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Motion No. 5104578
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO DISMISS
July 19,2023 10:31
By: BRET C. PERRY 0073488
Confirmation Nbr. 2913094
ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038
HARBAUGH
vs.
Judge: SHIRLEY STRICKLAND SAFFOLD
SOUTHWEST GENERAL, ET AL.
Pages Filed: 7
Electronically Filed 07/19/2023 10:31 / MOTION / CV 23 975038 / Confirmation Nbr. 2913094 / CLCEJ
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANDREW HARBAUGH, Individually ) Case No. CV 23 975038
and as Administrator of the Estate of John )
Harbaugh, ) Judge Shirley Strickland Saffold
)
Plaintiff, ) MOTION TO DISMISS ON BEHALF OF
) DEFENDANT JULIE ALJABI, RN
vs. )
)
SOUTHWEST GENERAL, et al. )
)
Defendants. )
)
)
Pursuant to Rules 10(D)(2) and 12(B)(6) of the Ohio Rules of Civil Procedure,
Defendant, Julie Aljabi, RN, (“RN Aljabi”), by and through counsel, hereby requests that this
Court issue an Order granting the instant Motion to Dismiss given Plaintiff’s continued failure to
submit an affidavit of merit in this medical malpractice action which meets the basic
requirements of Civ.R.10(D)(2), thereby failing to establish the Complaint’s adequacy against
RN Aljabi.
A. Plaintiff’s First Amended Complaint.
Plaintiff filed her First Amended Complaint adding RN Aljabi as a New Party Defendant.
On July 18, 2023, this Court granted Plaintiff leave to file the Affidavit of Dr. Sean Greenhalgh
pursuant to Civ.R. 10(D)(2). (See Court’s docket.) Further, this Court ordered that if this
Defendant intended to challenge the competency of Dr. Greenhalgh, that a motion to dismiss
shall be filed withing 14 days of this Court’s July 18, 2023 entry. (Id.)
Electronically Filed 07/19/2023 10:31 / MOTION / CV 23 975038 / Confirmation Nbr. 2913094 / CLCEJ
B. The Affidavit of Merit authored by Dr. Sean Greenhalgh does not
satisfy the mandates of Civ.R. 10(D)(2) as to New Party Defendant,
RN Aljabi.
The Affidavit of Merit, authored by Sean Greenhalgh, M.D., and attached to Plaintiff’s
Motion for Leave, does not satisfy the mandates of Civ.R. 10(D)(2) as to RN Aljabi. The
continued failure to comply with Civ.R. 10(D)(2) requires dismissal of Plaintiff’s First Amended
Complaint as to New Party Defendant, RN Aljabi.
Plaintiff’s First Amended Complaint sets forth claims of medical
negligence/survivorship, wrongful death, and loss of consortium. Plaintiff claims that the
decedent was evaluated in the Emergency Department at SWGHC, that he was provided
negligent care and treatment in the Emergency Department, and that he was discharged from the
Emergency Department which proximately caused his death. All of the care and treatment at
issue in this case involved emergency medicine care and treatment. This fact is not in
dispute.
Plaintiff alleges that the decedent presented to the Emergency Department at SWGHC
and came under the care of Co-Defendant, Dr. Shah. (Id. at ^19). Plaintiff claims that the
decedent was provided negligent medical care while a patient in the Emergency Department at
SWGHC. (Id. at ^17-20.) Plaintiff alleges that the decedent was discharged from the Emergency
Department and “[a]s a direct and proximate result of the negligence of all Defendants, jointly
and/or severally, Mr. Harbaugh suffered a ruptured abdominal aortic aneurysm that caused his
death.” (Id. at ^25).
