[Cite as O'Stricker v. Robinson Mem. Hosp. Found., 2017-Ohio-2600.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


COREY O’STRICKER,                                     :          OPINION

                 Plaintiff-Appellant,                 :
                                                                 CASE NO. 2016-P-0042
        - vs -                                        :

ROBINSON MEMORIAL HOSPITAL                            :
FOUNDATION, et al.,
                                                      :
                 Defendants-Appellees.


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2011 CV
01405.

Judgment: Affirmed.


Robert J. Sawyer, 815 Superior Avenue East, Suite 300, Cleveland, OH 44114-2746
(For Plaintiff-Appellant).

Elizabeth Nocera Davis, and Stephen W. Funk, Roetzel & Andress, LPA, 222 South
Main Street, Akron, OH      44308 (For Defendant-Appellee, Robinson Memorial
Hospital).

Juliana S. Gall, Rocco D. Potenza, and Douglas G. Leak, Hanna Campbell & Powell,
LLP, 3737 Embassy Parkway, Suite 100, P.O. Box 5521, Akron, OH 44333 (For
Defendants-Appellees, Michael L. Pryce, M.D. and Stow-Kent Orthopedics, Inc.)




THOMAS R. WRIGHT, J.



        {¶1}     Appellant, Corey O’Stricker, appeals two trial court judgments resulting in

the dismissal of his medical malpractice suit. We affirm.
       {¶2}    In 2008, O’Stricker broke his right femur during a basketball game and

was transported and admitted to Robinson Memorial Hospital. The following day, Dr.

Michael L. Pryce, M.D. of Stow-Kent Orthopedics, Inc. advised O’Stricker that he

needed surgery. Pryce is an orthopedic surgeon. During the surgery, O’Stricker began

violently kicking his right leg which resulted in the pin that was being placed in his leg to

bump his hipbone and fracture his hip. The hip fracture required a second surgery.

       {¶3}    O’Stricker originally filed suit in 2009, but voluntarily dismissed the case

without prejudice in 2010.

       {¶4}    In October 2011, O’Stricker refiled his suit against Robinson, Pryce, Stow-

Kent, and John and Jane Does 1-10 for medical negligence.                   The trial court

subsequently dismissed the claims against Price and Stow-Kent based on O’Stricker’s

deficient affidavit of merit.

       {¶5}    The trial court granted Robinson summary judgment as to all claims based

on anesthesia services because O’Stricker did not timely name the anesthesiologist or

nurse anesthetist, who were independent contractors, within the applicable statute of

limitations. O’Stricker does not take issue with this decision on appeal.

       {¶6}    On July 5, 2016, the case proceeded to jury trial against the only

remaining defendant, Robinson. At the close of O’Stricker’s case, Robinson moved for

a directed verdict, which the trial court granted. O’Stricker appeals the trial court’s

decision dismissing Pryce and Stow-Kent and its judgment granting a directed verdict in

Robinson’s favor.

       {¶7}    He asserts four assigned errors:




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       {¶8}   “[1] The trial court abused its discretion and committed prejudicial error

where it improperly directed a dismissal of defendants Michael L. Pryce, M.D. and Stow-

Kent Orthopedics, Inc. without prior notice of intention to dismiss and hearing pursuant

to Civ.R. 41(B)(1).

       {¶9}   “[2] The trial court committed error of law and abused its discretion in

dismissing the complaint for lack of proper Affidavit of Merit where the cured Affidavit of

Merit was properly attached and filed in a timely manner to the Complaint.

       {¶10} “[3] The trial court abused its discretion and committed prejudicial error in

failing to apply the doctrine of res judicata or collateral estoppels to the second motion

by defendants-appellees, Michael L. Pryce, M.D. and Stow-Kent Orthopedics, Inc. to

dismiss.

       {¶11} “[4] The trial court committed error of law withdrawing case from jury and

abused its discretion rendering judgment at end of plaintiff-appellant’s direct case

requiring specific expert testimony of orthopedic surgeon or anesthesiologist in

establishing breach of the standard of care. (T-d 92).”

