In order to bring a medical malpractice action in Ohio, a plaintiff must comply with Rule 10(D) of the Ohio Rules of Civil Procedure. This Rule requires that the plaintiff file an affidavit of merit authored by an expert attesting to the sufficiency of medical evidence supporting the plaintiff’s claims. The failure to file an adequate affidavit of merit renders the claim subject to dismissal for failure to state a claim upon which relief can be granted. Therefore, the affidavit’s content is of the utmost importance.
The Tenth District Court of Appeals recently decided in Woods v. Riverside Methodist Hosp., 10th Dist. No. 11AP-689, 2012- Ohio-3139 that in order to comply with Civ.R. 10(D), the plaintiff’s affidavit of merit must specifically identify which defendant or defendants to the action breached the standard of care. More specifically, it is not enough to simply state that “one or more of the Defendants to the action” breached the standard of care.
Civ.R. 10(D)(2) requires that when filing a medical claim, the plaintiff must produce “one or more affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability.” Civ.R. 10(D)(2)(iii) specifically requires that the affiant opine that the “standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.”
In Woods, the plaintiff’s case was dismissed for failure to produce a sufficient affidavit of merit in accordance with this Rule. The plaintiff filed a medical malpractice action against Riverside Methodist Hospital and various physicians after the plaintiff underwent a sigmoidectomy and suffered a post-surgery stroke. The plaintiff alleged that the defendants’ delayed treatment for the stroke proximately caused his injuries. To support his claim, the plaintiff attached an affidavit of merit of a neurologist, Michael E. Jones, D.O. After briefly stating his qualifications, Dr. Jones opined:
“It is my opinion, to a reasonable degree of medical certainty, that the standard of care was breached by one or more of the Defendants to the action, and that breach caused injury to the Plaintiff.”
The plaintiff argued that the Rule does not require the affiant to specifically name each defendant and state what each defendant did that would amount to medical negligence. However, the appellate court disagreed in part, and affirmed the trial court’s decision, finding that this affidavit of merit was insufficient. The court explained that the Rule requires the plaintiff to submit “one or more affidavits of merit relative to each defendant named in the complaint.” Thus, it concluded that Dr. Jones’ statement did not satisfy this Rule because, due to the language he chose to employ, “he may be of the opinion that only one of the numerous [defendants] was negligent. At the very least, Dr. Jones could have indicated that the standard of care was breached by every defendant named in the complaint.”
Although the court’s ruling did not change the ability of a plaintiff to file one affidavit in an action against multiple defendants, it did require that the affidavit specifically identify which defendant or defendants to the action breached the standard of care. The affidavit should at least indicate every defendant named in the action breached the standard of care.
If you have any questions regarding the Woods v. Riverside Methodist Hosp. decision, would like a complete copy of the opinion, or have any other questions regarding health care liability, please feel free to call upon one of our Medical Malpractice Group Members.