[Cite as Amos v. Van Aman, 2019-Ohio-5324.]

                            IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT


Diane Amos,                                     :

               Plaintiff-Appellant,             :
                                                                     No. 19AP-164
v.                                              :                 (C.P.C. No. 18CV-7648)

Scott Van Aman, M.D. et al.,                    :                (REGULAR CALENDAR)

               Defendants-Appellees.            :



                                         D E C I S I O N

                                 Rendered on December 24, 2019


               On brief: Donahey & Defossez, Mark E. Defossez and
               Curtis M. Fifner, for appellee. Argued: Curits M. Fifner.

               On brief: Poling Law, Brant E. Poling and Sabrina S.
               Sellers, for appellees. Argued: Sabrina S. Sellers.


                 APPEAL from the Franklin County Court of Common Pleas

KLATT, P.J.

       {¶ 1} Plaintiff-appellant, Diane Amos, appeals a judgment of the Franklin County
Court of Common Pleas that dismissed her complaint against defendants-appellees, Scott
Van Aman, M.D., and Orthopedic One, Inc. Because we lack jurisdiction, we dismiss this
appeal.
       {¶ 2} On September 12, 2018, Amos filed a complaint alleging that Van Aman
performed surgery on toes on Amos' left foot without her consent. Amos further alleged
that the surgery caused the affected toes to become disfigured and painful. According to
Amos, by operating on her toes without consent, Van Aman committed battery.
Alternatively, Amos asserted that Van Aman acted negligently by "fail[ing] to recall, prior
Nos. 19AP-164                                                                               2

to or during the subject surgery, that he was never given consent to perform surgery on
certain of plaintiff's left toes." (Compl. at ¶ 7.) Amos sought to hold Orthopedic One
vicariously liable for the torts Van Aman allegedly committed.
       {¶ 3} Defendants answered the complaint and then moved for judgment on the
pleadings pursuant to Civ.R. 12(C). In their motion, defendants argued for dismissal
because Amos failed to comply with Civ.R. 10(D)(2), which requires a plaintiff to file with
the complaint an affidavit of merit or a motion for an extension of time in which to file an
affidavit of merit in certain types of cases. Amos responded that no such affidavit was
necessary. On February 21, 2019, the trial court issued a judgment and entry granting
defendants' motion and dismissing Amos' complaint without prejudice.
       {¶ 4} Amos now appeals the February 21, 2019 judgment, and she assigns the
following error:
              The Trial Court erred when it granted Defendants-
              Appellees'motion [sic] for Judgment on the Pleadings when it
              held that an issue capable of understanding by lay persons
              required expert testimony.

       {¶ 5} At oral argument, appellees asserted that this court lacks subject-matter
jurisdiction to hear this appeal because the February 21, 2019 judgment is not a final,
appealable order. Article IV, Section 3(B)(2) of the Ohio Constitution establishes that
courts of appeals "have such jurisdiction as may be provided by law to review and affirm,
modify, or reverse judgments or final orders of the courts of record inferior to the court of
appeals within the district." If the appealed judgment does not constitute a final, appealable
order, an appellate court lacks jurisdiction to review it. Gehm v. Timberline Post & Frame,
112 Ohio St.3d 514, 2007-Ohio-607, ¶ 14.         Consequently, in the absence of a final,
appealable order, an appellate court must dismiss the appeal. Browder v. Shea, 10th Dist.
No. 04AP-1217, 2005-Ohio-4782, ¶ 11.
       {¶ 6} A dismissal for failure to comply with Civ.R. 10(D)(2) "operate[s] as a failure
otherwise than on the merits." Civ.R. 10(D)(2)(d). Therefore, when a dismissal is entered
because no affidavit of merit accompanies the complaint, it is a dismissal without prejudice.
Fletcher v. Univ. Hosps., 120 Ohio St.3d 167, 2008-Ohio-5379, paragraph two of the
syllabus. Here, the trial court followed Civ.R. 10(D)(2)(d) and expressly stated in the
February 21, 2019 judgment that the dismissal was without prejudice.
Nos. 19AP-164                                                                              3

       {¶ 7} "Ordinarily, a dismissal 'otherwise than on the merits' does not prevent a
party from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable
order." Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d
82, 2007-Ohio-2942, ¶ 8. Because dismissals for failure to comply with Civ.R. 10(D)(2) are
"otherwise than on the merits," they generally are not final, appealable orders. Straquadine
v. Crowne Points Care Ctr., 10th Dist. No. 10AP-607, 2012-Ohio-1152, ¶ 9; Canady v.
Taylor, 10th Dist. No. 07AP-982, 2008-Ohio-2801, ¶ 8. However, if a party cannot refile
his or her claim despite it being dismissed without prejudice, a dismissal is a final,
appealable order. White v. Unknown, 10th Dist. No. 09AP-1120, 2010-Ohio-3031, ¶ 6.
       {¶ 8} Thus, whether the February 21, 2019 judgment is a final, appealable order
turns upon whether Amos can refile her action against defendants. Only the applicable
statute of limitations could potentially bar Amos from refiling.       Therefore, we must
determine what statute of limitations applies to Amos' claims.
       {¶ 9} R.C. 2305.113(A) sets forth a one-year statute of limitations for "medical
claims." Pursuant to R.C. 2305.113(E)(3), a "[m]edical claim" is "any claim that is asserted
in any civil action against a physician [or] * * * hospital * * *, and that arises out of the
medical diagnosis, care, or treatment of any person." Here, Amos' claims for battery and
negligence arose out of injuries she allegedly sustained when Van Aman performed surgery
on toes on her left foot without her consent. Because the alleged torts occurred during
surgery, they arose out of medical treatment and, thus, constitute medical claims. See
Crissinger v. Christ Hosp., 1st Dist. No. C-150796, 2017-Ohio-9256, ¶ 17-19 (claims for
negligence and battery, among other claims, were medical claims because they arose from
allegedly unnecessary, improperly performed surgery). Consequently, Amos had one year
in which to commence her claims after they accrued.
       {¶ 10} According to the complaint, Van Aman performed the surgery on Amos' toes
on September 12, 2017. Amos timely filed suit on September 12, 2018. While the statute of
limitations has now expired, that does not impede refiling. R.C. 2305.19(A), known as the
savings statute, provides a party with one year to refile a claim that has been dismissed
otherwise than on the merits, even though the claim would be time-barred under the statute
of limitations. Thompson v. Ohio State Univ. Hosps., 10th Dist. No. 06AP-1117, 2007-
Ohio-4668, ¶ 22. According to R.C. 2305.19(A):
Nos. 19AP-164                                                                              4

               [i]n any action that is commenced or attempted to be
               commenced, if in due time a judgment for the plaintiff is
               reversed or if the plaintiff fails otherwise than upon the merits,
               the plaintiff * * * may commence a new action within one year
               after the date of the reversal of the judgment or the plaintiff's
               failure otherwise than upon the merits or within the period of
               the original applicable statute of limitations, whichever occurs
               later.

       {¶ 11} Amos, therefore, may still refile her claims. Accordingly, we conclude that
the February 21, 2019 judgment is not a final, appealable order, and we dismiss this appeal.
Because our decision is jurisdictional, it should not be construed as ruling in any way on
whether, under the facts as alleged in Amos' complaint, expert testimony is or is not
necessary to establish liability.
                                                                            Appeal dismissed.

                       LUPER SCHUSTER and NELSON, JJ., concur.
