COPY

AY THE SUPREME COURT OF OHIO

HOLBEIN, RHEA AND RITA, ))

APpellants, )

)VS. )

)GENESIS HEALTHCARE SYSTEM, et al.,)

)Appellees.

CASE NO.:(On Appeal from MuskingumCounty Court of AppealsCase No. CT 2M16.1NW8l

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS, ESTATEOF RUTH HOLBEIN AND OTHERS

Attomey for Appellants, Estate of Ruth Holbein, et al.

Rhonda Gail Davis #0063029159 South Main Street, Suite 1111 (Key Building)Akron, Ohio 44308Telephone: (330) 374-0700Facsimile: (330) 294-0101Email: RhDavis3205(a)netlink.net

4 MNOV 2 6 2007

CLERK OF COURTSUPREME COURT OF OH10

Attomey for Appellees, Said Hanna, M.D. andGeneral & Vascular Surgery of Southeastertt Ohio

Michael Romaneilo, Esq. #0003583Capitol Square65 East State Street, Fourth FloorColumbus, OH 43215Telephone: (614) 228-1311Facsimile: (614) 232-2410Email:' mromanello@reminger.com

Attorney for Appellees, Genesis HealthcareSystem, Michael Schuster, M.D., and MuskingumEmergency Physicians, Inc.

Michael J. Micheli, Esq. #00084573808 James Court, Suite 2P.O. Box 788Zanesville, OH 43702Telephone: (740) 454-2545 -Facsimile: (740) 454-6372

STATEMENT OF CASE AND FACfS

On December 13, 2001, elderly Ruth Holbein was injured in an automobile collision

and taken by ambulance to Genesis Health Care System's (hereafter "Genesis" Emergency

Room. In the Emergency Room, Genesis employees, Said Hanna, M.D., and Michael

Schuster, M.D. negligently cared for her, resulting in her death approximately 3 hours after

arrival there. Schuster is employed by Muskingum Emergency Physicians, Inc. (hereafter

"MEP") and Hanna is an employee of General and Vascular Surgery of Southeastem Ohio

(hereafter "GVSSO").

On December 12, 2003, the Holbeins, by and through counsel, filed their wrongful

death/medical malpractice action in the Muskingum County Court of Common Pleas. The

Appellees were properly served and filed their Answers. Their attorney received a report

from James Amsterdam, M.D., a medical expert, who determined that the Appellees deviated

from acceptable standard of medical care and the negligence caused Ruth Holbein's death.

During the case, their counsel decided to not pursue the case and informed them that

they needed to dismiss the case and locate another attomey. On November 8, 2004, the

Holbeins, by and through counsel, dismissed the action, pursuant to Ohio Rule of Civil

Procedure 41(A)(1), without prejudice and with the opportunity to refile their claims. After

the filing of the dismissal, he gave them their case file and,they searched for another attorney.

To preserve the wrongful death claim, the Holbeins were to refile their case on or before

November 8, 2005.

In early 2005 and unknown to the Holbeins (and their former counsei), the Supreme

Court of Ohio proposed an amendment to Civil Rule 10(D), which required an Affidavit of

Merit to be attached to a medical malpractice complaint or that the plaintiff move for an

2

extension to file it On July 1, 2005, Civil Rule 10(D), as amended, became effeotive.

The Holbeins searched for an attomey but were unable to locate one willing to pursue

the wrongful death action for their elderly mother. Therefore, on November 7, 2005, they

refiled, pro se, the Complaint again in the Muskingum County Court of Common Pleas.

However, they did not submit an Affidavit of Merit, or move an extension of time. As they

have stated in this and the lower court, they were not aware of this new tule.

Schuster, MEP, and Genesis did not have an affirmative defense which mentioned the

Holbein's failure to attach an afFdavit, pursuant to Ohio Rule of Civil Procedure 10(D)(2).

Schuster and MEP filed a Joint Answer and set forth affirmative defenses but nothing

concerning Civil Rule 10(D). See Joint Answer to Plaintiffs' Complaint of Defendants,

Michael R. Schuster, M.D. and Muskingum Emergency Physicians, Inc. (Nov. 17,2005).

Genesis filed an almost same Answer on or about the same date, with the same affirmative

defenses. Answer to Plaintiffs' Complaint of Defendant Genesis (Nov. 17, 2005).

On or about November 29, 2005, Appellees Hanna and GVSSO filed their Answer to

the refiled Complaint. In their 7 page Answer, they asserted several defenses, including one

regarding Civil Rule 10(D) noncompliance. Answer of Defendants Said Hanna, M.D. and

General and Vascular Surgery of Southeastem Ohio (Nov. 29, 2005).

The Holbeins continued to seek counsel. No trial lawyer would take their case, On

January 30, 2006, Hanna and GVSSO filed their motion for summary judgment/partial

motion to dismiss. In particular, these Appellees requested that the trial court grant summary

judgment, pursuant to Civil Rule 56(B) on all of the Holbeins' claims since Dr. Hanna

"complied with the requisite standard of care and further, Dr. Hanna's care and treatment

provided to plaintiffs' decedent had no proxipnate, capsal relationship to decedent's death."

Motion of Defendants Hanm, M.D. and Gasiform Summary Judgment or Alternatively,

Partial Motion to Dismiss, at 1(Jan. 30, 2006). Appellees attached an Affidavit of Hanna in

support of the summary judgment request. In the alternative, Hanna and GVSSO requested,

pursuant to Ohio Rule of Civil Procedure 12(B)(6) disnilssal of the Holbeins' claims upon

the ground that "pro se plaintiff s medical negligence claim fails to state a claim for relief

because plaintiffs' complaint fails to comply with Civ.R. 10(D)(2) and further, is, as a matter

of law, time-barred." Id The statute of limitations issue appears to be only limited to the

one-year medical malpractice survivorship claim for Ruth Holbein and not the medical

malpractice wrongfiil death claim. Id at 13.

Interestingly, Schuster, MEP, and Genesis Healthcare System did not file any motion

for summary judgment or a motion for dismissal. They also did not file a document

regarding the issues raised by the other Appellees in the trial court.