On June 1, 2023, Plaintiff filed his First Amended Complaint, adding New Party
Defendant, Julie Aljabi, RN. (See Amended Complaint). RN Aljabi is an emergency medicine
registered nurse at SWGHC. In accordance, Plaintiff must produce an affidavit of merit authored
Electronically Filed 07/19/2023 10:31 / MOTION / CV 23 975038 / Confirmation Nbr. 2913094 / CLCEJ
2
by an expert familiar with the standard of care required of an emergency medicine registered
nurse1.
Rather than submit an affidavit from an expert familiar with the standard of care required
of an emergency medicine registered nurse, Plaintiff has submitted the Affidavit of Dr. Sean
Greenhalgh, a hospital medicine physician. Specifically, Dr. Greenhalgh’s Affidavit states:
• I have specialized knowledge, skill, experience, training,
and education and specialize my practice in the field of
hospital medicine.
(Exhibit A.)
As noted above, this case involves the care and treatment of a patient in the Emergency
Department. This case has no claim related to inpatient hospital medicine, the specialty area of
Dr. Greenhalgh. Indeed, as noted in Plaintiff’s Complaint, the decedent was never admitted to
the hospital and was discharged from the ED by Co-Defendant. Further, if Dr. Greenhalgh was
familiar with the standard of care applicable to an emergency medicine registered nurse, he
would have certainly stated the same in his Affidavit. The absence of any affirmation
concerning the same while knowing full well this case relates to the treatment of a patient in the
Emergency Department speaks volumes as to Dr. Greenhalgh’s competency and this Court
should not endorse or condone Plaintiff’s blatant attempt to ignore the mandates of Civ.R. 10.
Dr. Greenhalgh’s Affidavit fails to state that he is familiar with the standard of care
required of an emergency medicine registered nurse, or that his specialty (hospital medicine)
sufficiently overlaps with the practice area of RN Aljabi. The standard of care required of a
hospital medicine physician caring for patients admitted to the hospital is vastly different than
the standard of care required of emergency medicine providers, including registered nurses such
1 Defendants incorporate the prior arguments, and law, set forth in Defendants’ Motion to
dismiss filed on June 7, 2023.
Electronically Filed 07/19/2023 10:31 / MOTION / CV 23 975038 / Confirmation Nbr. 2913094 / CLCEJ
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as RN Aljabi. Permitting Plaintiff to pursue a medical malpractice claim against RN Aljabi
based on the incompetent Affidavit of Dr. Greenhalgh would run counter to the purpose of
Civ.R. 10.
Herein, Plaintiff has repeatedly failed to produce an affidavit of merit from an expert
competent to opine as to the standard of care required of an emergency medicine registered
nurse. RN Aljabi should not be forced to litigate this action based on the defective and
incompetent Affidavit of Dr. Greenhalgh, an expert that admittedly practices hospital medicine -
a specialty area unrelated to the practice of emergency medicine nursing. Accordingly, Plaintiffs
Complaint must be dismissed as against RN Aljabi.
For all the foregoing reasons, defendant, Julie Aljabi, RN, requests that this Court issue
an Order granting this Defendant’s Motion to dismiss due to Plaintiffs failure to establish the
sufficiency of his claims pursuant to Civ.R. 10.
Bret C. Perry, B^q. JJ0073488)
Christopher F. ars, Bsq. (0091604)
Bonezzi Switzer Polito & Perry Co. L.P.A.
1300 Bast 9th Street, Suite 1950
Cleveland, Ohio 44114-1501
Office: (216) 875-2767
Facsimile: (216) 875-1570
B-mail: bperry@bspplaw.com
cmars@bspplaw.com
Attorneys for Defendants, Southwest General,
Southwest General Health Center, Southwest
General Medical Group, Inc., University Hospitals
Health System, Inc., University Hospitals Medical
Group, Inc., and Julie Aljabi, R.N.
Electronically Filed 07/19/2023 10:31 I MOTION ICV 23 975038 I Confirmation Nbr. 2913094 I CLCEJ
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CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of July, 2023, a copy of the foregoing document was
filed electronically pursuant to Civ. R. 5(B)(2)(f). Notice of this filing will be sent via operation
of the Court’s electronic filing system to all parties indicated on the electronic filing receipt.
