Filing the affidavit of merit with an amended complaint

The “affidavit of merit” requirement is familiar to practitioners in medical and dental malpractice cases. As of 2021, “[t]wenty-eight states ha[d] requirements for filing an affidavit or certificate of merit in order for a medical liability and malpractice claim to move forward.” Heather Morton, Medical Liability/Malpractice Merit Affidavits and Expert Witnesses, National Conference of State Legislatures (August 11, 2021).

In Ohio, the requirement is found in Civil Rule 10(D). Any complaint that includes “a medical claim, dental claim, optometric claim, or chiropractic claim … shall be accompanied by one or more affidavits of merit relative to each defendant.” The affidavit must be signed by “an expert witness meeting the requirements of Evid. R. 702.”

Despite the requirements of the rule, the affidavit of merit is often omitted from the plaintiff’s initial filing. This can occur when the statute of limitations necessitates prompt commencement of the action. The rule allows for that contingency. Ohio Rule 10(D)(2)(b) provides that “[t]he plaintiff may file a motion to extend the period of time to file an affidavit of merit.” The court shall allow “a reasonable period … not to exceed ninety days” (or even beyond ninety days where “other circumstances warrant extension”). 

The rule states that the motion for extension must be filed “with the complaint.” Id. What happens, then, if the affidavit is omitted from the complaint and no motion for extension is filed?

In a recent case, the plaintiff initially filed a pro se complaint that did not purposely assert a “medical claim.” The defense lawyers filed a dispositive motion, making a twofold argument. The plaintiff’s allegations, they contended, were “in their nature a medical claim,” yet the plaintiff failed “to support her Complaint with a legally sufficient Affidavit of Merit under Civil Rule 10(D)(2).” The plaintiff obtained counsel at this point. The lawyer reacted to the dismissal motion by filing a proposed amended complaint with the affidavit of merit attached. 

That move should be permissible under the civil rules. The Staff Note to Ohio Rule 10(D) states that “[b]ecause there may be circumstances in which the plaintiff is unable to provide an affidavit of merit when the complaint is filed, division (D)(2)(b) of the rule requires the trial court, when good cause is shown, to provide a reasonable period of time for the plaintiff to obtain and file the affidavit.” The granting of time “[f]or good cause shown” includes “[a]ny other facts or circumstances relevant to the ability of the plaintiff to obtain an affidavit of merit.” Id. 

Rule 10(D)(2)(e) contemplates that the affidavit of merit may be filed “along with the complaint or amended complaint in which [medical] claims are first asserted.” The “first asserted” phrase can be a source of argument, as the dismissal motion in the above example suggests. According to the motion, the plaintiff’s pro se complaint was “in the nature” of a “medical claim.” Was it, then, the “first assertion” of a such a claim, precluding the plaintiff from filing the affidavit of merit with an amended complaint per Rule 10(D)(2)(e)? Proper analysis refutes that argument.

If allowed by the court, an amended complaint replaces the original complaint and becomes the action’s sole pleading on the plaintiff’s behalf. Pursuant to Civil Rule 15(C), an amended claim “relates back to the date of the original pleading” so long it “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Courts recognize that the original pleading is “treated as a nullity” after an amendment (or where the original action as a whole was voluntarily dismissed without prejudice). Chapman v. South Pointe Hosp., 186 Ohio App. 3d 430, 928 N.E.2d 777, 2010-Ohio-152, at ¶¶ 21, 26-27 (8th App. Dist. 2010) (discussed with approval in Adkins v. Women’s Welsh Club of America, 2019 Ohio 70 (8th App. Dist. January 10, 2019)). Thus, courts allow affidavits of merit to be filed “for the first time attached to an amended complaint.” Burgess v. Fischer, 766 F. Supp. 2d 845, 853 (S.D. Ohio 2010) (citing Chapman, supra).

As the court noted in Burgess, “judicial efficiency” favors allowing an amended complaint with the affidavit of merit attached. “[A]ny dismissal” under Ohio Rule 10(D)(2) must be “otherwise than on the merits” (a point discussed in a later post). Burgess noted that, instead of dismissing a case and having it refiled, “judicial efficiency” favored “allow[ing] Plaintiffs to file the proposed amended complaint accompanied by an affidavit of merit as per Federal Rule of Civil Procedure 15(a)(2).” Burgess, 766 F. Supp. 2d 853 (citing Chapman, supra).

Procedural provisions are usually just rule of the game and judges tend to apply them practically and reasonably. By comparison, the “affidavit of merit” rule seems hyper-technical. Depending on how it’s applied, filings can have great significance because they affect the running of a short statute limitation. The next post will deal with one such difficulty