Glenn D. Feagan, Esq., appealed the judgments of the Hamilton County Court of Common Pleas awarding sanctions against him under R.C. 2323.51 and Civ.R. 11 for failing to file a requisite affidavit of merit or a motion for extension with three respective medical-malpractice complaints.
Civ.R. 10(D)(2)(a) requires that a medical-claim complaint be accompanied by one or more affidavits of merit. The specific requirements for an affidavit of merit are expressly laid out in the rule. In essence, the affidavit must establish an expert opinion that the standard of care was breached by one or more defendants to the action and that such breach caused injury to the plaintiff. Alternatively, the rule allows a plaintiff to instead file a motion to extend with the complaint, seeking more time to file the affidavit of merit. Civ.R. 10(D)(2)(b).
The purpose of the affidavit of merit is to winnow out utterly frivolous claims; its purpose is not to test the sufficiency of the plaintiff’s evidence on the ultimate issue of the defendant’s liability. In fact, Civ.R. 10(D)(2)(d) expressly provides that the affidavit is required to establish the adequacy of the complaint. Notably, adequacy of the complaint and adequacy of the underlying claims are not synonymous. The rule further provides that any dismissal for the failure to comply with the rule operates only as a failure otherwise than on the merits. Thus, it is clear that the failure to file an affidavit of merit does not ultimately speak towards the merits of the underlying claims. Rather, it is merely a pleading requirement.
The Ohio First District Court of Appeals stated in its January 19, 2024 Opinion: “While this court is certainly not condoning the purposeful avoidance of procedural requirements under the Ohio Rules of Civil Procedure, we cannot say that no reasonable attorney would have engaged in the strategy of filing a complaint in violation of the rule intending to rely on the established outcome of dismissal in order to garner more time for his or her client to bring the intended cause of action. The statute is not designed to punish mere misjudgment or tactical error … Further, we are cautious not to stifle good-faith zealous representation—even where such a strategy ultimately misses the mark—and the mere filing of the complaints in violation of the rule has yet to reach the realm of abuse of process. Notably, there is no evidence here that Feagan has previously been warned against this behavior by the trial court or that such behavior has previously been litigated and found to be improper. Accordingly, we hold that sanctions were not warranted under R.C. 2323.51 based solely on Feagan’s failure to follow Civ.R. 10(D)(2) when filing the three medical-claim complaints. Therefore, we sustain the sole assignment of error.”
Source Feagan v. Bethesda N. Hosp., 2024-Ohio-166.
If you or a loved one may have been injured (or worse) as a result of medical negligence in Ohio or in another U.S. state, you should promptly seek the legal advice of an Ohio medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click here to visit our website or call us on our toll-free line in the United States (800-295-3959) to be connected with medical malpractice lawyers in your state who may be willing to help you with your medical malpractice claim.
Turn to us when you don’t know where to turn.