The Holbeins continued to search for a lawyer that would take their case. None

would. They filed for an enlargement of time for the opposition brief to Hanna and

GVSSO's motion for summary judgment/dismissal. The Appellees opposed the motion. The

trial court granted it. Hanna and GVSSO requested reconsideration on the motion for

enlargement of time, which was denied. See Entry (Mar. 20, 2006).

Finally, on or about March 27, 2006, the Holbeins filed their opposition brief.

Memorandum Contra to the Motion for Summary Judgment and Partial Dismissal of Hanna

and GVSSO filed with Affidavit and Attachments from Dr. Terrance L. Baker. Their

opposition brief includes many documents (medical records, treatise excerpts, and Dr.

Amsterdam's report) their argument that the Appellees negligently cared for their mother.

Tliey also filed the Affidavit of Terrance Baker, M.D., a second medical exgcrt: "In my

opinion to a reasonable degree of medical probability, the trauma surgeon, Dr. Said Hanna,

fell below the acceptable standards of medical care and caused injury to the patient and her

untimely death." Affidavit of T.L. Baker, M.D., at 1(March 27,2006). He then artieulated

five deviations or areas of negligence. Id. The medical and nursing analysis that these two

registered nurses provided to the trial court articulated, in great detail, the medical errors.

On March 29, 2006, Holbeins filed a supplemental opposition brief, adding more

medical documentation. Shortly thereafter, Hanna and GVSSO filed their Reply Brief.

On June 14, 2006, the trial court filed a decision and holding. Decision (June 14,

2006). Then, in spite of Dr. Baker's Affidavit and Dr. Amsterdam's medical report, the trial

court issued its Judgment Entry, dismissing the Holbeins' Refiled Complaint as to all named

defendants in this action upon the ground that their complaint failed to comply with Civil

Rule 10(D)(2). Entry (July 12, 2006). (The Holbeins disagreed with the trial court's ruling

and refused to sign the Entry. Id.) Therefore, even though Schuster, MEP, and Genesis did

not file any brief or request a dismissal or summary judgmeni, ihe trial cuui^ dis1ssed tIIe

entire action. Further, since the case was dismissed and the wrongful death savings statute

used, the case could not be refiled. They lost their day in court.

On August 8, 2006, the Holbeins, acting pro se, filed their appeal from the decision.

After receiving extensions, they filed their Appellant's Brief on November 13, 2006. All

Appellees moved to dismiss and filed appellee's briefs. Holbeins filed a Reply Brief.

On December 26, 2006, the appellate court denied the motions to dismiss and ordered

that the Holbeins filed an amended brief. They contacted over 40 lawyers and, on January

23, 2007, this counsel became their attorney. An amended brief was filed February 21, 2007.

On October 10, 2007, Fiffth District Court,pf Appeals affirmed the,.trial court decision.

LAW AND ARGUMENTPROPOSITION OF LAW ONE:When a trial court decision and/or judgnrent entry, is confusing, vague, or unspet#7c, theappellate court shou/d remand the case to the trial cowt for ferrther deternriaation and/orclarification

On June 14, 2006, the trial court filed its decision and holding:

This matter comes before the Court upon the Defendants' motion forsummary judgment. After reviewing the motion, motion contra, supplementalmotion contra, and reply the Court makes the following findings and decision.

The Defendants seek summaryjudgment on the Plaintiffs' complaint npart alleging that the Plaintiffs' complaint is not supported by an affidavit ofmerit as required by Div. R. 10(Dx2). Upon,review of the complaint filedherein the Court finds that an affidavit of merit was not included in thePlaintiffs' filings and therefore the complaint shall be dismissed.

Decision (June 14, 2006) (emphasis added).

Later, the trial court entered judgment, stating: "plaintiffs' complain is dismissed as to all

named defendants in this action upon the ground that plaintiffs' complaint failed to comply

with Civ. R. l0(D)(2)." Judgment Entry (July 12, 2006), at 1.

In reading these two court documents, it is unclear as to whether the trial court granted

summary judgment or granted the dismissal. Frankly, it looks like the court stated that they

were granting a dismissal under the summary judgment motion.

When courts or other administrative bodies issue vague, confusing or unclear orders or

decisions, the proper course is to remand the case to the trial court for clarification. See e.g.

Daniels v. Bethesda Hosp. (1997 Ohio App. 3d 272; Lindamood v. Residence Inn (2d Dist.

Nov. 22, 1996), Montgomery App. No. 15763, unreported; State ex rel. Osco Indus. v.

Industrial Commission (1989), 43 Ohio St. 3d 167, 168. Pursuant to this Ohio case law, this

Court should remand the case for further clarification of the Decision and Judgment Entry.

PROPOSITION OF LAW TWO:The presuenption that a pro se litigant is presumed to have knowledge of the law and ofcorrect lega! procedure and is to be held to the same standard as aft other litigants isrebuttable and the prose litigant can present evidence to rebut the presunrption:

Interestingly, these pro se litigants have medical knowledge and understand standards

of care and other issues in a medical setting but did not attend law school or received other

training which would permit them to understand the intricacies or and procedural practice

involved in the highly specialized field of medical malpractice litigation. In fact, many

lawyers do not venture into this area of the law after the enactment of Senate Bil1281, Senate

Bill 120, Senate Bill 80, the amendment of Ohio Rule of Civil Procedure 10(D), and the

significant changes in Ohio case law (including but not limited to Comer v. Risko). If most

lawyers cannot practice in this area, how can a pro se litigant be presumed to know and

understand legal procedural and substantive requirements for a medical malpractice action?

Ohio law on pro se litigant standards is young. One of the earliest cases to which

Ohio courts attribute the presumption that a "pro se litigant is presumed to know and

understand the law as any other litigant" is Dawson v. Pauline Homes (1958), 107 Ohio App.

90, wherein the Tenth District Court of Appeals held that when a party discharges their

attorney, it did not lessen their obligation to timely file bill of exceptions and assignment of

errors and supporting brief and when they failed to do so, the court dismissed the appeal.

