On October 23, 2008, the Ohio Supreme Court held that the proper response to the failure to file the affidavit of merit required by Civ.R. 10(D)(2) is a motion to dismiss pursuant to Civ.R. 12(B)(6). A dismissal based on failure to comply with the affidavit of merit requirement is "an adjudication otherwise than on the merits," and therefore is a dismissal without prejudice. Fletcher v. Univ. Hosps. of Cleveland, Slip Opinion No. 2008-Ohio-5379 at syllabus, ¶ 2. Justice O'Connor authored the 7-0 opinion reversing the Eighth District Court of Appeals.
In 2005, the Ohio Supreme Court adopted Ohio Civil Rule 10(D)(2) in response to medical malpractice reform legislation that became effective in 2004. Rule 10(D)(2) requires that each complaint containing a medical claim as defined by R.C. 2305.113 be accompanied by an "affidavit of merit" signed by a qualified expert under Evid.R. 601(D) and 702. The statement must show that the affiant not only "reviewed all medical records reasonably available" but "is also familiar with the applicable standard of care." The purpose behind this rule is to deter frivolous lawsuits.
Fletcher filed this action as the administrator of the estate of Victor Shaw in 2003. The Complaint alleged wrongful death and medical malpractice. The action was subsequently dismissed without prejudice and refiled after Rule 10(D)(2) became effective. The second Complaint did not include the required affidavit of merit.
As a result, University Hospitals filed a motion to dismiss for failure to state a claim upon which relief could be granted. The trial court granted the motion and dismissed the case with prejudice. Fletcher appealed relying on the argument that an affidavit was unnecessary as wrongful death is not a medical claim. Although the Eighth District Court of Appeals rejected Plaintiff's assertion that a claim for wrongful death is not a medical claim, it reversed the trial court's decision -- holding that the proper procedure is for a defendant to request a more definite statement under Civ.R. 12(E).
The Ohio Supreme Court reversed and remanded. The Court determined that a 12(B)(6) motion is the proper course of action when an affidavit of merit is not filed with a medical malpractice complaint. "[When we apply the standard of review for motions to dismiss, in the absence of an affidavit of merit, we are left only with the complaint, which contains Fletcher's mere conclusions that appellants committed malpractice. These unsupported conclusions 'are not taken as admitted by a [12(B)(6)] motion to dismiss and are not sufficient to withstand such a motion.'" Id. at syllabus, ¶ 14.
The Court found, however, that the trial court erred in dismissing the Complaint with prejudice because the motion to dismiss was premised on the insufficiency of the Complaint rather than the case's merits.
Hypothetically, when a medical claim is dismissed for want of an affidavit of merit, that problem could be rectified in a refiling simply by including the requisite affidavit. However, if a case was dismissed with prejudice on its first filing for failure to comply with Civ.R. 10(D)(2), then that plaintiff would be foreclosed from seeking relief despite the fact that the plaintiff might very well be able to obtain an affidavit of merit for purposes of refiling. Id. at syllabus, ¶19. Thus, to achieve a just result, a dismissal for failure to comply with Civ.R. 10(D)(2) should be without prejudice.