[Cite as Smith v. Doshi, 2013-Ohio-3049.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 VALERIE J. SMITH                                :
                                                 :     Appellate Case No. 25474
          Plaintiff-Appellant                    :
                                                 :     Trial Court No. 2012-CV-4682
 v.                                              :
                                                 :
 BHADRESH DOSHI, M.D.                            :     (Civil Appeal from
                                                 :     (Common Pleas Court)
          Defendant-Appellee                     :
                                                 :
                                             ...........

                                            OPINION

                                Rendered on the 12th day of July, 2013.

                                             ...........

VALERIE J. SMITH, 153 Loganwood Drive, Centerville, Ohio 45458
     Plaintiff-Appellant, pro se

JOHN B. WELCH, Atty. Reg. #0055337, and KAREN L. CLOUSE, Atty. Reg. #0037294,
Arnold Todaro & Welch Co., L.P.A., 580 Lincoln Park Boulevard, Suite 222, Dayton, Ohio
45429
      Attorney for Defendant-Appellee

                                            .............

FAIN, P.J.

        {¶ 1}            Plaintiff-appellant Valerie J. Smith appeals from the trial court’s order

dismissing her action against Defendant-appellee Dr. Bhadresh Doshi. Smith contends that the
                                                                                                   2


trial court erred in striking her amended complaints and in granting Dr. Doshi’s Civ.R. 12(B)(6)

motion to dismiss.

       {¶ 2}    We conclude that the trial court did not err in granting Dr. Doshi’s motion to

dismiss, because Smith failed to attach to her complaint, or to either of her amended complaints,

the affidavit of merit required by Civ.R. 10(D)(2). Accordingly, the judgment of the trial court

is Affirmed.



                                 I. Course of the Proceedings

       {¶ 3}    Valerie Smith commenced this action against Dr. Bhadresh Doshi.            Smith

alleged that Dr. Doshi negligently performed her hysterectomy at Good Samaritan Hospital.

According to Smith, she began feeling discomfort after her procedure, and a subsequent trip to

the emergency room revealed that her bladder was perforated.           Dr. Doshi answered the

complaint, denying any negligence on his part, and raising as affirmative defenses Smith’s failure

to state a claim upon which relief may be granted and her failure to comply with the mandatory

pleading requirements in Civ.R. 10.

       {¶ 4}    Dr. Doshi then moved to dismiss pursuant to Civ.R. 12(B)(6). Smith did not

oppose the motion, but she did file an amended complaint. Dr. Doshi moved to strike the

amended complaint because it was filed without either leave of court or his consent, as required

by Civ. R. 15(A). Subsequently, Smith filed a second amended complaint, to which she attached

copies of medical records. Dr. Doshi again moved to strike.

       {¶ 5}    The trial court granted Dr. Doshi’s motions to strike and his motion to dismiss.

The trial court held that Smith could not unilaterally amend her complaint without either leave of
                                                                                                   3


court or Dr. Doshi’s consent. The trial court further held that Smith’s failure to file an affidavit

of merit with her complaint, as required by Civ.R. 10(D)(2), mandated the dismissal of her

complaint. The trial court dismissed Smith’s complaint, without prejudice.

       {¶ 6}    From the order dismissing her complaint, Smith appeals.



             II. The Trial Court Properly Granted Dr. Doshi’s Motion to Dismiss,

       Because Smith Failed to File an Affidavit of Merit with Any of her Complaints

       {¶ 7}    Smith’s appellate brief and amended appellate brief do not comply with App.R.

16(A). Most notably, Smith fails to identify an assignment of error for our review. Based on

our review of her appellate briefs, we construe Smith’s sole assignment of error to be the

following:

               THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S

       MOTION TO DISMISS AFTER STRIKING SMITH’S FIRST AND SECOND

       AMENDED COMPLAINTS.

       {¶ 8}    We conduct a de novo review of an order granting a Civ.R. 12(B)(6) motion to

dismiss. Perrysburg Twp. v. City of Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d

44, ¶ 5. In reviewing whether a motion to dismiss should be granted, we accept as true all

factual allegations in the complaint. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532

N.E.2d 753 (1988). When granting a motion to dismiss under Civ.R. 12(B)(6), “[i]t must appear

beyond doubt that plaintiff can prove no set of facts entitling her to relief.” Vail v. Plain Dealer

Publishing Co., 72 Ohio St.3d 279, 280, 649 N.E.2d 182 (1995).

       {¶ 9}    The trial court dismissed Smith’s complaint because it failed to comply with the
                                                                                                   4


affidavit of merit requirement found in Civ.R. 10(D)(2)(a):

               Except as provided in division (D)(2)(b) of this rule, a complaint that

       contains a medical claim, dental claim, optometric claim, or chiropractic claim * *

       * shall include one or more affidavits of merit relative to each defendant named in

       the complaint for whom expert testimony is necessary to establish liability.

       Affidavits of merit shall be provided by an expert witness pursuant to Rules

       601(D) and 702 of the Ohio Rules of Evidence. Affidavits of merit shall include

       all of the following:

               (i) A statement that the affiant has reviewed all medical records reasonably

       available to the plaintiff concerning the allegations contained in the complaint;

               (ii) A statement that the affiant is familiar with the applicable standard of

       care;

               (iii) The opinion of the affiant that the standard of care was breached by

       one or more of the defendants to the action and that the breach caused injury to the

       plaintiff.

       {¶ 10} The purpose of an affidavit of merit is to establish the adequacy of a plaintiff’s

medical malpractice complaint and to deter the filing of frivolous negligence claims against

practicing physicians.   Fletcher v. University Hospitals of Cleveland, 120 Ohio St.3d 167,

2008-Ohio-5379, 897 N.E.2d 147, ¶ 10.         The Court in Fletcher specifically held that this

pleading requirement goes directly to the sufficiency of the complaint. Id. at ¶ 13. Thus, when

a plaintiff fails to attach an affidavit of merit, as required by Civ.R. 10(D)(2), the proper remedy

is dismissal for failure to state a claim.    The dismissal is made on the sufficiency of the
                                                                                                    5


pleadings, and is not an adjudication on the merits of the case. Therefore, the dismissal is

without prejudice. Id. at ¶ 17-18.

       {¶ 11} The trial court found that Smith’s amended complaints were improperly filed,

neither leave of court nor consent from Dr. Doshi having been obtained. Furthermore, Smith

failed to attach an affidavit of merit to any of her three complaints. Thus, the trial court properly

dismissed Smith’s complaint, without prejudice, for failure to state a claim upon which relief

may be granted. Id.

       {¶ 12} Smith’s sole assignment of error is overruled.



                                          III. Conclusion

       {¶ 13} Smith’s sole assignment of error having been overruled, the judgment of the trial

court is Affirmed.

                                          .............

DONOVAN and HALL, JJ., concur.



Copies mailed to:

Valerie J. Smith
John B. Welch
Karen L. Clouse
Hon. Dennis J. Langer
