[Cite as Bixby v. Ohio State Univ., 2018-Ohio-2016.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Lori A. Bixby, : 

 Plaintiff-Appellant, : No. 17AP-802 

 (Ct. of Cl. No. 2017-00567)

v. : 

 (REGULAR CALENDAR) 

The Ohio State University, : 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on May 24, 2018 

 

On brief: Lori A. Bixby, pro se. Argued: Lori A. Bixby.

On brief: Michael DeWine, Attorney General, and Jeanna V. 

Jacobus, for appellee. Argued: Jeanna V. Jacobus.

 

APPEAL from the Court of Claims of Ohio 

DORRIAN, J. 

{¶ 1} Plaintiff-appellant, Lori A. Bixby, appeals the October 10, 2017 judgment of 

the Court of Claims of Ohio dismissing her complaint pursuant to Civ.R. 12(B)(6). For the 

following reasons, we affirm. 

I. Facts and Procedural History 

{¶ 2} On June 26, 2017, appellant filed a complaint against defendant-appellee, 

The Ohio State University. In her complaint, appellant stated she received treatment at 

The Ohio State University's Stefanie Spielman Comprehensive Breast Center. Appellant 

alleged she received unnecessary treatment and suffered nerve damage and carpal tunnel 

symptoms resulting from medication she was prescribed. 

{¶ 3} On July 14, 2017, appellee filed a motion, pursuant to Civ.R. 12(B)(6), to 

dismiss appellant's complaint for failing to support her complaint with an affidavit of merit 

as required by Civ.R. 10(D)(2). On July 26, 2017, appellant filed a motion to extend time 
No. 17AP-802 2 

to file an affidavit of merit. On August 18, 2017, the Court of Claims filed an order granting 

appellant until September 14, 2017 to file an affidavit of merit. On September 14, 2017, 

appellant filed a motion seeking to avoid the requirement to file an affidavit of merit 

because the "case is fairly straight-forward" or, in the alternative, seeking assistance in 

"find[ing] someone who can provide an affidavit of merit." On September 19, 2017, appellee 

filed a response to appellant's September 14, 2017 motion. On October 10, 2017, the Court 

of Claims filed an entry dismissing appellant's complaint for failing to state a claim upon 

which relief can be granted pursuant to Civ.R. 12(B)(6). 

II. Discussion 

{¶ 4} Initially, we note that appellant elected to proceed pro se both in bringing this 

action and on appeal. "It is well-established that pro se litigants are presumed to have 

knowledge of the law and legal procedures and that they are held to the same standard as 

litigants who are represented by counsel." Sabouri v. Ohio Dept. of Job & Family Servs., 

145 Ohio App.3d 651, 654 (10th Dist.2001). "In civil cases, the same rules, procedures and 

standards apply to one who appears pro se as apply to those litigants who are represented 

by counsel." Fields v. Stange, 10th Dist. No. 03AP-48, 2004-Ohio-1134, ¶ 7, citing State ex 

rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, ¶ 10. 

{¶ 5} The Ohio Rules of Appellate Procedure require that an "appellant shall 

include in its brief, under the headings and in the order indicated * * * [a] statement of the 

assignments of error presented for review, with reference to the place in the record where 

each error is reflected," and a "statement of the issues presented for review, with references 

to the assignments of error to which each issue relates." App.R. 16(A)(3) and (4). 

Appellant's brief does not satisfy either of these requirements. 

{¶ 6} Pursuant to App.R. 12(A)(1)(b), appellate courts must "[d]etermine [an] 

appeal on its merits on the assignments of error set forth in the briefs under App.R. 16." 

"Thus, this court rules on assignments of error only, and will not address mere arguments." 

Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 70. Because appellant has 

failed to set forth any assignments of error for this court's review, it is not necessary for this 

court to address appellant's arguments in order to affirm the trial court's judgment. State 
No. 17AP-802 3 

v. Botts, 10th Dist. No. 12AP-822, 2013-Ohio-4051, ¶ 9. Nevertheless, in the interest of 

justice, we will address the assertions appellant makes in her brief, to the extent possible.1 

{¶ 7} Appellant filed her notice of appeal from the October 10, 2017 judgment of 

the Court of Claims dismissing her case for failing to file an affidavit of merit as required by 

Civ.R. 10(D)(2). In her brief, appellant refers to the "previous efforts I've made including 

attempts to find someone who could provide an 'affidavit of merit.' " (Appellant's Brief at 

3.) Appellant argues that "another pharmacist or oncologist would probably just reiterate 

what is already in my documentation." (Appellant's Brief at 7.) 

{¶ 8} Civ.R. 10(D)(2) requires that every complaint which contains a medical claim 

must be accompanied by an affidavit of merit. Specifically, Civ.R. 10(D)(2) provides: 

(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 by one or more affidavits of 

merit relative to each defendant named in the complaint for 

whom expert testimony is necessary to establish liability. 

Affidavits of merit shall be provided by an expert witness 

meeting the requirements of Evid.R. 702 and, if applicable, also 

meeting the requirements of Evid.R. 601(D). Affidavits of merit 

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. 

* * * 

(d) 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. 

