The administrator of a deceased woman’s estate filed a complaint alleging medical malpractice and wrongful death against a doctor, the doctor’s employer, a hospital, and Medicare. The doctor and his employer filed an answer
that included the affirmative defenses of insufficiency of process and insufficiency of service of process. More than two years after the complaint was filed, the doctor and his employer filed a motion for summary judgment, arguing that the case had not timely commenced, because the doctor had not been served with a copy of the complaint. The administrator opposed summary judgment, contending that the doctor had waived his failure-of-process defense by actively participating in the litigation for over two years. The trial court granted the motion for summary judgment, and the First District Court of Appeals affirmed.
In its August 22, 2024 Opinion, the Supreme Court of Ohio stated, “Contrary to the assertion in the dissenting opinion that Dr. Ahmad did not “put[] forward even a single meaningful effort to challenge the lack of service of process,” dissenting opinion, ¶ 31. Dr. Ahmad asserted insufficiency of process and insufficiency of service of process in his answer as required by Civ.R. 12(B). Dr. Ahmad did not waive the service defenses in any of the ways described in Civ.R. 12(H)(1). Because Ackman never perfected service of her complaint on Dr. Ahmad, the case against Dr. Ahmad did not commence within the statute of limitations.”
“Certainty is something our rules provide by placing the burden of perfecting service on the plaintiff. Civ.R. 3(A) makes clear that a civil action is not commenced until service of the complaint is perfected. “The obligation is upon plaintiffs to perfect service of process; defendants have no duty to assist them in fulfilling this obligation.” Gliozzo at ¶ 16.”
The Supreme Court of Ohio held: “We decline to overrule our holding in Gliozzo. Dr. Ahmad properly preserved his insufficiency-of-service-of-process defense, and Ackman never perfected service of her complaint on Dr. Ahmad. The trial court properly dismissed the claims against Dr. Ahmad and Hospitalist [based on Hospitalist’s vicarious liability]. We therefore affirm the judgment of the First District Court of Appeals.”
The dissent stated: “This case is a good example of how applying the rule from Gliozzo leads to both waste and unjust results. Appellee Dr. Muhammad Riaz Ahmad clearly had notice of the suit through his employer, appellee Hospitalist Medicine Physicians of Ohio, P.C. And over the next two years, Dr. Ahmad substantially participated in the case, including by participating in discovery and even taking the deposition of appellant, Jennifer Ackman. Through all of that, Dr. Ahmad did not make a meaningful effort to have the case dismissed for lack of service of process. It was only when the statute of limitations had passed—and after significant time, effort, and presumably also money had been expended by the parties and the court—did he meaningfully assert his service-of-process defense by raising it in a summary-judgment motion … I would overrule our decision in Gliozzo, hold that a defendant’s active participation in litigation causes the defendant to forfeit an insufficiency-of-service-of-process defense, and reverse the decision of the First District Court of Appeals. I therefore respectfully dissent.”
Source Ackman v. Mercy Health W. Hosp., L.L.C., Slip Opinion No. 2024-Ohio-3159.
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