In 1981, an appellate court opined in Meyers v. First National Bank (1981), 3 Ohio

App. 3d 209: "Pro se litigants are bound by the same rules and procedures as those litigants

who retain counsel. They are not to be accorded greater rights and must accept the results of

their own mistakes and errors. [citation to Dawson omitted]." Id. at 210. Thereafter, some

appellate court cited Meyers for the pro se litigant standard. (In fact, this Court cites Meyers

in support of the notation that pro se litigants and those with counsel are to be treated the

same. See Judgment Entry (Dec. 26, 2006).) See, e.g. Daubenmire v. Mitts (5dDist. Oct.

27; 2004), 2004 WL 2445247, unreported at 2, para. 10.)

The word "presumption" appears in 1996, when an Ohio appellate court stated that

pro se litigants are "presumed to have knowledge of the law and of correct legal procedure

and [are to be] held to the same standard as all other litigants." Ktlroy v. B.H. Lakeshore

Co. (1996), 111 Ohio App.3d 357, 363, 676 N.E.2d 171, 174. This too is commonly cited

by Ohio appellate courts. See e.g., Judgment Entry (Dec. 26, 2006).

Presumotion Should Be Rebuttable.

The presumption does not appear to be a hard and fast rule, for which Ohio courts

apply the standard for harsh results. The Fourth District Court of Appeals recognized that

pro se litigants should be afforded leniency in the statement and presentation of claims.

{¶ 10) This court has long had a policy of affording considerableleniency to pro se litigants. See, e.g., Highland Cry. Bd. o( Comm. v.Fasbender (July 28. 1999), Highland App. No. 98CA24. The reasoningbehind that policy is that it is preferable to hear cases on their merits than todismiss them for minor technicalities. Karmasu v. Tate (Sept. 15, 1994),Scioto App. No. No. 94 CA 221783, citing DeHart v. Aetna Life Ins. Co.(1982), 69 Ohio St.2d 189, 431 N.E.2d 644. However, we have alsorecognized that this policy does not require us "to find substance where noneexists, to advance an argument for a pro se litigant or to address issues notproperly raised." Id.

In the Estate of Pallay (4'h Dist. June 28, 2006), 2006 WL 1875899, unreported.

This is supported in federal case law. The United States Supreme Court held this strict

standard is not appropriate for prose litigants. Hughes v. Rowe (1980), 449 U.S. 5. In

Haines v. Kerner (1980), 404 U.S.519, the United States Supreme Court stated: "[H]owever

inartfully pleaded," we may not dismiss a pro se complaint under Rule 12(B)(6) unless "it

appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief." Posr v. Court Officer Shield No. 207, 180 F.3d 409, 413-14 (2d

Cir.1999) (quoting Haines, at 520-21 (1972)). See Gessner v. Schroeder (2d Dist. Feb. 9,

2007), 2007 WL 431421; unreported, at para. 26.

...In the case of individuals proceeding pro se, courts have consideredadditional materials submitted by these litigants in opposition to a motion todismiss. See, e.g Gil v. Moonev. 824 F.2d 192. 195(2d Cir.1987)(considering plaintiff's affidavit in response to a motion to dismiss); Fox v.City of New Yor+t 2004 WL 856299 at * 1(S.D.N.Y. Anr. 20, 2004)("Because Fox is a pro se litigant, the Court may rely on both his amendedcomplaint and his motion papers in assessing the legal sufficiency of hisclaims.").A motion to dismiss should not be granted "unless it appears beyond doubtthat the plaintiff can prove no set of facts in support of his claim which wouldentitle him to relief." Shakur v. Selsky, 391 F.3d 106 , 112 (2d Cir.2004)

(quoting Conley v. Gibson 355 U.S. 41, 45-46 (1957)). Since the plaintiff is

the non-movant and proceeding pro se, I must construe his papers liberallyand "interpret them to raise the strongest argume,'nts that they suggest." BwQOs

v. Honkins 14 F.3d 787. 790 (2d Cir.1994) (intemal citation omitted).

Xie v. Lin (S.D.N.Y. Feb. 7, 2007) 2007 WL 423806, unreported.

Here, the Refiled Complaint, as amplified by the documents filed in response to the

motions, adequately set forth a claim and gave the Appellees fair notice of the claims' basis.

PROPOSITION OF LAW THREE:Civil Rule (10)(D)(2) does not providefor dismissal of the action or claims, when the

affidavit of merit is not attached to a complaint.PROPOSITION OF LAW FOUR:Civil Rule (10)(D)(2) does not apply to Refded Complaintsfiled after July 1, 2006, the

effective date of the amendment to the Civil Rule 10(D).

History and Purpose of Ohio Rule of Civil Procedure 10(D)(2)

When the proposed amendment to Civil Rule 10(D) was announced, the Supreme

Court of Ohio stated the purpose of its recommendation:

The revisions are intended to clarify that more than one affidavit of merit maybe necessary as to a particular defendant [Civ. R. 10(D)(2)(a), line 24] and toallow judges greater discretion in enlarging the time to file the affidavit of

merit [Civ. R. 10(D)(2)(b), lines 44-451. The revisions also remove languageinitially proposed which made the affidavit requirement a prerequisite to thetrial court's exercise of jurisdiction, but retains the proposed language thatclarifies that a dismissal for failure to comply with the rule operates as afailure otherwise than on the merits. [Civ. R. 10(D)(2)(d), lines 63-66].

On July 1, 2005, the Supreme Court of Ohio made the amendment effective:

Civ. R.`10(D)(2) is amended to provide that the plaintiff in a medical

liability action must attach an affidavit of merit with respect to each tnedicalcare provider named as a defendant in the action. The amendment specifiesqualifications for a person who provides an affidavit of merit, sets forth therequired content of the affidavit, and includes a provision under which theplaintiff, upon a showing of good cause, may obtain an extension of time tofile the required affidavit.

Amendments to the Ohio Rules of Practice and Procedure,ftp://ftp.sconet.state.oh.us/RuleAmendments/2005/R 1071105-A.doc

Civil Rule 10(D)(2) Technicalities Should not Defeat this Wrongful Death Claim

Decisions on technicalities rather than determinations on the merits are not favored.

