[Cite as Thornton v. Delatore, 2010-Ohio-6391.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

GARY THORNTON, et al., ) 

 ) CASE NO. 09 MA 192 

 PLAINTIFFS-APPELLANTS, ) 

 ) 

 - VS - ) O P I N I O N 

 ) 

JASON DELATORE, M.D., et al., ) 

 ) 

 DEFENDANTS-APPELLEES. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

 Case No. 08CV3808. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiffs-Appellants: sAttorney Percy Squire 

 514 South High Street 

 Columbus, Ohio 43215 

For DefendantsAppellees: Attorney Douglas Leak 

 One Cleveland Center, Suite 900 

 1375 East Ninth Street 

 Cleveland, Ohio 44114 

 Attorney Michael Hudak 

 222 South Main Street 

 Akron, Ohio 44308 

 Attorney Marshall Buck 

 100 Federal Plaza East, Suite 926 

 Youngstown, Ohio 44503 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

 Dated: December 22, 2010 
VUKOVICH, P.J. 

¶{1} Plaintiff-appellant Gary Thornton, et al. appeals the decision of the 

Mahoning County Common Pleas Court granting summary judgment to plaintiffappellee Jason Delatore, M.D. and the decision granting summary judgment to 

plaintiff-appellee St. Elizabeth Health Center. As to the physician, appellant contends 

that the trial court erred in ruling that the one-year medical malpractice statute of 

limitations had expired. The physician counters that the cognizable event was the 

amputation of appellant’s leg, not the information allegedly received two months later 

concerning the physician’s negligent failure to perform a test that may have prevented 

the amputation. 

¶{2} Appellant submitted no summary judgment material concerning the 

information he allegedly received concerning the physician’s omissions. Rather, 

appellant’s deposition established that he was suspicious of the physician’s treatment 

even prior to the amputation. This suspicion combined with appellant’s refusal to be 

treated by this physician and the subsequent amputation of his leg constituted a 

cognizable event which would alert a reasonable person of the need to investigate the 

cause of the amputation. Thus, the trial court’s decision granting summary judgment 

to the physician is upheld. 

¶{3} As to the hospital, appellant argues that the trial court erred in holding 

that the test was not satisfied for holding a hospital liable for an independent 

contractor’s negligence. The hospital responds that appellant knew the physician was 

not employed by the hospital and that a reasonable person would not believe that the 

physician was acting under the hospital’s authority. The hospital alternatively argues 

that its motion to dismiss should have been granted due to appellant’s failure to file an 

affidavit of merit under Civ.R. 10(D)(2). 

¶{4} There was no evidence that appellant, without notice or knowledge to the 

contrary, looked to the hospital, as opposed to the individual practitioner, to provide 

medical care. In fact, he admitted that he was specifically informed about Dr. 

Delatore’s employment status, and his deposition testimony establishes he viewed the 

hospital as the mere situs for his treatment. As such, the judgment of the trial court is 

hereby affirmed. 
STATEMENT OF THE CASE

¶{5} Appellant was diagnosed with circulatory problems as a result of 

diabetes. In November of 2003, appellant’s primary care physician sent him to the 

hospital due to a foot infection for consultation with a vascular surgeon. He expected 

to be treated by Dr. Kollipara, but Dr. Delatore arrived in his place. (Depo. 17). 

According to appellant’s deposition, Dr. Delatore told him that he was employed by Dr. 

Kollipara. (Depo. 56-57). Appellant also described Dr. Delatore as being partners with 

Dr. Kollipara. (Depo. 14-15). During that hospital stay, appellant’s toes had to be 

amputated and a bypass was inserted in his leg. (Depo. 19). 

¶{6} Appellant’s follow-up appointment was at Dr. Delatore’s private office, 

across the street from the hospital. Thereafter, Dr. Delatore said he would be better 

able to serve appellant at the Wound Care Center at the hospital. Dr. Delatore thus 

set up weekly appointments for appellant when he was scheduled to be at the Center. 

(Depo. 19). Appellant noticed a list of nine different doctors that worked out of the 

Center, but Dr. Delatore’s name was not on the list. (Depo. 64). Appellant noted that 

he was billed by the hospital for the office visits and was separately billed by Dr. 

Kollipara for Dr. Delatore’s services. (Depo. 64). He disclosed that he thought this 

was unfair and that he thought Dr. Delatore should have just treated him at his private 

office across the street to save him money. (Depo. 65). 

