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Dismissal of Medical Malpractice Suit for Failure to Attach Certificate of Merit Is 'Without Prejudice' By Operation of Law

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2011-1162.  Troyer v. Janis, Slip Opinion No. 2012-Ohio-2406.
Franklin App. No. 10AP-434, 2011-Ohio-2538.  Judgment reversed and cause remanded.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-2406.pdf

Video clip View oral argument video of this case.

(June 5, 2012) The Supreme Court of Ohio held today that when a plaintiff’s medical malpractice suit is dismissed for failure to attach a physician’s certificate of merit as required by Ohio Civil Rule 10(D)(2), the dismissal is “without prejudice” by operation of law.

Applying that analysis to a Franklin County case, the court reversed an order granting summary judgment to a physician and reinstated a malpractice action that had been dismissed “with prejudice” (that is, in a way that barred the plaintiffs from refiling their claim) based on a previous Civ.R.10(D)(2) dismissal. The court’s 7-0 decision, authored by Justice Evelyn Lundberg Stratton, reversed a decision of the Tenth District court of Appeals.

Civ.R.10(D)(2) requires that in every lawsuit asserting a claim of medical malpractice, the plaintiff must submit to the court along with his or her complaint an “affidavit of merit” signed by a qualified physician. The affidavit must attest that the doctor has examined the medical evidence, is familiar with the standard of care the plaintiff should have received, and believes that that standard of care was not met in the plaintiff’s case. The rule goes on to state that failure to include an affidavit of merit is grounds for the court to dismiss the plaintiff’s complaint, and specifies that a dismissal for that reason is a dismissal “other than on the merits,” which means the dismissal does not bar the plaintiff from later refiling the complaint with the required affidavit of merit, so long as the refiling is accomplished within the statutory time limit for doing so.

In this case, Donald Troyer of Columbus and his wife filed a medical malpractice suit against Dr. Leonard Janis in the Franklin County Court of Common Pleas. Janis moved for dismissal on the basis that Troyer had not submitted a physician’s affidavit of merit to the court along with his complaint as required under Civ.R.10(D)(2). The trial court granted dismissal, but did not include in its journal entry recording that action a statement that the complaint had been dismissed “without prejudice.”

The Troyers refiled their complaint within the statutory time limit for doing so, this time with a certificate of merit attached.

Janis filed a motion for summary judgment in his favor, arguing that because the journal entry dismissing the Troyers’ original complaint had not indicated the dismissal was without prejudice, under Civ.R.41(B)(3) it was a dismissal with prejudice − and therefore operated as a decision on the merits of the case that rendered the Troyers’ claims against him res judicata (matters already decided by the court) and barred any further litigation of their complaint.

Relying on the Tenth District Court of Appeals’ 2009 decision in Nicely v. Ohio Dept. of Rehab. & Corr., the trial court agreed that the dismissal of the Troyers original complaint was with prejudice and granted summary judgment in favor of Janis. On review, the Tenth District affirmed the trial court’s ruling. The Troyers sought and were granted Supreme Court review of the Tenth District’s decision.

Writing for a unanimous Supreme Court in today’s decision, Justice Stratton cited the court’s 2008 holding in Fletcher v. Univ. Hosps. of Cleveland that a dismissal for failure to comply with Civ.R. 10(D)(2) is a dismissal without prejudice.

“In this case, the parties agree that the complaint in the previous case was properly dismissed due to the Troyers’ failure to attach an affidavit of merit as required by Civ.R. 10(D)(2),” wrote Justice Stratton. “The parties also agree that the trial court’s entry of dismissal was silent as to whether the dismissal was with or without prejudice. The Troyers contend that under Fletcher, the previous dismissal was an adjudication otherwise than on the merits and thus was without prejudice, by operation of law, regardless of the failure of the entry to so specify. Thus, they were permitted to refile the action using the saving statute, R.C. 2305.19(A). We agree.”

“In Fletcher, we held that the trial court properly dismissed the case, but that the dismissal should have been without prejudice.  ...  Because Civ.R. 10(D)(2) requires an affidavit of merit to be attached to the complaint, when one is not attached, the proper remedy is to dismiss the complaint for failure to state a claim. Such a dismissal is not based on the merits of the case, but on the insufficiency of the complaint. ... We held that ‘[a] dismissal of a complaint for failure to file the affidavit required by Civ.R. 10(D)(2) is an adjudication otherwise than on the merits.  The dismissal, therefore, is without prejudice.’

“Here, we have a specific rule, Civ.R. 10(D)(2), which applies only to cases involving a medical claim, requires an affidavit of merit in these cases, and explicitly provides that any dismissal for failure to comply shall be a dismissal otherwise than on the merits.  Under these circumstances, it is customary to apply the more specific provision, the one meant to govern the particular situation involved, rather than the more general rule. Moreover, we must construe the Civil Rules ‘to effect just results’ and promote ‘the expeditious administration of justice.’  Civ.R. 1(B).  Thus, the previous entry’s silence on the matter of prejudice does not affect the application of Civ.R. 10(D)(2)(d).”

“Based on the clear language of Civ.R. 10(D)(2) and Fletcher, we hold that a dismissal of a complaint for failure to attach the affidavit of merit required by Civ.R. 10(D)(2) is an adjudication otherwise than on the merits and is a dismissal without prejudice by operation of law. The judgment of the court of appeals is reversed and the matter remanded to the trial court for further proceedings.”

Anne M. Valentine, 614.221.2223, for Donald and Tamara Troyer.

Gregory D. Rankin, 614.228.6885, for Dr. Leonard Janis.