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Ohio Supreme To Rule on Malpractice Expert Affidavit
UPDATE: The Ohio Supreme Court issued its decision in this case on October 24, 2007 and held that the denial of a motion to
dismiss when there is a failure to file an affidavit of merit is not a final appealable order.
Full text of the Ohio
Supreme Court decision
Manley v. Marsico, in the Ohio Supreme Court, involves the
affidavit of merit requirement found in Ohio Civil Rule 10(D)(2), which became effective in July 2005.
The statute requires a plaintiff in a medical negligence case to file with the complaint an affidavit from a
qualified medical expert stating that the affiant: (1) has reviewed the medical records concerning the allegations; (2) is
familiar with the applicable standard of care; and (3) holds the opinion that the standard of care was breached by
one or more of the defendants and that the breach caused injury to the plaintiff.
In the Manley case, the plaintiff failed to file the affidavit of merit. Defendant Marsico filed a motion to
dismiss for failure to comply with the affidavit of merit rule. The trial court denied the motion and defendant Marsico appealed.
The Twelfth District Court of Appeals dismissed the appeal for lack of a final appealable order.
The Ohio Supreme Court accepted the discretionary appeal. Briefs filed in support of appellant were filed on December 12, 2006. The appellee's brief was filed
on January 31, 2007 and oral argument was held on May 24, 2007. An archived video of the
oral argument is available on the
Ohio Supreme Court archived arguments page under May 24, 2007.
Bricker & Eckler represents amici curiae Ohio Hospital Association,
Ohio State Medical Association and Ohio Osteopathic Association in support
of the defendant-appellant. The amici curiae argue that the affidavit of merit rule is effectively meaningless if an immediate appeal
from a decision denying dismissal for failure to comply is not permitted.
Amici curiae brief on behalf of Ohio Hospital Association,
Ohio State Medical Association and Ohio Osteopathic Association
For more information regarding this case, contact Anne Marie Sferra chair of the
Bricker & Eckler appellate group.
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