[Cite as Amos v. Van Aman, 2019-Ohio-5324.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Diane Amos, : 

 Plaintiff-Appellant, : 

 No. 19AP-164 

v. : (C.P.C. No. 18CV-7648)

Scott Van Aman, M.D. et al., : (REGULAR CALENDAR) 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on December 24, 2019 

 

On brief: Donahey & Defossez, Mark E. Defossez and 

Curtis M. Fifner, for appellee. Argued: Curits M. Fifner. 

On brief: Poling Law, Brant E. Poling and Sabrina S. 

Sellers, for appellees. Argued: Sabrina S. Sellers. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, P.J. 

{¶ 1} Plaintiff-appellant, Diane Amos, appeals a judgment of the Franklin County 

Court of Common Pleas that dismissed her complaint against defendants-appellees, Scott 

Van Aman, M.D., and Orthopedic One, Inc. Because we lack jurisdiction, we dismiss this 

appeal. 

{¶ 2} On September 12, 2018, Amos filed a complaint alleging that Van Aman 

performed surgery on toes on Amos' left foot without her consent. Amos further alleged 

that the surgery caused the affected toes to become disfigured and painful. According to 

Amos, by operating on her toes without consent, Van Aman committed battery. 

Alternatively, Amos asserted that Van Aman acted negligently by "fail[ing] to recall, prior 
Nos. 19AP-164 2 

to or during the subject surgery, that he was never given consent to perform surgery on 

certain of plaintiff's left toes." (Compl. at ¶ 7.) Amos sought to hold Orthopedic One 

vicariously liable for the torts Van Aman allegedly committed. 

{¶ 3} Defendants answered the complaint and then moved for judgment on the 

pleadings pursuant to Civ.R. 12(C). In their motion, defendants argued for dismissal 

because Amos failed to comply with Civ.R. 10(D)(2), which requires a plaintiff to file with 

the complaint an affidavit of merit or a motion for an extension of time in which to file an 

affidavit of merit in certain types of cases. Amos responded that no such affidavit was 

necessary. On February 21, 2019, the trial court issued a judgment and entry granting 

defendants' motion and dismissing Amos' complaint without prejudice. 

{¶ 4} Amos now appeals the February 21, 2019 judgment, and she assigns the 

following error: 

The Trial Court erred when it granted DefendantsAppellees'motion [sic] for Judgment on the Pleadings when it 

held that an issue capable of understanding by lay persons 

required expert testimony. 

{¶ 5} At oral argument, appellees asserted that this court lacks subject-matter 

jurisdiction to hear this appeal because the February 21, 2019 judgment is not a final, 

appealable order. Article IV, Section 3(B)(2) of the Ohio Constitution establishes that 

courts of appeals "have such jurisdiction as may be provided by law to review and affirm, 

modify, or reverse judgments or final orders of the courts of record inferior to the court of 

appeals within the district." If the appealed judgment does not constitute a final, appealable 

order, an appellate court lacks jurisdiction to review it. Gehm v. Timberline Post & Frame, 

112 Ohio St.3d 514, 2007-Ohio-607, ¶ 14. Consequently, in the absence of a final, 

appealable order, an appellate court must dismiss the appeal. Browder v. Shea, 10th Dist. 

No. 04AP-1217, 2005-Ohio-4782, ¶ 11.

{¶ 6} A dismissal for failure to comply with Civ.R. 10(D)(2) "operate[s] as a failure 

otherwise than on the merits." Civ.R. 10(D)(2)(d). Therefore, when a dismissal is entered 

because no affidavit of merit accompanies the complaint, it is a dismissal without prejudice. 

Fletcher v. Univ. Hosps., 120 Ohio St.3d 167, 2008-Ohio-5379, paragraph two of the 

syllabus. Here, the trial court followed Civ.R. 10(D)(2)(d) and expressly stated in the 

February 21, 2019 judgment that the dismissal was without prejudice. 
Nos. 19AP-164 3 

{¶ 7} "Ordinarily, a dismissal 'otherwise than on the merits' does not prevent a 

party from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable 

order." Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 

82, 2007-Ohio-2942, ¶ 8. Because dismissals for failure to comply with Civ.R. 10(D)(2) are 

"otherwise than on the merits," they generally are not final, appealable orders. Straquadine 

v. Crowne Points Care Ctr., 10th Dist. No. 10AP-607, 2012-Ohio-1152, ¶ 9; Canady v. 

Taylor, 10th Dist. No. 07AP-982, 2008-Ohio-2801, ¶ 8. However, if a party cannot refile 

his or her claim despite it being dismissed without prejudice, a dismissal is a final, 

appealable order. White v. Unknown, 10th Dist. No. 09AP-1120, 2010-Ohio-3031, ¶ 6. 

{¶ 8} Thus, whether the February 21, 2019 judgment is a final, appealable order 

turns upon whether Amos can refile her action against defendants. Only the applicable 

statute of limitations could potentially bar Amos from refiling. Therefore, we must 

determine what statute of limitations applies to Amos' claims. 

{¶ 9} R.C. 2305.113(A) sets forth a one-year statute of limitations for "medical 

claims." Pursuant to R.C. 2305.113(E)(3), a "[m]edical claim" is "any claim that is asserted 

in any civil action against a physician [or] * * * hospital * * *, and that arises out of the 

medical diagnosis, care, or treatment of any person." Here, Amos' claims for battery and 

negligence arose out of injuries she allegedly sustained when Van Aman performed surgery 

on toes on her left foot without her consent. Because the alleged torts occurred during 

surgery, they arose out of medical treatment and, thus, constitute medical claims. See 

Crissinger v. Christ Hosp., 1st Dist. No. C-150796, 2017-Ohio-9256, ¶ 17-19 (claims for 

negligence and battery, among other claims, were medical claims because they arose from 

allegedly unnecessary, improperly performed surgery). Consequently, Amos had one year 

in which to commence her claims after they accrued. 

{¶ 10} According to the complaint, Van Aman performed the surgery on Amos' toes 

on September 12, 2017. Amos timely filed suit on September 12, 2018. While the statute of 

limitations has now expired, that does not impede refiling. R.C. 2305.19(A), known as the 

savings statute, provides a party with one year to refile a claim that has been dismissed 

otherwise than on the merits, even though the claim would be time-barred under the statute 

of limitations. Thompson v. Ohio State Univ. Hosps., 10th Dist. No. 06AP-1117, 2007-

Ohio-4668, ¶ 22. According to R.C. 2305.19(A): 
Nos. 19AP-164 4 

[i]n any action that is commenced or attempted to be 

commenced, if in due time a judgment for the plaintiff is 

reversed or if the plaintiff fails otherwise than upon the merits, 

the plaintiff * * * may commence a new action within one year 

after the date of the reversal of the judgment or the plaintiff's 

failure otherwise than upon the merits or within the period of 

the original applicable statute of limitations, whichever occurs 

later. 

{¶ 11} Amos, therefore, may still refile her claims. Accordingly, we conclude that 

the February 21, 2019 judgment is not a final, appealable order, and we dismiss this appeal. 

Because our decision is jurisdictional, it should not be construed as ruling in any way on 

whether, under the facts as alleged in Amos' complaint, expert testimony is or is not 

necessary to establish liability. 

Appeal dismissed.

LUPER SCHUSTER and NELSON, JJ., concur.