       {¶12} Appellant’s first two alleged errors challenge the trial court’s decision

dismissing his claims against appellees, Michael L. Pryce, M.D. and Stow-Kent

Orthopedics, Inc. (Pryce and Stow-Kent). He argues the trial court failed to provide him

any notice of its intention to dismiss these defendants, and that its dismissal was

erroneous since his second affidavit of merit cured the alleged defects and complied

with Civ.R.10(D)(2). We disagree.




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       {¶13} Pryce and Stow-Kent moved the court to dismiss the refiled complaint

against them based on appellant’s failure to attach a sufficient affidavit of merit to his

complaint. Robinson did not join their motion to dismiss.

       {¶14} O’Stricker was granted an extension of time to respond and filed a brief in

opposition challenging the basis for the motion to dismiss. The trial court then permitted

O’Stricker to file an amended affidavit of merit. In response, Pryce renewed his motion

to dismiss based on the fact that the affidavit was still insufficient to satisfy Civ.R.

10(D)(2). Following a hearing, the trial court granted Pryce and Stow-Kent’s motion.

       {¶15} “[P]ursuant to Civ.R. 10(D)(2), an affidavit of merit is required to establish

the adequacy of a medical complaint, and the failure to file an affidavit of merit renders it

subject to dismissal for failure to state a claim upon which relief can be granted. See

Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d

147, ¶ 13. The affidavit-of-merit requirement thus prevents the filing of medical claims

that are not supported by an expert's opinion, and it deters filing actions against all

medical providers who cared for a patient.” Erwin v. Bryan, 125 Ohio St.3d 519, 2010-

Ohio-2202, 929 N.E.2d 1019, ¶19.

       {¶16} Civ.R. 10(D)(2) states:

       {¶17} “(2) Affidavit of merit; medical, dental, optometric, and chiropractic liability

claims.

       {¶18} “(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, as

defined in R.C. 2305.113, shall be accompanied by one or more affidavits of merit

relative to each defendant named in the complaint for whom expert testimony is




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necessary to establish liability. Affidavits of merit shall be provided by an expert witness

meeting the requirements of Evid.R. 702 and, if applicable, also meeting the

requirements of Evid.R. 601(D). Affidavits of merit shall include all of the following:

        {¶19} “(i) A statement that the affiant has reviewed all medical records

reasonably available to the plaintiff concerning the allegations contained in the

complaint;

        {¶20} “(ii) A statement that the affiant is familiar with the applicable standard of

care;

        {¶21} “(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.

        {¶22} “(b) The plaintiff may file a motion to extend the period of time to file an

affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good

cause shown and in accordance with division (c) of this rule, the court shall grant the

plaintiff a reasonable period of time to file an affidavit of merit, not to exceed ninety

days, except the time may be extended beyond ninety days if the court determines that

a defendant or non-party has failed to cooperate with discovery or that other

circumstances warrant extension.

        {¶23} “* * *

        {¶24} “(e) If an affidavit of merit as required by this rule has been filed as to any

defendant along with the complaint or amended complaint in which claims are first

asserted against that defendant, and the affidavit of merit is determined by the court to

be defective pursuant to the provisions of division (D)(2)(a) of this rule, the court shall




                                              5
grant the plaintiff a reasonable time, not to exceed sixty days, to file an affidavit of merit

intended to cure the defect.” (Emphasis added.)

       {¶25} We review a trial court’s decision to dismiss a complaint for failure to

comply with Civ.R. 10(D)(2) de novo. Beegle v. S. Pointe Hosp., 8th Dist. Cuyahoga

No. 96017, 2011-Ohio-3591, ¶7, citing Chapman v. South Pointe Hospital, 186 Ohio

App.3d 430, 928 N.E.2d 777, 2010–Ohio–152, ¶9 (8th Dist.). “In deciding whether to

dismiss a complaint, pursuant to Civ.R. 12(B)(6), * * * the trial court must presume all

factual allegations in the complaint are true and construe the complaint in a light most

favorable to the plaintiff, drawing all reasonable inferences in favor of the plaintiff.

Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Before

the court may dismiss the complaint, it must appear beyond doubt from the complaint

that the plaintiff can prove no set of facts entitling the plaintiff to recovery. O’Brien v.

Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),

syllabus.”   Woods v. Riverside Methodist Hosp., 10th Dist. Franklin No. 11AP-689,

2012-Ohio-3139, ¶9.

