The Supreme Court of Ohio ruled, June 4, 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.