[Cite as Schumacher v. Patel, 2023-Ohio-4623.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Barbara Schumacher, Individually and :

as Executor of the Estate of 

Kenneth Schumacher, deceased, :

No. 23AP-254

Plaintiff-Appellant, : (C.P.C. No. 21CV-2941)

v. : (ACCELERATED CALENDAR)

Dr. Rashmi Patel et al., :

Defendants-Appellees. :

D E C I S I O N

Rendered on December 19, 2023 

On brief: DuPont & Blumenstiel, LLC, and Braden A. 

Blumenstiel, for appellant. Argued: Braden A. Blumenstiel.

On brief: Anspach Law, and Robert M. Anspach, for 

appellee Heartland of Westerville. Argued Robert M. 

Anspach.

APPEAL from the Franklin County Court of Common Pleas

LELAND, J.

{¶ 1} Plaintiff-appellant, Barbara Schumacher, Individually and as Executor of the 

Estate of Kenneth Schumacher, deceased (“Barbara”), appeals from a judgment of the 

Franklin County Court of Common Pleas granting the motion for summary judgment filed 

by defendant-appellee, Heartland of Westerville (“Heartland”), as to Barbara’s medical

treatment related claims arising from the death of her husband, Kenneth Schumacher 

(“Kenneth”). For the reasons that follow, we affirm.
No. 23AP-254 2

I. Facts and Procedural History

{¶ 2} The following facts are undisputed by the parties unless otherwise indicated. 

Issues involving Kenneth’s left adrenal gland led him to seek medical intervention in early 

2017. Kenneth underwent a CT guided left renal cryoablation to remove a cancerous mass 

on his left adrenal gland in February 2017, and, although that initial surgery appeared to be 

beneficial, an April 2017 CT scan revealed an enlarging left adrenal mass. Kenneth met 

with Dr. Rashmi Patel and they determined Kenneth would undergo an open left 

adrenalectomy on his left adrenal gland to address the mass. Dr. Patel performed the 

surgery on May 11, 2017 at Mt. Carmel East Hospital (“Mt. Carmel”). The post-operative 

pathology returned negative for metastatic renal cell carcinoma.

{¶ 3} Kenneth’s health deteriorated following the May 2017 surgery and the

incision would not heal. He initially remained at Mt. Carmel for post-operative care. There, 

he underwent a “CT-guided left retroperitoneal abscess drain placement” on May 23, 2017,

a “Wound VAC” on May 26, 2017 to promote wound healing, and medical records indicated

he was being treated for post-operative sepsis. (Heartland Feb. 1, 2023 Mot. for Summ.

Jgmt. at 4.) According to Barbara, the Wound VAC administered by Mt. Carmel 

malfunctioned due to a lost seal.

{¶ 4} On June 2, 2017, Kenneth was transferred to Heartland, an extended care 

facility. He arrived at 9:00 p.m. The parties do not dispute that a Wound VAC was not 

initially available to treat Kenneth upon his arrival but diverge on the particulars of when 

the Wound VAC became available, why it was not promptly administered, and when it was 

ultimately administered. Barbara contends the evidence shows no Wound VAC was 

available on June 3rd and that one was not placed on Kenneth until approximately 2:00 

a.m. on June 5, 2017. Heartland contends the Wound VAC arrived at Heartland on 

June 3rd but Kenneth and his family deferred its application until stronger pain medication 

could be ordered, the receipt of pain medication was delayed due to unknown issues, and 

that the Wound VAC was administered June 4, 2017.

{¶ 5} The parties do agree the evidence shows Kenneth received antibiotics at 2:08 

p.m. the day after his arrival, June 3, 2017. Heartland contends there is no evidence to 

show he missed a dose or, in other words, that the absence of immediate antibiotics upon 

Kenneth’s arrival to Heartland caused any harm.
No. 23AP-254 3

{¶ 6} After spending approximately three days at Heartland, on June 5, 2017, 

Kenneth’s condition worsened to the point he had to be transferred to St. Ann’s Hospital.

