Preview
Motion No. 5095432
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO DISMISS
June 7,2023 08:10
By: BRET C. PERRY 0073488
Confirmation Nbr. 2876708
ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038
HARBAUGH
vs.
Judge: SHIRLEY STRICKLAND SAFFOLD
SOUTHWEST GENERAL, ET AL.
Pages Filed: 23
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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
) NEW PARTY DEFENDANT JULIE
vs. ) ALJABI, RN
)
SOUTHWEST GENERAL, et al. )
)
Defendants. )
)
Pursuant to Rules 10(D)(2) and 12(B)(6) of the Ohio Rules of Civil Procedure, New
Party Defendant, Julie Aljabi, RN, (“RN Aljabi”), by and through counsel, hereby requests that
this Court dismiss Plaintiff's Amended Complaint against her. Plaintiff did not provide this
Court with 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.
Specifically, Plaintiff’s Affidavit of Merit, authored by Sorabh Khandelwal, M.D., fails
to identify which medical providers breached the standard of care and proximately caused injury
and death to the decedent. Rather, Dr. Khandelwal asserts a blanket allegation that “all
Defendants breached the standard of care, and that said breach was a direct and proximate cause
of harm, injury and damages to John Harbaugh.” Further, Dr. Khandelwal’s Affidavit, filed four
months before RN Aljabi was added as a party to this litigation, does not state that he is familiar
with the standard of care applicable to registered nurses, as required by Civ.R.10(D)(2)(a)(ii).
Accordingly, Dr. Khandelwal’s Affidavit of Merit does not meet the requirements
contained within Civ.R. 10(D)(2) to establish the sufficiency of Plaintiff’s claims against RN
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Aljabi. As such, RN Aljabi requests that this Court dismiss Plaintiff's Amended Complaint as
against RN Aljabi.
A Brief in Support of this Request is attached hereto and incorporated herein.
Res
Bret C. Perry, Esq./0Q73488)
Bonezzi Switzer Polito & Hupp Co. L.P.A.
1300 East 9th Street, Suite 1950
Cleveland, Ohio 44114-1501
Office: (216) 875-2767
Facsimile: (216) 875-1570
E-mail: bperry@bsphlaw.com
egutbrod@bsphlaw.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, RN
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BRIEF IN SUPPORT
I. STATEMENT OF FACTS AND CASE
Plaintiff filed his Original Complaint on February 10, 2023, alleging claims of medical
negligence/survivorship, wrongful death, and loss of consortium. (See Original Complaint).
Plaintiff alleged that “[o]n February 16, 2022, Mr. Harbaugh was discovered deceased in his
home. His cause of death was determined to be a ruptured abdominal aortic aneurysm.” (Id. at
^19). Plaintiff alleges that “[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).
In support of his claims, Plaintiff submitted the Affidavit of Merit of Sorabh Khandelwal,
M.D.1 Dr. Khandelwal avers in relevant part, that “all Defendants breached the standard of care,
and that said breach was a direct and proximate cause of harm, injury, and damages to John
Harbaugh.” (Affidavit of Merit of Sorabh Khandelwal, attached as Exhibit A, at ^6).
On June 1, 2023, Plaintiff filed his Amended Complaint, adding new party defendant,
Julie Aljabi, RN. (See Amended Complaint). Plaintiff alleges the same claims of medical
negligence/survivorship, wrongful death, and loss of consortium. Id. Significantly, Plaintiff
submitted the exact same Affidavit of Merit, signed February 2023, by Dr. Khandelwal, for the
purpose of satisfying Civ.R. 10(D) as to this new party defendant.
The general and vague language of “all Defendants” is insufficient under Ohio law to set
forth viable medical claims against a healthcare provider pursuant to Civ.R.10(D)(2).
1 In submitting an Affidavit of Merit, Plaintiff admits that he asserts “medical claims” as defined
by R.C. 2305.113(E) and thus subject to the affidavit of merit requirement contained within
Civ.R. 10. As such, any discussion of whether Plaintiff asserts medical claims is omitted for
purposes of brevity.
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Further, a physician submitting an affidavit of merit must aver that he is familiar with the
standard of care relative to each individually named defendant. Dr. Khandelwal authored the
Affidavit in February 2023 well prior to New Party Defendant RN Aljabi being added to this
action. Thus, the Affidavit of Merit could not have possibly contemplated RN Aljabi or the
standard of care applicable to a registered nurse. Indeed, nowhere in Dr. Khandelwal's Affidavit
does he state that he is familiar with the standard of care required of registered nurses. Further,
and most damaging, it is inconceivable that Plaintiff would not have named RN Aljabi in the
original Complaint had Dr. Khandelwal opined that she was negligent, or that he was competent
to opine as to the standard of care required of a nurse.
Dr. Khandelwal's Affidavit of Merit does not satisfy the requirements of
Civ.R. 10(D)(2)(a) and thus fails to establish the adequacy of Plaintiffs claims against RN
Aljabi. Accordingly, RN Aljabi requests that this Court dismiss Plaintiffs Complaint against her
without prejudice.
II. LAW AND ARGUMENT
A. Civil Rule 10(D) standard.
Pursuant to Civ. R. 10(D)(2), a complaint that contains a medical claim as defined in
section 2305.113(E) shall include an affidavit of merit relative to each named defendant
authored by an expert witness qualified under Evid. R. 601(D) and 702. Specifically, Civ. R.
10(D)(2)(a) provides, in part:
Except as provided in division (D)(2)(b) of this rule, a complaint
that contains a medical claim * * * as defined in section 2305.113
of the Revised Code, shall include an affidavit of merit relative to
each defendant named in the complaint for whom expert
testimony is necessary to establish liability. * * *.
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Civ. R. 10(D)(2)(d) states: “An affidavit of merit is required to establish the adequacy of
the complaint and shall not otherwise be admissible as evidence or used for purposes of
impeachment. Any dismissal for the failure to comply with this rule shall operate as a failure
otherwise than on the merits.” (Emphasis added.)
In Fletcher v. Univ. Hosp. of Cleveland, 120 Ohio St.3d 167, (2008)the Ohio Supreme
Court affirmed the trial court's dismissal of plaintiff’s Complaint for medical malpractice for
failure to produce the required Affidavit of Merit holding that that in a medical malpractice
action, the plaintiff’s failure to submit the required Affidavit of Merit, at the time of filing of her
Complaint, requires an entry of dismissal, without prejudice, for failure to comply with Civ.R.
10(D).
B. Dr. Khandelwal’s Affidavit of Merit fails to specify which Defendants
breached the standard of care, in direct contravention of
Civ.R.10(D)(2) and Ohio law.
Dr. Khandelwal’s Affidavit of Merit alleges that “all Defendants breached the standard of
care, and that said breach was a direct and proximate cause of harm, injury and damages to John
Harbaugh.” (Exhibit A). Ohio courts have held that similar vague statements are insufficient to
comply with the explicit mandates of Civ.R.10(D). For example, this Court recently struck an
affidavit of merit because the physician failed to opine which medical providers breached the
standard of care. (See Porach v. Cleveland Clinic Foundation, et al., Cuyahoga County Case No.
CV-21-951859, Journal Entry attached as Exhibit B). In Porach, the insufficient affidavit of
merit stated that the breaches in the standards of care was the responsibility of the “healthcare
providers involved in the ordering and administration of the [morphine].” Id. This Court found
this statement “fail[ed] to sufficiently identify, which, if any, of the individually named
defendants breached the standard of care owed to the plaintiff.” Id.
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Similarly, in Williams, the plaintiff submitted an affidavit of merit that averred that “as a
result of the negligence by Cleveland Clinic Staff, Mrs. Tangenia Williams suffered a severe
transfusion reaction ... This led to her immediate cardiac arrest and death.” See Williams v.
Cleveland Clinic Foundation, et al., Cuyahoga County Case No. CV 23-973539, Journal Entry
attached as Exhibit C). The defendants moved for dismissal, arguing that the vagueness of
“Cleveland Clinic Staff’ did not specify who breached the standard of care. The Honorable
Judge Ashley Kilbane agreed, dismissing the complaint and holding that “Cleveland Clinic
Staff’ “fails to identify the specific individuals what breached the applicable standard.” Id. at
p.7). See also, e.g., Woods v. Riverside Methodist Hosp., Franklin 10th Dist. 2012-Ohio-3139,
^14 (the court deemed ‘one or more of the defendants’ was insufficient for Civ.R.10); Robinson
Mem'l Hosp. Found., 11th Dist. 2017-Ohio-2600, ‘'49 (‘one or more defendants’ insufficient);
Sam Ebie v. UH Portage Medical Center, et al., Portage County No. 2016CV01081, Journal
Entry Attached as Exhibit D (‘the Defendants named in the Complaint’ deemed insufficient).