"The Federal Rules reject the approach that pleading is a game of skill in which one misstep

by counsel may be decisive to the outcome and accept the principle that the purpose of

pleading is to facilitate a proper decision on the merits." Conley v. Gibson (1957), 355 U.S.

41, 48. "Pleadings are intended to serve as a means of arriving at fair and just settlements of

controversies between litigants. They should not raise barriers which prevent achievement to

that end... Proper pleading is important, but its importance in its effectiveness to accomplish

the end of a just judgment." Maty v. Graselli Che. Co. (1938), 303 U.S. 197, 200.

Focus on technicalities prohibits claims, where the plaintiff produces very detailed

documentation and information which goes to the heart of the issues and gives more than

adequate notice to the defendants that a medical expert has reviewed the case and found

merit. Interestingly, the Holbeins are registered nurses and provide very detailed allegations

and statements to support their claims of medical malpractice.

Some Ohio appellate courts scrutinize the literal interpretation of an affidavit

requirement for a complaint. In Dornbirer v. Paul (l Os' Dist. 1993), 191 Ohio App. 3d 266,

270, an appellate court addressed prior affidavit requirement with a pro se plaintiff:

Regarding the first issue, and relying on a literal interpretation of R.C./2307.42®(1), defendant contends that , attoriiey Alcade's affidavit isinsufficient to meet the requirements of the statute with respect to plaintiffs

refiled complaint; that the statute requires an affidavit of the claimant'sattomey, or if the claimant is not represented by an attorney, of the claimant;that, since plaintiff was acting pro se, she was required to file her ownaffidavit, not that of an attotney.

Defendant's technical interpretation of R.C. 2307.42 undermines thepurpose of the statute. As this court explained in Hotige v. Cheek (19891, 64Ohio App.3d 296, 581 N.E.2d 581, R.C. 2307.42 is "rationally related to thegovernment's legitimate interest of keeping health care affordable by quicklydismissing frivolous claims. By requiring plaintiffs attorney or plaintiff toconsult with a qualified expert prior to filing a medical malpractice claim,claims having no bona fide merit can be weeded out without commencing anaction. The affidavit of the attomey ensures that careful consideration hasbeen given to the claim to ascertain that there is a good faith basis for a beliefthat there is good ground to support the claim. See Civ. R. 11." Id at 301, 581N.E.2d at 584.

Under that rationale, the affidavit accompanying plaintifPs refiledcomplaint is adequate under R.C. 2307.42. Specifically, the affidavit indicatesthat an expert has been consulted who has reviewed the records and findsreasonable cause for the claim, as does the affiant. While the affidavit predatesthe filing of the present complaint by approximately two years, nothing in therecord suggests that the affidavit is less than accurate by virtue of the timelapse. Indeed, to the contrary, the record contains a number of otherdocuments, as well as a second affidavit, which suggests the continuingvalidity of the first affidavit.

Dornbirer v. Paul (10'" Dist. 1993), 191 Ohio App. 3d 266,270 (permitting the filing).

The Civil Rules do not Reguire a Dismissal pursuant to Civil Rule 10(Dl(21.

This Court should also find that the technicalities of Civil Rule 10(D)(2) should

not be the death of actions, especially when the litigant is acting pro se. Civil Rule

10(D)(2) does not include the terms "dismiss" or "dismissal". In fact, the entirety of

Civil Rule 10(D) does not include the tenns. See Castle Hill Holdings, LLC v. Al hut,

Inc., 2006 WL 726911, at 3-4, para. 25. This same analysis has been applied to Civil

Rule 10(D)(2) affidavits. See Leu v. CardweU (Lucas C.P. Feb. 7, 2007), Case No.

2005-4617.

Civil Rule 10(D)(2) does include the following paragraph:

11

(c) An affidavit of merit is required solely to establish the adequacy of thecomplaint and shall not otherwise be admissible as evidence or used forpurposes of impeachment.

Ohio R. Civ. P. 10(D)(2)0.

The courts have not interpreted this phrase. However, this section is silent as to the

circumstances when the late identification and production of the supporting affidavit,

or similar document, would render the complaint legally insufficient. Under the

circumstances presented by the pro se litigants' pursuit of this claim in a refiled action,

without knowledge of the rule amendment requiring the. Affidavit of Merit, dismissal is

not permitted by Civil Rule 86(EE) (rule amendments apply except where they would

be infeasible or would work an injustice) . This certainly is an instance where the

amendment's application is not feasible or would work injustice to the Holbeins.

Further, Civil Rule i(B) provides that the Civil Rules: "shall be construed and

applied to efect just results by eliminating delay, unnecessary expense and all other

impediments to the expeditious administration ofjustice." (emphasis added)

PROPOSITION OF LAW FIVE:When some of the parties move for sumnraryjudgment or a motion for disnussal andothers remained silent, only the movants' issues may be addressed by the trial court

Hanna and GVSSO filed their motion for summary judgment/partial motion to

dismiss. In particular, Appellees asked that the court grant summary judgment, pursuant to

Civil Rule 56(B) on all of the Holbeins' claims since Hanna "complied with the requisite

standard of care and further, Hanna's care and treatment provided to plaintiffs' decedent had

no proximate causal relationship to decedent's death." Motion of Defendants Hanna, M.D.

and GVSSO for Summary Judgment or Al.ternatively, Partial Motion to Dismiss, at 1 (Jan.

30, 2006). They attached Hanna's Affidavit in support thereof. In the alternative, they

moved, pursuant to Civiol Rule 12(B)(6) dismissal of the Holbeins'.claims upon the grbund

that "pro se plaintiff's medical negligence claim fails to state a claim for relief because

plaintiffs' complaint fails to comply with Civ.R. 10(Dx2) and further, is, as a matter of law,

time-barred." Id The statute of limitations issue appears to be only limited to the one-year

medical malpractice survivorship claim for Ruth Holbein and not the medical malpractice

wrongffiil death claim. Id. at 13.

Interestingly, Schuster, MEP, and Genesis Healthcare System did not file any motion

for summary judgment or a motion for dismissal. They also did not file a document

regarding the issues raised by the other Appellees in the trial court.

