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Franklin County Ohio Clerk of Courts of the Common Pleas- 2024 Mar 21 10:32 AM-24CV000989
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IN THE COURT OF COMMON PLEAS OF
FRANKLIN COUNTY, OHIO
TINA G. WRIGHT,
Plaintiff, Case No. 24CV00989
VS. JUDGE C. AVENI
STEVE MARKOVICH, et al.,
Defendants.
DECISION AND ENTRY GRANTING DEFENDANTS’ MOTION TO DISMISS
FILED FEBRUARY 22, 2024
AND
DECISION AND ENTRY GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON
THE PLEADINGS FILED FEBRUARY 28, 2024
I Introduction
This matter is before the Court on Defendants’ Steve Markovich and OhioHealth’s Motion
to Dismiss filed February 22, 2024 and Defendants’ Motion for Judgment on the Pleadings filed
February 28, 2024. On March 4, 2024, Plaintiff filed a Memorandum in Opposition to Defendant’s
Motions. On March 6, 2024, Defendants filed a Consolidated Reply in Support of their Motions.
Defendants’ Motions are ripe for decision.
As an initial matter, the Court recognizes Plaintiff's status as a pro se litigant. To that end,
however, "[i]t 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." Arega v. Coleman, 10th Dist. Franklin
No. 15AP-629, 2015-Ohio-5242, { 12, quoting
Sabouri v. Ohio Dept. of Job & Family Servs., 145 Ohio App. 3d 651, 654, 763 N.E.2d 1238 (10th
Dist.2001)
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IL. Statement of the Case
On February 5, 2024, Plaintiff Tina G. Wright filed a Complaint initiating this
action. (See Compl.). The Complaint, in its entirety, states
Steve Markovich was made aware of a hanis crime involveing
medical malpractice of one of his staff members Dr. Robert Earll
Bartley and two of his resideing nurses A complaint was filed within
his disaplinary office and facts were found to be true
1) Medical malpractice/hanis
2) Failure to diagnoice and treat thereafter
3) Cover up the crime
4) Civil rights violations
5) Faluseification of medical records
Plaintiff has been made to suffer by any and all means possible and
all platforns closed to the truth and any type of treatment to rectify
the dammages the will altimedly lead to Wrights death before any
responsibility will be accounted for this type of hanis crime in which
his staff after the facts has been un apologetic and took no
accountability for the hanis crime that took place behind Grant
medical doors a dog would be gotten more attention
[Spelling as it appears in the original.] (/d.)
The core allegations in her Complaint are that Dr. Bartley, alongside two unnamed and
unidentified nurses, allegedly failed in their duty of care to the Plaintiff, resulting in unspecified
harm that could potentially lead to her future demise. (/d.) Importantly, the Court notes that
Plaintiff's Complaint was filed without any accompanying Affidavit of Merit or Motion for
Extension for purposes of submitting an Affidavit of Merit.
In addition, the Court notes that Plaintiffs Complaint fails to directly allege a date of when
the alleged conduct of Defendants occurred. However, Plaintiff attaches what appears to be
medical records to her Complaint, which contains an Operative Report dated March 19, 2013
Defendants assert that Plaintiff's Complaint’s Complaint is subject to dismissal on two
grounds: (1) that Plaintiff failed to submit an Affidavit of Merit or move for an extension of time
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to file an Affidavit of Merit in contravention of Civ.R. 10(D); and (2) that the Plaintiff's claims
are barred by the statute of repose set forth in R.C. 2305.113(C)(1). For the reasons that follow,
the Court finds that Defendants’ Motions well taken.
Til. Discussion
A. Plaintiff's Complaint is Subject to Dismissal for Failure to Attach an Affidavit
of Merit.
A motion to dismiss under Civ. R. 12(B)(6) for failure to state a claim is procedural and
tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. Of Commrs., 65
Ohio St.3d 545, 605 N.E.2d 378 (1992); Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 532
N.E.2d 753 (1988),
Ohio Civ. R. 10(D)(2), which requires a Complaint alleging a "medical claim" to be
accompanied by the filing of an Affidavit of Merit, creates a heightened burden of pleading. The
Supreme Court of Ohio has held that the proper response to a plaintiffs failure comply with Civ.R.
