Ohio’s Affidavit of Merit Requirement Does Not Require a Separate Affidavit
Ohio Civ. R. 10(D)(2) requires that in all medical claims, "one or more affidavits of merit relative to each defendant named in the complaint is necessary to establish liability." The Ohio Civil Rules indicate that the affidavit of the expert must set forth:
1. A statement that the expert has reviewed available medical records concerning the allegations in the complaint.
2. A statement that the expert is familiar with the applicable standard of care.
3. An opinion of the expert that the standard of care was breached by "one or more of the defendants."
4. The breach caused injury to the plaintiff.
The issue then becomes when a plaintiff files suit against multiple defendants, whether the plaintiff must provide a separate affidavit of merit as to each defendant. If the affidavit of merit is specific and says all the physicians and medical staff that treated the patient breached the standard of care, then the affidavit of merit is sufficient to overcome a motion to dismiss the complaint. See, Bonkowski vs. Fairfield Med. Ctr., 163 Ohio Misc. 2d 21, 2011-OHIO-2777 (Court of Common Pleas Montgomery County, April 6, 2011). Contrast that to the case of Woods vs. Riverside Methodist Hosp., Franklin County Common Pleas No. 10CVA-6-8441, where the affidavit of merit stated the standard of care was breached by one or more of the defendants. In the Woods case, the court ruled that the affidavit of merit did not adequately indicate in the expert's opinion that all of the named defendants breached the standard of care; and that the affidavit of merit was too ambiguous to satisfy the requirements of Civ. R. 10.
It would appear that a plaintiff suing more than one defendant does not need to file an affidavit as to each defendant, as long as the expert, for purposes of commencing the action, indicates that each of the defendants named failed to comply with the standard of care resulting in injury. In a recent case handled by Howard Mishkind, the issue of the adequacy of an affidavit of merit was challenged based upon the fact that the expert that signed the affidavit of merit did not practice in the same identical area as one of the main defendants. The court in that case held that the affidavit was sufficient for purposes of commencing the filing of the lawsuit as long as the expert was familiar with the applicable standard of care. The court held that it is not necessary that the affidavit executed by a physician be from a doctor that specializes in a different area of medicine. The court found that plaintiff's affidavit of merit was not defective as differences in areas of specialization go to the weight of the evidence to be given by the jury, and not to the validity of the affidavit of merit.