Plaintiff’s blanket assertion that “all Defendants” breached the standard of care is even
more vague and unspecific than Williams (“Cleveland Clinic staff”) or Porach (“healthcare
providers involved in the ordering and administration of morphine”), supra. Permitting Plaintiff
to pursue a medical malpractice claim against multiple unnamed Defendants with an Affidavit
from an Affiant who fails to state who breached the standard of care does not satisfy the purpose
of Civ.R. 10. The Affidavit of Plaintiff is in clear violation of Civ.R. 10(D) and very purpose for
which Civ.R. 10(D) was promulgated; that is, to ensure that only meritorious medical
malpractice claims are filed, and to reduce or eliminate the costs associated with unsubstantiated
medical malpractice claims. See Fletcher, 2008-Ohio-5379, 10. Indeed, the Affidavit is entirely
insufficient as against RN Aljabi, who was not added as a party to this litigation until four
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months after Dr. Khandelwal authored his affidavit. Clearly, Dr. Khandelwal could not have
possibly contemplated the standard of care of a registered nurse in his authoring of the affidavit,
or included RN Aljabi in his opinion, because if Dr. Khandelwal believed RN Aljabi violated the
standard of care, Plaintiff would have named her as a Defendant at the time of filing this action.
(Exhibit A). Moreover, Dr. Khandelwal does not state anywhere in the Affidavit that he is
familiar with the standard of care required of nurses in direct violation of Civ.R. 10(D)(2)(a)(ii).
Plaintiff's Affidavit of Merit, authored by Sorabh Khandelwal, M.D., falls below the
minimum requirements demanded by Civ.R.10(D)(2) and therefore, Plaintiff has failed to
establish the sufficiency of her claims against RN Aljabi.
Accordingly, Plaintiff's Complaint must be dismissed as against RN Aljabi.
III. CONCLUSION
For all the foregoing reasons, new party defendant, Julie Aljabi, RN, requests that this
Court issue an Order dismissing Plaintiff's Complaint against her for Plaintiff's failure to
establish the sufficiency of his claims pursuant to Civ.R. 10.
_____ _ ________ _____________
Bret C. Perry, Esq. (0073488)
Bonezzi Switzer Polito& Hupp Co. L.P.A.
1300 East 9th Street, Suite 1950
Cleveland, Ohio 44114-1501
Office: (216) 875-2767
Facsimile: (216) 875-1570
E-mail: bperry@bsphlaw.com
egutbrod@bsphlaw.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, RN
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CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of June, 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. (0073488)
Elena M. Gutbrod, (0102480)
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, RN
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EXHIBIT 2
In the of Ohio )
AFFIDAVIT OF MERIT
In the County of ^(AYC-hA )
Akfi^mtt, Sorabh Khandelwal, MD, 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 Ohio 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 emergency medicine.
4. I have reviewed all medical records of John Harbaugh reasonably available and
concerning the allegations in the Conplamt.
w
5. I am familiar with the applicable standard of care in treating patients like John
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CV 239750381ConfirmationNbr.2773327/
Harbaugh.
6. It is my opinion, to a reasonable degree of medical probability, that all Defendants
breached the standard of care, and that said breach was a direct and proximate cause
of harm, injury and damages to John Harbaugh.
7. My opinion is based on reliable medical information, my experience, training, and
education.
//
EXHIBIT A
i
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FURTHER AFFIANT SAYETH NAUGHT
Pebxw4 , 2023.
JENNIFER ALLEN
Notary Public
State of Ohio
My Comm. Expires
March 8, 2027
->
-J
o
ICV 239750381ConfirmationNbr.2773327/
/
2
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130978560
130978560
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
SUSAN PORACH ADMINISTRATOR Case No: CV-21-951859
Plaintiff
Judge: KELLY ANN GALLAGHER
CLEVELAND CLINIC FOUNDATION, ET AL
Defendant
JOURNAL ENTRY
DEFENDANTS CLEVELAND CLINIC REHABILITATION HOSPITAL, AVON, SELECT MEDICAL CORPORATION, AND
SHAWNA SULTZER, R.N.'S MOTION TO JOIN IN CO-DEFENDANT'S MOTION TO STRIKE AND MOTION TO DISMISS,
FILED 06/30/2022, IS GRANTED.
DEFENDANT SHERRI WHITAKER, CNP'S MOTION TO STRIKE AND MOTION TO DISMISS, FILED 06/29/2022, AND
JOINED BY CO-DEFENDANTS DEFENDANTS CLEVELAND CLINIC REHABILITATION HOSPITAL, AVON, SELECT
MEDICAL CORPORATION, AND SHAWNA SULTZER, R.N. IS GRANTED AND DENIED IN PART.
THE COURT GRANTS THE MOTION INASMUCH AS THE COURT DECLARES THAT THE AFFIDAVIT OF MERIT
SUBMITTED BY PLAINTIFF ON 02/17/2022 IS DEFECTIVE AND DOES NOT MEET THE REQUIREMENTS OF CIV. R.
10(D)(2). SPECIFICALLY, THE COURT FINDS THAT THE PHRASE "HEALTHCARE PROVIDERS INVOLVED IN THE
ORDERING AND ADMINISTRATION OF THE SAME" AS USED IN U 4 OF THE AFFIDAVIT FAILS TO SUFFICIENTLY
IDENTIFY, WHICH, IF ANY, OF THE INDIVIDUALLY-NAMED DEFENDANTS BREACHED THE STANDARD OF CARE
OWED TO PLAINTIFF.
ACCORDINGLY, PURSUANT TO CIV. R. 10(D)(2)(E), THE COURT GRANTS PLAINTIFF AN ADDITIONAL SIXTY (60)
DAYS FROM THE DATE OF THIS ORDER TO FILE AN AFFIDAVIT OF MERIT WHICH CURES THE CITED DEFECT(S).
DISCOVERY OF MEDICAL RECORDS OR OTHER DISCOVERY PERTINENT TO FILING THE CURED AFFIDAVIT OF
MERIT IS PERMITTED.
DEFENDANTS' MOTION IS DENIED IN ALL OTHER RESPECTS (I.E., DISMISSING FOR FAILURE TO STATE A CLAIM
UNDER CIV. R. 12(B)(6)).
CMC BY PHONE SET FOR 12/29/2022 AT 09:30 AM. PLAINTIFF'S COUNSEL TO INITIATE THE CONFERENCE CALL
AND THEN CONTACT THE COURT'S STAFF ATTORNEY AT (216) 443-8609 ONCE ALL PARTIES ARE ON THE LINE.
Judge Signature 10/11/2022
10/11/2022
EXHIBIT B
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NAILAH K. BYRD, CLERK
Page 1 of 1
146542815
46542815
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
LEE WILLIAMS, INDIVIDUALLY AND AS Case No: CV-23-973539
ADMINISTRATOR
Plaintiff Judge: ASHLEY KILBANE
CLEVELAND CLINIC FOUNDATION, ET AL
Defendant
JOURNAL ENTRY
FOR THE REASONS SET FORTH IN THE ATTACHED MEMORANDUM OF OPINION AND ORDER, THE COURT FINDS
AS FOLLOWS:
DEFENDANTS' MOTION TO STRIKE AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR FAILURE TO COMPLY
WITH CIV. R. 10(D)(2), FILED 02/28/2023, IS GRANTED. PLAINTIFF IS GRANTED 60 DAYS TO FILE AN AMENDED
AFFIDAVIT OF MERIT CURING THE DEFECTS RAISED BY DEFENDANTS.
DEFENDANTS' MOTION FOR LEAVE TO PLEAD AND STAY DISCOVERY, FILED 02/14/2023, IS GRANTED.
DISCOVERY, EXCEPT FOR THE PRODUCTION OF RELEVANT MEDICAL RECORDS, IS STAYED AND DEFENDANTS
ARE GRANTED LEAVE TO ANSWER OR OTHERWISE PLEAD IN RESPONSE TO PLAINTIFF'S COMPLAINT UNTIL
FOURTEEN (14) DAYS AFTER PLAINTIFF FILES AN AMENDED AFFIDAVIT.
