Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771
0G546 - Y5
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
James Shaw, ef al.,
Case No. 23 CV 3771
Plaintiffs,
Judge David C. Young
Ramy Hany Fouad Fahmy, M.D., et al.,
Defendants.
Entry & Orde
I Introduction
This matter is before the Court on Defendants OhioHealth Riverside Hospital; OhioHealth
Physician Group, Inc.; Ramy Hany Fouad Fahmy, M.D.; and Laura E. Polsean, APRN-CNP’s
(collectively “Defendants”) Motion to Dismiss filed August 29, 2023.
Plaintiffs’ filed a Complaint on May 25, 2023. The Complaint asserts claims for medical
negligence and loss of consortium. Specifically, Plaintiffs allege that Defendants were negligent
during a surgery that occurred on or about May 19, 2022. (Comp., { 11, May 25, 2023.)
Il. Standard of Review
A motion to dismiss for failure to state a claim, under Civ.R. 12(B)(6), is a procedural
device designed to test the sufficiency of a complaint or cause of action. State Auto. Mut. Ins. Co.
v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199, 4 8, citing State
ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). In making this
evaluation, the court “must accept the material allegations of the complaint as true and make all
reasonable inferences in favor of the plaintiffs.” Hamilton vy. Ohio Dep't of Health,
2015-Ohio-4041, 42 N.E.3d 1261, J 15 (10th Dist.), citing Maitland v. Ford Motor Co., 103 Ohio
St.3d 463, 2004-Ohio-5717, J 11, 816 N.E.2d 1061. “When reviewing a Civ.R. 12(B)(6) motion
1
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771
0G546 - Y5
to dismiss, the court may consider only the statements and facts considered in the pleadings and
may not consider or rely on evidence outside of the complaint.” /d., citing Brown v. Columbus
City Schools Bd. of Edn., 10th Dist. No. O8AP-1067, 2009-Ohio-3230, 4. Ultimately, “[flor the
moving defendant to prevail, it must appear from the face of the complaint that the plaintiffs can
prove no set of facts that would entitle them to relief.” Jd. citing Maitland at J 11.
Til. Law & Analysi:
Defendants argue that Plaintiffs’ Complaint against them must be dismissed because it is
not supported by one or more affidavits of merit. Civ.R. 10(D)(2) requires all complaints
containing a medical claim to be accompanied by an affidavit of merit. Bixby v. Ohio State Univ.,
10th Dist. Franklin No. 17AP-802, 2018-Ohio-2016, § 8. It provides, in part, that “a complaint
that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in
R.C. 2305.113, shall be accompanied by one or more affidavits of merit relative to each defendant
named in the complaint for whom expert testimony is necessary to establish liability.” Civ.R.
10(D)(2)(a)
This rule imposes a heightened standard of pleading on parties bringing medical claims
Bixby at 9, quoting Jackson v. Northeast Pre-Release Ctr., 10th Dist. Franklin No. 09AP-457,
2010-Ohio-1022, § 15, citing Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167,
2008-Ohio-5379, 897 N.E.2d 147, § 14. Affidavits of merit are required to deter frivolous medical
malpractice claims and to establish the adequacy of the complaint. /d., quoting Jackson at { 15,
quoting Fletcher at § 10. A motion to dismiss for failure to state a claim upon which relief can be
granted is the proper remedy when a plaintiff fails to include an affidavit of merit. /d., quoting
Jackson at §| 15, citing Fletcher at 14. Without a proper Civ.R. 10(D)(2) affidavit, a complaint
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771
0G546 - Y5
on a medical claim is not sufficient. Woods v. Riverside Methodist Hosp., 10th Dist. Franklin No.
11AP-689, 2012-Ohio-3139, 9, citing Fletcher at 413.
Along with the Complaint, Plaintiffs filed a Motion for Extension of Time to File Affidavits
of Merit. That motion was granted on May 30, 2023. Plaintiffs were given 90 additional days to
submit their affidavits of merit. Thus, the affidavits were due in the end of August. Because timely
affidavits of merit were not filed, the Complaint is insufficient.
Iv. Conclusion
Defendants’ Motion to Dismiss is GRANTED. This case is hereby ORDERED
DISMISSED. This dismissal operates as a failure otherwise than on the merits and is without
prejudice. Civ.R. 10(D)(2)(d); Zroyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d
862, 917
IT IS SO ORDERED.
