Legal Document: GREGORY F. NAHAS VS AKRON GENERAL MEDICAL CENTER

On August 30, 2023 a DEFENDANTS AKRON GENERAL MEDICAL CENTER AKA CLEVELAND CLINIC AKRON GENERAL AND AKRON GENERAL HEALTH was filed involving a dispute between Nahas, Gregory, and Akron General Health Center, Unknown Health Care Providers 1-5, for MEDICAL MALPRACTICE in the District Court of Summit County.

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CV-2023-08-3239 O'BRIEN, TAMMY 09/20/2023 15:33:06 PM MSTA Page 1 of 12

IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO

GREGORY F. NAHAS, Individually and as ) CASE NO. CV-2023-08-3239
Administrator of the Estate of Ruth Nahas, )
Deceased, JUDGE TAMMY O'BRIEN

Plaintiff, ENERAL
-vs- MEDICAL CENTER AKA CLEVELAND
CLINIC AKRON GENERAL AND AKRON
AKRON GENERAL MEDICAL CENTER AKA H SYSTEM'S
CLEVELAND CLINIC AKRON GENERAL, et TO
DISCOVERY
STAY
al.

Defendants.

Defendants, Akron General Medical Center aka Cleveland Clinic Akron General and

Akron General Health System (collectively, “Defendants”), through counsel, respectfully

move this Court for an Order staying discovery in this matter until Plaintiff files an affidavit

of merit in compliance with Civ.R. 10(D)(2).

Plaintiff filed this medical-negligence and wrongful-death action August 30, 2023,

alleging that Defendants’ care providers provided negligent medical care and treatment to

Plaintiff that caused injury. (See Compl.). Defendants deny all allegations of negligence.

Because Plaintiffs allegations are statutorily considered medical claims, Civ.R.

10(D)(2)(a) required Plaintiff to submit an affidavit of merit from a qualified expert along

with the Complaint—or move for an extension to do so—to substantiate the medical claims

asserted against Defendants. In this action, Plaintiff moved this Court for an extension on

August 30, 2023.

Civil Rule 10(D)(2) governs the filing of affidavits of merit and states in pertinent part:

(a) Except as provided in division (D)(2)(b) of this rule, a complaint
that contains a medical claim...shall include one or more affidavits
of merit relative to each defendant named in the complaint for

Sandra Kurt, Summit County Clerk of Courts
CV-2023-08-3239 O'BRIEN, TAMMY 09/20/2023 15:33:06 PM MSTA Page 2 of 12

whom expert testimony is necessary to establish liability.
Affidavits of Merit shall be provided by an expert witness pursuant to
Rules 601(D) and 702 of the Ohio Rules of Evidence [and] shall include
all of the following:

(i) A statement that the affiant has reviewed all medical records
reasonably available to the plaintiff concerning the allegations
contained in the complaint;

(ii) A statement that the affiant is familiar with the applicable
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.

(Emphasis added.) The purpose behind Civ.R. 10(D)(2) is “to deter the filing of frivolous

medical-malpractice claims..and [t]he rule is designed to ease the burden on the

dockets...and to ensure that only those plaintiffs truly aggrieved at the hands of the medical

profession have their day in court.” Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167,

2008-Ohio-5379, J 10 (2008).

Notably, the Supreme Court of Ohio has held that because an affidavit of merit is

required to establish the adequacy of the Complaint, the proper response for a failure to file

an affidavit of merit comporting with the requirements of Civ.R. 10(D)(2), is dismissal as a

matter of law. Fletcher at {J 14, 21 (holding that without a proper affidavit of merit, the

complaint contains mere conclusions that the defendant committed malpractice and these

unsupported conclusions are not sufficient to withstand a motion to dismiss). Since the

decision in Fletcher, Ohio courts have recognized and upheld that a dismissal of a plaintiff's

medical-negligence action is warranted when a plaintiff fails to submit an affidavit of merit

in compliance with Civ.R. 10(D)(2). See Chromik v. Kaiser-Permanente, 8th Dist. Cuyahoga No.

Sandra Kurt, Summit County Clerk of Courts
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89088, 2007-Ohio-5856 (holding that motion for judgment on the pleadings was

appropriate where a plaintiff failed to submit an affidavit of merit to substantiate his

medical-negligence claims); Colon v. Fortune, 8th Dist. Cuyahoga No. 89527, 2008-Ohio-576

(holding that dismissal of plaintiffs medical-negligence claims was appropriate after

plaintiff failed to submit an affidavit of merit in compliance with Civ.R. 10(D)(2)); Frost v.