Bret C. Perry, Esq. (P0J3488)
Christopher F. Mars"Esq. (0091604)
Attorneys for Defendants, Southwest General,
Southwest General Health Center, Southwest
General Medical Group, Inc., University Hospitals
Health System, Inc., University Hospitals Medical
Group, Inc., and Julie Aljabi, R.N.
Electronically Filed 07/19/2023 10:31 I MOTION ICV 23 975038 I Confirmation Nbr. 2913094 I CLCEJ
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EXHIBIT 1
In the State of Illinois )
AFFIDAVIT OF MERIT
In the County of )
Affiant, Sean Greenhalgh, M.D., being first duly sworn according to law, deposes
and states:
1. lam above the age of majority and have personal knowledge of the matters set: forth
herein.
2. I am a physician licensed to practice medicine in the state of Illinois and devote at
least 50% of my professional time to the active clinical practice of medicine.
3. I have specialized knowledge, skill, experience, training, and education and
specialize my practice in the field of hospital medicine.
,4- I have reviewed all medical records of John Harbaugh reasonably available and
{ concerning the allegations in the Amended Complaint.
5. I am familiar with the applicable standard of care in treating patients like Harbaugh.
6. It is my opinion, to a reasonable degree of medical probability, that Julie Aljabi,
RN breached the standard of care:, and that said breach was a direct and proximate
cause of harm, and damages to John Harbaugh.
7. My opinion is based on reliable medical infonnation, my experience, training. and
education.
BATCH
CLCEJ
EXHIBIT A
FURTHER AFFIANT SAYETH NAUGHT
SEAN GREENHAtoCFACP, FHM
SWORN TO AND SUBSCRIBED in my presence, this day of
- T
, 2023.
S NADARAJAH
Official Seal
Notary Public - State of Illinois
My Commission Expires Jan 12, 202
El@§tF@Rl§ally Filed O7//19/2023 10:31 / MOTION / CV 23 975038 Nb. 2&MZS4 // CLCEJ
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Motion No. 5104578 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO DISMISS July 19,2023 10:31 By: BRET C. PERRY 0073488 Confirmation Nbr. 2913094 ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038 HARBAUGH vs. Judge: SHIRLEY STRICKLAND SAFFOLD SOUTHWEST GENERAL, ET AL. Pages Filed: 7 Electronically Filed 07/19/2023 10:31 / MOTION / CV 23 975038 / Confirmation Nbr. 2913094 / CLCEJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ANDREW HARBAUGH, Individually ) Case No. CV 23 975038 and as Administrator of the Estate of John ) Harbaugh, ) Judge Shirley Strickland Saffold ) Plaintiff, ) MOTION TO DISMISS ON BEHALF OF ) DEFENDANT JULIE ALJABI, RN vs. ) ) SOUTHWEST GENERAL, et al. ) ) Defendants. ) ) ) Pursuant to Rules 10(D)(2) and 12(B)(6) of the Ohio Rules of Civil Procedure, Defendant, Julie Aljabi, RN, (“RN Aljabi”), by and through counsel, hereby requests that this Court issue an Order granting the instant Motion to Dismiss given Plaintiff’s continued failure to submit an affidavit of merit in this medical malpractice action which meets the basic requirements of Civ.R.10(D)(2), thereby failing to establish the Complaint’s adequacy against RN Aljabi. A. Plaintiff’s First Amended Complaint. Plaintiff filed her First Amended Complaint adding RN Aljabi as a New Party Defendant. On July 18, 2023, this Court granted Plaintiff leave to file the Affidavit of Dr. Sean Greenhalgh pursuant to Civ.R. 10(D)(2). (See Court’s docket.) Further, this Court ordered that if this Defendant intended to challenge the competency of Dr. Greenhalgh, that a motion to dismiss shall be filed withing 14 days of this Court’s July 18, 2023 entry. (Id.) Electronically Filed 07/19/2023 10:31 / MOTION / CV 23 975038 / Confirmation Nbr. 2913094 / CLCEJ B. The Affidavit of Merit authored by Dr. Sean Greenhalgh does not