Staff Notes (July 1, 2016 Amendments)

Division (D)(2) of this rule applies to medical, dental, optometric, and chiropractic claims, as defined by R.C. 2305.113, and was adopted in 2005 to require that, at the time of the filing of a complaint asserting any such claims, the complaint must be accompanied by certificates of expert review. The rule is amended to remedy an inaccuracy in the prior rule which incorrectly indicated that Evid.R. 601(D) applies to the qualifications of an affiant for all medical, dental, optometric, and chiropractic claims. While Evid.R. 702 applies to the qualifications of an affiant for all medical, dental, optometric, and chiropractic claims, Evid.R. 601(D) applies only to the qualifications of an affiant for certain medical claims. See Evid.R. 601(D).

Staff Note (July 1, 2007 Amendments)

Rule 10(D). Attachment to pleadings

Civ. R. 10 is amended to clarify what constitutes “good cause” to permit the plaintiff an extension of time to file an affidavit of merit and to define the effect of dismissal for failure to comply with the affidavit of merit requirement.

Rule 10(D) Attachments to pleadings

The language of division (D)(2)(a) is amended in recognition of the fact that more than one affidavit may be required as to a particular defendant due to the number of defendants or other circumstances.

Because there may be circumstances in which the plaintiff is unable to provide an affidavit of merit when the complaint is filed, division (D)(2)(b) of the rule requires the trial court, when good cause is shown, to provide a reasonable period of time for the plaintiff to obtain and file the affidavit. Division (D)(2)(c) details the circumstances and factors which the Court should consider in determining whether good cause exists to grant the plaintiff an extension of time to file the affidavit of merit. For example, “good cause” may exist in a circumstance where the plaintiff obtains counsel near the expiration of the statute of limitations, and counsel does not have sufficient time to identify a qualified health care provider to conduct the necessary review of applicable medical records and prepare an affidavit. Similarly, the relevant medical records may not have been provided to the plaintiff in a timely fashion by the defendant or a nonparty to the litigation who possesses the records. Further, there may be situations where the medical records do not reveal the names of all of the potential defendants and so until discovery reveals those names, it may be necessary to name a “John Doe” defendant. Once discovery has revealed the name of a defendant previously designated as John Doe and that person is added as a party, the affidavit of merit is required as to that newly named defendant. The medical records might also fail to reveal how or whether medical providers who are identified in the records were involved in the care that led to the malpractice. Under these and other circumstances not described here, the court must afford the plaintiff a reasonable period of time to submit an affidavit that satisfies the requirements set forth in the rule.

It is intended that the granting of an extension of time to file an affidavit of merit should be liberally applied, but within the parameters of the “good cause” requirement. The court should also exercise its discretion to aid plaintiff in obtaining the requisite information. To accomplish these goals, the plaintiff must specifically inform the Court of the nature of the information needed as opposed to a general averment that more information is needed. The plaintiff should apprise the court, to the extent that it is known, the identity of the person who has the information and the means necessary to obtain the information, to allow the court to grant an appropriate extension of time. If medical records in the possession of a defendant or non-party must be obtained, the court may issue an order compelling the production of the records. If medical records are non-existent, incomplete, or otherwise inadequate to permit an expert to evaluate the care, the court may, in appropriate circumstances, permit a plaintiff to conduct depositions of parties or non-parties to obtain the information necessary for an expert to complete such a review and provide an affidavit.

Division (D)(2)(b) of the rule sets an outside limit of 90 days to extend the time for the filing of an affidavit of merit, unless the court determines that the defendant or a nonparty in possession of the records has failed to cooperate with discovery, and in that circumstance the court may grant an extension beyond 90 days. This division also vests the trial court with the discretion to determine whether any other circumstances justify granting an extension beyond the 90 days.

The rule is intended to make clear that the affidavit is necessary to establish the sufficiency of the complaint. The failure to comply with the rule can result in the dismissal of the complaint, and this dismissal is considered to be a dismissal otherwise than upon the merits pursuant to Civ. R. 10(D)(2)(d).

Finally, new Civ. R. 10(D)(2)(e) allows a plaintiff a reasonable time, not to exceed sixty days, to cure any defects identified by the court in any affidavit filed with a complaint.

Staff Note (July 1, 2005 Amendment)

Civ. R. 10 is amended in response to a request from the General Assembly contained in Section 3 of Sub. H.B. 215 of the 125th General Assembly, effective September 13, 2004. The act amends and enacts provisions relative to medical, dental, optometric, and chiropractic malpractice actions, and Section 3 contains a request that the Supreme Court adopt a rule that “require[s] a plaintiff filing a medical liability claim to include a certificate of expert review as to each defendant.”

Rule 10(D) Attachments to pleadings

Civ. R. 10(D) is retitled and reorganized to reflect the inclusion of a requirement in division (D)(2) that a medical liability complaint include an affidavit of merit concerning the alleged breach of the standard of care by each defendant to the action. Division (D)(2)(a) specifies three items that must be included in the affidavit and sets forth the qualifications of the person providing the affidavit of merit.

There may be instances in which multiple affidavits of merit are required as to a particular plaintiff. For example, the plaintiff may find it necessary to provide one affidavit that addresses only the issue of “standard of care” and a separate affidavit that addresses only the issue of injury caused by the breach of the standard of care.

Because there may be circumstances in which the plaintiff is unable to provide an affidavit of merit when the complaint is filed, division (D)(2)(b) of the rule requires the trial court, when good cause is shown, to provide a reasonable period of time for the plaintiff to obtain and file the affidavit. For example, “good cause” may exist in a circumstance where the plaintiff obtains counsel near the expiration of the statute of limitations, and counsel does not have sufficient time to identify a qualified health care provider to conduct the necessary review of applicable medical records and prepare an affidavit. Similarly, the relevant medical records may not have been provided to the plaintiff in a timely fashion. Further, there may be situations where the medical records do not reveal the names of all of the potential defendants and so until discovery reveals those names, it may be necessary to name a “John Doe” defendant. Once discovery has revealed the name of a previously unknown defendant and that person is added as a party, the affidavit of merit would then be required as to that newly named defendant. Under these or similar circumstances, the court must afford the plaintiff a reasonable period of time, once a qualified health care provider is identified, to have the records reviewed and submit an affidavit that satisfies the requirements set forth in the rule.

Division (D)(2)(c) provides that an affidavit of merit is intended to establish the sufficiency of the complaint filed in a medical liability action and specifies that an affidavit of merit is not otherwise admissible as evidence or for purposes of impeachment.

The amendments to Rule 10 also include nonsubstantive changes.