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Keeping the Gatekeeper at the Gate:  Overcoming the 10th District’s Recent Decision that Could Remove the Teeth from Rule 10(D)(2)’s Affidavit of Merit Requirement

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By: Michael M. Mahon

November 29, 2018

The affidavit of merit requirement in Ohio Civil Rule 10(D)(2) is often referred to as a gatekeeper enacted to deter the filing of frivolous malpractice claims.  However, a hapless gatekeeper who does not control access to a gate can hardly be called a gatekeeper.  Similarly, an affidavit of merit requirement that is not enforced can hardly be effective in deterring frivolous lawsuits.  Therefore, in order to prevent the decision in the recent case of Wallace v. OhioHealth Corp., 10th Dist. No. 18AP-279, 2018-Ohio-4293, from turning Civ. R. 10(D)(2) into the hapless gatekeeper, defense attorneys at the outset of a case must remain cognizant of the tools available in Civil Rule 12.

The purpose of enacting Rule 10(D)(2)’s affidavit of merit requirement was to ease the burden on Ohio’s court dockets by ensuring that only those plaintiffs truly aggrieved at the hands of the medical profession have their day in court.  As a result, the rule was fashioned in a way to make clear that the affidavit of merit is necessary to establish the adequacy of the complaint.  Pursuant to the rule, a plaintiff asserting a medical claim has two basic options at the time she files her complaint: (1) attach the requisite affidavit(s) of merit; or (2) move the court for more time, not to exceed 90 days, to obtain such affidavit(s).  Regardless of which option was chosen, it has been generally undisputed that the affidavit of merit requirement was a threshold issue which must be addressed before the case could go forward.  In other words, the affidavit of merit requirement is the gatekeeper to maintaining a valid medical claim against a medical professional.

Despite this stated purpose, the language of Civ. R. 10(D)(2) contains a short qualifier that, depending on its interpretation, could turn the Rule’s gatekeeper function on its head.  Specifically, the Rule provides that affidavit(s) of merit are required only for those defendants “for whom expert testimony is necessary to establish liability.”  Thus, if expert testimony is not ultimately required to establish liability for a particular defendant—for example, if the facts are such that liability and/or damages is within the common knowledge of a layperson—then an affidavit of merit is technically not required at the time the complaint is filed.  On the surface this may seem okay, but what happens when the Court cannot make a threshold determination if expert testimony will ultimately be required to establish liability?  Should it wait until later in the case when it can make such a determination, thereby effectively removing the gatekeeper from the gate?  This Catch 22 is what the 10th District was presented with in Wallace v. Ohio Health Corp.

In Wallace, the 10th District found that a trial judge could not determine based solely on the complaint whether the common knowledge exception applied.  Thus, the 10th District held that the case should not have been dismissed for failing to include affidavit(s) of merit, because there was no way to determine, at least at the pleading stage, whether expert testimony would later be necessary.  The plaintiff, therefore, could pass through the gate without an affidavit of merit.

The Wallace case illustrates the tension between Rule 10(D)(2)’s function as gatekeeper and the language in the rule that limits its application to only those cases for which expert testimony is ultimately required to establish liability.  On the surface it might appear that Wallace could allow clever plaintiff attorneys to avoid the requirements of Rule 10(D)(2) by making generalized allegations of negligence—thereby making it impossible for trial courts to determine at the outset whether expert testimony is necessary—but in truth the opposite is the case.  Wallace is proof of the necessity of Rule 12(E)’s motion for a more definite statement.  When a complaint does not provide enough information to allow the court to enforce Rule 10(D)(2)’s function as gatekeeper, a Rule 12(E) motion for a more definite statement almost writes itself.

If you have any question regarding the Wallace decision, or any other issue pertaining to health care liability, please contact a member of our firm’s Medical Malpractice; Dental Liability or Long-Term Care Liability Practice Groups.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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