- O.S.J. -
'O.S.l. -
Judge Signature Date
r--- >
f — r J
-T-
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05/11/2023
EXHIBIT C Page 1 of 1
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
LEE WILLIAMS, Individually, and as
)
)
Administrator of the Estate of CASE NO. CV-23-973539
TANGENIA WILLIAMS, )
)
Plaintiff, )
)
v. ) MEMORANDUM OF OPINION
) AND ORDER
CLEVELAND CLINIC FOUNDATION,)
et al., )
)
Defendants. )
KILBANE, J.:
Before the Court is Defendants’ Motion to Strike and Motion to Dismiss Plaintiffs
Complaint for Failure to Comply with Civ. R. 10(D)(2) filed by Defendants Cleveland
Clinic Foundation (“CCF”) and Cleveland Clinic Hospital Main Campus (“CCHMS”
together with CCF hereinafter referred to as “Defendants”), Plaintiffs’ Brief in Opposition
to Defendants’ Motion to Strike and Motion to Dismiss filed by Lee Williams, Individually,
and as Administrator of the Estate of Tangenia Williams (“Plaintiff’), and Defendants’
Reply in Support of Their Motion to Strike and Motion to Dismiss, along with all exhibits
attached thereto.
Also before the Court is Defendants’ Motion for Leave to Plead and Stay Discovery.
Plaintiff has not opposed Defendants’ Motion for Leave to Plead and Stay Discovery. For
the reasons discussed below, Defendants’ Motions are granted. However, pursuant to Rule
10(D)(2)(e), Plaintiff is granted leave to cure the defective affidavit of merit, consistent
with this order.
FACTS & PROCEDURAL HISTORY
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In Plaintiffs’ Complaint for Medical I Wrongful Death, Plamtiff alleges
that on July 18, 2021, Tangenia Williams (“Decedent”) was “admitted to the MICU at
Cleveland Clinic Hospital Main Campus for initiation oJ C^T1 and further management
of acute blood loss anemia.” Complaint,^ 11. During Decedent’s ftay, she received several
blood transfusion. Id. at r2. Plamtiff allegef that ot l^ast ojj of those transfusions was
negligently mishandled or the blood was otherwiff contaminatef. JjJ at ^13-14. Plaintiff
asserts that as a result of Defendants’ negligence, “Decedent had a transfusion reaction,
experienced pain and suffermg, mental anguish and subsequently died on July 24, 2f 21.”
Id. at 115.
On January 9, 2023, Plaintiff filed the Complaint, asserting claims for “Medical
Negligence, Professional Torts and/or General Negiigence/Survivorship,” “Wrongful
Death,” and “Punitive Damages.” M at p. 3-6. Plaintiff contemporaneously filed Plaintiff’s
Motion for Extension of Time to File AffidavltsfMerit, which this Court granted. See
Journal Entres filed January 23, 2023.
Before Plaintiff filed an affidavit of merit, Defendants filed their Motion for Leave
to Plead and Stay Discovery. Plaintiff filed an affidavitsf merit fhortly thereafter. The
affidavit of merit is authored and signed by David Grundyf M.D., and states as followo:
Affiant, David Grundy, M.D. swears and affirms the following
information to be true to the best of hls kiswledge.
1. Affiant is a board-certified physician licensed to
practice medicine in the states of Kentucky, Indiana,
and California who dedicates greater than 75% of .
his time to the active clinical practice of medicine.
1 Based on Car allegitions, “CRRT” likely meant “ccnCinuous reual repidoimeni therapy,”
which is used to treat kidney conditions.
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2. Affiant is Board Certified and is familiar with the
medical standard of care in this case.
3. Affiant has reviewed the medical records provided
by counsel for the estate of Mrs. Tangenia Williams
concerning the allegations in this matter.
4. Affiant opines, with reasonable medical certainty,
that the medical daeatment performed on MrSa
Tangenia Williams by the Cleveland Clinic was
beneath reasonable and accepted standards of care
and was otherwise negligent.
5. Affiant further opines, with reasonable medical
certainty, that as a t^^^ult of the negiigence by
Cleveland Clinic staff, Mrs. Tangenia Williams
suffered a severe transfusion reaction after receiving
a platelet transfusion confammaded widh hacteriai
This led to her immediate cardiac arrest and death.
6. Affiant reservea the right to review and/or modify
these opinions if addifional information as learned.
Affidavit, filed February 20, 2023.
Defendants moved to strike the Affidavit and dismiss the matter, arguing that Dr.
Grundy’s Affidavit is defective under Rule 10(D)(2). The parties have briefed the issues
and the matter is ripe for nding.
ANALYSIS
1. Motion to Dismiss Standard
Under Civ.R. 8(Ale to assert a claim,a compaaint matt contain: ashort and plain
statement of the ciaim showing that titt party is entitled to relief, and (2) ademand for
judgment for the relief to which the party claims to be entitled. To rarwve a motion for
judgment on the pleadings, a complaint must have more than at mere recitation of the
elements a cause of Digiorgio v. City of Cleveland, 20 il-Ohio-5878, ^[41 (8th
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Dist.). “Factual allegations must be enough to raise a iri^ht to relief above the speculative
level.” Id. Unsupported, conclusory statements are not presumed veracious. Id.
Pursuant to Civ.R. 10(D)(2), when a comptaint contains a medical csh^mi, mi plaintiff
must file an affidavit of merit with the compirint or move foe on rsxtejoso^n oh heme to file
an affidavit of merit. Adkins v. Women’s Welsh Club ofAm., 2019-0hio-70, 9 (8th Dist.).
“The proper response to the failureto file the affidavit required by Civ.R. 10(D)(2) is a
motion to dismiss pursuant to Civ.R. 12(6X6).” Id.
2. Civ.R. 10(D)(2) - Affidavit of Merit Requirements
Ohio Rule of Civil Procedure 10(D)(2XaXi)-(iii) psivides:
(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 R.C. 2305.113, shall be accompanied Sy ok or more
affidavits of merit relative to Booh defendaoo namedin too complaint for
whom expert testimony is necessary to establish liability. Affidavits of merit
shall be provided by an expert wotness meeting the requirements of Evid.R.
702 and, if applicable, also meeting the retirements of Evid.R. 601(6).
Affidavits of merit shalO onchude all of Ohe fblfowinof)
(i) A statement that the affiant has reviewed all medical records
reasonably available to the plainaiff concerning the allegations
contained in the complaint;
(ii) A statement that the affiant ns familiar with tOo oppHcabOe standard
of care;
(iii) The opinion of the affiant that the standard of care was breached
by one or more of the defendants to the action and that the breach
caused injury to the plaintiff.
“The alleged purpose of Civ.R. 10(D)(2) is to deter frivolous medical malpractice cases.”
Beegle v. S. Pointe Hosg.,2Ql 1-Ohio-3591, 14 (OtO Disi.). Oo tOo OOio Supreme OouO
has noted, the affidavit-of-merit reqgirement “deters doling actions against all medioo!
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providers who cared for a patient.” Erwin v. 5rr-w, 125 Ohio St. 3d 519,2010-0hio-2202,
119 (Ohio. 2010).
Defendants argue that dismissal is proper for tworeasons. First, Defendants argue
that the Affidavit “fails to state which medical providers breached the standard of care and
proximately cauoed injury and death to” Decedent.” Motion to Dismiss, p. 1. Second,
Defendant argues that dismissal is proper because the Affidavit does not establish whether
Dr. Grundy is competent to give expert testimony under Evid.R. 601 and 702. Id. at p. 9.
The Court will address both in turn.
A. Whether the Affidavit sufficiently states which medical providers breached
the applicable standard of case and proximately caused the complained-of
injury.
As noted above, Defendants argue that the Affidavit is defective under Civ.R.
10(D)(2) because Dr. Grundy fails to identify which medical providers breached the
standard of case and proximately caused Decedent’s injury or death. The language at issue
in the Affidavit is:
4. Affiant opines, with reasonable medical certainty, that .
the medical treatment performed on Mrs. Tangenia Williams
by the Cleveland Clinic was beneath reasonable and accepted
standards of care and was otherwise negligent.