The Holbeins argue that the dismissal or summary judgment decision (whichever it

is) is inappropriate for Schuster, MEP, and Genesis Healthcare System since they did not

allege any violation of Civil Rule 10(D) or other allegation specifically targeted at the

Affidavit's requirement. They did not file a motion for disniissal or for summary judgment

and, therefore, waived their argument. Summary judgment was improperly granted to them.

PROPOSITION OF LAW SIX:When a party fails to attach an Afftdavit of Merit to a Complaint and good cause is shown

for the failare, the trial court should permit amendment to the Complaint by addition ofthe affulavit or other similar evidence, order a more definite statement, or other action tocomply with the spirit of the Civil Rule IO(D)(2). .

Dismissal is the harshest of sanctions, especially when the dismissal acts to terminate

the litigation. Here, the trial court had other alternatives.

Lesser Sanction: Motion for More Definite Statement

The proper way to handle the Holbeins' failure to attach the Affidavit of Merit was to

have moved for a more definite statement before filing an answer. Recently, an appellate

court reviewed Civil Rule 10(D)(1) and the failure to attach a written instrument. They

found that the proper challenge was a Civil Rule 12(E) motion for more definite statement.

13

Castle Hill Holdings, LLC v. Al hut, Inc., 2006 WL 726911, at 3-4, paras. 26-29 (emphasis

added) (citations and quotations omitted). Therefore, based upon this rationale, the motion

for summary judgment and/or dismissal that was predicated upon the failure to attach the

Affidavit of Merit was improper. Further, since none of the Appellees moved for a more

definite statement, pursuant to Civil Rule 12(E) to include the Affidavit of Merit, they

waived the issue as to dismissal.

Civil Rule 15 May Apply to Permit Amendment to the Comolaint

Civil Rule 15 provides for pleading amendment where determination is on the

evidence. It can either be under Section 15(B) or (A). "Leave of court is to be freely given

when justice so requires." Ohio Civ. P. 15(A). The court could have pennitted amendment

(attaching Affidavit of Merit) to conform to the evidence the Holbeins supplied in response.

PROPOSITION OF LAW SEVEN:Summaryjudgnrent is improper when requested by some parties and case is dismissed as toall parties.PROPOSITION OF LAW EIGHT:Surnmaryjudgnrent is improper when pro se litigants respond with Information to opposethe motion for summaryjudgment, even though the form of the response and evidencemay be different than that drafted or prepared by an attorney.

The Holbein incorporate the arguments related to the "pro se litigants" and note they

filed more than sufficient information to defeat a Civil Rule 56 judgment. Their opposition

brief included many attachments to support their argument that the Appellees negligently

cared for their mother. In their brief, these two registered nurses articulated - in great detail-

the errors of the movants, Hanna and GVSSO, explaining the medical bases for the errors

and submitted two expert reports (one by affidavit) and medical standards/treatise

information. Dr. Baker and Dr. Amsterdam opined regarding negligence and causation.

"Trial courts should award summary judgment with caution, being carefnl to resolve

doubts and construe evidence in favor of the nonmoving party .. ^ Welco Indeslries v.

Applied Cos. ( 1993), 67 Ohio St.3d 344, 346. All doubts must be resolved in favor of the

nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St. 3d 356. Thus, summary

judgment is inappropriate when it appears from the evidence that reasonable minds can come

to a conclusion other than one adverse to the nonmoving party. Here, it was improper.

PROPOSTTION OF LAW NINE:Civfl Rule 10(D) violates tbe Ohio Constitution Article I, section 16, "the right to seekredress" provision and tlre due process guarantees and equal protection clauses of theOhio and United States Constftutions. "

Civil Rule 10(D)(2) is unconstitutional. As applied to this refiled action, the Holbeins are

being denied a right to jury trial, due process, and equal protection of the laws for the claim.

CONCLUSIONThis Court should remand the case to the Muskingum County Court of Common

Pleas for clarification of its decision and judgment entry. In the alternative, this Court should

reverse the trial court's decision and remand the case to permit this case to proceed on its

merits against all parties.

RHONDA DAVIS & ASSOCIATES LLCAttorneys for Apel^Y

Rhonda Gail Davis #0063029159 South Main StreetSuite 1111, Key BuildingAkron, Ohio 44308(330) 374-0700; (330) 294-0101 FaxRhDavis3205@nettink.net

CERTIFICATE OF SERVICEA copy of the foregoing was mailed by regular on November 21, 2007 to the following:Michael J. Micheli, Esq. Michael Romanello, Esq.3808 James Court, Suite 2 Reminger and Reminger Co. L.P.A.Zanesville, OH 43702 65 East State Street, Fourth FloorAttorney for Genesis Healthcare System, Columbus, OH 43215et al. Attorney for Said ^V.D.et al.

Rhonda Gail Davis #0063029

APPENDIX

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

- F+LEDF+FTH DISTRICT

COURT OF Ar'PEALS

RITA HOLBEIN, CO-EXECUTOROF THE ESTATE OFRUTH HOLBEIN, ET AL.

Plaintiffs-Appellants

Ji.1- 102007

MUSKINGUhi COUNTY. OHIOlppp A o+OKLE, CLERK

-vs- JUDGMENT ENTRY

GENESIS HEALTHCARE SYSTEM.ET AL.

Defendants-Appellees CASE NO. CT2006-0048

For the reasons stated in our accompanying fvlemorandu+n-ONin un.

judgment of the Court of Common Pieas of Muskingum County, Ohio is affirmed.

•. : ^ ,-t----,

JUQGES

COURT OF APPEALSMUSKINGUM COUNTY, OHIOFIFTH APPELLATE DISTRICT

RITA HOLBEIN, CO-EXECUTOROF THE ESTATE Of RUTf l HOLBEIN,ET AL.

JUDGES:Hon. W. Scott Gwin, P.J.Hon. Sheila G. Farmer, JHon. John W. Wise, J.