According to Heartland, Kenneth was treated at St. Ann’s for approximately the next six 

weeks—from June 5 to July 15, 2017—and Kenneth’s condition greatly improved. On 

July 15, 2017, he was discharged to another facility but “quickly returned” to St. Ann’s. 

(Appellee’s Brief at 5.) Kenneth ultimately returned home and passed away on July 31, 

2017, nearly two months after his stay at Heartland. The cause of death listed on the death 

certificate is “[s]epsis” as a consequence of a “non-healing post-op wound, malnutrition and 

VRE infection.” (Mot. for Summ. Jgmt. at 5, citing Ex. E Death Certificate.)

{¶ 7} According to the trial court decision and the complaint, on November 5, 2018, 

Barbara, individually and as executor of Kenneth’s estate, filed a complaint against 

Heartland, Dr. Rashmi Patel, Mt. Carmel, and John Doe defendants and then voluntarily 

dismissed the complaint under Civ.R. 41(A). She refiled the complaint on May 11, 2021. 

Pertinent to Heartland, Barbara contended Heartland breached the applicable medical 

standard of care by failing to have a functional Wound VAC for a period of time while 

Kenneth was in its care and through the doctrine of respondeat superior, and this breach 

ultimately resulted in the failure to appropriately treat Kenneth’s infected abdominal 

wound and led to the development of sepsis—the primary cause of his death. The complaint 

additionally alleges Heartland was delayed in obtaining the necessary antibiotic 

medications to fight Kenneth’s infection and this delay also caused Kenneth’s health to 

deteriorate. Barbara also brought a claim against Heartland under R.C. 2125.02

contending Heartland’s breach of the standard of care deprived her, as spouse, and 

Kenneth’s next of kin of companionship, assistance, attention, and counsel as a result of his 

death and caused them to suffer severe mental and emotional anguish and incur medical 

and funeral expenses. Attached to the complaint is the “Affidavit of Merit of Ralph Emerson 

Duncan, M.D.,” signed November 5, 2018, along with his curriculum vitae. (Attachments 

1 and A to Compl., hereinafter “Nov. 5, 2018 Duncan affidavit.”) 

{¶ 8} Heartland filed an answer and a motion for judgment on the pleadings that 

challenged the sufficiency of the Nov. 5, 2018 Duncan affidavit as an “affidavit of merit”

required by Civ.R. 10(D)(2) to institute a medical claim. The trial court ultimately 

granted, in part, Heartland’s motion for judgment on the pleadings. In doing so, it 
No. 23AP-254 4

concluded Barbara’s claims against Heartland are “medical claims” as defined by R.C. 

2305.113(E)(3), Barbara had not produced a proper Civ.R. 10(D)(2)(a) affidavit of merit,

and Barbara was permitted under Civ.R. 10(D)(2)(e) to attempt to cure the deficiency. 

(May 2, 2022 Decision at 5.) Barbara submitted several more affidavits from Dr. Duncan

to attempt to establish a sufficient affidavit of merit to support her complaint. She 

additionally filed a letter from Dr. Stephen Sloan, M.D. along with his curriculum vitae. 

{¶ 9} On September 27, 2022, the trial court filed an amended case schedule 

setting November 18, 2022 as the expert report deadline. Barbara filed a notice that all 

counsel of record had been served with “the expert reports, CVs, and fee schedules of expert 

witnesses Dr. Ralph Duncan and Dr. Stephen Sloan.” (Nov. 18, 2022 Notice at 1.) The 

appellate record does not show which proposed expert reports were served on defense 

counsel at that time.

{¶ 10} On February 1, 2023, Heartland filed the motion for summary judgment at 

issue in this case. Heartland argued Barbara failed to sufficiently support her medical 

claims against Heartland with appropriate expert evidence. First, Heartland contended the 

separate affidavits authored by Dr. Duncan in support of Barbara’s complaint are affidavits 

of merit that cannot be considered as evidence in determination of the motion for summary 

judgment. Second, citing an expert report from Dr. Duncan dated October 18, 2018 (Ex. F 

to Mot. for Summ. Jgmt.) and addendum dated October 25, 2018 (Ex. G to Mot. for Summ. 