5. Affiant further opines, with reasonable medicai
certainty, that as a result of the negiigence by Cleveland Clinic
staff, Mrs. Tangenia Williams suffered a severe transfusion
reaction after receiving a platelet transfusion contaminahed
with bacteria. This led to her immediate cardiac arrest and
death.
Affidavit, H 4-5. Plaintiff argees that the above language is sufficient because CCF is a
defendant, the Dr. Grundy states that Cleveland Clinic staff breached the standard of case
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and caused the complained-ofinjury, and CCF is liable for the conduct of its staff under
the doctrine of respondeat superior Brief in Opp., p. 3-4.
The Court finds that the Affidavit fails to comply with Civ.R. 10(D)(2). In Grant v.
Preterm Foundation, CV-21-954779 (Cuyahoga Cnty. Ct. Com. Pleas Match 22, 2022),
this Court held that similar language failed to comply with Civ.R. 10(D)(2). Specifically.
in Grant, the affiantdDr. Madland, opined “thht one or more of the Defendant's doctors at
Preterm, located at 12000 Shaker Boulevard, Cleveland, Ohio breached the medical
standard of care . . .” GrrW.Memorandum of Opinio- and Order, p. 2, filed March 22,
2022.
This Court, relying on Woods v. Riverside Methodist Hosp., d012-Ohio-3139,114
)10th Dist.d(Hoiding that the avetment, “tie tiandard of care was breached by one or more
of the Defendants tothe actionf)” w-s insufficient under Civ.R. 00(D)(2)) and OF-ricker
v. Robinson Mem’I Hosp. Found., 20t7-0hio-2600, | 49 () 1th Dist.)(Holding that o
purported expert’s avenment that “‘one or more defendants’ breached the standand of care
without identifying which named defendant or defendants he believed acted below the
standard of care” failed to comply with Rule 10(D)(2)), found the above opinion defective
under Civ.R. 10(D)(2). Id. at p. 4-6. This Court explained:
There is no material difference between the language used in
the affidavits in Wood and O’Stricker, and inn Madland’s
affidavit. One would have to en,age ata extreme mental
gymnastics to find a meaningful distinction betwe-- “one or
more defendants” and “one or more Defendant’s doctors at
Preterm.” As Preterm/Reider okienves, the -affidavit hh(( not
specify whether any of the named individual defendants were
’ negligent. The affidavit is simply too vague. To hold otherwise
would be to ignore the purpose of R-le i0(D)(—h—the
deterrence of “filing actions against all medical providers who
cared for a patient.” Erwin, at 19.
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Id. at p. 6.
In this case, like Dr. Madland’s reference to “one or more of the Defendant's doctors
at Preterm . . in Grant, Dr. Grundy’s mere reference to “Cleveland Clinic” and
“Cleveland Clinic Staff’ fails to identify the specific individuals what breached the
applicable standard. As noted in Grant, “[t]o hold otherwise would be to ignore the purpose
of Rule 10(D)(2)—the deterrence of ‘filingactions against all medical providers who cared
for a patient.’” Id. Thus, the Court grants Defendant’s Motion to Dismiss.
B. Whether the Affidavit sufficiently meet the requirements under Evid.R. 601
and 702.
Defendants argue that “it is impossible for Defendants to evaluate Dr. Grundy’s
qualifications because, as highlighted above, it is unclear what type of medical provider
Dr. Grundy is critical of.” Motion to Dismiss, p. 10. Plaintiff notes that Dr. Grundy averred
that “he is a board-certified physician who dedicates greater than 75% of his time to the
active clinical practice of medicine[,”] and “is familiar with the medical standard of care
in this case.” Brief in Opp., p. 4-5; Affidavit, 1-2.
Under Eighth District law,
In the context of a medical malpractice action, the witness must
demonstrate that he is familiar with the standard of care
applicable to the defendant-physician's school or specialty,
"sufficient to enable him to give an expert opinion as to the
conformity of the defendant's conduct to those particular
standards and not to the standards []of the witness’ school and,
or, specialty if it differs from that of the defendant."
Kubicek v. Univ. Hosps., 2015-Ohio-3886, 16 (Sth Dist.)(internal page numbers
omitted). While Dr. Grundy will ultimately have to demonstrate the above, such
Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1
determinations “may be properly addressed at later stages of this action.” Id. at 22.
Defendants’ arguments relating to Dr. Grundy’s qualifications appear to be conditional on
the specific breach of care and causation, which may be remedied or mooted through
submission of an amended affidavit. Thus, the Court denies Defendants’ Motion to Dismiss
on this ground.
3. Rule 10(D)(2)(e) - Opportunity to Cure
Although not raised by the Parties, the Court finds that Plaintiff should be afforded an
opportunity to cure any deficiencies in Dr. Grundy’s Affidavit of Merit. See, Chapman v.
5. Pointe Hosp., 186 Ohio App. 3d 430, 2010-0hio-152, | 23-28 (8th Dist.). Rule
10(D)(2)(e) provides:
If an affidavit of merit as required by this rule has been Sled as to any
defendant along with the complaint or amended cmnj^^^^n which claims
are first asserted against that defendant, and the affidavit of merit is
determined by the court to be defective pursuant to the provisioss of division
(D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time, not
to exceed sixty days, to file an affidavit of merit intended to cure the defect.
As such, Plaintiff shall file an affidavit of merit curing the defects raised by Defendants as
set forth above within 60 days of this order. Failure to comply with this order may result is
dismissal with prejudice. See Adkins, at 22; O’Stricker, at^ 50.
4. Defendants’ Motion for Leave to Plead and Stay Discovery
Defendants ask the Court to grant Defendants leave to plead and to stay discoveay until
fourteen days after Plaintiff produces an affidavit of merit. Plaintiff did not file a brief in
opposition or otherwise object. While Defendants filed this Motion before Plaintiff filed
the Affidavit, in light of the above, the rationale and coatideraiions at this stage are the
same. Thus, the Court stays discovery, except for tfe production of relevant medical
Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1
records, and grants Defendant leave to answer or otherwise move in response to Plaintiff’s
Complaint until fourteen (14) days after Plaintiff files an amended affidavit.
CONCLUSION
For the reasons herein, the Court, finds that Defendants’ Motion to Strike and
Motion to Dismiss Plaintiffs Complaint for Failure to Comply with Civ. R. 10(D)(2) is
well-taken. Accordingly Defendants’ Motion to Strike and Motion to Dismiss Plaintiffs
Complaint for Failure to Comply with Civ. R. 10(D)(2) is GRANTED. Further, Plaintiff is
granted 60 days to file an amended affidavit of merit curing the defects raised by
Defendants. Finally, Defendants’ Motion for ieave to Plead and Stay Discover —
GRANTED. Discovery, except for the production of relevant medical records, is stayed
and Defendants are granted leave to answer o— odherwise move in response to Plaintiffs
Complaint until fourteen (14) days after Plaintiff files an amended affidavit. Failure to
comply with this Order may result in dismissal of the matter with prejudice.
IT IS SO ORDERED.
Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1
VS. )
)
UH Portage Medical Center, et al., )
)
Defendants. )
This matter came before the Court on Defendant. UH Portage Medical Center's Motion
to Dtmiss pursuant to Civil Rule 10(D)(2). The Court hat alto considered (1) Plaintiffs' Brief in
Opposition to Defendant UH Portage Medical Center's Motion to Dismiss, (2) Defendant UH
Portage Medeal Center's Reply in Support of Motion to Dismiss pursuant to Civil Rule
10(D)(2), and (3) Defendant, UH Portage Medical Center's N^otic^e of Supplement! Authority in
Support of Motion to Dssmiss.
Upon due consMeratiom of the aforementioned filings, this Court find^s that the Affidavit
of Mmt of Roy L. Sandau. D.O. filed by Plaintiffs on April 5, 2017 fails to mm the
requirements of Civ.R. 10(D)(2) with respect to Defendant UH Portage Medical Center a.s the
affidavit faUs to specifically identify Defendant UH Portage Medical Center as ^qui^d by
Civ.R. 10(D)(2) and Ohio law. Accordingly, Defendant, UH Portage Medical Center^ Motion to
Dismiss pursuant to Civ.R. 10(D)(2) is well-taken and grated.