Cleveland Rehab & Special Care Center, Inc., 8th Dist. Cuyahoga No. 89694, 2008-Ohio-1718

(holding that summary judgment was appropriate in favor of defendant-physicians after

plaintiff failed to submit an appropriate affidavit of merit to substantiate her medical-

malpractice claims).

In accord with the reality that dismissal is warranted if Plaintiff fails to produce an

affidavit of merit comporting with Civ.R. 10(D)(2) by the extension that this Court has

granted, it is well settled under Ohio law that affidavits of merit are to be filed to substantiate

medical claims before discovery takes place. For example, in Colon v. Fortune, 8th Dist.

Cuyahoga No. 89527, 2008-Ohio-576, the Eighth District Court of Appeals upheld the trial

court’s decision that required a plaintiff to produce an affidavit of merit before deposing the

defendant. /d. In doing so, the court explained:

Affidavits of merit are to be filed with complaints in medical malpractice cases
in order to discourage plaintiffs from filing meritless claims. A plaintiff needs
to obtain an affidavit of merit that indicates at least one expert finds the case
has merit. Because the affidavit is to be filed along with the complaint (before
discovery takes place), appellant's argument that she needs [the
defendant's] deposition testimony in order to secure such an affidavit is
without merit.

(Emphasis added.) Id. at | 12. Because Ohio law is clear that Civ.R. 10(D)(2) requires the

plaintiff to file an affidavit of merit to establish the adequacy of the claims plead prior to

meaningful discovery occurring, the same standard should be recognized here.

Sandra Kurt, Summit County Clerk of Courts
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Aligned with this appellate decision, in Sapp v. Hillcrest Hospital, et al., Cuyahoga

County Court of Common Pleas Case No. 14CV819789, the plaintiff sought an order to

conduct discovery prior to submitting an affidavit of merit that complied with Civ. R.

10(D)(2). In Sapp, the court granted the defendants’ motion for reconsideration and motion

to stay discovery on the grounds that plaintiff had not filed an affidavit of merit pursuant to

Civ. R. 10(D)(2), explicitly recognizing that "discovery was stayed until an affidavit of merit

was filed." (See decision, attached as Exhibit A). Other courts have issued similar rulings on

this issue. See Robinson v. Cedarwood Plaza, Cuyahoga County Court of Common Pleas Case

No. 13CV809698 (denying the plaintiff's motion to compel discovery prior to an affidavit of

merit being filed and recognizing that “defendants shall respond to discovery requests 28

[twenty-eight] days from the date of plaintiff's submission of an affidavit of merit which

complies with Civ. R. 10(D)(2)”, decision attached as Exhibit
B); Massey v. Cleveland Clinic

Foundation, et al, Cuyahoga County Common Pleas Court Case No.: CV-17-883671

(recognizing that “discovery is stayed until Plaintiff submits an Affidavit of Merit”, decision

attached as Exhibit C); Newell v. Mercy Health Physicians Youngstown, LLC, et al., Summit

County Case No. CV-2020-12-3420, (Judge Tammy O’Brien recognizing that “discovery

shall be stayed until Plaintiffs file their affidavits of merit in accordance with Civ.R. 10

(D)”, decision attached as Exhibit D).

Here, Defendants should be under no obligation to respond to, or engage in discovery

until Plaintiff submits an affidavit of merit. Accordingly, Defendants respectfully request that

this Court issue an Order precluding depositions or written discovery until Plaintiff submits

an affidavit of merit in compliance with Civ.R. 10(D)(2).

Sandra Kurt, Summit County Clerk of Courts
CV-2023-08-3239 O'BRIEN, TAMMY 09/20/2023 15:33:06 PM MSTA Page 5 of 12

Respectfully submitted,

‘s/ Danny Egger
Danny Egger (0096903)
REMINGER CO., L.P.A.
200 Public Square, Suite 1200
Cleveland, Ohio 44114
(216) 687-1311- telephone
(216) 687-1841 - facsimile
degger@reminger.com
Attorney for Defendants
Akron General Medical Center
aka Cleveland Clinic Akron General
Akron General Health System

Sandra Kurt, Summit County Clerk of Courts
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CERTIFICATE
OF SERVICE
I hereby certify that on this 20 day of September 2023, a copy of the foregoing was

filed electronically. Notice of this filing will be sent by operation of the Court’s electronic

filing system and e-mail to all parties indicated on the electronic filing receipt. Parties can

access this document through the Court’s system.