Jgmt.) as well as the Dr. Sloan letter dated February 27, 2022 (Ex. 7 to Mot. for Summ. 

Jgmt.), Heartland argued in pertinent part: (1) Barbara failed to establish the standard of 

care Heartland owed to Kenneth with regard to post-operative care, and (2) Barbara failed 

to establish that any alleged breach by Heartland was the direct and proximate result of 

Kenneth’s death. It is unclear whether Heartland received the October 18, 2018 Duncan 

report and October 25, 2018 addendum in the instant round of litigation or as a part of the 

originally filed case. Heartland’s motion for summary judgment and attorney affidavit does 

not state when Barbara “provided” those reports. (Mot. for Summ. Jgmt. at 2, fn. 3; 

attached Anspach Aff. at ¶ 9-10.) 

{¶ 11} Barbara filed a memorandum contra Heartland’s motion for summary 

judgment on March 1, 2023. In pertinent part, Barbara argued the new “expert reports” 

from her two qualified experts, Dr. Duncan and Dr. Sloan, demonstrate the standard of care 
No. 23AP-254 5

Heartland owed to Kenneth and the breach of that standard of care caused Kenneth’s death. 

(Memo Contra at 4, 12.) She additionally referenced the deposition of Dr. Patel and 

Kenneth’s medical records to support her contention that Heartland’s conduct caused

Kenneth’s death. Overall, in Barbara’s view:

The medical records, Dr. Patel, and plaintiff’s expert 

(Dr. Duncan) provide evidence that would allow a reasonable 

juror to conclude Heartland’s breach of its duty to have a 

functional wound VAC and antibiotic medication available for 

Ken when he arrived directly and proximately resulted in a 

drastic deterioration in his health which required him to be 

transported to St. Ann’s emergency room less than three days 

after he arrived at Heartland. By that time, Ken’s infection 

could not be controlled, it continued to worsen, and it 

eventually resulted in the severe sepsis, non-healing post-op 

wound, malnutrition, and a VRE infection that caused his 

untimely death on July 31, 2017. Plaintiff has presented 

sufficient evidence demonstrating defendant Heartland’s 

breach of the applicable standard of care was a direct and 

proximate cause of decedent Kenneth Schumacher’s death.

(Memo Contra at 14.)

{¶ 12} Barbara attached to her memorandum contra as exhibits, in pertinent part, 

Kenneth’s death certificate, medical records, deposition testimony from Dr. Patel, the 

February 27, 2022 Dr. Sloan letter, and four affidavits from Dr. Duncan: the initial Nov. 5, 

2018 Duncan affidavit she had attached to the complaint; the August 5, 2021 supplemental 

Duncan affidavit; the February 28, 2022 supplemental Duncan affidavit; and the June 29, 

2022 supplemental Duncan affidavit. Each affidavit signed by Dr. Duncan addressed

causation in a single summary paragraph. See Memo Contra Ex. 14-A, Nov. 5, 2018 Duncan 

affidavit at ¶ 28 (“As a direct and proximate result of the breach of standard of care by Dr. 

Patel, Mt. Carmel and Heartland * * *, [Kenneth] experienced a wound infection and sepsis 

which caused his death on July 31, 2017.”); Memo Contra Ex. 14-B, Aug. 5, 2021 

supplemental Duncan affidavit at ¶ 30 (“As a direct and proximate result of the breach of 

standard of care by Heartland * * *, [Kenneth] experienced a wound infection and sepsis 

which ultimately causes death on July 31, 2017.”); Memo Contra Ex. 14-C, Feb. 28, 2022 

supplemental Duncan affidavit at ¶ 16 (“Heartland[’s] * * * failure to provide Kenneth * * * 

with needed medical care and treatment and its breach of the applicable standard of care 

directly and proximately caused Ken[neth] to experience a worsening of his wound 
No. 23AP-254 6

infection and sepsis, which ultimately caused his death on July 31, 2017.”); Memo Contra 

Ex. 14-D, June 29, 2022 supplemental Duncan affidavit at ¶ 32 (“As a direct and proximate 

result of the breach of the applicable standard of care by defendant Heartland * * *, Kenneth 

