Daniel McCarty v. Brian Mihok, D.O., et. al.

Headnotes

H1: Civil Procedure > Pleadings > Complaints > Requirements for Complaint

Civil Procedure > Malpractice and Professional Liability > Healthcare Providers

See Civ. R. 10

H2: Civil Procedure > Pleadings > Complaints > Requirements for Complaint

Civil Procedure > Malpractice and Professional Liability > Healthcare Providers 

Under Ohio R. Civ. P. 10(D)(2), an affidavit of merit is necessary to establish the adequacy of a medical malpractice complaint. 

H3: Civil Procedure > Defenses, Demurrers & Objections> Motions to Dismiss

Civil Procedure >  Pleadings > Complaints > Requirements for Complaint

Ohio R. Civ. P 10(D)(2) dictates that a motion to dismiss for failure to state a claim upon relief can be granted is the proper remedy when the plaintiff files a medical malpractice complaint, but fails to include an affidavit of merit. 

H4: Civil Procedure > Pleadings > Complaints > Requirements for Complaint

Civil Procedure > Dismissal > Involuntary Dismissals > Failure to State Claims

If a complaint is dismissed due to the failure to file an affidavit of merit under Ohio R. Civ. P 10(D)(2), the dismissal is without prejudice because it is an adjudication other than on the merits of the complaint. 

H5: Civil Procedure > Dismissal > Involuntary Dismissals > Prejudice

See Civ. R. 41

 

Summary of Case

Procedural Posture: Defendants filed a motion to dismiss the Plaintiff’s claim pursuant to Civil Rule 10(D)(2). Plaintiff filed a response to Defendant’s motion to support their claims of negligence against the Defendants. 

Overview:  Plaintiff filed a complaint alleging Defendants were negligent in providing medical care to the Plaintiff. Because this is a medical malpractice case, the Civil Rules expressly mandate that the Plaintiff must file an affidavit of merit (an expert report) with their complaint. If the affidavit is not attached to the complaint, then the complaint is deemed to have a jurisdictional defect that prevents the Court from proceeding with the case. 

Outcome: The Court finds that the Plaintiff has failed to file an affidavit of merit with their complaint. Complaint is dismissed without prejudice. 

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