 

1 We note that appellee has not filed a motion to strike appellant's brief for non-compliance, and appellee has 

filed its own brief arguing the merits of the appeal. As a result, in this instance, we find appellee is not 

prejudiced by our decision to address the merits of the appeal. JPMorgan Chase Bank, N.A. v. Allton, 10th 

Dist. No. 14AP-228, 2014-Ohio-3742, ¶ 7 (finding no prejudice to the appellee resulting from the appellants' 

failure to comply with App.R. 16(A)(3) and (4) and addressing the merits of the appeal). 
No. 17AP-802 4 

R.C. 2305.113€(3) defines "medical claim" as: 

[A]ny claim that is asserted in any civil action against a 

physician, podiatrist, hospital, home, or residential facility, 

against any employee or agent of a physician, podiatrist, 

hospital, home, or residential facility, or against a licensed 

practical nurse, registered nurse, advanced practice registered 

nurse, physical therapist, physician assistant, emergency 

medical technician-basic, emergency medical technicianintermediate, or emergency medical technician-paramedic, 

and that arises out of the medical diagnosis, care, or treatment 

of any person. "Medical claim" includes the following: 

(a) Derivative claims for relief that arise from the plan of care, 

medical diagnosis, or treatment of a person; 

(b) Claims that arise out of the plan of care, medical diagnosis, 

or treatment of any person and to which either of the following 

applies: 

(i) The claim results from acts or omissions in providing 

medical care. 

(ii) The claim results from the hiring, training, supervision, 

retention, or termination of caregivers providing medical 

diagnosis, care, or treatment. 

(c) Claims that arise out of the plan of care, medical diagnosis, 

or treatment of any person and that are brought under section 

3721.17 of the Revised Code; 

(d) Claims that arise out of skilled nursing care or personal care 

services provided in a home pursuant to the plan of care, 

medical diagnosis, or treatment. 

{¶ 9} The Supreme Court of Ohio has held that "[t]he proper response to the failure 

to file the affidavit required by Civ.R. 10(D)(2) is a motion to dismiss pursuant to Civ.R. 

12(B)(6)." Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 

paragraph one of the syllabus. "The purpose behind the requirement in Civ.R. 10(D)(2) is 

to deter individuals from filing frivolous medical malpractice claims and to 'establish the 

adequacy of the complaint.' " Jackson v. Northeast Pre-Release Ctr., 10th Dist. No. 09AP457, 2010-Ohio-1022, ¶ 15, quoting Fletcher at ¶ 10, citing current Civ.R. 10(D)(2)(d). 

"Thus, Civ.R. 10(D)(2)(d) imposes a heightened standard of pleading upon a plaintiff and 

goes directly to the sufficiency of the complaint, thereby making a motion to dismiss for 

failure to state a claim upon which relief can be granted the proper remedy to impose when 

a plaintiff fails to include an affidavit of merit." Id. at ¶ 15, citing Fletcher at ¶ 14. An 
No. 17AP-802 5 

appellate court applies a de novo standard when reviewing a judgment dismissing a 

complaint for failure to state a claim upon which relief can be granted pursuant to Civ.R. 

12(B)(6).2 Woods v. Riverside Methodist Hosp., 10th Dist. No. 11AP-689, 2012-Ohio-3139, 

¶ 9. 

{¶ 10} It is undisputed that appellant's claim was a medical claim as defined by R.C. 

2305.113 and that she failed to file an affidavit of merit as required by Civ.R. 10(D)(2). 

Appellant sought and received additional time to file an affidavit of merit, but she did not. 

Appellant also sought assistance from the court in "find[ing] someone who can provide an 

affidavit of merit." (Appellant's Sept. 14, 2017 Motion.) A court, however, cannot act as 

counsel for a pro se litigant, as doing so would be inherently unjust to the adverse party. 

Fields at ¶ 7. Without the accompanying affidavit, appellant failed to plead in her complaint 

a claim upon which relief could be granted. Fletcher at ¶ 15; Jackson at ¶ 17. Therefore, we 

find the Court of Claims did not err in dismissing the case. 

III. Conclusion 

{¶ 11} Based on the foregoing, we affirm the judgment of the Court of Claims of 

Ohio. 

Judgment affirmed. 

TYACK and BRUNNER, JJ., concur. 

 

 

2 We note that Civ.R. 10(D)(2)(d) provides that "[a]ny dismissal for the failure to comply with this rule shall 

operate as a failure otherwise than on the merits." The Supreme Court has held "[a] dismissal of a complaint 

for failure to attach the affidavit of merit required by Civ.R. 10(D)(2) is an adjudication otherwise than on the 

merits and is a dismissal without prejudice by operation of law." Troyer v. Janis, 132 Ohio St.3d 229, 2012-

Ohio-2406, paragraph one of the syllabus. Generally, an involuntary dismissal without prejudice is not a final 

appealable order. Straquadine v. Crowne Pointe Care Ctr., 10th Dist. No. 10AP-607, 2012-Ohio-1152, ¶ 9. 

Therefore, we must consider whether appellant could have refiled her claims following dismissal of the 

complaint. Id. at ¶ 10. Under Ohio law, medical claims are subject to a one-year statute of limitations after the 

cause of action accrues. R.C. 2305.113(A); Rose v. Zyniewicz, 10th Dist. No. 10AP-910, 2011-Ohio-3702, ¶ 25. 

A cause of action accrues and the statute of limitations begins to run when: (1) " 'the patient discovers or, with 

the exercise of reasonable care should have discovered, the resulting injury'; or (2) 'the physician-patient 

relationship for the condition for which care was sought terminates, whichever occurs later.' " Id., quoting 

Theobald v. Univ. of Cincinnati, 10th Dist. No. 09AP-269, 2009-Ohio-5204, ¶ 9. In her complaint, appellant 

states she began noticing carpal tunnel symptoms "immediately" after she began her post-chemotherapy 

treatment in November 2014 and that the physician-patient relationship terminated in "Spring 2016." 

Appellant filed her complaint on June 26, 2017, more than one year after the accrual of the cause of action. 

Because appellant's complaint was filed outside the statute of limitations and, therefore, she could not have 

availed herself of the savings statute, we conclude the order dismissing appellant's complaint was a final 

appealable order. B.H. v. State Dept. of Adm. Servs., 10th Dist. No. 16AP-747, 2017-Ohio-9030, ¶ 9-10.