Schumacher experienced a wound infection and sepsis which caused his death on July 31, 

2017.”). The letter dated February 27, 2022 from Dr. Sloan is approximately two pages, not 

notarized, and opines Heartland’s breach of the applicable standard of care for nursing 

home facilities by permitting Kenneth to be transferred to its facility without having an 

operable Wound VAC or needed antibiotic medication available for him when he was 

transferred. The letter does not address whether Heartland’s breach of the applicable 

standard of care caused Kenneth’s injury and death. Barbara’s attorney filed an affidavit in 

support of the exhibits attesting to the accuracy of the copies and that the reports had been 

exchanged with defendants through the course of discovery.

{¶ 13} On March 8, 2023, Heartland filed a reply to Barbara’s memorandum contra. 

Heartland reiterated that the cited affidavits of merit are, by rule, not considered evidence 

and are not expert reports, and even if they were considered, do not provide support for her 

medical claims since they do not establish the alleged breach or causation. Heartland 

additionally noted Barbara did not contest the deficiencies raised as to the Duncan reports 

from October 2018 that Heartland had attached to its motion as exhibits F and G.

{¶ 14} The trial court issued its decision granting Heartland’s motion for summary 

judgment on April 23, 2023 after determining Barbara had not met the legal standard on 

summary judgment to prove causation through medical expert testimony in terms of 

probability to establish that the injury was, more likely than not, caused by Heartland’s

negligence. It reasoned the four affidavits of Dr. Duncan presented by Barbara as expert 

reports (exhibits 14A-D) are in fact affidavits of merit that cannot be considered as 

evidence. It then determined that while Dr. Sloan’s letter could be considered an expert 

medical report, he did not opine as to the probability that Heartland’s breach caused 

Kenneth’s death or injuries. The trial court further added it could not consider the medical 

records, death certificate, or deposition testimony of Dr. Patel to meet the legal standard. 

The trial court indicated the judgment to be a final appealable order and there is no just 

reason for delay. Barbara filed a timely appeal.
No. 23AP-254 7

II. Assignments of Error

{¶ 15} Barbara assigns the following two assignments of error for our review:

[I.] The trial court erred [] by deeming the reports of Dr. Ralph 

Duncan to be inadmissible affidavits of merit under Civ.R. 

10(D)(2) and not admissible expert reports under Civ.R. 

26(B)(7) and 56(C) and failing to consider them when 

deciding Heartland’s motion for summary judgment.

[II.] The trial court erred in granting [Heartland’s] motion for 

summary judgment.

III. Standard of Review

{¶ 16} Appellate review of summary judgment is de novo. MacDonald v. Authentic 

Invests., L.L.C., 10th Dist. No. 15AP-801, 2016-Ohio-4640, ¶ 22. “Under the de novo 

standard of review, an appellate court undertakes an independent review of the evidence 

without deference to the trial court’s decision.” Kiser v. United Dairy Farmers, 10th Dist. 

No. 22AP-539, 2023-Ohio-2136, ¶ 9, citing Nazareth Deli L.L.C. v. John W. Dawson Ins. 

Inc., 10th Dist. No. 21AP-394, 2022-Ohio-3994, ¶ 22. Summary judgment is proper only 

when the party moving for summary judgment demonstrates: (1) no genuine issue of 

material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter 

of law, and (3) it appears from the evidence that reasonable minds can come to but one 

conclusion, and viewing such evidence most strongly in favor of the non-moving party, that 

conclusion is adverse to the party against whom the motion for summary judgment is 

made. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183

(1997).

{¶ 17} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of 

informing the trial court of the basis for the motion and identifying those portions of the 

record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75 

Ohio St.3d 280, 293 (1996). The moving party, however, cannot discharge its initial burden 

under this rule with a conclusory assertion that the non-moving party has no evidence to 

prove its case; the moving party must specifically point to evidence of a type listed in Civ.R. 

56(C), affirmatively demonstrating that the non-moving party has no evidence to support 

the non-moving party’s claims. Id. at 293. Once the moving party discharges its initial 

burden, summary judgment is appropriate if the non-moving party does not respond, by 
No. 23AP-254 8

affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine 

issue exists for trial. Id.; Civ.R. 56(E).

