Anne Valentine of Leeseberg Tuttle recently prevailed in an appeal before the Ohio Supreme Court. This decision by Ohio’s highest court will impact medical malpractice lawsuits filed throughout the state.
The plaintiff, Donald Troyer, presented to Dr. Leonard Janis (a podiatrist who practices in Columbus) with complaints of chronic right ankle pain. Dr. Janis diagnosed Mr. Troyer with severe degenerative changes in the ankle, as well as a significant leg-length difference. He recommended, and then performed, a total right ankle replacement and tendo-Achilles lengthening procedures.
Despite those operations, Mr. Troyer continued to suffer problems with his ankle. Over the next 18 months, Dr. Janis performed four additional, unsuccessful surgeries that left Mr. Troyer disabled and in chronic pain. Mr. Troyer eventually sought the opinion and treatment of an orthopedic surgeon, who noted that the multiple surgeries had failed and that there was significant malpositioning of the implant. The orthopedic surgeon initially treated the condition conservatively, but after those efforts failed, Mr. Troyer underwent surgery to fuse his ankle. Unfortunately, that surgery also was unsuccessful due to the extensive damage that had already occurred in the ankle. After all other options were exhausted, Mr. Troyer’s right leg was amputated.
Prior to being represented by Leeseberg Tuttle, Mr. Troyer sought the assistance of another attorney, who had filed the medical malpractice complaint without an affidavit of merit from a physician. Ohio Civil Rule 10 requires that every medical malpractice lawsuit filed must include either an affidavit, certifying that there was a breach of the standard of care and damages resulting from the breach, or a request for additional time to obtain such an affidavit. The complaint filed by Mr. Troyer’s former counsel had neither, and the trial court appropriately dismissed the case. The dismissal entry, drafted by counsel for Dr. Janis and approved by the trial court, did not include the words “without prejudice” – which later would become a point of contention.
Ohio Civil Rule 10 provides that the dismissal of a lawsuit for failure to attach an affidavit is without prejudice, which meant that this case could be re-filed within a year of the dismissal. Mr. Troyer subsequently sought the representation of Ms. Valentine, who re-filed the case with the necessary affidavit of merit. Soon after the complaint was re-filed, Dr. Janis asked the trial court to dismiss the case, arguing that Plaintiffs were not allowed to re-file because the dismissal entry did not contain the words “without prejudice.” Dr. Janis claimed an entry must include those specific words, otherwise, the default rule applies and the dismissal is automatically “with prejudice.”
A case cannot be re-filed if the dismissal was with prejudice. Ms. Valentine argued, however, that the dismissal was without prejudice, despite the silence of the entry, because both the Ohio Civil Rules and the Ohio Supreme Court specifically state that a dismissal for failure to include an affidavit of merit in a medical malpractice case is not with prejudice. Therefore, regardless of what the entry did or did not say, the dismissal was without prejudice as an operation of law.
In spite of those arguments, the trial court granted Dr. Janis’s motion to dismiss the case. Leeseberg Tuttle appealed the lower court’s decision to the 10th District Court of Appeals, which upheld the dismissal. The only possibility of reversing the decision was to appeal to the Ohio Supreme Court.
While appeals to the court of appeals are a matter of right, the Ohio Supreme Court has the discretion of whether to hear a case on appeal. In order to even get the Court to hear a case, a party first must convince the Court that the case involves a substantial constitutional question or is of public or great general interest. The vast majority of appeals to the Supreme Court are rejected. Leeseberg Tuttle, however, was able to convince the Court that the decisions of the lower courts would impact medical malpractice cases across the state because there would be different treatments from case to case depending on the wording in an entry.
After both parties submitted their briefs, Ms. Valentine presented oral arguments, urging the Court to overrule the two lower courts’ holdings. Video of the arguments can be viewed here.
On June 5, 2012, the Ohio Supreme Court issued its decision in Mr. Troyer’s favor (decision found here), holding that a dismissal of a medical claim for failure to attach the required affidavit of merit is without prejudice by operation of law, consistent with the Ohio Civil Rules and its own decision in Fletcher v. University Hospital of Cleveland. Having prevailed at the Supreme Court, Mr. Troyer and Leeseberg Tuttle can now return to the trial court and proceed to a trial of the case on its merits.