Plaintiffs-Appellants

-vs-

GENESIS HEALTHCARE SYSTEM, ETAL

Case No. CT2006-0048

Defendants-Appellees

CHARACTER OF PROCEEDING:

JUDGP.tENT

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiffs-Appellants

RHONDA GAIL DAVIS159 South Main StreetSuite 1111, Key BuildingAkron, OH 44308

OPINION

Appeal from the Court of Common Pleas.Case No. CA2005-0614

Affirrned

=1^ rH IiIS: :iiC iCOU%,' 0= ,1PPt:AL6

0', ' 10 2007

t,tUSKINGU1I COUNTY, OHIOTPPp A. HICKLE, CLERK

For Hanna/General & Vascular Surgery

MICHAEL ROMANELLOANGELA COURTWRIGHT65 East State Street4T" FloorColumbus, OH 43215

For Genesis/Schuster/Emergency Physicians

MICHELI BALDWIN NORTHRUP3808 James CourtSuite 2P.O. Box 788 -Zanesvitle, OH 43702

Muskingum County, Case No. CT2006-0048 2

Farmer, J.

;l( I} On December 13, 2001, Ruth Holbein was injured in an automobile

accident and taken to the emergency room at appellee, Genesis Health Care System.

Ms. Holbein died shortly thereafter.

;!;?} On December 12, 2003, appellants, Rita and Rhea Holbein, as co-

executors of the Estate of Ruth Holbein, filed a complaint against appellee Genesis as

well as appellees Said Hanna, M.D . Dr. Hanna's employer, General and Vascular

Surgery of Southeastern Ohio. Michael Schuster. M.D., and Dr. Schuster's eniployer,

Muskingum Emergency Physician's. Inc. Appellants alleged medical malpractice and

wrongful death. On November 8. 2004, appellants dismissed their complaint without

prejudice.

14 3; On November 7, 2005. appellants re-filed their compl,:int pro se.

Appellants did not file an affidavit of merit as required by Civ.R. 10(D)(2) or a motion for

extension of time to obtain said affidavit. On January 31, 2006, appellees Hanna and

General and Vascular Surgery filed a motion for summary judgment/partial motion to

dismiss. By decision file June 14, 2006 and judgment entry filed July 12, 2006, the trial

court dismissed the complaint as to all named defendants, finding the complaint did not

include the affidavit of inerit as required by Civ.R. 10(D)(2):

{14} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

Muskingum County, Case No. CT2006-0048 3

1

}!;S} "TRIAL COURT ERRED IN ITS RULING ON THE MOTION FOR

SUMMARY JUDGMENT OR IN THE ALTERNTIVE, MOTION FOR PARTIAL

DISMISSAL BY FAILING TO IDENTIFY WHICH MOTION IT GRANTED."

11

116' "TRIAL COURT ERRED IN THE GRANTING THE MOTION FOR

SUMI`.IARY JUDGMENT OR IN THE ALTERNATIVE, MOTION FOR PARTIAL

DISMISSAL AND APPLYING THE SAME STANDARD OF REVIEW FOR A PRO SE

LITIGANT AS IT WOULD A LAWYER IN A COMPLEX, MEDICAL MALPRACTICE

ACTION."

"TRIAL COURT ERRED IN DETERMINING THE OMISSION OF THE

CIVIL RULE (10)(D) AFFIDAVIT FROM THE REFILED COMPLAINT JUSTIFIED A

DISfv1ISSAL OF THE ENTIRE ACTION."

IV

14.;81 "TRIAL COURT ERRED IN DISMISSING THE ENTIRE ACTION, WHEN

ONLY SOME OF THE PARTIES FILED A MOTION FOR SUMMARY JUDGMENT

AND/OR MOTION FOR DISMISSAL AND THE OTHER PARTIES REMAINED SILENT

(FROM THEIR ANSWER TO THE REFILED COMPLAINT TO THE CONCLUSION OF

THE CASE)."

V

{119} "TRIAL COURT ERRED IN DISMISSING THE CASE, WHEN A LESS

HARSH SANCTION WAS AVAILABLE, INCLUDING BUT NOT LIMITED TO

Muskingum County, Case No. CT2006-0048 4

PERMITTING AMENDMENT TO THE REFILED COMPLAINT. ORDER A MORE

DEFINITE STATEMENT TO BE PROVIDED BY THE HOLBEINS."

VI

14110; "TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND

ENDING THE HOLBEINS' CLAIM."

VII

I; "TRIAL COURT ERP.ED. BY FAILING TO DECLARE OHIO RULE OF

CIVIL PROCEDURE 10(D)(2) UNCONSTITUTIONAL."

I

t'_; Appellants claim the trial court's decision and judgment entry are

confusing, vague, and nonspecific as to which relief was granted and therefore the

matter should be remanded for further clarification. We disagree.

14,13; The trial court's June 14. 2006 decision states the foilowing in pertinent

part:

11.;1-1; "The Defendants seek summary judgment on the Plaintiffs' complaint in

part alleging that the Plaintiffs' complaint is not supported by an affidavit of merit as

required by Civ.R. 10(D)(2). Upon review of the complaint filed herein the Court finds

that an affidavit of merit was not included in the Plaintiffs' filings and therefore the

complaint shall be dismissed."

(1;15} In its July 12, 2006 judgment entry, the trial court stated the following:

(ji I G; "For the reasons stated in the Court's Decision, rendered and filed in this

action on June 14, 2006, a copy of which is attached to this Entry and incorporated

Muskingum County, Case No. CT2006-0048 5

herein, plaintiffs' complaint is DISMISSED as to all named defendants in this action

upon the ground that plaintiffs' complaint failed to comply with Civ.R. 10(D)(2)."

11117; Any confusion as to who was to be dismissed was clarified by the July 12,

2006 judgment entry which was prepared at the trial court's direction by counsel for the

defendants in conformity with the June 14, 2006 decision.

i;t; Assignment of Error I is denied.

I I

;1 I9; Appellants claim their failure to file a Civ.R. 10(D)(2) affidavit with their

complaint, failure to request an extension to file said affidavit, and failure to properly

submit the purported affidavit of Terrance Baker, M.D. should be excused because they

are pro se litigants. We disagree.

;4 -Iu{ Appellants argue pro se Iaigants should be held to a lesser standard than

iniposed upon the practicing bar. They argue many lawyers no longer practice in the

medical malpractice arena because of the complexities of the law in this "highly

specialized field." Appellants' Brief at 8.

