[Cite as Metro Diplomat Healthcare, 2014-Ohio-3146.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100799



                                    JOANNE METRO

                                                         PLAINTIFF-APPELLANT

                                                   vs.

                   DIPLOMAT HEALTHCARE, ET AL.

                                                         DEFENDANTS-APPELLEES




                              JUDGMENT:
                  AFFIRMED IN PART, REVERSED IN PART,
                            AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-802019

        BEFORE: Stewart, J., Boyle, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                        July 17, 2014
ATTORNEY FOR APPELLANT

Richard O. Mazanec
Wheeler & Mazanec
55 Public Square, Suite 850
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE DIPLOMAT HEALTHCARE

Leslie Moore Jenny
Jason P. Ferrante
Beau D. Hollowell
Marshall Dennehey Warner Coleman & Goggin
127 Public Square, Suite 3510
Cleveland, OH 44114


ATTORNEY FOR APPELLEE ABU SYED, M.D.

Brian D. Sullivan
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, OH 44115
MELODY J. STEWART, J.:

       {¶1} Plaintiff-appellant Joanne Metro requested that this appeal be placed on this

court’s accelerated calendar pursuant to App.R. 11.1 and Loc.R.11.1. By doing so, she

has agreed that we may render a decision in “brief and conclusionary form.”                   App.R.

11.1(E).

       {¶2} Metro brought this “medical malpractice” action against defendants-appellees

Diplomat Healthcare, Saber Health Group, and Abu N. Syed, M.D., collectively alleging

that they violated R.C. 3721.13, 5122.01, 5122.05, and 5122.10, by having her, a resident

in a Diplomat nursing home, involuntarily committed to a hospital for psychiatric care.

The court granted judgment on the pleadings to all defendants because Metro’s affidavit

of merit filed in support of the complaint was prepared by a nurse practitioner whom the

court believed to be unqualified to render an opinion regarding a psychiatrist’s standard

of care.1

       {¶3} The court did not err by granting judgment on the pleadings as to Counts 1, 2

(subpart 4), and 3 of the complaint. Those counts alleged acts of medical malpractice

that were “medical claims” as defined by R.C. 2305.113(E)(3) and thus required an


         Although an involuntary dismissal for failure to comply with Civ.R. 10(D)(2) is considered
       1


without prejudice, Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897
N.E.2d 147, ¶ 15-18, Metro previously dismissed this case without prejudice and, given that the
statute of limitations had expired, she refiled the complaint under the savings statute, R.C. 2305.19.
In Brown v. Solon Pointe at Emerald Ridge, 8th Dist. Cuyahoga No. 99363, 2013-Ohio-4903, we
found that a second dismissal for failure to comply with Civ.R. 10(D)(2), coming after a party had
refiled the complaint under the savings statute, created a final order because a plaintiff can only use
the savings statute once, so the second dismissal was functionally a dismissal with prejudice from
which the time to appeal began to run. Id. at ¶ 8-9.
affidavit of merit. Subparts 1, 2, and 3 of Count 2 (paragraph 14 of the complaint) did

not raise medical claims, but instead asserted statutory claims under R.C. 3721.13

claiming that Metro had been subjected to “verbal, mental, and emotional abuse,” that her

mail had been improperly opened, and that the defendants failed to protect the

confidentiality of her medical records and information. The claims in subparts 1, 2, and

3 of Count 2 were not subject to the affidavit of merit requirement set forth in Civ.R.

10(D)(2).2

       {¶4} Having found that some of the claims raised by Metro were medical claims

that required a supporting affidavit of merit, we next conclude that Metro failed to

support those claims in compliance with Civ.R. 10(D)(2) by offering an affidavit from a

person “familiar with the applicable standard of care[.]”           Civ.R. 10(D)(2)(a)(ii). A

nurse practitioner is unqualified to give an opinion that a psychiatrist violated the relevant

standard of care. In reaching this conclusion, we reject Metro’s reliance on Disciplinary

Counsel v. Hilburn, 135 Ohio St.3d 1, 2012-Ohio-5528, 984 N.E.2d 940, for the

proposition that a nurse practitioner was qualified to give a professional opinion in

support of a finding of mental disability. Hilburn made it clear that the parties in that

case stipulated that a nurse practitioner could, consistent with the scope of practice


         Diplomat’s reliance on Hubbard v. Laurelwood Hosp., 85 Ohio App.3d 607, 620 N.E.2d 895
       2


(11th Dist.1993), for the proposition that there is no exception to the affidavit of merit rule for
medical claims based on statutory violations is misplaced. Hubbard involved a wrongful death claim
brought pursuant to R.C. 2125.01. The substance of that claim was that the defendants acted
negligently in causing a death, so the affidavit of merit requirement did apply. Metro’s statutory
claims in Count 2, subparts 1, 2, and 3, do not involve any breach of a medical duty of care.
outlined in R.C. 4723.43(C), “provide an opinion on mental disability.” Id. at ¶ 30.

Being qualified to provide an opinion on whether a person has a mental disability is not

the same as being qualified to render an opinion on whether a psychiatrist breached the

standard of care applicable to that profession or whether a psychiatric hospital breached

its standard of care.   With the nurse practitioner unqualified to render an opinion

regarding either standard of care, the court did not err by granting judgment on the

pleadings for Counts 1, 2 (subpart 4), and 3 of the complaint.

       {¶5} Finally, we reject Metro’s argument that the court erred by granting judgment

on the pleadings to Diplomat because it did not file a motion for judgment on the

pleadings nor join in Syed’s motion. “A Civ.R. 12(C) motion for judgment on the

pleadings has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a

claim upon which relief can be granted.” Whaley v. Franklin Cty. Bd. of Commrs., 92

Ohio St.3d 574, 581, 752 N.E.2d 267 (2001). A court is allowed to grant sua sponte a

Civ.R. 12(B)(6) motion to dismiss after the parties are given notice of the court’s intent

and an opportunity to respond. Sheridan v. Metro. Life Ins. Co., 182 Ohio App.3d 107,

2009-Ohio-1808, 911 N.E.2d 950, ¶ 14 (10th Dist.). The court did not immediately rule

on Syed’s motion for judgment on the pleadings, but gave Metro time to file a

conforming affidavit of merit. In doing so, it gave her notice that a “failure to [file a

conforming affidavit of merit] will result in dismissing plaintiff’s claims, without

prejudice, in accordance with Civ.R. 41(B)(1) and Civ.R. 10(D)(2).” To the extent that
Diplomat did not file its own motion or join in Syed’s motion, the court could sua sponte

grant judgment on the pleadings.

       {¶6} This cause is affirmed in part, reversed in part, and remanded to the trial court

for further proceedings consistent with this opinion.

       It is ordered that appellant and appellees share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.               A   certified

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.




MELODY J. STEWART, JUDGE

MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