10(D)(2) is a motion to dismiss for failure to state a claim, pursuant to Civ.R. 12(B)(6). Fletcher
v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147
Notably, Civ.R. 10(D)(2)(b) provides Plaintiff the opportunity to "extend the period of time
to file an affidavit of merit" by allowing her to file a motion to extend the period of time. This
Motion must be filed with the Complaint and will only be granted for "good cause shown." Civ.R.
10(D)(2)(b).
Here, Plaintiff's Complaint clearly asserts medical claims. A medical claim is defined by
R.C, 2305.113 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,
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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 claims also include derivative claims for relief that arise from the medical diagnosis, care,
or treatment of a person. See R.C. 2305.113(E)(3)(a). Plaintiff's Complaint consists of medical
claims because it alleges medical malpractice by Dr. Robert Earll Bartley and two nurses. As such,
Plaintiff was required to submit an affidavit of merit with her Complaint, or request an extension
of time to file an affidavit of merit at the time she filed her Complaint. Here, Plaintiff neither filed
an Affidavit of Merit nor filed a Motion seeking additional time in which to obtain an Affidavit of
Merit with her Complaint. Accordingly, her Complaint is inadequate and therefore subject to
dismissal
B. Plaintiffs Complaint Is Subject to Dismissal With Prejudice Due to the
Expiration of the Statute of Repose.
“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, 971 N.E.2d 862, at
syllabus. However, in this case, the Court finds that because of the expiration of the statute of
repose, Plaintiffs Complaint is subject to dismissal with prejudice.
Defendants move for judgment on the pleadings pursuant to Civ.R. 12(C)!. Defendants
assert that Plaintiff's Complaint is barred by Ohio’s medical malpractice statute of repose set forth
in R.C. 2305.113(C)(1). The medical malpractice statute of repose places an absolute bar of four
1 Judgment on the pleadings under Civ.R. 12(C) operates like Civ.R. 12(B)(6) to dismiss a complaint, but is
applicable after the pleadings are closed and permits consideration of the Answer. See, State ex rel. Midwest Pride
IV, Inc., v. Pontius, 75 Ohio St.3d. 565, 1996-Ohio-459 (1996). Like Civ.R. 12(B)(6), Civ.R. 12(C) is used
specifically to resolve questions of law based upon pleadings. Jd., citing, Peterson v. Teodosio, 34 Ohio St.2d 161,
297 N.E.2d 113 (1973).
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years to file "medical claims" and that four years runs from the date of the alleged act of negligence.
R.C. 2305.113(C)(1) states: “No action upon a medical claim shall be commenced more than four
years after the occurrence of the act or omission constituting the alleged basis of the medical.,
claim.” The statute of repose: 1) is unaffected by whether or when the plaintiff suffers or discovers
a harm; 2) does not toll during litigation but continues to run from the alleged negligent act; 3) is
unaffected by Ohio's savings statute. See, Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-
6827, 173 N.E.3d 448, {| 8-10, citing CZS Corp. v. Waldburger, 573 U.S. 1, at 9, 134 S.Ct. 2175
(2014); see also, Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71
N.E3d 974
Here, Plaintiff's Complaint fails to state any facts to support her one paragraph of
conclusions that she suffered medical malpractice. However, attached to her Complaint, Plaintiff
provided the Operative Report indicating that Dr. Bartley performed a hip replacement surgery on
Plaintiff on March 19, 2013. The statute of repose, extending four years for claims related to the
surgery performed by Dr. Bartley, started on the date of the surgery due to the alleged negligence,
which occurred on March 19, 2013. As a result, this statute of repose concluded on March 19,
2017, approximately seven years ago. Consequently, any current attempts by Plaintiff to file claims
connected to the medical care provided by Dr. Bartley and the nurses in 2013 are barred by the
four-year medical claims statute of repose.
Accordingly, Plaintiffs Complaint is hereby DISMISSED WITH PREJDUICE.
**THIS IS A FINAL APPEALABLE ORDER.**
IT IS SO ORDERED.
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Copies to all counsel via electronic filing system.
Copy by regular mail to:
Tina G. Wright
2205 Atwood Terrace
Columbus, Ohio 43211
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Franklin County Court of Common Pleas
Date: 03-21-2024
Case Title: TINA WRIGHT -VS- LEGAL DEPARTMENT OHIO HEALTH ET
AL
Case Number: 24CV000989
Type: ENTRY
It Is So Ordered.