¶{7} On Memorial Day weekend, appellant noticed a blister on the bottom of 

his foot. The next Wednesday, appellant went to the Center and saw a Dr. Pesa, who 

told appellant to come in on Monday when Dr. Delatore would return. (Depo. 22-23). 

When appellant returned, Dr. Delatore debrided the blister, rongeured the bone, and 

wrapped the wound. Appellant asked Dr. Delatore, “don’t you think I need an 

antibiotic?” Dr. Delatore responded in the negative. (Depo. 22, 24). Appellant 

thought that since he was a diabetic and he was being cut, he would receive an 

antibiotic. (Depo. 26). 

¶{8} A week after the debridement, appellant went to Dr. Delatore 

complaining of foot swelling and pain, and Dr. Delatore admitted him to the hospital. 

(Depo. 27-28). Appellant stated that he did not want anything done to him there and 

asked to be transferred to the Cleveland Clinic, where it took five days for a room to 
open. (Depo. 30-31, 33). On June 28, 2004, appellant underwent a below the knee 

amputation and stayed in the Cleveland Clinic for a week. 

¶{9} On September 9, 2005, appellant filed a complaint against Dr. Delatore 

for medical malpractice and against St. Elizabeth Health Center under agency 

principles. Appellant explained that he filed the lawsuit against Dr. Delatore because 

he believed that he did something wrong by not providing an antibiotic. (Depo. 51-52, 

70); (Answers to Interrogatories). Appellant disclosed that he filed suit against the 

hospital because Dr. Delatore’s acts and omissions occurred on the premises and 

because he had to pay bills to the hospital. (Depo. 67-68, 71). 

¶{10} Before the court could rule on various defense motions, the complaint 

was voluntarily dismissed. On September 26, 2008, which was within one year of the 

dismissal, appellant refiled the complaint. In June of 2009, both Dr. Delatore and the 

hospital filed motions to dismiss as appellant failed to file an affidavit of merit as 

required by Civ.R. 10(D)(2). Appellant responded that this issue should be deemed 

waived since the defendants filed their answer without raising that issue before filing 

their motions to dismiss. But, see, Civ.R. 12(B), (H)(2). Appellant then attached a 

letter from an expert, which he described as an affidavit of merit. However, the letter 

was not sworn or notarized. Nevertheless, the trial court did not address these 

dismissal motions as summary judgment motions were also pending. 

¶{11} Dr. Delatore’s motion for summary judgment argued that the one-year 

statute of limitations for medical malpractice actions had run by June 28, 2005 at the 

latest. Appellant’s response claimed that it was not until September of 2004 while at 

the Cleveland Clinic that he learned that his June 28, 2004 leg amputation may be due 

to Dr. Delatore’s failure to conduct circulation studies after the initial toe amputation. 

¶{12} On October 22, 2009, the trial court granted summary judgment for Dr. 

Delatore. The court pointed out that appellant’s testimony disclosed that he had a 

subjective belief in June of 2004 that Dr. Delatore should have prescribed an antibiotic 

upon debridement. The court concluded that this plus the amputation was a 

cognizable event that should have led appellant to investigate and pursue his 

remedies. The court also stated that appellant produced no evidence that the 

cognizable event occurred in September of 2004. 
¶{13} Meanwhile, the hospital had filed a motion for summary judgment on the 

grounds that Dr. Delatore was not an employee and that the test for holding a hospital 

liable for the negligence of an independent contractor physician had not been met. 

Appellant responded by noting that his deposition testimony showed that Dr. Delatore 

told him to go to the hospital. The response also stated that appellant believed that 

the hospital had the ultimate responsibility for his treatment and claimed that he never 

knew Dr. Delatore was an independent contractor. 

¶{14} On October 22, 2009, the trial court granted summary judgment for the 

hospital, stating that there was no evidence presented that would make the hospital 

liable for the acts of the independent contractor physician. Appellant filed timely notice 

of appeal from both judgment entries. 

ASSIGNMENT OF ERROR NUMBER ONE

¶{15} Appellant sets forth two assignments of error, one for each defendantappellee. The first assignment of error provides: 

¶{16} “THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT’S 

JASON DELATORE’S SUMMARY JUDGMENT MOTION BASED ON THE ALLEGED 

FAILURE OF APPELLANT TO COMMENCE THE UNDERLYING MEDICAL 

MALPRACTICE ACTION WITHIN ONE YEAR OF JUNE 28, 2004, THE DATE UPON 

WHICH AN ALLEGED COGNIZABLE EVENT WITHIN THE MEANING OF R.C. 