       {¶26} Pryce and Stow-Kent argue in their renewed motion to dismiss that

O’Stricker’s affidavit of merit was deficient since O’Stricker’s expert, Nicholson, was not

an orthopedic surgeon like Pryce, and as such, he was not qualified to testify under

Evid.R. 601(D).

       {¶27} Evid.R. 601 states in part,

       {¶28} “Every person is competent to be a witness except:

       {¶29} “* * *




                                              6
       {¶30} “(D) A person giving expert testimony on the issue of liability in any

medical claim, as defined in R.C. 2305.113, asserted in any civil action against a

physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any

person by a physician or podiatrist, unless:

       {¶31} “(1) The person testifying is licensed to practice medicine and surgery,

osteopathic medicine and surgery, or podiatric medicine and surgery by the state

medical board or by the licensing authority of any state;

       {¶32} “(2) The person devotes at least one-half of his or her professional time to

the active clinical practice in his or her field of licensure, or to its instruction in an

accredited school and

       {¶33} “(3) The person practices in the same or a substantially similar specialty

as the defendant. The court shall not permit an expert in one medical specialty to testify

against a health care provider in another medical specialty unless the expert shows

both that the standards of care and practice in the two specialties are similar and that

the expert has substantial familiarity between the specialties.

       {¶34} “If the person is certified in a specialty, the person must be certified by a

board recognized by the American board of medical specialties or the American board

of osteopathic specialties in a specialty having acknowledged expertise and training

directly related to the particular health care matter at issue.”

       {¶35} O’Stricker’s amended affidavit of merit, notarized January 9, 2012, states:

       {¶36} “Now comes Oscar Nicholson, Jr., M.D. being first duly sworn deposes

and says, I am a medical doctor duly license[d] to practice medicine in the State of Ohio

and that I am in good standing at the time of this affidavit.




                                               7
       {¶37} “Affiant further says that at all times pertinent herein, affiant has practiced

general surgery covering all surgical areas of medicine.

       {¶38} “Affiant further says, he has reviewed all medical records reasonable [sic]

available to Corey O’Stricker concerning the allegations contained in the Complaint.

       {¶39} “Affiant further says as a surgeon with operating privileges in and about

various hospitals in the Cleveland community for many years, he is familiar with the

applicable standard of care required in undertaking the procedure experienced by Corey

O’Stricker on the 19th day of April, 2008.

       {¶40} “Affiant further says it is his opinion that the standard of care was

breached by one or more of the defendants in this action and that the breach caused

injury to Corey O’Stricker.”

       {¶41} Nicholson’s affidavit states that he is a licensed medical doctor in Ohio

and that at all pertinent times he practiced general surgery “covering all surgical areas

of medicine,” and that he is familiar with the applicable standard of care required in the

procedure the plaintiff underwent on April 19, 2008. As appellees aver, Nicholson’s

affidavit does not detail that he was an expert witness who specifically complied with

every aspect of Evid.R. 601(D). However, Civ.R. 10(D)(2) does not require an affidavit

of merit to show that the plaintiff’s expert specifically complies with each aspect of

Evid.R. 702 and 601(D) or to recite the substance of these rules to demonstrate

compliance. Instead, Civ.R. 10(D)(2) requires the affiant to be an expert who meets the

requirements of Evid.R. 702 and, if applicable, Evid.R. 601(D).

       {¶42} In Woods v. Riverside Methodist Hosp., 10th Dist. Franklin No. 11AP-689,

2012-Ohio-3139, ¶13, the Tenth District decided a comparable case in which the




                                             8
defendants were sued for medical malpractice. The numerous defendant doctors and

hospital moved to dismiss the case since plaintiffs failed to satisfy Civ.R. 10(D)(2). The

trial court agreed and dismissed. On appeal, Woods argued that Civ.R. 10(D)(2) does

not require an affidavit of merit to include facts regarding each named defendant and

“state specifically what each defendant did that would amount to medical negligence.

Appellants also contend that the mere fact that Dr. Jones may not practice in the same

specialties as the defendants does not disqualify him from completing the affidavit of

merit, as long as he is at least familiar with the applicable standard of care, and he had

an opinion that at least one of the named defendants breached that standard.” Id. at

¶11.