IV. Analysis

{¶ 18} This appeal centers on whether the trial court erred in determining Barbara 

failed to adequately support her medical claims against Heartland with sufficient expert 

reports for purposes of responding to Heartland’s motion for summary judgment. For 

context, a plaintiff pursuing a medical claim requiring an expert opinion to establish 

liability is subject to special requirements for both filing and supporting their claim. 

{¶ 19} First, to properly plead a medical claim, the plaintiff must attach an “affidavit 

of merit” to the complaint relative to each defendant named in the complaint for whom 

expert testimony is necessary to establish liability. Civ.R. 10(D)(2)(a). By rule, the affidavit 

of merit, which must be provided by an expert witness meeting the requirements of Evid.R.

702 and, if applicable, Evid.R. 601(B)(5), shall include:

(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 defendant to the action and 

that the breach caused injury to the plaintiff.

Civ.R. 10(D)(2)(a). The rule also provides a means for plaintiffs to cure defective affidavits 

of merit, and the ultimate failure of the plaintiff to comply with the rule results in a 

dismissal that operates “as a failure otherwise than on the merits.” Civ.R. 10(D)(2)(d) and 

(e). Of particular interest to this case, the rule specifies “[a]n 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.” Civ.R. 10(D)(2)(d).

{¶ 20} In addition to meeting the threshold requirement of presenting proper 

affidavits of merit to establish the adequacy of the complaint, the plaintiff bears the burden 

of establishing the elements of the medical claim by a preponderance of the evidence. 

Korreckt v. Ohio Health, 10th Dist. No. 10AP-819, 2011-Ohio-3082, ¶ 11. To prevail on a 

medical claim where the elements of a medical malpractice claim are beyond the common 
No. 23AP-254 9

knowledge and understanding of the trier of fact, a plaintiff must demonstrate through 

expert testimony: (1) the applicable standard of care within the medical community, (2) the 

defendant breached that standard of care, and (3) the breach of the standard of care 

proximately caused the plaintiff’s injury. Id. at ¶ 11-12; Foy v. Ohio Dept. of Rehab. & Corr.,

10th Dist. No. 16AP-723, 2017-Ohio-1065, ¶ 24; Bruni v. Tatsumi, 46 Ohio St.2d 127, 131-

32 (1976). See also R.C. 2305.113(E)(3) defining “medical claim.” “Where the plaintiff fails 

to present expert testimony that [the defendant] breached the applicable standard of care 

and that the breach constituted the direct and proximate cause of the plaintiff’s injury, a 

court may enter summary judgment in favor of the defendant.” Korreckt at ¶ 12.

{¶ 21} Expert testimony to support a plaintiff’s medical claim is, for the most part,

limited by the scope of a properly submitted written expert report. See Civ.R. 26(B)(7) and 

Comments for July 1, 2020 Amendments. Specifically, aside from an exception for medical 

providers who provided medical care relevant to the case, a party may not call an expert 

witness to testify “unless a written expert report has been procured from the witness and 

provided to opposing counsel.” Civ.R. 26(B)(7)(c) and (d). Moreover, that expert may not 

“testify or provide opinions on matters not disclosed in his or her report.” Civ.R. 

26(B)(7)(c). As a result, a plaintiff’s failure to produce adequate expert reports to support 

the elements of the asserted medical claim may serve as a basis for summary judgment in 

favor of the defendant. See Civ.R. 26(B)(7)(c) and (d); Kinasz v. Diplomat Healthcare, 8th 

Dist. No. 103758, 2016-Ohio-2949, ¶ 22 (“Without an expert report, * * * and no argument 

that the medical malpractice claims fall under the exception to the medical expert 

requirement, appellant failed to satisfy her reciprocal burden of presenting evidence to 

demonstrate that a genuine issue of material fact exists, or that an exception to the general 

rule requiring expert testimony exists in this case” and, therefore the defendants were 

entitled to summary judgment in their favor.). To qualify as a proper expert report, the 

report “must disclose a complete statement of all opinions and the basis and reasons for 

them as to each matter on which the expert will testify” and “[i]t must also state the 

compensation for the expert’s study or testimony.” Civ.R. 26(B)(7)(c). 