2305.113(A), THE APPLICABLE STATUTE OF LIMITATIONS, OCCURRED.” 

¶{17} An appellate court reviews a trial court's decision on a motion for 

summary judgment de novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio 

St.3d 314, 2002-Ohio-2220, ¶24. Summary judgment shall be granted when there is 

no genuine issue as to any material fact and the moving party is entitled to judgment 

as a matter of law. Id. When a motion for summary judgment is made and supported 

by Civ.R. 56, the non-movant may not rest upon the mere allegations or denials of his 

pleadings but must respond with affidavits or other evidence listed in the rule setting 

forth specific facts showing that there is a genuine issue for trial. Civ.R. 56(E). If the 

party does not so respond, summary judgment shall be entered against him. Civ.R. 

56(E). 
¶{18} An action on a medical claim shall be commenced within one year after 

the cause of action accrued. R.C. 2305.113(A). “[A] cause of action for medical 

malpractice accrues and the statute of limitations commences to run when the patient 

discovers, or in the exercise of reasonable care and diligence should have discovered, 

the resulting injury.” Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 

111, 117-118. 

¶{19} It has been explained that the occurrence of a cognizable or noteworthy 

event should lead the plaintiff to believe that his injury is related to a prior medical 

diagnosis or procedure and should alert the plaintiff of the need to pursue a remedy. 

Allenius v. Thomas (1989), 42 Ohio St.3d 131,133-134 (plaintiff need not have 

discovered all of the relevant facts). If the patient believes that he suffered harm due 

to the physician doing something wrong, then the patient has suffered a cognizable 

event. Id. at 134. Constructive knowledge of facts, rather than actual knowledge of 

the legal significance of those facts, is sufficient as the cognizable event puts the 

plaintiff on notice that he should investigate the facts and circumstances relevant to 

the injury. Flowers v. Walker (1992), 63 Ohio St.3d 546, 549. 

¶{20} In Flowers, the plaintiff’s mammogram had been interpreted as negative 

for cancer. Later, she was diagnosed with breast cancer. The Court held that the 

cancer diagnosis constituted an occurrence of facts and circumstances that should 

have led the plaintiff to believe that the cancer was related to a previous misdiagnosis. 

Id. at 550. The Court ruled that the malpractice statute began to run at the time of the 

cancer diagnosis even though the plaintiff did not know all the facts and circumstances 

surrounding the apparent misreading of her earlier mammogram. Id. Thus, the Court 

upheld the trial court’s grant of summary judgment for the defendant. 

¶{21} Appellant argues that the statute of limitations did not begin until he 

learned in September of 2004 from the Cleveland Clinic that circulatory studies should 

have been performed after the November 2003 toe amputations. He concludes that 

his September 9, 2005 complaint was timely filed. Dr. Delatore has two responses to 

this argument. First, he contends that appellant did not sufficiently respond to the 

motion for summary judgment. Second, he argues that the June 28, 2004 amputation 

was the latest cognizable event that would have started the statute of limitations. 
¶{22} Dr. Delatore’s summary judgment evidence focused on appellant’s 

deposition, which was attached to the physician’s summary judgment motion. In 

responding to the summary judgment motion, appellant filed a “verified memorandum 

in opposition.” The memorandum stated that he was hospitalized at St. Elizabeth 

Health Center from June 25, 2004 until July 9, 2004. However, this is at odds with his 

other statements that his leg was amputated at the Cleveland Clinic on June 28, 2004 

and that he stayed there for at least a week thereafter. The memorandum then stated 

that he learned from the Cleveland Clinic in September of 2004 that the amputation 

was due to the failure of Dr. Delatore to conduct proper circulation studies. It was then 

argued that this information constituted the cognizable event and that the complaint 

was filed within one year after acquisition of that information. 

