In an appeal of the dismissal of an Ohio medical malpractice case, the Court of Appeals of Ohio upheld the dismissal in its opinion filed on July 10, 2012. The trial court had dismissed the medical malpractice case because the medical malpractice plaintiff allegedly had failed to comply with an Ohio requirement that a proper certificate of merit be filed by an appropriate medical expert in support of the plaintiff’s medical malpractice claims.
The Underlying Medical Malpractice Claim
On June 5, 2008, the medical malpractice plaintiff underwent a sigmoidectomy at Riverside Methodist Hospital. He alleged that, post-surgery, starting at approximately 10:30 a.m., he began to exhibit signs of a stroke but was not taken to Riverside’s stroke unit until approximately 7:00 p.m. He alleged that he suffered permanent injuries due to the delay in treatment.
Ohio’s Affidavit Of Merit Requirement
Ohio’s Civ.R. 10(D) states, in part: (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 to Rules 601(D) and 702 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 available 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 the plaintiff.
In the case reviewed by the Court of Appeals of Ohio, the plaintiff’s attorney filed an affidavit from the plaintiff’s medical malpractice expert that simply stated, “1. I am a physician licensed to practice medicine in the State of Ohio. 2. 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. 3. I have reviewed all of the medical records of the Plaintiff, Joseph Allen Woods, reasonably available to the Plaintiff concerning the allegations contained in the complaint. 4. 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.”
The plaintiff’s lawyer argued that his expert’s affidavit of merit was sufficient because it stated exactly what was required by Civ.R. 10(D)(2). The Court of Appeals of Ohio disagreed and held that the plaintiff’s affidavit of merit was insufficient because the affidavit failed to state that the standard of care was breached by every defendant named in the complaint (“…we agree with the trial court that appellants [the medical malpractice plaintiffs] did not provide one or more affidavits of merit relative to each defendant named in the complaint, as required by Civ.R. 10(D)(2)(a).”).
Source Woods v. Riverside Methodist Hosp., Case No. 2012-Ohio-3139
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