14,12 1; This argument of "fools rush in where angels fear to tread" is contra to the

long standing hornbook law that pro se litigants are not exempt from complying with the

rules and regulations. "Pro se civil litigants are bound by the same rules and

procedures as those litigants who retain counsel. They are not to be accorded greater

rights and must accept the results of their own mistakes and errors." Meyers v. First Nti.

Bank of Cincinnatti (1981), 3 Ohio App.3d 209, 210.

{Ji22} As the legal landscape changes, the Supreme Court of Ohio has

addressed the_ issue of prb se litigants by establishing a task force. Although a report

Muskingum County, Case No. CT2006-0048 6

has been issued, to date the recommendations therein have not been implemented.

The newly enacted Code of Professional Conduct now recognizes the unbundling of

legal services, and the courts of this state may be required to take a more activist

approach to counseling andlor guiding lay persons through the system. Many courts do

in fact have user guides and "Most Frequently Asked Questions" on their websites.

11;23^ In the Recommendations of the Task Force on Pro Se Litigants, there is

no mention of bending or supplanting the requirements of the Civil Rules of Procedures.

The only recommendation close to addressing the issue sub judice is that courts

provide a pre-filing screening to pro se litigants. In fact, most courts accept letters as

rnotions or answers.

11;24; To date, this activist view has not been expanded to bending the

mandates of the Civil Rules or statutory lav: There°ore, although at times the law is not

particularly user-friendly. we cannot negate the Supreme Court of Ohio's own adopted

Civil Rules because a party proceeds pro se. Without adherence to rules, we will have

a judicial free-for-all or anarchy.

1435; Assignment of Error II is denied.

III, V

{4,;2G} Because these assignments challenge the trial court's decision to dismiss

the complaint, we will address them collectively.

{1;37} The trial court dismissed the complaint for failure to follow Civ.R. 10(D)(2)

which states the following:

{4,;28} "(2) Affidavit of inerit; medical liability claim.

Muskingum County, Case No. CT2006-0048 7

111291 "(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 section 2305.113 of the Revised Code, shall include one or more affidavits of

merit relative to each defendant named in the complaint for.whorn export testirnony is

necessary to estabiish liability. Affidavits of merit shall be provided by an expert witness

pursuant to Rules 601(D) and 702 of the Ohio Rules of Evidence. Affidavits of merit

shall include all of the following:

14L;30; "(i) A statement that the affiant has reviewed ail medical records

reasonably available to the plaintiff concerning the allegations contained in the

complaint,

14;31; "(ii) A statement that the affiant is familiar with the applicable standard of

care;

1092; "(iii) The opinion of the affiant that the standard of cane breached by

one or more of the defendants to the action and that the breach caused injury to the

plaintiff.

;411'33! "(b) The plaintiff may file a motion to extend tt e periocl of time to file an

affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good

cause shown and in accordance with division (c) of this rule, the court shall grant the

plaintiff a reasonable period of time to file an affidavit of merit, not to exceed ninety

days, except the time rnay be extended beyond ninety days if the court determines that

a defendant or non-party has failed to cooperate with discovery or that other

circumstances warrant extension.

1luskrngurn County. Case No. C*l•2006-0048 g

;!;34; "(c) In determining whether good cause exists to extend the period of time

to file an affidavit of inerit, the court shall consider the following:

11'35; "(i) A description of any information necessary in order to obtain an

affidavit of nierit:

1-136; "(ii) Whether the information is in the possession or control of a defendant

or third party:

;4 a7; "(iii) Tt,e scope and type of discoverv necessary to obta n the :nformation.

;4 35; "(iv) 1Vhat efforts. if any. were takon to obtain the rnformation.

1439; "(v) Any other facts or circumstances relevant to the ability of the plaintiff

to obtain an affidavit of r*nerit.

+-lU; "(d) An affidavit of ine.rit is required to establish t^)e adequacy o' the

comp!arnt C'nd shal.' nJt othe^.:fsi3 be admissible as evidence cr usc;C.! for purposes of

impeachn ent. Any dismissal for the failure to comply v;ith this ruk'. shall operate as a

failure othervti'ise than on the merits.

14.4 l; "(e) If an affidavit of merit as required by this rule has been filed as to any

defendant along with the complaint or amended complaint in which claims are first

asserted against that defendant, and the affidavit of merit is determined by the court to

be defective pursuant to the provisions of division (D)(2)(a) of this rule, the court shall

grant the plaintiff a reasonable time, not to exceed sixty days, to file ari affidavit of merit

iritended to cure the defect."

14,;43; Appellants argue because their complaint was a re-filing of a comp!aint

that was originally filed prior to tne enactment of Civ.R. 10(D)(2), the rule should not

apply: We disagree. The complaint was re-filed on November 7, 2005, after the

fAuskingum County. Case No. CT200G-0048 9

effective`date of the amendments tu Civ.R. 10, July 1. 2005, therefore, the rule is

applicable sub judice. See, Civ.R. 86(BB).

111:431 Appellants argue Civ.R. 10(D)(2) does not mandate dismissal of the

complaint if the required affidavit is not attached. They further assert Civ.R. 10(D)(1 ),

which governs claims founded on an account or written instrument, does not mandate

dismissat if the account or written instrument is not attached to the pleading; the rule

merely requires the reason for the omission to be stated in the pleaciing Ci^.R.

10(D)(2)(b) states a plaintiff may file an extansion to file the required affidavi!, and the

trial court shall grant the extension at its discretion for "good cause shown." In this

cas•^. appellants diu not make an attempt to request an extension when the complaint

was m-flled.

;444', The extension part o` the rule is the safety valve incluaed ir. the ruln to

`acifitate the filing of a complaint vvithin the statute of limitations %titii the necessary

numerous affidavits. The rule also includes a protection from subpoena for medical

experts who give an affidavit. Therefore, the rule facilitates a plaintiff's search for an

expert. The other safety valve ttiat was not available sub judice was a Civ.R. 41(A)

dismissal.

Appellants essentially do not contest the omissions in the affidavit as to

form, nor do they defend Dr. Baker's affidavit and its failure to qualify as an expert in

appellee's specialty. They argue lapses or omissions in the Baker affidavit should be

overlooked or the trial court should have granted them more time to obtain experts.