{¶ 22} With her first assignment of error, Barbara contends the trial court 

committed reversible error by determining the Duncan affidavits were inadmissible 

affidavits of merit under Civ.R. 10(D)(2) and not admissible expert reports under Civ.R. 
No. 23AP-254 10

26(B)(7), and 56(C) and (E). Specifically, she contends that, in this case, the three 

“Subsequent Affidavit Reports” she obtained from Dr. Duncan “greatly exceed the 

requirements of Civ.R. 10(D)(2) and meet all requirements of Civ.R. 26(B)(7)” and she

emphasizes that the trial court must view the evidence in the light most favorable to her as 

the non-moving party. (Emphasis sic.) (Appellant’s Brief at 18-19.) Barbara adds that, 

when compared to Heartland’s expert report and the Dr. Sloan letter, the Subsequent 

Affidavit Reports from Dr. Duncan must likewise be declared admissible.

{¶ 23} We disagree with Barbara. An affidavit of merit that only includes the 

necessary assertions under Civ.R. 10(D)(2)(a) does not constitute evidence for 

consideration on summary judgment. Civ.R. 10(D)(2)(d) (“An affidavit of merit is required 

to establish the adequacy of the complaint and shall not otherwise be admissible as 

evidence.”); White v. Summa Health Sys., 9th Dist. No. 24283, 2008-Ohio-6790, ¶ 22

(“[A]n affidavit of merit which includes only the bare assertions required by Civ.R. 

10(D)(2)(a) can never constitute evidence of the type enunciated in Civ.R. 56(C) to support 

or oppose a motion for summary judgment.”).

{¶ 24} As noted by Barbara, a few Ohio appellate districts have indicated that 

plaintiffs may, hypothetically, be able to use an affidavit of merit to oppose summary 

judgment if the affidavit includes sufficient information beyond the Civ.R. 10(D)(2)(a) 

requirements. See White at ¶ 23 (“That is not to say that an affidavit of merit which includes 

statements beyond those required by Civ.R. 10(D)(2)(a) can never properly be used to 

support or oppose a motion for summary judgment.”); Babcock v. Albrecht, 11th Dist. No. 

2010-L-150, 2012-Ohio-1129, ¶ 29-44 (determining that, while the affidavit of merit 

complied with the minimal requirements of Civ.R. 10(D), it “did not set forth facts that 

would allow it to be used as an expert report,” and as such, was insufficient to oppose 

summary judgment).

{¶ 25} However, this court has not followed White’s hypothetical discussion on this 

point and has instead concluded Civ.R. 10(D)(2)(d) expressly excludes consideration of an 

affidavit of merit for summary judgment purposes. Havenar v. Melaragno, 10th Dist. No. 

21AP-336, 2022-Ohio-389. On this issue, we stated:

We also agree with the trial court that the Havenars did not 

satisfy their burden by invoking [the doctor]'s Affidavit of 

Merit. * * * The rule is explicit that: “An affidavit of merit is 
No. 23AP-254 11

required to establish the adequacy of the complaint and shall 

not otherwise be admissible as evidence or used for purposes 

of impeachment.” Civ.R. 10(D)(2)(d).

We read the phrase “not otherwise” in that prohibition to 

exclude circumstances other than use in “establish[ing] the 

adequacy of the complaint.” See Dictionary.com (giving the 

first definition of “otherwise” as “under other circumstances”). 

Our reading is consistent not only with common usage, but 

with the guidance provided by the lead opinion in Barnard v. 