WHEREFORE, this Court grants Defendant, UH Portage Medical CentrA Motion to
DAmi^ pumunt to Civ.R. 10(D)(2). Plaintiffs Complaint against U^et<;n<^artt, UH Portage
Medical Center is hereby dismisse'd without prejudice.
IT IS SO ORDERED.
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EXHIBIT D
Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1
Preview
Motion No. 5095432 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO DISMISS June 7,2023 08:10 By: BRET C. PERRY 0073488 Confirmation Nbr. 2876708 ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038 HARBAUGH vs. Judge: SHIRLEY STRICKLAND SAFFOLD SOUTHWEST GENERAL, ET AL. Pages Filed: 23 Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 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 ) NEW PARTY DEFENDANT JULIE vs. ) ALJABI, RN ) SOUTHWEST GENERAL, et al. ) ) Defendants. ) ) Pursuant to Rules 10(D)(2) and 12(B)(6) of the Ohio Rules of Civil Procedure, New Party Defendant, Julie Aljabi, RN, (“RN Aljabi”), by and through counsel, hereby requests that this Court dismiss Plaintiff's Amended Complaint against her. Plaintiff did not provide this Court with 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. Specifically, Plaintiff’s Affidavit of Merit, authored by Sorabh Khandelwal, M.D., fails to identify which medical providers breached the standard of care and proximately caused injury and death to the decedent. Rather, Dr. Khandelwal asserts a blanket allegation that “all Defendants breached the standard of care, and that said breach was a direct and proximate cause of harm, injury and damages to John Harbaugh.” Further, Dr. Khandelwal’s Affidavit, filed four months before RN Aljabi was added as a party to this litigation, does not state that he is familiar with the standard of care applicable to registered nurses, as required by Civ.R.10(D)(2)(a)(ii). Accordingly, Dr. Khandelwal’s Affidavit of Merit does not meet the requirements contained within Civ.R. 10(D)(2) to establish the sufficiency of Plaintiff’s claims against RN Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 Aljabi. As such, RN Aljabi requests that this Court dismiss Plaintiff's Amended Complaint as against RN Aljabi. A Brief in Support of this Request is attached hereto and incorporated herein. Res Bret C. Perry, Esq./0Q73488) Bonezzi Switzer Polito & Hupp Co. L.P.A. 1300 East 9th Street, Suite 1950 Cleveland, Ohio 44114-1501 Office: (216) 875-2767 Facsimile: (216) 875-1570 E-mail: bperry@bsphlaw.com egutbrod@bsphlaw.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, RN Electronically Filed 06/07/2023 08:10 I MOTION I CV 23 975038 I Confirmation Nbr. 2876708 I CLLH1 2 BRIEF IN SUPPORT I. STATEMENT OF FACTS AND CASE Plaintiff filed his Original Complaint on February 10, 2023, alleging claims of medical negligence/survivorship, wrongful death, and loss of consortium. (See Original Complaint). Plaintiff alleged that “[o]n February 16, 2022, Mr. Harbaugh was discovered deceased in his home. His cause of death was determined to be a ruptured abdominal aortic aneurysm.” (Id. at ^19). Plaintiff alleges that “[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). In support of his claims, Plaintiff submitted the Affidavit of Merit of Sorabh Khandelwal, M.D.1 Dr. Khandelwal avers in relevant part, that “all Defendants breached the standard of care, and that said breach was a direct and proximate cause of harm, injury, and damages to John Harbaugh.” (Affidavit of Merit of Sorabh Khandelwal, attached as Exhibit A, at ^6). On June 1, 2023, Plaintiff filed his Amended Complaint, adding new party defendant, Julie Aljabi, RN. (See Amended Complaint). Plaintiff alleges the same claims of medical negligence/survivorship, wrongful death, and loss of consortium. Id. Significantly, Plaintiff submitted the exact same Affidavit of Merit, signed February 2023, by Dr. Khandelwal, for the purpose of satisfying Civ.R. 10(D) as to this new party defendant. The general and vague language of “all Defendants” is insufficient under Ohio law to set forth viable medical claims against a healthcare provider pursuant to Civ.R.10(D)(2). 1 In submitting an Affidavit of Merit, Plaintiff admits that he asserts “medical claims” as defined by R.C. 2305.113(E) and thus subject to the affidavit of merit requirement contained within Civ.R. 10. As such, any discussion of whether Plaintiff asserts medical claims is omitted for purposes of brevity. Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 3 Further, a physician submitting an affidavit of merit must aver that he is familiar with the standard of care relative to each individually named defendant. Dr. Khandelwal authored the Affidavit in February 2023 well prior to New Party Defendant RN Aljabi being added to this action. Thus, the Affidavit of Merit could not have possibly contemplated RN Aljabi or the standard of care applicable to a registered nurse. Indeed, nowhere in Dr. Khandelwal's Affidavit does he state that he is familiar with the standard of care required of registered nurses. Further, and most damaging, it is inconceivable that Plaintiff would not have named RN Aljabi in the original Complaint had Dr. Khandelwal opined that she was negligent, or that he was competent to opine as to the standard of care required of a nurse. Dr. Khandelwal's Affidavit of Merit does not satisfy the requirements of Civ.R. 10(D)(2)(a) and thus fails to establish the adequacy of Plaintiffs claims against RN Aljabi. Accordingly, RN Aljabi requests that this Court dismiss Plaintiffs Complaint against her without prejudice. II. LAW AND ARGUMENT A. Civil Rule 10(D) standard. Pursuant to Civ. R. 10(D)(2), a complaint that contains a medical claim as defined in section 2305.113(E) shall include an affidavit of merit relative to each named defendant authored by an expert witness qualified under Evid. R. 601(D) and 702. Specifically, Civ. R. 10(D)(2)(a) provides, in part: Except as provided in division (D)(2)(b) of this rule, a complaint that contains a medical claim * * * as defined in section 2305.113 of the Revised Code, shall include an affidavit of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability. * * *. Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 4 Civ. R. 10(D)(2)(d) states: “An affidavit of merit is required to establish the adequacy of the complaint and shall not otherwise be admissible as evidence or used for purposes of impeachment. Any dismissal for the failure to comply with this rule shall operate as a failure otherwise than on the merits.” (Emphasis added.) In Fletcher v. Univ. Hosp. of Cleveland, 120 Ohio St.3d 167, (2008)the Ohio Supreme Court affirmed the trial court's dismissal of plaintiff’s Complaint for medical malpractice for failure to produce the required Affidavit of Merit holding that that in a medical malpractice action, the plaintiff’s failure to submit the required Affidavit of Merit, at the time of filing of her Complaint, requires an entry of dismissal, without prejudice, for failure to comply with Civ.R. 10(D). B. Dr. Khandelwal’s Affidavit of Merit fails to specify which Defendants breached the standard of care, in direct contravention of Civ.R.10(D)(2) and Ohio law. Dr. Khandelwal’s Affidavit of Merit alleges that “all Defendants breached the standard of care, and that said breach was a direct and proximate cause of harm, injury and damages to John Harbaugh.” (Exhibit A). Ohio courts have held that similar vague statements are insufficient to comply with the explicit mandates of Civ.R.10(D). For example, this Court recently struck an affidavit of merit because the physician failed to opine which medical providers breached the standard of care. (See Porach v. Cleveland Clinic Foundation, et al., Cuyahoga County Case No. CV-21-951859, Journal Entry attached as Exhibit B). In Porach, the insufficient affidavit of merit stated that the breaches in the standards of care was the responsibility of the “healthcare providers involved in the ordering and administration of the [morphine].” Id. This Court found this statement “fail[ed] to sufficiently identify, which, if any, of the individually named defendants breached the standard of care owed to the plaintiff.” Id. Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 5 Similarly, in Williams, the plaintiff submitted an affidavit of merit that averred that “as a result of the negligence by Cleveland Clinic Staff, Mrs. Tangenia Williams suffered a severe transfusion reaction ... This led to her immediate cardiac arrest and death.” See Williams v. Cleveland Clinic Foundation, et al., Cuyahoga County Case No. CV 23-973539, Journal Entry attached as Exhibit C). The defendants moved for dismissal, arguing that the vagueness of “Cleveland Clinic Staff’ did not specify who breached the standard of care. The Honorable Judge Ashley Kilbane agreed, dismissing the complaint and holding that “Cleveland Clinic Staff’ “fails to identify the specific individuals what breached the applicable standard.” Id. at p.7). See also, e.g., Woods v. Riverside Methodist Hosp., Franklin 10th Dist. 2012-Ohio-3139, ^14 (the court deemed ‘one or more of the defendants’ was insufficient for Civ.R.10); Robinson Mem'l Hosp. Found., 11th Dist. 2017-Ohio-2600, ‘'49 (‘one or more defendants’ insufficient); Sam Ebie v. UH Portage Medical Center, et al., Portage County No. 2016CV01081, Journal Entry Attached as Exhibit D (‘the Defendants named in the Complaint’ deemed insufficient). Plaintiff’s blanket assertion that “all Defendants” breached the standard of care is even more vague and unspecific than Williams (“Cleveland Clinic staff”) or Porach (“healthcare providers involved in the ordering and administration of morphine”), supra. Permitting Plaintiff to pursue a medical malpractice claim against multiple unnamed Defendants with an Affidavit from an Affiant who fails to state who breached the standard of care does not satisfy the purpose of Civ.R. 10. The Affidavit of Plaintiff is in clear violation of Civ.R. 10(D) and very purpose for which Civ.R. 10(D) was promulgated; that is, to ensure that only meritorious medical malpractice claims are filed, and to reduce or eliminate the costs associated with unsubstantiated medical malpractice claims. See Fletcher, 2008-Ohio-5379, 10. Indeed, the Affidavit is entirely insufficient as against RN Aljabi, who was not added as a party to this litigation until four Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 6 months after Dr. Khandelwal authored his affidavit. Clearly, Dr. Khandelwal could not have possibly contemplated the standard of care of a registered nurse in his authoring of the affidavit, or included RN Aljabi in his opinion, because if Dr. Khandelwal believed RN Aljabi violated the standard of care, Plaintiff would have named her as a Defendant at the time of filing this action. (Exhibit A). Moreover, Dr. Khandelwal does not state anywhere in the Affidavit that he is familiar with the standard of care required of nurses in direct violation of Civ.R. 10(D)(2)(a)(ii). Plaintiff's Affidavit of Merit, authored by Sorabh Khandelwal, M.D., falls below the minimum requirements demanded by Civ.R.10(D)(2) and therefore, Plaintiff has failed to establish the sufficiency of her claims against RN Aljabi. Accordingly, Plaintiff's Complaint must be dismissed as against RN Aljabi. III. CONCLUSION For all the foregoing reasons, new party defendant, Julie Aljabi, RN, requests that this Court issue an Order dismissing Plaintiff's Complaint against her for Plaintiff's failure to establish the sufficiency of his claims pursuant to Civ.R. 10. _____ _ ________ _____________ Bret C. Perry, Esq. (0073488) Bonezzi Switzer Polito& Hupp Co. L.P.A. 1300 East 9th Street, Suite 1950 Cleveland, Ohio 44114-1501 Office: (216) 875-2767 Facsimile: (216) 875-1570 E-mail: bperry@bsphlaw.com egutbrod@bsphlaw.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, RN Electronically Filed 06/07/2023 08:10 I MOTION I CV 23 975038 I Confirmation Nbr. 2876708 I CLLH1 7 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of June, 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. (0073488) Elena M. Gutbrod, (0102480) 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, RN Electronically Filed 06/07/2023 08:10 I MOTION I CV 23 975038 I Confirmation Nbr. 2876708 I CLLH1 8 EXHIBIT 2 In the of Ohio ) AFFIDAVIT OF MERIT In the County of ^(AYC-hA ) Akfi^mtt, Sorabh Khandelwal, MD, 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 Ohio 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 emergency medicine. 4. I have reviewed all medical records of John Harbaugh reasonably available and concerning the allegations in the Conplamt. w 5. I am familiar with the applicable standard of care in treating patients like John < CV 239750381ConfirmationNbr.2773327/ Harbaugh. 6. It is my opinion, to a reasonable degree of medical probability, that all Defendants breached the standard of care, and that said breach was a direct and proximate cause of harm, injury and damages to John Harbaugh. 7. My opinion is based on reliable medical information, my experience, training, and education. // EXHIBIT A i Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 I CLLH1 FURTHER AFFIANT SAYETH NAUGHT Pebxw4 , 2023. JENNIFER ALLEN Notary Public State of Ohio My Comm. Expires March 8, 2027 -> -J o ICV 239750381ConfirmationNbr.2773327/ / 2 Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 130978560 130978560 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO SUSAN PORACH ADMINISTRATOR Case No: CV-21-951859 Plaintiff Judge: KELLY ANN GALLAGHER CLEVELAND CLINIC FOUNDATION, ET AL Defendant JOURNAL ENTRY DEFENDANTS CLEVELAND CLINIC REHABILITATION HOSPITAL, AVON, SELECT MEDICAL CORPORATION, AND SHAWNA SULTZER, R.N.'S MOTION TO JOIN IN CO-DEFENDANT'S MOTION TO STRIKE AND MOTION TO DISMISS, FILED 06/30/2022, IS GRANTED. DEFENDANT SHERRI WHITAKER, CNP'S MOTION TO STRIKE AND MOTION TO DISMISS, FILED 06/29/2022, AND JOINED BY CO-DEFENDANTS DEFENDANTS CLEVELAND CLINIC REHABILITATION HOSPITAL, AVON, SELECT MEDICAL CORPORATION, AND SHAWNA SULTZER, R.N. IS GRANTED AND DENIED IN PART. THE COURT GRANTS THE MOTION INASMUCH AS THE COURT DECLARES THAT THE AFFIDAVIT OF MERIT SUBMITTED BY PLAINTIFF ON 02/17/2022 IS DEFECTIVE AND DOES NOT MEET THE REQUIREMENTS OF CIV. R. 10(D)(2). SPECIFICALLY, THE COURT FINDS THAT THE PHRASE "HEALTHCARE PROVIDERS INVOLVED IN THE ORDERING AND ADMINISTRATION OF THE SAME" AS USED IN U 4 OF THE AFFIDAVIT FAILS TO SUFFICIENTLY IDENTIFY, WHICH, IF ANY, OF THE INDIVIDUALLY-NAMED DEFENDANTS BREACHED THE STANDARD OF CARE OWED TO PLAINTIFF. ACCORDINGLY, PURSUANT TO CIV. R. 10(D)(2)(E), THE COURT GRANTS PLAINTIFF AN ADDITIONAL SIXTY (60) DAYS FROM THE DATE OF THIS ORDER TO FILE AN AFFIDAVIT OF MERIT WHICH CURES THE CITED DEFECT(S). DISCOVERY OF MEDICAL RECORDS OR OTHER DISCOVERY PERTINENT TO FILING THE CURED AFFIDAVIT OF MERIT IS PERMITTED. DEFENDANTS' MOTION IS DENIED IN ALL OTHER RESPECTS (I.E., DISMISSING FOR FAILURE TO STATE A CLAIM UNDER CIV. R. 12(B)(6)). CMC BY PHONE SET FOR 12/29/2022 AT 09:30 AM. PLAINTIFF'S COUNSEL TO INITIATE THE CONFERENCE CALL AND THEN CONTACT THE COURT'S STAFF ATTORNEY AT (216) 443-8609 ONCE ALL PARTIES ARE ON THE LINE. Judge Signature 10/11/2022 10/11/2022 EXHIBIT B Electronically Filed Q6/Q0/2Q23 CH8:tQ / MI OTION / CV 23^0503^^^?