satisfy the mandates of Civ.R. 10(D)(2) as to New Party Defendant, RN Aljabi. The Affidavit of Merit, authored by Sean Greenhalgh, M.D., and attached to Plaintiff’s Motion for Leave, does not satisfy the mandates of Civ.R. 10(D)(2) as to RN Aljabi. The continued failure to comply with Civ.R. 10(D)(2) requires dismissal of Plaintiff’s First Amended Complaint as to New Party Defendant, RN Aljabi. Plaintiff’s First Amended Complaint sets forth claims of medical negligence/survivorship, wrongful death, and loss of consortium. Plaintiff claims that the decedent was evaluated in the Emergency Department at SWGHC, that he was provided negligent care and treatment in the Emergency Department, and that he was discharged from the Emergency Department which proximately caused his death. All of the care and treatment at issue in this case involved emergency medicine care and treatment. This fact is not in dispute. Plaintiff alleges that the decedent presented to the Emergency Department at SWGHC and came under the care of Co-Defendant, Dr. Shah. (Id. at ^19). Plaintiff claims that the decedent was provided negligent medical care while a patient in the Emergency Department at SWGHC. (Id. at ^17-20.) Plaintiff alleges that the decedent was discharged from the Emergency Department and “[a]s a direct and proximate result of the negligence of all Defendants, jointly and/or severally, Mr. Harbaugh suffered a ruptured abdominal aortic aneurysm that caused his death.” (Id. at ^25). On June 1, 2023, Plaintiff filed his First Amended Complaint, adding New Party Defendant, Julie Aljabi, RN. (See Amended Complaint). RN Aljabi is an emergency medicine registered nurse at SWGHC. In accordance, Plaintiff must produce an affidavit of merit authored Electronically Filed 07/19/2023 10:31 / MOTION / CV 23 975038 / Confirmation Nbr. 2913094 / CLCEJ 2 by an expert familiar with the standard of care required of an emergency medicine registered nurse1. Rather than submit an affidavit from an expert familiar with the standard of care required of an emergency medicine registered nurse, Plaintiff has submitted the Affidavit of Dr. Sean Greenhalgh, a hospital medicine physician. Specifically, Dr. Greenhalgh’s Affidavit states: • I have specialized knowledge, skill, experience, training, and education and specialize my practice in the field of hospital medicine. (Exhibit A.) As noted above, this case involves the care and treatment of a patient in the Emergency Department. This case has no claim related to inpatient hospital medicine, the specialty area of Dr. Greenhalgh. Indeed, as noted in Plaintiff’s Complaint, the decedent was never admitted to the hospital and was discharged from the ED by Co-Defendant. Further, if Dr. Greenhalgh was familiar with the standard of care applicable to an emergency medicine registered nurse, he would have certainly stated the same in his Affidavit. The absence of any affirmation concerning the same while knowing full well this case relates to the treatment of a patient in the Emergency Department speaks volumes as to Dr. Greenhalgh’s competency and this Court should not endorse or condone Plaintiff’s blatant attempt to ignore the mandates of Civ.R. 10. Dr. Greenhalgh’s Affidavit fails to state that he is familiar with the standard of care required of an emergency medicine registered nurse, or that his specialty (hospital medicine) sufficiently overlaps with the practice area of RN Aljabi. The standard of care required of a hospital medicine physician caring for patients admitted to the hospital is vastly different than the standard of care required of emergency medicine providers, including registered nurses such 1 Defendants incorporate the prior arguments, and law, set forth in