‘s/ Danny Egger
Danny Egger (0096903)

Sandra Kurt, Summit County Clerk of Courts
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0 Mt
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
DONNA SAPP EXECUTOR Case No; CV-14-819789
Plaintift
Judge: NANCY R MCDONNELL,

HILLCREST HOSPITAL ET AL
Defendant
J OURNAL ENTRY

DEFENDANTS’ MOTION FOR RECONSIDERATION AND TO STAY DISCOVERY FILED ON 2/12/1418 GRANTED.
DISCOVERYIS STAYED UNTIL AFFIDAVIT OF MERIT IS FILED. AFFIDAVIT OF. MERIT DUE 5/8/14,

Ur FUlD—a8-
Judge Signature 02/21/2014

EXHIBIT

02/21/2014
RECEIVED POR FILING
02/21/2014 15:18:20
PA
ANDREA F. ROCCO, Cl
Page
1 of 1

Sandra Kurt, Summit County Clerk of Courts
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aA
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
‘WILLIAM ROBINSON ETAL Case No: CV-13-809698
Plaintift
Judge: STEVEN E GALL

CEDARWOOD PLAZA ETAL
Defendant
JOURNAL EF: Y

PLAINTIFF WILLIAM ROBINSON AND PATRICIA ROBINSON'S MOTION TO COMPEL DEFENDANTS TO RESPOND TO
DISCOVERY, FILED 10/04/2013, IS DENIED. DEFENDANTS SHALL RESPOND TO DISCOVERY REQUESTS 28 DAYS
FROM THE DATE OF PLAINTIFF'S SUBMISSION OF AN AFFIDAVIT OF MERIT WHICH COMPLIES WITH
CIVRI0D\2).

Achy
Judge Signature 10/16/2013

EXHIBIT
10/16/2013
RECEIVED FOR FILING
10/16/2013 16:34:49
1B
ANDREA F. ROCCO,
Page
1 of 1

Sandra Kurt, Summit County Clerk of Courts
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LAC CE
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANNA M. MASSEY Case,
No: CV-17-8836711
Plaintift
Judge; ROBERT C MCCLELLAND
CLEVELAND, CLINIC HEALTH SYSTEM, ET AL
Defendant

JOURNAL ENTRY

DEFENDANTS CLEVELAND CLINIC HEALTH SYSTEM DBA FAIRVIEW COLUMBIA: SURGERY CENTER, CLEVELAND
CLINIC HEALTH SYSTEM - WEST REGION DBA FAIRVIEW HOSPITAL, CLEVELAND: |, LYNETTE
M. KARTH MD., AND MAUREEN KESHOK MD.'S MOTION TO STAY DISCOVERY, FILED 09/W2017, IS GRANTED,
DISCOVERYIS STAYED UNITL PLAINTIEF SUBMITS AN AFFIDAVIT OF MERIT WHICH COMPLIES WITH.CIVR.
10@)@).

ote COL
Judge Signatire 09719/2017

EXHIBIT
OS/19/2017
RECEI
95/19/2017 15:33 04.
NAILS 1, CLERK
Page
l of L

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CV-2020-12-3420 O'BRIEN, TAMMY 02/12/2021 09:04:59 AM ORD-OTST Page 1 of 3

IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT

RALPH D. NEWELL ) CASE NO.: CV-2020-12-3420

Plaintiff } JUDGE TAMMY O'BRIEN
-Vs- )
‘MERCY HEALTH PHYSICIANS ) ORDER
YOUNGSTOWN, LLC, et al. )
)
Defendant
wee
This matter comes before the Court upon the Motion to Stay Discovery filed by
“Defendant, Jonah Moon, M.D. A response in opposition was filed by Plaintiffs on January 21,
2021. A reply in support was filed by Defendant, Jonah Moon, M.D. on January 25, 2021.
Upon review, the Court finds good cause to grant Defendant's Motion to Stay Discovery.
The Court therefore ORDERS Defendant’s Motion to Stay Discovery shall be GRANTED.
The Court ORDERS that discovery shall be stayed until Plaintiffs file their affidavits of merit in
accordance with Civ. R. 10(D).
ANALYSIS
Defendant, Jonah Moon, M.D. (“Defendant”) asks the Court to stay discovery until an
affidavit of merit has been filed. Defendant asserts that, until an affidavit of merit is filed by
Plaintiffs, the adequacy of the Complaint has not been established. Defendant emphasizes the
purpose of Civ. R. 10(D) to deter the filing of frivolous medical malpractice claims. Defendant
argues that he should be under no obligation to respond to discovery until the adequacy of the
complaint
has been established.
Plaintiffs ask the Court deny the request to stay discovery. Plaintiff argues that Civ. R. 10
does not require that discovery be stayed until the affidavit of merit is filed. Plaintiff cites Ward v.
Summa Health System, 128 Ohio St, 3d 212, 2010-Ohio-6275, for the position that the Ohio
Supreme Court has stated that discovery should not be stayed pending an extension of time to
provide an affidavit of merit pursuant to Civ. R. 10(D). Further, Plaintiff asserts that staying
discovery will unnecessarily delay the case.
Defendant filed a reply rebutting the Ward v, Summa, supra, citation presented by Plaintiff.
Defendant points out that Ward did not address whether a stay of discovery was warranted to
appropriate when an affidavit of merit has not been filed. Instead, Ward addressed whether
EXHIBIT

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CVv-2020-72-3420 OBRIEN, Tammy 02/92/2021 09:04:59 AM ORD-OTST Page 20f3

discovery from a non-party doctor could be obtained before the affidavit of merit was filed. The
Ohio Supreme Court held that trial court improperly prevented discovery because, without the
deposition of the non-party, Ward was unable to identify the source of his exposure to hepatitis
B which directly prevented Ward from obtaining an affidavit of merit. Defendant also contends
that the delay will not be unduly long and that it would be judicially inefficient and prejudicial
for Defendant to respond to discovery before the affidavit of merit is filed.
Upon review, the Court finds the Motion to Stay Discovery to be well-taken. “A trial court
has the inherent authority to control its docket and to decide discovery matters.” In re
Guardianship of Bakhtiar, 9th Dist. No, 16CA010932, {5, 2017-Ohio-5835 [citations omitted].
It is within a trial court’s discretion to stay discovery pending the resolution of 2 motion that will
be potentially dispositive of the matter. Id. See also, Linnen Co., L.P.A. v. Roubic, 9th Dist. No.
26494, {29, 2013-Ohio-1022,
Here, the Court finds that Plaintiffs have not alleged any compelling reason to conduct
discovery prior to the filing of the affidavit of merit. Unlike in Ward, Plaintiffs do not need to
conduct discovery in order to complete their affidavit of merit. Under the circumstances, the
Court finds that discovery at this stage of the proceeding would be premature. The Court further
finds that, if no affidavit of merit is filed, discovery would be an unnecessary burden upon the
Defendant. Conversely, the Court finds that no prejudicial effect on. Plaintiff if the stay is
granted as the stay would be short and would expire once the affidavit of merit is filed.
Therefore, the Court finds good cause to grant the request to stay discovery.

COURT ORDERS
The Court therefore ORDERS discovery shall be stayed until Plaintiffs file their affidavits
of meritin accordance with Civ. R. 10(D).
IT IS SO ORDERED.

JUDGE TAMMY O'BRIEN
CC: ATTORNEY THOMAS D. ROBENALT
ATTORNEY JOHN COLAN
ATTORNEY THOMAS D. ROBENALT
ATTORNEY JOHN COLAN

Sandra Kurt, Summit County Clerk of Courts
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CV-2020-12-34Z0 O'BRIEN, TAMMY 02/12/2021 09:04:59 AM ORO-OTST Page 3 of3

ATTORNEY THOMAS A. PRISLIPSKY
ATTORNEY THOMAS A. PRISLIPSKY
ATTORNEY THOMAS A. PRISLIPSKY
ATTORNEY THOMAS A. PRISLIPSK'Y
ATTORNEY THOMAS A. PRISLIPSKY
ATTORNEY THOMAS A. PRISLIPSKY
ATTORNEY THOMAS A. PRISLIPSKY
ATTORNEY THOMAS A. PRISLIPSKY
ATTORNEY THOMAS A. PRISLIPSKY
ATTORNEY ERIN SJEBENHAR HESS
ATTORNEY THOMAS A. PRISLIPSKY

icv

Sandra Kurt, Summit County Clerk of Courts

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September 20, 2023

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August 30, 2023

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