^^ Nbr 2886008 / CLDBti NAILAH K. BYRD, CLERK Page 1 of 1 146542815 46542815 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO LEE WILLIAMS, INDIVIDUALLY AND AS Case No: CV-23-973539 ADMINISTRATOR Plaintiff Judge: ASHLEY KILBANE CLEVELAND CLINIC FOUNDATION, ET AL Defendant JOURNAL ENTRY FOR THE REASONS SET FORTH IN THE ATTACHED MEMORANDUM OF OPINION AND ORDER, THE COURT FINDS AS FOLLOWS: DEFENDANTS' MOTION TO STRIKE AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR FAILURE TO COMPLY WITH CIV. R. 10(D)(2), FILED 02/28/2023, IS GRANTED. PLAINTIFF IS GRANTED 60 DAYS TO FILE AN AMENDED AFFIDAVIT OF MERIT CURING THE DEFECTS RAISED BY DEFENDANTS. DEFENDANTS' MOTION FOR LEAVE TO PLEAD AND STAY DISCOVERY, FILED 02/14/2023, IS GRANTED. DISCOVERY, EXCEPT FOR THE PRODUCTION OF RELEVANT MEDICAL RECORDS, IS STAYED AND DEFENDANTS ARE GRANTED LEAVE TO ANSWER OR OTHERWISE PLEAD IN RESPONSE TO PLAINTIFF'S COMPLAINT UNTIL FOURTEEN (14) DAYS AFTER PLAINTIFF FILES AN AMENDED AFFIDAVIT. - O.S.J. - 'O.S.l. - Judge Signature Date r--- > f — r J -T- Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 05/11/2023 EXHIBIT C Page 1 of 1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO LEE WILLIAMS, Individually, and as ) ) Administrator of the Estate of CASE NO. CV-23-973539 TANGENIA WILLIAMS, ) ) Plaintiff, ) ) v. ) MEMORANDUM OF OPINION ) AND ORDER CLEVELAND CLINIC FOUNDATION,) et al., ) ) Defendants. ) KILBANE, J.: Before the Court is Defendants’ Motion to Strike and Motion to Dismiss Plaintiffs Complaint for Failure to Comply with Civ. R. 10(D)(2) filed by Defendants Cleveland Clinic Foundation (“CCF”) and Cleveland Clinic Hospital Main Campus (“CCHMS” together with CCF hereinafter referred to as “Defendants”), Plaintiffs’ Brief in Opposition to Defendants’ Motion to Strike and Motion to Dismiss filed by Lee Williams, Individually, and as Administrator of the Estate of Tangenia Williams (“Plaintiff’), and Defendants’ Reply in Support of Their Motion to Strike and Motion to Dismiss, along with all exhibits attached thereto. Also before the Court is Defendants’ Motion for Leave to Plead and Stay Discovery. Plaintiff has not opposed Defendants’ Motion for Leave to Plead and Stay Discovery. For the reasons discussed below, Defendants’ Motions are granted. However, pursuant to Rule 10(D)(2)(e), Plaintiff is granted leave to cure the defective affidavit of merit, consistent with this order. FACTS & PROCEDURAL HISTORY Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 In Plaintiffs’ Complaint for Medical I Wrongful Death, Plamtiff alleges that on July 18, 2021, Tangenia Williams (“Decedent”) was “admitted to the MICU at Cleveland Clinic Hospital Main Campus for initiation oJ C^T1 and further management of acute blood loss anemia.” Complaint,^ 11. During Decedent’s ftay, she received several blood transfusion. Id. at r2. Plamtiff allegef that ot l^ast ojj of those transfusions was negligently mishandled or the blood was otherwiff contaminatef. JjJ at ^13-14. Plaintiff asserts that as a result of Defendants’ negligence, “Decedent had a transfusion reaction, experienced pain and suffermg, mental anguish and subsequently died on July 24, 2f 21.” Id. at 115. On January 9, 2023, Plaintiff filed the Complaint, asserting claims for “Medical Negligence, Professional Torts and/or General Negiigence/Survivorship,” “Wrongful Death,” and “Punitive Damages.” M at p. 3-6. Plaintiff contemporaneously filed Plaintiff’s Motion for Extension of Time to File AffidavltsfMerit, which this Court granted. See Journal Entres filed January 23, 2023. Before Plaintiff filed an affidavit of merit, Defendants filed their Motion for Leave to Plead and Stay Discovery. Plaintiff filed an affidavitsf merit fhortly thereafter. The affidavit of merit is authored and signed by David Grundyf M.D., and states as followo: Affiant, David Grundy, M.D. swears and affirms the following information to be true to the best of hls kiswledge. 1. Affiant is a board-certified physician licensed to practice medicine in the states of Kentucky, Indiana, and California who dedicates greater than 75% of . his time to the active clinical practice of medicine. 1 Based on Car allegitions, “CRRT” likely meant “ccnCinuous reual repidoimeni therapy,” which is used to treat kidney conditions. Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 2. Affiant is Board Certified and is familiar with the medical standard of care in this case. 3. Affiant has reviewed the medical records provided by counsel for the estate of Mrs. Tangenia Williams concerning the allegations in this matter. 4. Affiant opines, with reasonable medical certainty, that the medical daeatment performed on MrSa Tangenia Williams by the Cleveland Clinic was beneath reasonable and accepted standards of care and was otherwise negligent. 5. Affiant further opines, with reasonable medical certainty, that as a t^^^ult of the negiigence by Cleveland Clinic staff, Mrs. Tangenia Williams suffered a severe transfusion reaction after receiving a platelet transfusion confammaded widh hacteriai This led to her immediate cardiac arrest and death. 6. Affiant reservea the right to review and/or modify these opinions if addifional information as learned. Affidavit, filed February 20, 2023. Defendants moved to strike the Affidavit and dismiss the matter, arguing that Dr. Grundy’s Affidavit is defective under Rule 10(D)(2). The parties have briefed the issues and the matter is ripe for nding. ANALYSIS 1. Motion to Dismiss Standard Under Civ.R. 8(Ale to assert a claim,a compaaint matt contain: ashort and plain statement of the ciaim showing that titt party is entitled to relief, and (2) ademand for judgment for the relief to which the party claims to be entitled. To rarwve a motion for judgment on the pleadings, a complaint must have more than at mere recitation of the elements a cause of Digiorgio v. City of Cleveland, 20 il-Ohio-5878, ^[41 (8th Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 Dist.). “Factual allegations must be enough to raise a iri^ht to relief above the speculative level.” Id. Unsupported, conclusory statements are not presumed veracious. Id. Pursuant to Civ.R. 10(D)(2), when a comptaint contains a medical csh^mi, mi plaintiff must file an affidavit of merit with the compirint or move foe on rsxtejoso^n oh heme to file an affidavit of merit. Adkins v. Women’s Welsh Club ofAm., 2019-0hio-70, 9 (8th Dist.). “The proper response to the failureto file the affidavit required by Civ.R. 10(D)(2) is a motion to dismiss pursuant to Civ.R. 12(6X6).” Id. 2. Civ.R. 10(D)(2) - Affidavit of Merit Requirements Ohio Rule of Civil Procedure 10(D)(2XaXi)-(iii) psivides: (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 R.C. 2305.113, shall be accompanied Sy ok or more affidavits of merit relative to Booh defendaoo namedin too complaint for whom expert testimony is necessary to establish liability. Affidavits of merit shall be provided by an expert wotness meeting the requirements of Evid.R. 702 and, if applicable, also meeting the retirements of Evid.R. 601(6). Affidavits of merit shalO onchude all of Ohe fblfowinof) (i) A statement that the affiant has reviewed all medical records reasonably available to the plainaiff concerning the allegations contained in the complaint; (ii) A statement that the affiant ns familiar with tOo oppHcabOe standard of care; (iii) The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff. “The alleged purpose of Civ.R. 10(D)(2) is to deter frivolous medical malpractice cases.” Beegle v. S. Pointe Hosg.,2Ql 1-Ohio-3591, 14 (OtO Disi.). Oo tOo OOio Supreme OouO has noted, the affidavit-of-merit reqgirement “deters doling actions against all medioo! Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 providers who cared for a patient.” Erwin v. 5rr-w, 125 Ohio St. 3d 519,2010-0hio-2202, 119 (Ohio. 2010). Defendants argue that dismissal is proper for tworeasons. First, Defendants argue that the Affidavit “fails to state which medical providers breached the standard of care and proximately cauoed injury and death to” Decedent.” Motion to Dismiss, p. 1. Second, Defendant argues that dismissal is proper because the Affidavit does not establish whether Dr. Grundy is competent to give expert testimony under Evid.R. 601 and 702. Id. at p. 9. The Court will address both in turn. A. Whether the Affidavit sufficiently states which medical providers breached the applicable standard of case and proximately caused the complained-of injury. As noted above, Defendants argue that the Affidavit is defective under Civ.R. 10(D)(2) because Dr. Grundy fails to identify which medical providers breached the standard of case and proximately caused Decedent’s injury or death. The language at issue in the Affidavit is: 4. Affiant opines, with reasonable medical certainty, that . the medical treatment performed on Mrs. Tangenia Williams by the Cleveland Clinic was beneath reasonable and accepted standards of care and was otherwise negligent. 