Bixby v. Ohio State Univ. ( 2018 )

[Cite as Bixby v. Ohio State Univ., 2018-Ohio-2016.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Lori A. Bixby, :
Plaintiff-Appellant, : No. 17AP-802
(Ct. of Cl. No. 2017-00567)
v. :
(REGULAR CALENDAR)
The Ohio State University, :
Defendant-Appellee. :
D E C I S I O N
Rendered on May 24, 2018
On brief: Lori A. Bixby, pro se. Argued: Lori A. Bixby.
On brief: Michael DeWine, Attorney General, and Jeanna V.
Jacobus, for appellee. Argued: Jeanna V. Jacobus.
APPEAL from the Court of Claims of Ohio
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Lori A. Bixby, appeals the October 10, 2017 judgment of
the Court of Claims of Ohio dismissing her complaint pursuant to Civ.R. 12(B)(6). For the
following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On June 26, 2017, appellant filed a complaint against defendant-appellee,
The Ohio State University. In her complaint, appellant stated she received treatment at
The Ohio State University's Stefanie Spielman Comprehensive Breast Center. Appellant
alleged she received unnecessary treatment and suffered nerve damage and carpal tunnel
symptoms resulting from medication she was prescribed.
{¶ 3} On July 14, 2017, appellee filed a motion, pursuant to Civ.R. 12(B)(6), to
dismiss appellant's complaint for failing to support her complaint with an affidavit of merit
as required by Civ.R. 10(D)(2). On July 26, 2017, appellant filed a motion to extend time
No. 17AP-802 2
to file an affidavit of merit. On August 18, 2017, the Court of Claims filed an order granting
appellant until September 14, 2017 to file an affidavit of merit. On September 14, 2017,
appellant filed a motion seeking to avoid the requirement to file an affidavit of merit
because the "case is fairly straight-forward" or, in the alternative, seeking assistance in
"find[ing] someone who can provide an affidavit of merit." On September 19, 2017, appellee
filed a response to appellant's September 14, 2017 motion. On October 10, 2017, the Court
of Claims filed an entry dismissing appellant's complaint for failing to state a claim upon
which relief can be granted pursuant to Civ.R. 12(B)(6).
II. Discussion
{¶ 4} Initially, we note that appellant elected to proceed pro se both in bringing this
action and on appeal. "It is well-established that pro se litigants are presumed to have
knowledge of the law and legal procedures and that they are held to the same standard as
litigants who are represented by counsel." Sabouri v. Ohio Dept. of Job & Family Servs.,
145 Ohio App. 3d 651, 654 (10th Dist.2001). "In civil cases, the same rules, procedures and
standards apply to one who appears pro se as apply to those litigants who are represented
by counsel." Fields v. Stange, 10th Dist. No. 03AP-48, 2004-Ohio-1134, ¶ 7, citing State ex
rel. Fuller v. Mengel, 100 Ohio St. 3d 352, 2003-Ohio-6448, ¶ 10.
{¶ 5} The Ohio Rules of Appellate Procedure require that an "appellant shall
include in its brief, under the headings and in the order indicated * * * [a] statement of the
assignments of error presented for review, with reference to the place in the record where
each error is reflected," and a "statement of the issues presented for review, with references
to the assignments of error to which each issue relates." App.R. 16(A)(3) and (4).
Appellant's brief does not satisfy either of these requirements.
{¶ 6} Pursuant to App.R. 12(A)(1)(b), appellate courts must "[d]etermine [an]
appeal on its merits on the assignments of error set forth in the briefs under App.R. 16."
"Thus, this court rules on assignments of error only, and will not address mere arguments."
Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 70. Because appellant has
failed to set forth any assignments of error for this court's review, it is not necessary for this
court to address appellant's arguments in order to affirm the trial court's judgment. State
No. 17AP-802 3
v. Botts, 10th Dist. No. 12AP-822, 2013-Ohio-4051, ¶ 9. Nevertheless, in the interest of
justice, we will address the assertions appellant makes in her brief, to the extent possible.1
{¶ 7} Appellant filed her notice of appeal from the October 10, 2017 judgment of
the Court of Claims dismissing her case for failing to file an affidavit of merit as required by
Civ.R. 10(D)(2). In her brief, appellant refers to the "previous efforts I've made including
attempts to find someone who could provide an 'affidavit of merit.' " (Appellant's Brief at
3.) Appellant argues that "another pharmacist or oncologist would probably just reiterate
what is already in my documentation." (Appellant's Brief at 7.)
{¶ 8} Civ.R. 10(D)(2) requires that every complaint which contains a medical claim
must be accompanied by an affidavit of merit. Specifically, Civ.R. 10(D)(2) provides:
(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 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:
(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.
***
(d) An affidavit of merit is required to establish the adequacy
of the complaint and shall not otherwise be admissible as
evidence or used for purposes of impeachment. Any dismissal
for the failure to comply with this rule shall operate as a failure
otherwise than on the merits.
1 We note that appellee has not filed a motion to strike appellant's brief for non-compliance, and appellee has
filed its own brief arguing the merits of the appeal. As a result, in this instance, we find appellee is not
prejudiced by our decision to address the merits of the appeal. JPMorgan Chase Bank, N.A. v. Allton, 10th
Dist. No. 14AP-228, 2014-Ohio-3742, ¶ 7 (finding no prejudice to the appellee resulting from the appellants'
failure to comply with App.R. 16(A)(3) and (4) and addressing the merits of the appeal).
