Dismissals for failure to file the affidavit of merit

An earlier post discussed the “affidavit of merit” requirement in medical malpractice cases. The question there was whether the affidavit may be filed with an amended complaint, if it was omitted from the plaintiff’s initial filing.

A related question concerns the court’s disposition of the action if an affidavit of merit has not been filed. Defense motions are virtually automatic and may dramatically affect the plaintiff’s options going forward. Will the court’s ruling on the defendant’s motion permit the plaintiff to refile the action at a later time? 

In Ohio, the rule expressly contemplates refiling. Ohio Rule 10(D) requires an affidavit of merit to be filed with any complaint containing “a medical claim, dental claim, optometric claim, or chiropractic claim.” Failure to do so will prompt a motion to dismiss. Per Rule 10(D)(2)(d), however, “[a]ny dismissal for the failure to comply with this rule shall operate as a failure otherwise than on the merits” (emphasis added). Under the Ohio savings statute, an action that “fails otherwise than upon the merits” may be refiled within one year. Ohio Rev. Code § 2305.19(A) (subject to certain exceptions not applicable here).

Despite these provisions, it has been the practice among Ohio defense lawyers to move for “judgment on the pleadings” pursuant to Rule 12(C) where the plaintiff’s complaint omits the affidavit of merit. A judgment on the pleadings is not “otherwise than upon the merits.” Rather, it has “dispositive effect”—”equivalent to the effect suffered by plaintiff should the court grant a motion for summary judgment.” Robinson v. Medevac Midamerica, Inc., Case No. 06-4042 (D. Kan. Sept. 22, 2006). Accord, Adolfo v. Adolfo, G.R. No. 201427 (Supreme Court of Manilla 2015) (“a judgment on the pleadings is a judgment on the facts as pleaded, while a summary judgment is a judgment on the facts as summarily proven by affidavits, depositions or admissions”).

Defense motions cite strings of cases as having approved “judgment on the pleadings” where the complaint fails to include the affidavit of merit. See, e.g., Latimore v. Hartford Life & Accident Ins. Co., 2012-Ohio-447, at ¶12 (5th Dist. App. 2012); Smart v. Aultman Hosp., 5th Dist. 2011-Ohio-1318, at ¶5 (5th Dist. App. 2011); Chromik v. Kaiser Permanente, 2007-Ohio-5856, ¶¶12-17 (8th Dist. App. 2007). Those cases are not strong authority. In Latimore, the defense comingled a Rule 12(C) motion for judgment on the pleadings with a motion under Rule 12(B)(6) for failure to state a claim upon which relief could be granted, and the plaintiff “did not oppose the motion.” In Smart, the opinion did not distinguish between the two and was premised in part on the finding that that the medical claim “was barred by the one-year statute of limitations.” Chromik found “no abuse of the [trial] court’s discretion in entering a dismissal with prejudice” where the court “gave Chromik the opportunity to provide a more definite statement by allowing a 107-day extension but Chromik failed to comply.”

As a general matter, defense motions for judgment on the pleadings disregard Rule 10(D) and the Ohio Supreme Court’s construction of it. Rule 10(D)(2)(d) mandates that “[a]ny dismissal for the failure to comply with this rule shall operate as a failure otherwise than on the merits.” The Court has held that “the proper remedy when the plaintiff fails to include an affidavit of merit” is not a judgment on the pleadings, but rather “a motion to dismiss for failure to state a claim upon which relief can be granted. Fletcher v. Univ. Hosps., 120 Ohio St. 3d 167, 897 N.E.2d 147, 2008-Ohio-5379, at ¶13, 21 (2008) (followed in Muncy v. Siefker, Case No. 3:12cv2301 (N.D. Ohio Mar. 26, 2013)). “To put this in concrete terms,” Justice O’Connor wrote in Fletcher, “a dismissal for failure to state a claim is without prejudice except in those cases where the claim cannot be pleaded in any other way.” Id. at ¶ 21. The Supreme Court reversed in Fletcher, holding “the trial court erred in dismissing the case with prejudice.” Id. at ¶¶ 16, 22.

Defense motions for judgment on the pleadings ask the trial court to commit that same error. Like a summary judgment under Civ. R. 56, a “judgment on the pleadings” pursuant to Civ. R. 12(C) “requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law.” Pincus v. Dubyak, 2021-Ohio-3034, at ¶17 (8th App. Dist. 2021) (quoting State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St. 3d 565, 570, 664 N.E.2d 931 (1996)).

No such determination is involved when the question is merely whether the plaintiff failed to include an affidavit of merit. As the court held in Fletcher, “the dismissal was not on the merits of Fletcher’s claim, [but] “merely went towards the sufficiency of the complaint — namely, the complaint’s failure to include an affidavit of merit. Thus, the dismissal should have been without prejudice.” Fletcher, 2008-Ohio-5379, at ¶18.