¶{23} Attached to the memorandum is a “verification” stating, “In accordance 

with the provision of Ohio R. Civ.P. 56 this verification is my affidavit concerning the 

truth of the assertions set forth within this opposition.” Appellant’s signature is then 

notarized by his attorney, who drafted the opposition memorandum. Appellant did not 

attach an actual affidavit.1

¶{24} Materials or exhibits attached to summary judgment motions can be 

verified as being true by the attachment of an affidavit based upon personal 

knowledge indicating that the affiant is competent to testify to the matter and stating 

that the attached material is a true copy. State ex rel. Corrigan v. Seminatore (1981), 

66 Ohio St.2d 459, 467. Where the item attached to the affidavit contains both facts 

and argument, it is within the trial court’s discretion to determine whether to accept the 

incorporation of the facts. Id. at 468. 

¶{25} Here, there is no real affidavit. See Gruenspan v. Seitz, 124 Ohio 

App.3d 197, 209, fn.4 (where the Eighth District held that a “verification” in an 

opposition brief is not an affidavit for purposes of Civ.R. 56). Rather, a single line 

called “verification” purports to be an affidavit. Acceptance of such a “swear to 

everything my lawyer says” affidavit would require a court to pick out which portions of 

 1

Appellant did attach his December of 2006 answers to interrogatories. Notably, he listed only 

the failure to provide antibiotics after the blister removal as being reason Dr. Delatore was negligent. He 

mentioned nothing about receiving information from the Cleveland Clinic in September in his 

interrogatory answers or at his deposition. Moreover, in listing his visits to the Cleveland Clinic, the 

answers do not mention any visits in September of 2004. 
the legal memorandum are part of the affidavit and which are the attorney’s legal 

pronouncements and arguments. This is different from accepting the contents of a 

verified complaint as summary judgment evidence, because pleadings are specifically 

listed in Civ.R. 56, whereas an opposition brief is not listed as evidence. Moreover, 

pleadings are factual and do not contain arguments and legal analysis as do 

opposition memoranda. 

¶{26} This situation is distinguishable from that in the Seminatore case 

because the verification does not refer to attached items sought to be used as 

summary judgment evidence. Rather, the verification refers to the contents of the 

opposition memorandum itself. This memorandum was written by an attorney and 

contains general facts, law, and arguments. Furthermore, even applying Seminatore, 

it would be within the trial court’s sound discretion to refuse to accept the 

memorandum and verification as an affidavit. See Seminatore, 66 Ohio St.2d at 467. 

¶{27} This the trial court did when it concluded that appellant failed to produce 

evidence by way of affidavit, deposition, medical records, or other testimony to 

substantiate his claim that the cognizable event occurred in September 2004. In fact, 

appellant’s brief does not take issue with this statement nor does it point to the fact 

that the opposition memorandum was verified or otherwise argue that the verification 

is the same as an affidavit. 

¶{28} Additionally, generally stating that information was received “in 

September 2004” is insufficient. If the information was provided before September 9, 

2004 then the statute of limitations still would have run by the time the September 9, 

2005 complaint was filed. 

¶{29} Regardless, the trial court did not err in finding that reasonable minds 

could only find that a cognizable event occurred prior to September of 2004. As 

aforementioned, appellant’s answer to an interrogatory stated that he filed the lawsuit 

based upon the negligent act of failing to provide an antibiotic at the early June of 

2004 office visit. Appellant’s deposition stated that after Dr. Delatore removed a 

blister, appellant asked, “don’t you think I need an antibiotic?” Dr. Delatore responded 

in the negative. (Depo. 22, 24). Appellant thought that since he was a diabetic 

receiving a foot incision, he would receive an antibiotic. (Depo. 26). 
¶{30} A week after the debridement, appellant went to Dr. Delatore 

complaining of foot swelling and pain, and Dr. Delatore admitted him to the hospital. 

(Depo. 27-28). Appellant asked to be transferred to the Cleveland Clinic where his 

lower leg was amputated on June 28, 2004. (Depo. 30-31, 33). Appellant’s deposition 

testimony revealed that he filed the lawsuit against Dr. Delatore because he believed 

that he did something wrong by not providing an antibiotic. (Depo. 51-52, 70). 

¶{31} If the patient believes that he suffered harm due to the physician doing 

something wrong, then the patient has suffered a cognizable event. Allenius, 42 Ohio 

St.3d 131, 134. The debridement of the blister without antibiotics contrary to 

appellant’s voiced expectations, the swelling and pain soon thereafter, and the 

resulting drastic amputation must be considered together with appellant’s admission 

that he believed that he suffered harm due to Dr. Delatore’s failure to provide 

antibiotics upon debridement. Moreover, upon his hospitalization, appellant refused to 

allow Dr. Delatore to make decisions regarding the need for an amputation and 

instead waited five days to be transferred to the Cleveland Clinic. 