5. Affiant further opines, with reasonable medicai certainty, that as a result of the negiigence by Cleveland Clinic staff, Mrs. Tangenia Williams suffered a severe transfusion reaction after receiving a platelet transfusion contaminahed with bacteria. This led to her immediate cardiac arrest and death. Affidavit, H 4-5. Plaintiff argees that the above language is sufficient because CCF is a defendant, the Dr. Grundy states that Cleveland Clinic staff breached the standard of case Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 and caused the complained-ofinjury, and CCF is liable for the conduct of its staff under the doctrine of respondeat superior Brief in Opp., p. 3-4. The Court finds that the Affidavit fails to comply with Civ.R. 10(D)(2). In Grant v. Preterm Foundation, CV-21-954779 (Cuyahoga Cnty. Ct. Com. Pleas Match 22, 2022), this Court held that similar language failed to comply with Civ.R. 10(D)(2). Specifically. in Grant, the affiantdDr. Madland, opined “thht one or more of the Defendant's doctors at Preterm, located at 12000 Shaker Boulevard, Cleveland, Ohio breached the medical standard of care . . .” GrrW.Memorandum of Opinio- and Order, p. 2, filed March 22, 2022. This Court, relying on Woods v. Riverside Methodist Hosp., d012-Ohio-3139,114 )10th Dist.d(Hoiding that the avetment, “tie tiandard of care was breached by one or more of the Defendants tothe actionf)” w-s insufficient under Civ.R. 00(D)(2)) and OF-ricker v. Robinson Mem’I Hosp. Found., 20t7-0hio-2600, | 49 () 1th Dist.)(Holding that o purported expert’s avenment that “‘one or more defendants’ breached the standand of care without identifying which named defendant or defendants he believed acted below the standard of care” failed to comply with Rule 10(D)(2)), found the above opinion defective under Civ.R. 10(D)(2). Id. at p. 4-6. This Court explained: There is no material difference between the language used in the affidavits in Wood and O’Stricker, and inn Madland’s affidavit. One would have to en,age ata extreme mental gymnastics to find a meaningful distinction betwe-- “one or more defendants” and “one or more Defendant’s doctors at Preterm.” As Preterm/Reider okienves, the -affidavit hh(( not specify whether any of the named individual defendants were ’ negligent. The affidavit is simply too vague. To hold otherwise would be to ignore the purpose of R-le i0(D)(—h—the deterrence of “filing actions against all medical providers who cared for a patient.” Erwin, at 19. Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 Id. at p. 6. In this case, like Dr. Madland’s reference to “one or more of the Defendant's doctors at Preterm . . in Grant, Dr. Grundy’s mere reference to “Cleveland Clinic” and “Cleveland Clinic Staff’ fails to identify the specific individuals what breached the applicable standard. As noted in Grant, “[t]o hold otherwise would be to ignore the purpose of Rule 10(D)(2)—the deterrence of ‘filingactions against all medical providers who cared for a patient.’” Id. Thus, the Court grants Defendant’s Motion to Dismiss. B. Whether the Affidavit sufficiently meet the requirements under Evid.R. 601 and 702. Defendants argue that “it is impossible for Defendants to evaluate Dr. Grundy’s qualifications because, as highlighted above, it is unclear what type of medical provider Dr. Grundy is critical of.” Motion to Dismiss, p. 10. Plaintiff notes that Dr. Grundy averred that “he is a board-certified physician who dedicates greater than 75% of his time to the active clinical practice of medicine[,”] and “is familiar with the medical standard of care in this case.” Brief in Opp., p. 4-5; Affidavit, 1-2. Under Eighth District law, In the context of a medical malpractice action, the witness must demonstrate that he is familiar with the standard of care applicable to the defendant-physician's school or specialty, "sufficient to enable him to give an expert opinion as to the conformity of the defendant's conduct to those particular standards and not to the standards []of the witness’ school and, or, specialty if it differs from that of the defendant." Kubicek v. Univ. Hosps., 2015-Ohio-3886, 16 (Sth Dist.)(internal page numbers omitted). While Dr. Grundy will ultimately have to demonstrate the above, such Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 determinations “may be properly addressed at later stages of this action.” Id. at 22. Defendants’ arguments relating to Dr. Grundy’s qualifications appear to be conditional on the specific breach of care and causation, which may be remedied or mooted through submission of an amended affidavit. Thus, the Court denies Defendants’ Motion to Dismiss on this ground. 3. Rule 10(D)(2)(e) - Opportunity to Cure Although not raised by the Parties, the Court finds that Plaintiff should be afforded an opportunity to cure any deficiencies in Dr. Grundy’s Affidavit of Merit. See, Chapman v. 5. Pointe Hosp., 186 Ohio App. 3d 430, 2010-0hio-152, | 23-28 (8th Dist.). Rule 10(D)(2)(e) provides: If an affidavit of merit as required by this rule has been Sled as to any defendant along with the complaint or amended cmnj^^^^n which claims are first asserted against that defendant, and the affidavit of merit is determined by the court to be defective pursuant to the provisioss of division (D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time, not to exceed sixty days, to file an affidavit of merit intended to cure the defect. As such, Plaintiff shall file an affidavit of merit curing the defects raised by Defendants as set forth above within 60 days of this order. Failure to comply with this order may result is dismissal with prejudice. See Adkins, at 22; O’Stricker, at^ 50. 4. Defendants’ Motion for Leave to Plead and Stay Discovery Defendants ask the Court to grant Defendants leave to plead and to stay discoveay until fourteen days after Plaintiff produces an affidavit of merit. Plaintiff did not file a brief in opposition or otherwise object. While Defendants filed this Motion before Plaintiff filed the Affidavit, in light of the above, the rationale and coatideraiions at this stage are the same. Thus, the Court stays discovery, except for tfe production of relevant medical Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 records, and grants Defendant leave to answer or otherwise move in response to Plaintiff’s Complaint until fourteen (14) days after Plaintiff files an amended affidavit. CONCLUSION For the reasons herein, the Court, finds that Defendants’ Motion to Strike and Motion to Dismiss Plaintiffs Complaint for Failure to Comply with Civ. R. 10(D)(2) is well-taken. Accordingly Defendants’ Motion to Strike and Motion to Dismiss Plaintiffs Complaint for Failure to Comply with Civ. R. 10(D)(2) is GRANTED. Further, Plaintiff is granted 60 days to file an amended affidavit of merit curing the defects raised by Defendants. Finally, Defendants’ Motion for ieave to Plead and Stay Discover — GRANTED. Discovery, except for the production of relevant medical records, is stayed and Defendants are granted leave to answer o— odherwise move in response to Plaintiffs Complaint until fourteen (14) days after Plaintiff files an amended affidavit. Failure to comply with this Order may result in dismissal of the matter with prejudice. IT IS SO ORDERED. Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 VS. ) ) UH Portage Medical Center, et al., ) ) Defendants. ) This matter came before the Court on Defendant. UH Portage Medical Center's Motion to Dtmiss pursuant to Civil Rule 10(D)(2). The Court hat alto considered (1) Plaintiffs' Brief in Opposition to Defendant UH Portage Medical Center's Motion to Dismiss, (2) Defendant UH Portage Medeal Center's Reply in Support of Motion to Dismiss pursuant to Civil Rule 10(D)(2), and (3) Defendant, UH Portage Medical Center's N^otic^e of Supplement! Authority in Support of Motion to Dssmiss. Upon due consMeratiom of the aforementioned filings, this Court find^s that the Affidavit of Mmt of Roy L. Sandau. D.O. filed by Plaintiffs on April 5, 2017 fails to mm the requirements of Civ.R. 10(D)(2) with respect to Defendant UH Portage Medical Center a.s the affidavit faUs to specifically identify Defendant UH Portage Medical Center as ^qui^d by Civ.R. 10(D)(2) and Ohio law. Accordingly, Defendant, UH Portage Medical Center^ Motion to Dismiss pursuant to Civ.R. 10(D)(2) is well-taken and grated. WHEREFORE, this Court grants Defendant, UH Portage Medical CentrA Motion to DAmi^ pumunt to Civ.R. 10(D)(2). Plaintiffs Complaint against U^et<;n<^artt, UH Portage Medical Center is hereby dismisse'd without prejudice. IT IS SO ORDERED. Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1 EXHIBIT D Electronically Filed 06/07/2023 08:10 / MOTION / CV 23 975038 / Confirmation Nbr. 2876708 / CLLH1