Copies electronically to counsel of record for the parties.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771
0G546 - Y5
Franklin County Court of Common Pleas
Date: 09-18-2023
Case Title: JAMES SHAW ET AL -VS- RAMY HANY FOUA FAHMY ET AL
Case Number: 23CV003771
Type: DISMISSAL ORDER CASE
It Is So Ordered.
o fo Es
a a
/s/ Judge David C. Young
Electronically signed on 2023-Sep-18 page 4 of 4
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771
0G546 - Y6
Court Disposition
Case Number: 23CV003771
Case Style: JAMES SHAW ET AL -VS- RAMY HANY FOUA FAHMY
ETA
Case Terminated: 08 - Dismissal with/without prejudice
Motion Tie Off Information:
1. Motion CMS Document Id: 23CV0037712023-08-2999980000
Document Title: 08-29-2023-MOTION TO DISMISS -
DEFENDANT: RAMY HANY FOUA FAHMY
Disposition: MOTION GRANTED
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771 0G546 - Y5 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO James Shaw, ef al., Case No. 23 CV 3771 Plaintiffs, Judge David C. Young Ramy Hany Fouad Fahmy, M.D., et al., Defendants. Entry & Orde I Introduction This matter is before the Court on Defendants OhioHealth Riverside Hospital; OhioHealth Physician Group, Inc.; Ramy Hany Fouad Fahmy, M.D.; and Laura E. Polsean, APRN-CNP’s (collectively “Defendants”) Motion to Dismiss filed August 29, 2023. Plaintiffs’ filed a Complaint on May 25, 2023. The Complaint asserts claims for medical negligence and loss of consortium. Specifically, Plaintiffs allege that Defendants were negligent during a surgery that occurred on or about May 19, 2022. (Comp., { 11, May 25, 2023.) Il. Standard of Review A motion to dismiss for failure to state a claim, under Civ.R. 12(B)(6), is a procedural device designed to test the sufficiency of a complaint or cause of action. State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199, 4 8, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). In making this evaluation, the court “must accept the material allegations of the complaint as true and make all reasonable inferences in favor of the plaintiffs.” Hamilton vy. Ohio Dep't of Health, 2015-Ohio-4041, 42 N.E.3d 1261, J 15 (10th Dist.), citing Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, J 11, 816 N.E.2d 1061. “When reviewing a Civ.R. 12(B)(6) motion 1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771 0G546 - Y5 to dismiss, the court may consider only the statements and facts considered in the pleadings and may not consider or rely on evidence outside of the complaint.” /d., citing Brown v. Columbus City Schools Bd. of Edn., 10th Dist. No. O8AP-1067, 2009-Ohio-3230, 4. Ultimately, “[flor the moving defendant to prevail, it must appear from the face of the complaint that the plaintiffs can prove no set of facts that would entitle them to relief.” Jd. citing Maitland at J 11. Til. Law & Analysi: Defendants argue that Plaintiffs’ Complaint against them must be dismissed because it is not supported by one or more affidavits of merit. Civ.R. 10(D)(2) requires all complaints containing a medical claim to be accompanied by an affidavit of merit. Bixby v. Ohio State Univ., 10th Dist. Franklin No. 17AP-802, 2018-Ohio-2016, § 8. It provides, in part, that “a complaint that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in R.C. 2305.113, shall be accompanied by one or more affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability.” Civ.R. 10(D)(2)(a) This rule imposes a heightened standard of pleading on parties bringing medical claims Bixby at 9, quoting Jackson v. Northeast Pre-Release Ctr., 10th Dist. Franklin No. 09AP-457, 2010-Ohio-1022, § 15, citing Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, § 14. Affidavits of merit are required to deter frivolous medical malpractice claims and to establish the adequacy of the complaint. /d., quoting Jackson at { 15, quoting Fletcher at § 10. A motion to dismiss for failure to state a claim upon which relief can be granted is the proper remedy when a plaintiff fails to include an affidavit of merit. /d., quoting Jackson at §| 15, citing Fletcher at 14. Without a proper Civ.R. 10(D)(2) affidavit, a complaint Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771 0G546 - Y5 on a medical claim is not sufficient. Woods v. Riverside Methodist Hosp., 10th Dist. Franklin No. 11AP-689, 2012-Ohio-3139, 9, citing Fletcher at 413. Along with the Complaint, Plaintiffs filed a Motion for Extension of Time to File Affidavits of Merit. That motion was granted on May 30, 2023. Plaintiffs were given 90 additional days to submit their affidavits of merit. Thus, the affidavits were due in the end of August. Because timely affidavits of merit were not filed, the Complaint is insufficient. Iv. Conclusion Defendants’ Motion to Dismiss is GRANTED. This case is hereby ORDERED DISMISSED. This dismissal operates as a failure otherwise than on the merits and is without prejudice. Civ.R. 10(D)(2)(d); Zroyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, 917 IT IS SO ORDERED. Copies electronically to counsel of record for the parties. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771 0G546 - Y5 Franklin County Court of Common Pleas Date: 09-18-2023 Case Title: JAMES SHAW ET AL -VS- RAMY HANY FOUA FAHMY ET AL Case Number: 23CV003771 Type: DISMISSAL ORDER CASE It Is So Ordered. o fo Es a a /s/ Judge David C. Young Electronically signed on 2023-Sep-18 page 4 of 4 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 18 1:52 PM-23CV003771 0G546 - Y6 Court Disposition Case Number: 23CV003771 Case Style: JAMES SHAW ET AL -VS- RAMY HANY FOUA FAHMY ETA Case Terminated: 08 - Dismissal with/without prejudice Motion Tie Off Information: 1. Motion CMS Document Id: 23CV0037712023-08-2999980000 Document Title: 08-29-2023-MOTION TO DISMISS - DEFENDANT: RAMY HANY FOUA FAHMY Disposition: MOTION GRANTED