. proximate cause). Thus, although Ms. Stas, as a registered nurse, may have been qualified to testify as to the standard of care, she was not qualified under Ohio R. Evid. 601(D) to give an opinion as to the Defendant s liability. Because the affiant did not meet all of the requirements mandated by Ohio Civ. R. 10(D), Defendants are entitled to relief under Ohio Civ. R. 12(B)(6). CONCLUSION For the above-mentioned reasons, Defendants Motion to Dismiss is SUSTAINED. IT IS SO ORDERED. Filed 9/5/2012 Judge Richard E. Berens 5

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