{9 :{\ ose
\ 4 KA
“ LAY
\. Nae
/s/ Judge Carl A. Aveni IT
Electronically signed on 2024-Mar-21 page 7 of 7
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Court Disposition
Case Number: 24CV000989
Case Style: TINA WRIGHT -VS- LEGAL DEPARTMENT OHIO
HEALTH ET AL
Case Terminated: 18 - Other Terminations
Final Appealable Order: Yes
Motion Tie Off Information:
1. Motion CMS Document Id: 24CV0009892024-02-2299910000
Document Title: 02-22-2024-MOTION TO DISMISS -
DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH
Disposition: MOTION GRANTED
2. Motion CMS Document Id: 24CV0009892024-02-2299900000
Document Title: 02-22-2024-MOTION - DEFENDANT: LEGAL
DEPARTMENT OHIO HEALTH - TO RECLASSIFY CASE & AMEND
Disposition: MOTION RELEASED TO CLEAR DOCKET
3. Motion CMS Document Id: 24CV0009892024-02-2899980000
Document Title: 02-28-2024-MOTION FOR JUDGMENT ON
PLEADINGS - DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH
Disposition: MOTION GRANTED
4. Motion CMS Document Id: 24CV0009892024-02-2999970000
Document Title: 02-29-2024-MOTION FOR JUDGMENT ON
PLEADINGS - DEFENDANT: LEGAL DEPARTMENT OHIO HEALTH
Disposition: MOTION RELEASED TO CLEAR DOCKET
5. Motion CMS Document Id: 24CV0009892024-03- 1999980000
Document Title: 03-19-2024-MOTION - DEFENDANT: LEGAL
DEPARTMENT OHIO HEALTH - TO ENFORCE CIV. R.5(B)
Disposition: MOTION RELEASED TO CLEAR DOCKET
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6. Motion CMS Document Id: 24CV0009892024-03- 1499980000
Document Title: 03-14-2024-MOTION TO STRIKE - DEFENDANT:
LEGAL DEPARTMENT OHIO HEALTH
Disposition: MOTION RELEASED TO CLEAR DOCKET
7. Motion CMS Document Id: 24CV0009892024-03-0899960000
Document Title: 03-08-2024-MOTION - PLAINTIFF: TINA WRIGHT
- MOTION
Disposition: MOTION RELEASED TO CLEAR DOCKET
8. Motion CMS Document Id: 24CV0009892024-03-0899980000
Document Title: 03-08-2024-MOTION TO STRIKE - DEFENDANT:
LEGAL DEPARTMENT OHIO HEALTH
Disposition: MOTION RELEASED TO CLEAR DOCKET
9. Motion CMS Document Id: 24CV0009892024-03-0799970000
Document Title: 03-07-2024-MOTION - PLAINTIFF: TINA WRIGHT
- MOTION
Disposition: MOTION RELEASED TO CLEAR DOCKET
10. Motion CMS Document Id: 24CV0009892024-03-0699980000
Document Title: 03-06-2024-MOTION - PLAINTIFF: TINA WRIGHT
Disposition: MOTION RELEASED TO CLEAR DOCKET
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11. Motion CMS Document Id: 24CV0009892024-03-0599960000
Document Title: 03-05-2024-MOTION - PLAINTIFF: TINA WRIGHT
- MOTION
Disposition: MOTION RELEASED TO CLEAR DOCKET
12. Motion CMS Document Id: 24CV0009892024-03-0599970000
Document Title: 03-05-2024-MOTION - PLAINTIFF: TINA WRIGHT
- MOTION
Disposition: MOTION RELEASED TO CLEAR DOCKET
13. Motion CMS Document Id: 24CV0009892024-03-0599980000
Document Title: 03-05-2024-MOTION - PLAINTIFF: TINA WRIGHT
- MOTION IN RESPONSE OF PLAINTIFF
Disposition: MOTION IS MOOT
14. Motion CMS Document Id: 24CV0009892024-03-0499970000
Document Title: 03-04-2024-MOTION - PLAINTIFF: TINA WRIGHT
Disposition: MOTION RELEASED TO CLEAR DOCKET
15. Motion CMS Document Id: 24CV0009892024-03-0499980000
Document Title: 03-04-2024-MOTION TO EXTEND TIME -
PLAINTIFF: TINA WRIGHT
Disposition: MOTION IS MOOT
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