The Affidavit of Merit requirement in Ohio Civil Rule 10(D)(2) was introduced in 2005 to eliminate frivolous lawsuits. The concept is simple: It is designed to make plaintiffs prove they have done some homework before filing a lawsuit asserting a claim of medical malpractice. No health-care provider can be named in a medical negligence action unless a qualified expert has reviewed the care and determined, at least preliminarily, that the alleged claims have merit. Simple as it may be, the rule is not working.

To satisfy the rule, a plaintiff must obtain all relevant medical records and give them to a qualified physician for review. The physician must then put his or her opinion in writing--the affidavit of merit. Plaintiffs must either attach the affidavit to the complaint or file a motion seeking additional time, up to 90 days, to do so.

Without an affidavit, a complaint is subject to dismissal. Importantly, the rule requires a plaintiff to provide an affidavit related to each defendant. In each affidavit, the signing physician must:

• Establish that he/she reviewed all of the medical records reasonably available to the plaintiff.

• Confirm that he/she is familiar with the applicable standard of care.

• State his/her opinion that the standard of care was breached and that this breach caused injury to the plaintiff.

Why It's Not Working

The purpose behind the rule is laudable, the steps needed to satisfy it are simple, and the remedy for noncompliance (dismissal) is right in the rule itself. But plaintiffs aren't complying with the rule, trial courts aren't enforcing it, and there isn't a darned thing defendants can do about it. Instead, it has become the norm for plaintiffs to file affidavits with their complaints that do not meet the rule's requirements.

In one such case, the plaintiffs filed a complaint against nine individual defendants practicing in at least five different medical specialties. The plaintiffs filed a motion seeking an additional 90 days to file affidavits of merit, but the window passed without a single one being submitted. Defendants filed motions to dismiss, and the plaintiffs responded by voluntarily dismissing the case. Unfortunately, it did not end there--it just got worse.

The plaintiffs later refiled the exact same complaint. This time, they filed an affidavit, but it failed to comply with the rule. The affiant stated that he reviewed the medical records but did not identify them. Nor did he list his qualifications. Finally, the affiant merely stated that "one or more defendant(s) breached the standard of care" without naming them.

The court acknowledged that the affidavit was likely defective. But instead of dismissing the case outright, the court remarkably concluded: "Spinning the case off on a wooden decision based solely on the language of Rule 10(D) would not serve anyone's best interests."

So the court gave the plaintiffs an additional three months to supplement their deficient affidavit. The court only recently dismissed the case after the plaintiffs failed to file a compliant affidavit despite the extension.

This troubling example reflects the rule and not the exception. In most cases, Rule 10(D)(2) is being interpreted to require that a plaintiff do nothing more than find a physician, licensed in any state and in any specialty, who can cut and paste the language of the rule into a sworn statement.

Seeking a Solution

Although Rule 10(D)(2) has already been revised once, one possible solution to make it function as intended would be to further modify the rule. The Ohio State Medical Association and the Ohio Hospital Association have submitted proposed amendments (disclosure: Bricker & Eckler drafted these), which are under consideration by the Ohio Supreme Court Commission on the Rules of Practice & Procedure.

The proposed changes are designed to make the requirements less ambiguous, thereby reducing plaintiffs' ability to find ways around the purpose and intent of the rule. Under the proposal, the affiant would be required to list all of the medical records reviewed, describe his or her qualifications to render an expert opinion in Ohio, identify the applicable standard of care, and name each defendant to whom the affidavit pertains.

Without meaningful oversight, plaintiffs remain free to file medical negligence lawsuits before determining whether they have merit, and trial courts can continue to accept affidavits that do not comply with the rule.

As it stands today, Civil Rule 10(D)(2) is rarely followed or enforced. Clearer language in the rule itself would be one step in the right direction. Statutory language allowing an immediate appeal of decisions on compliance would be a giant leap.

Bobbie S. Sprader is a partner and Victoria A. Flinn is an attorney in the litigation group of Bricker & Eckler. Sprader can be reached at (614) 227-2315 or bsprader@bricker.com. Flinn can be reached at (614) 227-2326 or vflinn@bricker.com.

Reprinted from the November 2011 issue of Columbus C.E.O. Copyright © Columbus C.E.O.