       {¶43} The Tenth District agreed in part, but nonetheless affirmed the dismissal

based on the affidavit of merit’s lack of compliance, explaining:

       {¶44} “[A]lthough Civ.R. 10(D)(2) provides that affidavits of merit must be

provided by an expert witness who complies with Evid.R. 601(D) and 702, the rule does

not indicate that the expert must state so or paraphrase the language of these rules in

the affidavit.

       {¶45} “However, Civ.R. 10(D)(2) does provide that the plaintiff must submit ‘one

or more affidavits of merit relative to each defendant named in the complaint.’ Civ.R.

10(D)(2)(a). Here, Dr. Jones averred that ‘the standard of care was breached by one or

more of the Defendants to the action.’ This statement does not satisfy Civ.R. 10(D)(2).

According to the language employed by Dr. Jones, he may be of the opinion that only

one of the numerous [defendants] was negligent. At the very least, Dr. Jones could

have indicated that the standard of care was breached by every defendant named in the




                                             9
complaint. An affidavit that vaguely avers that the standard of care was breached by

one or more defendants is insufficient.” Id. at ¶13-14.

       {¶46} We agree that an affidavit of merit does not have to include the specific

averments evidencing that the affiant satisfies every aspect of Evid.R. 702 and 601(D).

Id. at 13.

       {¶47} However, and like Woods, appellant’s affidavit was still deficient because

it failed to identify the name of the defendant or the names of the defendants that

Nicholson believed breached the standard of care and caused O’Stricker’s damage.

Nicholson’s affidavit recites the generic language of the rule that “one or more

defendants breached the standard of care” without identifying which defendant or

defendants he believed breached the standard of care.

       {¶48} As in Woods, Nicholson’s affidavit is insufficient to satisfy the requirement

in Civ.R. 10(D)(2) because the rule requires a complaint to “be accompanied by one or

more affidavits of merit relative to each defendant named in the complaint for whom

expert testimony is necessary to establish liability.” (Emphasis added.)       Id.; Civ.R.

10(D). See also Bonkowski v. Fairfield Med. Ctr., 163 Ohio Misc.2d 21, 2011-Ohio-

2777, 949 N.E.2d 606, ¶12 (C.P.) (holding that “Civ.R. 10(D)(2) alters the general rules

of notice pleading only insofar as it requires a sworn statement from a member of the

medical profession attesting that the claim has merit as to each defendant.” (Emphasis

added.)) Unless there is only one doctor or medical provider named as a defendant, a

finding that an expert’s general averment that “one or more of the defendant” doctors or

medical providers breached the standard of care and caused the plaintiff’s damages as




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sufficient to comply with Civ.R.10(D)(2)(a) renders the “relative to each defendant

named in the complaint” language in the rule useless and with no effect. Id.

      {¶49} Accordingly, we agree that O’Stricker’s amended affidavit of merit was

deficient since Nicholson only avers that “one or more defendants” breached the

standard of care without identifying which named defendant or defendants he believed

acted below the standard of care, and as such, the court’s decision granting the motion

to dismiss was proper.

      {¶50} We also disagree with O’Stricker’s argument that the trial court did not

provide him adequate notice before dismissing his claims against Pryce and Stow-Kent.

To the contrary, he was provided notice and a hearing after the trial court permitted him

to amend his affidavit of merit beyond the 60 days permitted in Civ.R. 10(D)(2)(e).

Thus, O’Stricker’s first and second assigned errors lack merit.

      {¶51} O’Stricker’s third assigned error claims the trial court was barred by res

judicata from reconsidering Pryce and Stow-Kent’s motion to dismiss based on

O’Stricker’s affidavit of merit because this precise argument was previously rejected by

the trial court before O’Stricker voluntarily dismissed his original complaint.      We

disagree.

      {¶52} As O’Stricker contends, Pryce and Stow-Kent previously moved to dismiss

his suit against them arguing that his affidavit of merit did not comply with Civ.R.

10(D)(2).   The trial court originally overruled their motion.     However, O’Stricker

subsequently dismissed his complaint against all defendants, including Pryce and Stow-

Kent, without prejudice under Civ.R. 41(A).