Turner, M.D., 10th Dist. No. 17AP-550 (May 17, 2018) 

(Memorandum Decision at ¶ 14): “[A] Civ.R. 10(D)(2) affidavit 

of merit cannot be considered [on summary judgment] because 

it is not admissible evidence under the express terms of the 

rule.” See also id. (citing Tokles & Son, Inc. v. Midwestern 

Indem. Co., 65 Ohio St.3d 621, 631 (1992) fn. 4 [“Only facts 

which would be admissible in evidence can be * * * relied upon 

by the trial court when ruling upon a motion for summary 

judgment”] and collecting other cases reciting that rule 

prohibits use of an affidavit of merit as evidence in opposition 

to summary judgment). The opinion in Barnard did note that 

in dicta, the Ninth District Court of Appeals in White v. Summa 

Heath Sys., 9th Dist. No. 24283, 2008-Ohio-6790, had “left 

open the possibility that an affidavit of merit could be 

considered in opposing a motion for summary judgment if it 

contained facts that went beyond the bare assertions required 

by Civ.R. 10(D)(2)(a),” but—while finding that such a 

hypothetical circumstance did not exist there, as it did not in 

White but as it would here—stated bluntly that, “we cannot 

reconcile this part of the White decision with the express 

provision in Civ.R. 10(D)(2)(d).” Barnard at ¶ 15. Nor can we 

now. Under the plain text of the rule, the trial court properly 

excluded consideration of [the doctor]’s Affidavit of Merit for 

summary judgment purposes. 

Havenar at ¶ 19-20. See also Taylor v. Gazall, 2d Dist. No. 27305, 2017-Ohio-5493, ¶ 14-

16 (determining, in a case involving the defendant’s alleged negligent use of a Wound VAC, 

that the plaintiff’s argument attempting to cite, in part, an affidavit of merit to avoid 

summary judgment was “flawed” since the “affidavit of merit cannot be used to defend a 

summary judgment motion”).

{¶ 26} Moreover, even if, for sake of argument, Civ.R. 10(D)(2)(d) is not a blanket 

prohibition on using an affidavit of merit as evidence to oppose summary judgment, none 

of the affidavits here meet the requirements for an expert report to support Barbara’s
No. 23AP-254 12

medical claims against Heartland. Each Duncan affidavit, which are labeled as affidavits of 

merit, contain only a summary statement as to causation and do not “disclose a complete 

statement of all opinions and the basis and reasons for them” as to causation. (Emphasis 

added.) Civ.R. 26(B)(7)(c). We further note that to qualify as an expert report, it “must 

also state the compensation for the expert’s study or testimony,” and here the issue of 

compensation is neither addressed in the affidavits themselves or apparent from the 

appellate record. Civ.R. 26(B)(7)(c); Haworth v. Roman, 2d Dist. No. 29687, 2023-Ohio3816, ¶ 20 (determining the failure to disclose compensation in an affidavit of merit to be 

one reason the affidavit did not meet the requirements of an expert report). 

{¶ 27} Finally, Barbara mentions, in a footnote, that Heartland’s failure to file a 

motion to strike the Duncan affidavits serves as “another reason the Subsequent Affidavit 

Reports should have been * * * considered by the trial court.” (Appellant’s Brief at 21, fn. 7.) 

We fail to see why Heartland would move to strike the affidavits when they were submitted 

as affidavits of merit, presumably to meet the Civ.R. 10(D)(2) requirement in filing the 

complaint. Regardless, because Barbara does not provide legal authority to support this 

argument, she has not met her burden in demonstrating error in this regard on appeal. 

State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general rule that an 

appellant bears the burden of affirmatively demonstrating error on appeal); State v. 

Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 34, citing App.R. 16(A)(7) (“An 

appellant must support their assignments of error with an argument, which includes 

citation to legal authority.”); J.W. v. D.W., 10th Dist. No. 19AP-52, 2019-Ohio-4018, ¶ 55

(noting that it is not the duty of an appellate court to create an argument on an appellant’s 

behalf).

{¶ 28} Therefore, in line with these considerations, Barbara has not demonstrated 

the trial court erred by determining the Duncan affidavits were inadmissible Civ.R. 

10(D)(2) affidavits of merit and not considering them in ruling on summary judgment. 

Accordingly, her first assignment of error is overruled.