¶{32} Together these circumstances constitute a cognizable or noteworthy 

event that should have led appellant to believe that his injury was related to a prior 

medical act or omission and should have alerted him to the need to pursue a remedy. 

See id. at 133-134. See, also, Mallory v. Lake Systs. (July 29, 1988), 11th Dist. No. 

12-183 (speaking to the drastic procedure of a toe amputation as requiring reasonable 

investigation into the cause by the plaintiff). This cognizable event called for diligent 

investigation of the actual cause. That the cause may have involved more than merely 

a failure to utilize antibiotics but may have also involved a failure to perform circulatory 

studies would not appear to eradicate the occurrence of the cognizable event. See id. 

(plaintiff need not have discovered all of the relevant facts). 

¶{33} Constructive, rather than actual, knowledge is all that is required. 

Flowers, 63 Ohio St.3d at 549. See, also, Taylor v. Lloyd, 7th Dist. No. 06BE46, 2007-

Ohio-1565, ¶39 (date plaintiff receives actual knowledge of exact act of malpractice is 

not cognizable event; rather cognizable event is date plaintiff has constructive 

knowledge of facts that would lead reasonable person to investigate). Based upon 

appellant’s admissions, he had at least constructive knowledge that the amputation 
was related to Dr. Delatore’s negligence. For all of these reasons, the trial court’s 

decision to grant summary judgment for Dr. Delatore on statute of limitations grounds 

is affirmed. 

ASSIGNMENT OF ERROR NUMBER TWO

¶{34} Appellant’s second assignment of error states: 

¶{35} “THE TRIAL COURT ERRED WHEN IT FOUND THAT DEFENDANT 

ST. ELIZABETH’S HOSPITAL WAS NOT LIABLE AS A MATTER OF LAW FOR THE 

NEGLIGENCE OF DEFENDANT DELATORE.” 

¶{36} First, appellant makes mention of potential liability of the hospital for 

negligent credentialing. However, such a cause of action was not before the trial court 

when it ruled. The complaint made no allegations of negligent credentialing. Rather, 

the complaint only alleged that the hospital was liable on the grounds that Dr. Delatore 

acted within the course of his employment or apparent agency with the hospital 

making the hospital vicariously liable for his actions. We also note that appellant’s 

response to summary judgment made no reference to this cause of action. As such, 

we refuse to address the issue of negligent credentialing. We thus move to the next 

issue. 

¶{37} Pursuant to the doctrine of respondeat superior liability, an employer or 

principal is vicariously or secondarily liable for the negligence of its employee or agent, 

whose liability is primary. Clark v. Southview Hosp. & Fam. Health Ctr. (1994), 68 

Ohio St.3d 435, 438. In seeking summary judgment, the hospital provided proper 

summary judgment material establishing that Dr. Delatore was not an employee but 

was rather an independent contractor. Appellant then admitted that Dr. Delatore was 

an independent contractor. 

¶{38} In general, a principal is not vicariously liable for the negligence of an 

independent contractor over whom it retained no right to control the mode and manner 

of work. Id. However, the Supreme Court has created a fictional agency relationship, 

called agency by estoppel to impose vicarious liability on independent contractor 

physicians in the hospital context under certain narrow circumstances. See Comer v. 

Risko, 106 Ohio St.3d 185, 2005-Ohio-4459, ¶19. 
¶{39} Specifically, a hospital can only be held liable under the doctrine of 

agency by estoppel for the negligence of independent medical practitioners if: (1) it 

holds itself out to the public as a provider of medical services; and (2) in the absence 

of notice or knowledge to the contrary, the patient looks to the hospital as opposed to 

the individual practitioner to provide competent medical care. Clark, 68 Ohio St. 3d at 

444-445. A patient has the right to assume he is being treated by hospital employees 

unless the patient viewed the hospital as merely the situs for the treating physician to 

practice. Id. at 445 overruling Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 

syllabus at ¶4 (which set forth the following test: (1) hospital made representations 

leading plaintiff to believe physician was an agent operating under hospital’s authority; 

and (2) plaintiff was induced to rely on an apparent agency relationship). 

