The Affidavit of Merit requirement in Rule 10(D)(2) was introduced in 2005 to eliminate frivolous lawsuits. The concept is simple: It is designed to make plaintiffs prove that they have done some homework before filing a lawsuit asserting a claim of medical malpractice. To that end, no health-care provider can be named in a medical negligence action unless a qualified expert has reviewed the care and determined, at least preliminarily, that the alleged claims have merit. Simple as it may be, the rule is not working.

What does the rule require?

In order to satisfy Rule 10(D)(2), the plaintiff need take only a few basic steps. First, the plaintiff must obtain the relevant medical records. Second, the plaintiff must give the records to one or more qualified physicians for review. And third, if the reviewing physician determines that medical negligence may have occurred, the physician must put his opinion in writing—the Affidavit of Merit.

At the time the plaintiff files his or her complaint, she must do one of two things to satisfy the rule: (1) file an Affidavit of Merit; or (2) file a motion seeking additional time, up to 90 days, to file such affidavit. If she does neither, her complaint is inadequate and subject to dismissal. This does not happen very often, but when it does, Ohio trial courts are generally willing to grant motions to dismiss. Trial courts are disinclined, however, to grant motions to dismiss when affidavits are filed but do not comply with the rule.

The rule requires that the plaintiff provide an Affidavit of Merit relating to each defendant. In some cases, a single affidavit may satisfy this requirement, but in many others, multiple affidavits are necessary. For example, if there is only one named defendant, or several named defendants who practice in the same medical specialty, one affidavit from a qualified expert in that medical specialty could suffice. Conversely, if there are multiple defendants who practice in more than one medical specialty, multiple affidavits will be needed to satisfy the rule. In practice, it is extremely rare to see more than one affidavit submitted in a case, regardless of the number of defendants or medical specialties involved.

In each affidavit, the signing physician must:

  • Establish that he reviewed all of the available records reasonably available to the plaintiff. To do this properly, he needs to list what he reviewed and state his belief that these were all of the records reasonably available to the plaintiff.
  • Confirm that he is the right person for the job. The physician must provide his qualifications to demonstrate both that he satisfies the requirements of Evidence Rules 601(D) and 702 and that he is familiar with the applicable standard of care.
  • State his opinion that the standard of care was breached and that this breach proximately caused injury to the plaintiff. He should identify, by name, each defendant to whom this opinion applies.

The purpose behind the rule is laudable, the steps needed to satisfy it are simple, and the remedy for noncompliance (dismissal) is provided in the rule itself. So why isn’t it working?

So what’s the problem?

In short, plaintiffs aren’t complying with the rule, trial courts aren’t enforcing it, and there isn’t a darned thing defendants can do about it. In most cases, plaintiffs are filing affidavits with their complaints, but they do not meet the requirements of the rule. As noted, motions to dismiss based upon noncompliant affidavits are rarely, if ever, granted. The only way to appreciate this perplexing phenomenon is to delve into the trenches and examine what is happening at the trial court level. That is exactly what we did, and here are but a few examples of what we found.

In one case that is currently pending in Ohio, the plaintiffs filed a complaint asserting medical negligence against nine individual defendants practicing in at least five different medical specialties. With the complaint, the plaintiffs filed a motion seeking an additional 90 days to file an Affidavit of Merit, but this motion did not demonstrate good cause for the requested extension as required by the rule. The court never ruled on this motion. Instead, the full 90 days passed without the plaintiffs ever filing a single affidavit. Several defendants filed motions to dismiss, and the plaintiffs responded by voluntarily dismissing the case. Unfortunately, it did not end there—it just got worse.

Less than a year after dismissing the first complaint, the plaintiffs re-filed the exact same complaint against the exact same defendants. This time, the plaintiffs filed a single affidavit with the complaint. What that affidavit did do was quote Rule 10(D)(2); what it failed to do was actually satisfy it. Specifically, the affidavit stated that medical records had been reviewed, but the affiant neglected to list or otherwise identify those records. The affidavit also failed to set forth the affiant’s qualifications. The affiant then merely stated that "one or more defendant(s) breached the standard of care" without listing them by name. There is no way to know whether this physician even knew who all of the named defendants were. The affiant did not establish whether he was qualified as to any of the named defendants, but it is clear that he could not possibly have been qualified to establish merit as to all of them. Defendants thus filed motions to dismiss for plaintiffs’ failure to comply with Rule 10(D)(2). While the motions idled, the case progressed. The plaintiffs neither corrected the deficiencies nor opposed the motions.

In eventually ruling on defendants’ motions, the court observed:

"Although the court has not researched the appellate decisions, it seems likely that the initial [Affiant] Affidavit of Merit was defective in substance for failing to identify which specific doctor or hospital was at fault."