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       {¶53} “[A] voluntary dismissal pursuant to Civ.R. 41(A) renders the parties as if

no suit had ever been filed against * * * the dismissed parties * * *.” Denham v. New

Carlisle, 86 Ohio St.3d 594, 597, 1999-Ohio-128, 716 N.E.2d 184 (1999).

       {¶54} Thus, regardless of whether this issue was previously considered and

rejected by the trial court before O’Stricker voluntarily dismissed his suit without

prejudice, it has no res judicata effect upon the refiling of his claims because the order

was interlocutory at the time O’Stricker dismissed his claims. Toledo Heart Surgeons v.

The Toledo Hosp., 6th Dist. Lucas No. L-02-1059, 2002-Ohio-3577, ¶35, citing

Denham. Thus, the prior order is a nullity. Id.

       {¶55} O’Stricker’s final assigned error avers the trial court erred in directing a

verdict in Robinson’s favor.

       {¶56} We review an order granting a directed verdict de novo since it presents a

question of law. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d

512, 2002-Ohio-2842, 769 N.E.2d 835, ¶4.

       {¶57} “According to Civ.R. 50(A)(4), a motion for directed verdict is granted if,

after construing the evidence most strongly in favor of the party against whom the

motion is directed, ‘reasonable minds could come to but one conclusion upon the

evidence submitted and that conclusion is adverse to such party.’ The ‘reasonable

minds’ test mandated by Civ.R. 50(A)(4) requires the court to discern only whether there

exists any evidence of substantive probative value that favors the position of the

nonmoving party. * * *




                                           12
       {¶58} “‘A motion for directed verdict * * * does not present factual issues, but a

question of law, even though in deciding such a motion, it is necessary to review and

consider the evidence.’” (Citations omitted.) Id. at ¶3-4.

       {¶59} The case proceeded to a jury trial in July of 2016 against Robinson only.

O’Stricker’s counsel presented the testimony of Dr. Nicholson and O’Stricker along with

three exhibits before resting his case.       At the conclusion of plaintiff’s evidence,

Robinson moved for a directed verdict based on O’Stricker’s failure to ask his expert

any questions as to the doctor’s standard of care or breach of the standard. The trial

court agreed and ordered a directed verdict in Robinson’s favor.

       {¶60} In order to establish a viable claim for medical malpractice, a plaintiff must

establish:

       {¶61} “(1) a duty running from the defendant to the plaintiff, (2) a breach of that

duty by the defendant, (3) damages suffered by the plaintiff, and (4) a proximate causal

relationship between the breach of duty and the damages. Hester v. Dwivedi, 89 Ohio

St.3d at 578, 733 N.E.2d 1161.” Schirmer v. Mt. Auburn Obstetrics & Gynecologic

Assoc., Inc., 108 Ohio St.3d 494, 2006-Ohio-942, 844 N.E.2d 1160, ¶17.

       {¶62} O’Stricker claims the trial court improperly dismissed his case on the

erroneous premise that a general surgeon is not qualified to testify as to the standard of

care and alleged breach by an orthopedic surgeon. However, the trial court granted a

directed verdict based on O’Stricker’s complete failure to elicit testimony establishing

the hospital’s standard of care or its breach of the standard.

       {¶63} Regardless of whether Nicholson, as a general surgeon, qualified as an

expert to give an opinion on the standard of care to be employed by an orthopedic




                                            13
surgeon, appellant’s counsel never elicited testimony to this effect. Instead, Nicholson

simply recited the facts from O’Stricker’s operative report and noted that the cause of

O’Stricker’s second fracture was O’Stricker “getting light in anesthesia” and his violent

kicking during surgery. Appellant did not set forth any evidence showing that either

Robinson or its employees breached any duty or standard of care owed to him.

Furthermore, Robinson had previously been granted partial summary judgment for

claims arising from anesthesia because O’Stricker failed to name the anesthesiologist

or the nurse anesthetist, who were the hospital’s independent contractors, before the

statute of limitations ran.

       {¶64} Thus, the trial court properly directed a verdict in Robinson’s favor.

O’Stricker’s final assignment of error lacks merit and is overruled.

       {¶65} The trial court’s judgment is affirmed.



DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.




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