¶{40} The Clark holding was later limited so that it could not be read as 

imposing independent liability upon the hospital for the negligence of its independent 

contractor physicians. Comer, 106 Ohio St.3d 185 at ¶18. The Court explained that 

the hospital is merely secondarily liable and the tortfeasor-agent is primarily liable. Id. 

at ¶20. Thus, where the statute of limitations had expired against the negligent 

independent contractor physician, the suit against the hospital could not proceed. Id. 

at ¶5, 27-28. 

¶{41} As this court overruled appellant’s first assignment of error, this 

assignment of error can be resolved in favor of the hospital on this basis. That is, 

since the statute of limitations ran against the physician before the suit was filed, the 

agency by estoppel suit against the hospital has no basis to exist under Comer. In any 

event, summary judgment for the hospital can also be upheld on the grounds that the 

agency by estoppel test was not satisfied here. 

¶{42} Appellant was originally sent to the hospital by his primary care physician 

and was told that a vascular surgeon named Dr. Kollipara would attend to him. When 

Dr. Delatore arrived instead, he told appellant that he was employed by Dr. Kollipara 

and appellant later believed that he was partners with Dr. Kollipara. (Depo. 14-15, 17, 

57). During that hospital stay, appellant’s toes were amputated and a bypass was 

inserted in his leg. (Depo. 19). Notably, this hospital stay is not even at issue here. 

Rather, it is the outpatient care thereafter that is at issue. 
¶{43} Appellant’s first follow-up appointment was at Dr. Delatore’s private 

office, across the street from the hospital. Dr. Delatore said he would be better able to 

serve appellant at the Wound Care Center at the hospital and thus set up weekly 

appointments for appellant when he was scheduled to be at the Center. (Depo. 19). 

Appellant noticed a list of nine different doctors that worked out of the Center, but Dr. 

Delatore’s name was not on the list. He was billed by the hospital for the visits and 

was separately billed by Dr. Kollipara for Dr. Delatore’s services. (Depo. 64). 

Appellant believed that Dr. Delatore should have conducted the visits at his private 

office to save appellant money. Appellant explained that he sued the hospital because 

it happened there and because he had to pay bills to the hospital. (Depo. 67-68, 71). 

The statement in the opposition memorandum that appellant thought the hospital was 

ultimately responsible for his care was contradicted by this other evidence and, as set 

forth above, a memorandum of law that contains some factual statements need not be 

accepted as an affidavit for purposes of summary judgment even if it is “verified.” 

¶{44} Thus, there was no evidence that appellant looked to the hospital, as 

opposed to the individual practitioner, to provide medical care. See Clark, 68 Ohio St. 

3d at 444-445. There was also no evidence that he lacked notice or knowledge to the 

contrary, and in fact, appellant admitted that he was specifically informed about Dr. 

Delatore’s employment status. See id. Appellant’s statements lead to only one 

reasonable conclusion: he viewed the hospital as the mere situs for his treatment. 

See id. He had both constructive and actual knowledge of the situation. Accordingly, 

summary judgment was properly entered on the grounds that the elements of agency 

by estoppel were not sufficiently set forth to raise a genuine issue of material fact. 

¶{45} Finally, we note the alternative argument concerning appellant’s failure to 

file an affidavit of merit. This deficiency can be contested by way of a Civ.R. 12(B)(6) 

motion to dismiss for failure to state a claim upon which relief can be granted because 

a complaint on a medical claim is not sufficient without a proper Civ.R. 10(D)(2) 

affidavit. Fletcher v. University Hosp. of Cleveland, 120 Ohio St. 167, 2008-Ohio5379, ¶13. See, also, Civ.R. 12(B), (H)(2) (the defense of failure to state a claim can 

be raised in a pleading, in a motion, or at trial). However, the failure to attach an 

affidavit of merit requires only a dismissal without prejudice. Fletcher, 120 Ohio St. 
167 at ¶18, fn. 4 (even where the case has already been dismissed once, the 

dismissal is still without prejudice, and the parties must then litigate any savings 

statute issue in a refiled suit). Accordingly, since the grant of summary judgment for 

both defendants is being affirmed (and thus the case is essentially dismissed with 

prejudice), the alternative argument, which could only result in our dismissing without 

prejudice, need not be addressed. 

¶{46} For the foregoing reasons, the judgment of the trial court is hereby 

affirmed. 

Donofrio, J., 

DeGenaro, J.,