Defendants’ Motion to dismiss filed on June 7, 2023. Electronically Filed 07/19/2023 10:31 / MOTION / CV 23 975038 / Confirmation Nbr. 2913094 / CLCEJ 3 as RN Aljabi. Permitting Plaintiff to pursue a medical malpractice claim against RN Aljabi based on the incompetent Affidavit of Dr. Greenhalgh would run counter to the purpose of Civ.R. 10. Herein, Plaintiff has repeatedly failed to produce an affidavit of merit from an expert competent to opine as to the standard of care required of an emergency medicine registered nurse. RN Aljabi should not be forced to litigate this action based on the defective and incompetent Affidavit of Dr. Greenhalgh, an expert that admittedly practices hospital medicine - a specialty area unrelated to the practice of emergency medicine nursing. Accordingly, Plaintiffs Complaint must be dismissed as against RN Aljabi. For all the foregoing reasons, defendant, Julie Aljabi, RN, requests that this Court issue an Order granting this Defendant’s Motion to dismiss due to Plaintiffs failure to establish the sufficiency of his claims pursuant to Civ.R. 10. Bret C. Perry, B^q. JJ0073488) Christopher F. ars, Bsq. (0091604) Bonezzi Switzer Polito & Perry Co. L.P.A. 1300 Bast 9th Street, Suite 1950 Cleveland, Ohio 44114-1501 Office: (216) 875-2767 Facsimile: (216) 875-1570 B-mail: bperry@bspplaw.com cmars@bspplaw.com Attorneys for Defendants, Southwest General, Southwest General Health Center, Southwest General Medical Group, Inc., University Hospitals Health System, Inc., University Hospitals Medical Group, Inc., and Julie Aljabi, R.N. Electronically Filed 07/19/2023 10:31 I MOTION ICV 23 975038 I Confirmation Nbr. 2913094 I CLCEJ 4 CERTIFICATE OF SERVICE I hereby certify that on this 19th day of July, 2023, a copy of the foregoing document was filed electronically pursuant to Civ. R. 5(B)(2)(f). Notice of this filing will be sent via operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. Bret C. Perry, Esq. (P0J3488) Christopher F. Mars"Esq. (0091604) Attorneys for Defendants, Southwest General, Southwest General Health Center, Southwest General Medical Group, Inc., University Hospitals Health System, Inc., University Hospitals Medical Group, Inc., and Julie Aljabi, R.N. Electronically Filed 07/19/2023 10:31 I MOTION ICV 23 975038 I Confirmation Nbr. 2913094 I CLCEJ 5 EXHIBIT 1 In the State of Illinois ) AFFIDAVIT OF MERIT In the County of ) Affiant, Sean Greenhalgh, M.D., being first duly sworn according to law, deposes and states: 1. lam above the age of majority and have personal knowledge of the matters set: forth herein. 2. I am a physician licensed to practice medicine in the state of Illinois and devote at least 50% of my professional time to the active clinical practice of medicine. 3. I have specialized knowledge, skill, experience, training, and education and specialize my practice in the field of hospital medicine. ,4- I have reviewed all medical records of John Harbaugh reasonably available and { concerning the allegations in the Amended Complaint. 5. I am familiar with the applicable standard of care in treating patients like Harbaugh. 6. It is my opinion, to a reasonable degree of medical probability, that Julie Aljabi, RN breached the standard of care:, and that said breach was a direct and proximate cause of harm, and damages to John Harbaugh. 7. My opinion is based on reliable medical infonnation, my experience, training. and education. BATCH CLCEJ EXHIBIT A FURTHER AFFIANT SAYETH NAUGHT SEAN GREENHAtoCFACP, FHM SWORN TO AND SUBSCRIBED in my presence, this day of - T , 2023. S NADARAJAH Official Seal Notary Public - State of Illinois My Commission Expires Jan 12, 202 El@§tF@Rl§ally Filed O7//19/2023 10:31 / MOTION / CV 23 975038 Nb. 2&MZS4 // CLCEJ