;1i4r,; We note on February 27, 2006, the trial court granted appellants an

exteiision of time to respond to the. motion for summary judgment over appellees'

Muskingum,County, Case No. CT2006-0048 10

objection. We can only surmise that had appellants filed qualifying affidavits, appellees'

motion would have been denied.

{147} Lastly, we will address the appropriateness of the trial court's dismissal.

Appellants argue when a party fails to attach the required affidavit and good cause is

shown, a trial court could order an amendment to the complaint or order a more definite

statement.

{Jj48} Although the reasoning behind the rule is not specifically stated, it does

reference back to the original Tort Reform Act of 1996. The requirement of an affidavit

was to guard against frivolous lawsuits.

{!i49} The trial court was clearly within its discretion to fashion the appropriate

remedy. The trial court had before it a re-filed medical complaint that for some reason

had been dismissed by appellants. Further, by appellants' own admissions, they were

unable to find counsel to represent them. Appellants' Brief at 3.

{1;50} In their answer filed November 30, 2006, appellees Hanna and General

and Vascular Surgery plead failure to comply with Civ.R. 10(D)(2). As such, appellants

were on notice prior to the filing of the motion for summary judgment/partial motion to

dismiss of the defect with the complaint.

{1;51} Upon review, we find no abuse of discretion by the trial court in dismissing

the complaint for failure to comply with Civ.R. 10(D)(2). Given the specific facts of this

case, the re-filing and the extension granted to appellants, we find the rule would have

no meaning or effect if it was not enforced.

{¶52} Assignments of Error III and V are denied.

Muskingum County, Case No. CT2006-0048 1 ^

IV, VI

{153} Appellants claim the trial court erred in dismissing the complaint,

especially "as to all named defendants" because only appellees Hanna and General

and Vascular Surgery moved for dismissal. We disagree.

{1154} From the re-filing of the complaint to the trial court's decision, seven

months had passed. During this time, appellants made no efforts to comply with Civ.R.

10(D)(2) or request an extension of time.

{¶55} If a complaint is dismissed because it is deficient for failing to comply with

filing requirements as to one party on a medical claim, there is no way appellants can

re-ring the bell as to the complaint's deficiencies.

{1(56} The complaint is deficient on its face as to all named defendants. It would

be a waste of judicial time and resources to remand for another dismissal motion.

{T57} Assignments IV and VI are denied.

VII

{1(58} Appellants claim Civ.R. 10(D)(2) is unconstitutional. We disagree.

{Jj59} Appellants failed to challenge the constitutionality of the statute at the trial

court level. As stated by the Supreme Court of Ohio in State v. Awan ( 1986), 22 Ohio

St.3d 120, syllabus:

(1[60} "Failure to raise at the trial court level the issue of the constitutionality of a

statute or its application, which issue is apparent at the time of trial, constitutes a waiver

of such issue and a deviation from this state's orderly procedure, and therefore need not

be heard for the first time on appeal."

{¶61} Assignment of Error Vil has not been perfected for appeal and is denied.

Muskingum County, Case No. CT2006-0048 12

1962} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.

JUDGES

SGF/sg 0921

pOd6 Jb1f /

^ ^-n,;^.IN THE COMMON PLEAS COURT OF MUSKINGUM COUNTY; O^

Rita Holbein, Co-Executor ofThe Estate of Ruth Holbein, et al

Plaintiffs Case No. CA2005-0614

-vs-

Genesis Healthcare System, et al

Defendants

DECISION

This matter comes before the Court upon the Defendants' motion for summary judgment.After reviewing the motion, motion contra, supplemental motion contra, and reply the Court makesthe following findings and decision.

The Defendants seek summaryjudgment on the Plaintiffs' complaint in part alleging that thePlaintiffs' complaint is not supported by an affidavit of merit as required by Civ. R. 10(D)(2). Uponreview of the complaint filed herein the Court finds that an affidavit of merit was not included in thePlaintiffs' filings and therefore the complaint shall be dismissed:

Counsel for the Defendants shall prepare an entry in conformity with this decision.

IT IS SO ORDERED.

Rita Holbein, Co-Executor ofThe Estate of Ruth Holbein

Rhea Holbein, Co-Executor ofThe Estate of Ruth HolbeinPlaintiffs

Michael J. MicheliMichael RomanelloAttomeys for Defendants

^ rE tARK C. FLE

CERTIFICATE OF SERVICEoereby certify that a copy of this decision has been servedI t^

^^

day of June, 2006.this 1_

Judge Mark C. Fleegle

ll parties or their counsel o

Assignment Conunissioner

PV.aintrffs,V.

GENESIS HEALTHCARE SYSTEM,ef al.,

Defendants.

JUDGMENT ENTRY

For the reasons stated in the Court's Decision, rendered and filed in this action

on June 14, 2006, a copy of which is attached to this Entry and incorporated herein,

plaintiffs' complaint is DISMISSED as to all named defendants in this action upon the

ground that plaintiffs' complaint failed to comply with Civ. R. 10(D)(2).

IT IS SO ORDERED.

Ju e Mark C. Fleegle

APPROVED:

IiT 41 (.f !,̂v L

Rita Holbein, Co xecutor ofthe Estate of Ruth Holbein451 Forest AvenueZanesville, OH 43701

' /^ ^^'/^'-^ /Y^! [^.Z^`-ot^cE^

Rhoa Holbein, Co-Exe utor ofthe Estate of Ruth Holbein451 Forest AvenueZanesville, OH 43701

Remit^ger 8P^'4w Floor6'3 East Sta1s

Columbus, O1143215614/232-2437 Fax 614/232 2410mromanello@reminger.comAttomey for Defendants Said Hanna, M.D.and General and Vascular Surgery ofSoufheastem Ohio

Suibe 23808 James QourtZaneeMipe, OH 43702-0967Aitomey for Delfendanfs GeneslsHealthcare System, Mfchael Schuster,M.D., and Muskingum EmergencyPhyskians, Inc.

MR - HolbelnlHanna: Judgment Entry 061906