But instead of apply the rule and dismissing the case outright, the court remarkably concluded:

"Spinning the case off on a wooden decision based solely on the language of Rule 10(D) would not serve anyone’s best interests."

So despite the plain language of the rule, the court gave the plaintiffs an additional three months from the date of its Entry to supplement their deficient affidavit. In so doing, the court noted:

"Defendants should not be obligated to wait more than nine months [from the time the complaint was refiled] to know if they are being targeted or can justifiably be dismissed."

Nine months? The rule is designed to ensure that defendants have the answer to this query at the time the complaint is filed. The re-filed case has now been pending for almost a year, and plaintiffs still have not filed a compliant affidavit.

While this is a particularly troubling example, it reflects the rule and not the exception. In another case pending in a different Ohio county, the plaintiffs sued six named defendants representing four different medical specialties. With the complaint, the plaintiffs filed a lone affidavit signed by an out-of-state physician who did not practice in any of the relevant specialties. In denying the motion to dismiss, which was filed on the basis that the affiant was not qualified to establish merit as to physicians practicing in dissimilar medical specialties, the court held:

"Defendants failed to cite any case law to support the proposition that expert witnesses, for purposes of an affidavit of merit, must practice in the same specialty as the defendant(s). [T]he fact that Plaintiffs did not include an affidavit of merit of an expert specializing in [medical specialty], the medical specialty of Defendants[,] does not render the Affidavit of Merit included with the Complaint insufficient."

Perhaps recognizing the incongruousness of proffering one physician’s opinion as to the care provided by another physician practicing in an entirely different medical specialty, the court dropped the following caveat in a footnote:

"In making this determination upon the constricted record of a motion to dismiss, the Court makes no determination of the competence of the affiant to testify at trial or in further proceedings."

As these two examples demonstrate, Rule 10(D)(2) is currently being interpreted to require that a plaintiff do nothing more than find a doctor, licensed in any state and in any specialty, who can cut and paste the language of the rule into a sworn statement. The plaintiff need only attach this statement to the complaint to pass muster in most trial courts, regardless of the number of defendants named or the medical specialties implicated. But how does this effectuate the purpose of the rule? How does it weed out frivolous claims?

Clogged dockets aren’t the only consequence of unwarranted claims that Rule 10(D)(2) was designed to avoid. There are also significant costs to the individual defendants. One such cost is the mere fact that the physician has been sued—something that he will have to forever report on every application for hospital privileges and every application for malpractice insurance for the remainder of his career. This physician will also incur the cost of hiring an attorney to defend him. This is something that each defendant must do. Even for cases that are dismissed within the first six months based upon failure to satisfy Rule 10(D)(2), the defense costs can be tens of thousands of dollars.

Is there a solution?

Although Rule 10(D)(2) has already been modified once by the Ohio Supreme Court in 2007 in an effort to clarify its requirements, one possible solution would be to further modify the rule. In that regard, we offer the following possibility for consideration:1

(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. Affidavits of Merit shall be provided by qualified expert witnesses pursuant to Rules 601(D) and 702 of the Ohio Rules of Evidence and section 2743.43 of the Ohio Revised Code. A separate Affidavit of Merit shall be provided relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability. Where the same qualified expert witness is providing an Affidavit of Merit relative to more than one defendant, consolidation of the affidavits is permitted. 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. The statement shall include a list of all of the medical records reviewed and shall identify the source of these records (i.e. name of the hospital, medical provider, etc.) and the date(s) of service;

(ii) A statement establishing both the affiant’s qualification to offer expert opinion testimony in Ohio and the affiant’s familiarity with the applicable standard of care. The applicable standard of care shall be identified (i.e. name the medical specialty with which the affiant is familiar);

(iii) The opinion of the affiant that the standard of care was breached and that the breach proximately caused injury to the plaintiff. The affiant shall include the name of each individual defendant to whom this opinion applies. More than one affidavit may be used to fully satisfy the requirements of this subsection.  

The above changes should make the requirements less ambiguous, thereby reducing the ability of plaintiffs to find ways around the purpose and intent of the rule. However, enforcement will remain a struggle because no recourse currently exists.

Without any meaningful oversight, plaintiffs remain free to file medical negligence lawsuits before determining whether they have merit, and trial courts can continue to accept affidavits that do not comply with the rule. This can be remedied by making a denial of a motion to dismiss filed pursuant to Rule 10(D)(2) a final appealable order.

As it stands today, Civil Rule 10(D)(2) is neither followed nor enforced. This is not likely to change unless something more is done. We write this article to raise awareness of the problem and hopefully to inspire the much needed changes.