No. 17AP-802 4
R.C. 2305.113€(3) defines "medical claim" as:
[A]ny claim that is asserted in any civil action against a
physician, podiatrist, hospital, home, or residential facility,
against any employee or agent of a physician, podiatrist,
hospital, home, or residential facility, or against a licensed
practical nurse, registered nurse, advanced practice registered
nurse, physical therapist, physician assistant, emergency
medical technician-basic, emergency medical technician-
intermediate, or emergency medical technician-paramedic,
and that arises out of the medical diagnosis, care, or treatment
of any person. "Medical claim" includes the following:
(a) Derivative claims for relief that arise from the plan of care,
medical diagnosis, or treatment of a person;
(b) Claims that arise out of the plan of care, medical diagnosis,
or treatment of any person and to which either of the following
applies:
(i) The claim results from acts or omissions in providing
medical care.
(ii) The claim results from the hiring, training, supervision,
retention, or termination of caregivers providing medical
diagnosis, care, or treatment.
(c) Claims that arise out of the plan of care, medical diagnosis,
or treatment of any person and that are brought under section
3721.17 of the Revised Code;
(d) Claims that arise out of skilled nursing care or personal care
services provided in a home pursuant to the plan of care,
medical diagnosis, or treatment.
{¶ 9} The Supreme Court of Ohio has held that "[t]he proper response to the failure
to file the affidavit required by Civ.R. 10(D)(2) is a motion to dismiss pursuant to Civ.R.
12(B)(6)." Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St. 3d 167, 2008-Ohio-5379,
paragraph one of the syllabus. "The purpose behind the requirement in Civ.R. 10(D)(2) is
to deter individuals from filing frivolous medical malpractice claims and to 'establish the
adequacy of the complaint.' " Jackson v. Northeast Pre-Release Ctr., 10th Dist. No. 09AP-
457, 2010-Ohio-1022, ¶ 15, quoting Fletcher at ¶ 10, citing current Civ.R. 10(D)(2)(d).
"Thus, Civ.R. 10(D)(2)(d) imposes a heightened standard of pleading upon a plaintiff and
goes directly to the sufficiency of the complaint, thereby making a motion to dismiss for
failure to state a claim upon which relief can be granted the proper remedy to impose when
a plaintiff fails to include an affidavit of merit." Id. at ¶ 15, citing Fletcher at ¶ 14. An
No. 17AP-802 5
appellate court applies a de novo standard when reviewing a judgment dismissing a
complaint for failure to state a claim upon which relief can be granted pursuant to Civ.R.
12(B)(6).2 Woods v. Riverside Methodist Hosp., 10th Dist. No. 11AP-689, 2012-Ohio-3139,
¶ 9.
{¶ 10} It is undisputed that appellant's claim was a medical claim as defined by R.C.
2305.113 and that she failed to file an affidavit of merit as required by Civ.R. 10(D)(2).
Appellant sought and received additional time to file an affidavit of merit, but she did not.
Appellant also sought assistance from the court in "find[ing] someone who can provide an
affidavit of merit." (Appellant's Sept. 14, 2017 Motion.) A court, however, cannot act as
counsel for a pro se litigant, as doing so would be inherently unjust to the adverse party.
Fields at ¶ 7. Without the accompanying affidavit, appellant failed to plead in her complaint
a claim upon which relief could be granted. Fletcher at ¶ 15; Jackson at ¶ 17. Therefore, we
find the Court of Claims did not err in dismissing the case.
III. Conclusion
{¶ 11} Based on the foregoing, we affirm the judgment of the Court of Claims of
Ohio.
Judgment affirmed.
TYACK and BRUNNER, JJ., concur.
2 We note that Civ.R. 10(D)(2)(d) provides that "[a]ny dismissal for the failure to comply with this rule shall
operate as a failure otherwise than on the merits." The Supreme Court has held "[a] dismissal of a complaint
for failure to attach the affidavit of merit required by Civ.R. 10(D)(2) is an adjudication otherwise than on the
merits and is a dismissal without prejudice by operation of law." Troyer v. Janis, 132 Ohio St. 3d 229, 2012-
Ohio-2406, paragraph one of the syllabus. Generally, an involuntary dismissal without prejudice is not a final
appealable order. Straquadine v. Crowne Pointe Care Ctr., 10th Dist. No. 10AP-607, 2012-Ohio-1152, ¶ 9.
Therefore, we must consider whether appellant could have refiled her claims following dismissal of the
complaint. Id. at ¶ 10. Under Ohio law, medical claims are subject to a one-year statute of limitations after the
cause of action accrues. R.C. 2305.113(A); Rose v. Zyniewicz, 10th Dist. No. 10AP-910, 2011-Ohio-3702, ¶ 25.
A cause of action accrues and the statute of limitations begins to run when: (1) " 'the patient discovers or, with
the exercise of reasonable care should have discovered, the resulting injury'; or (2) 'the physician-patient
relationship for the condition for which care was sought terminates, whichever occurs later.' " Id., quoting
Theobald v. Univ. of Cincinnati, 10th Dist. No. 09AP-269, 2009-Ohio-5204, ¶ 9. In her complaint, appellant
states she began noticing carpal tunnel symptoms "immediately" after she began her post-chemotherapy
treatment in November 2014 and that the physician-patient relationship terminated in "Spring 2016."
Appellant filed her complaint on June 26, 2017, more than one year after the accrual of the cause of action.
Because appellant's complaint was filed outside the statute of limitations and, therefore, she could not have
availed herself of the savings statute, we conclude the order dismissing appellant's complaint was a final
appealable order. B.H. v. State Dept. of Adm. Servs., 10th Dist. No. 16AP-747, 2017-Ohio-9030, ¶ 9-10.