{¶ 29} With her second assignment of error, Barbara contends that, either with the 

Duncan affidavits or without them, the trial court erred in granting summary judgment to 

Heartland since she presented sufficient evidence to demonstrate Heartland breached the 

applicable standard of care by failing to have an operable Wound VAC and antibiotic 
No. 23AP-254 13

medications available when it admitted Kenneth to its facility and that Heartland’s breach 

directly and proximately caused Kenneth’s death. 

{¶ 30} At the outset, we note Barbara does not contest that Heartland met its initial 

burden as the moving party of informing the trial court of the basis for the summary 

judgment motion and identifying those portions of the record demonstrating the absence 

of a genuine issue of material fact. Instead, Barbara challenges on appeal the trial court’s 

failure to view the evidence she submitted as adequate to meet her reciprocal burden under 

Civ.R. 56 to show a genuine issue exists for trial. 

{¶ 31} As previously explained, Barbara bore the burden of proving, among other 

elements, that Heartland’s conduct caused Kenneth’s injury. Korreckt at ¶ 11-12; Foy at 

¶ 24; Bruni at 131-32. Furthermore, she was obligated to do so through an expert opinion, 

which gave rise to the need to provide an adequate written expert report. Civ.R. 26(B)(7)(c)

and (d); Kinasz, 2016-Ohio-2949, at ¶ 22; Roberts v. Ohio Permanent Med. Group, Inc., 

76 Ohio St.3d 483, 485 (1996), citing Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio 

St.3d 367 (1986) (“[T]he general rule is that the plaintiff must prove causation through 

medical expert testimony in terms of probability to establish that the injury was, more likely 

than not, caused by the defendant’s negligence.”). For the following reasons, Barbara did 

not successfully defend against summary judgment in this case.

{¶ 32} First, to the extent Barbara argues Dr. Duncan’s “Subsequent Affidavit[s]”

(dated August 5, 2021, February 28, 2022, and June 29, 2022) satisfy her reciprocal burden 

on summary judgment, that argument lacks merit. (Appellant’s Brief at 24.) As resolved 

in the first assignment of error, those affidavits were properly excluded from consideration

as expert reports. Because the Civ.R. 10(D)(2) Duncan affidavits cannot serve as evidence 

to defend against summary judgment, Barbara’s contentions in the second assignment of 

error premised on the Duncan affidavits necessarily fail.

{¶ 33} Second, we disagree with Barbara’s view that, even without consideration of 

the Duncan affidavits, the record in this case contains sufficient evidence to warrant 

reversal of summary judgment in favor of Heartland. The Dr. Sloan letter, which the trial 

court accepted as an expert medical report, did not opine on causation. Regarding Dr. Patel 

(Kenneth’s surgeon), Barbara does not explain how the trial court erred in determining Dr. 

Patel’s deposition testimony could not be considered as medical expert testimony to 
No. 23AP-254 14

support her case, and, regardless, the testimony cited by Barbara likewise does not opine 

on causation as it relates to Kenneth’s short stay at Heartland over two months prior to his 

death. We note that Dr. Patel “d[id] not know” whether a Wound VAC and antibiotic 

medication could have helped any of the conditions listed on the death certificate. (Memo

Contra, Ex. 18 at 123.)

{¶ 34} Finally, the October 2018 reports of Duncan, which were attached by 

Heartland to the motion for summary judgment as exhibits E and F, cannot be used to 

support Barbara’s case at this juncture. As previously noted, it is unclear when and how 

Heartland came to receive these reports in the instant round of litigation but, typically,

filings from previously instituted actions that have been voluntarily dismissed pursuant to 

Civ.R. 41(A) would not be “carried over” to this case. Haworth, 2023-Ohio-3816, at ¶ 17, 

quoting Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, ¶ 20 (declining to 

consider affidavit of merit filed in the previously dismissed case and explaining:

“[A]nything filed in the 2019 case could not be considered in the subsequent case. * * * A 

suit dismissed pursuant to [Civ.R. 41(A)] is ‘deemed to never have existed.’ It leaves the 

parties as if no action had been brought at all. * * * For the court’s purposes, it is as if that 

case had never happened.). Moreover, although Barbara on appeal attempts to point to 

exhibits E and F, she did not raise this argument to oppose summary judgment. The trial 

court did not err by considering only the evidence pointed to by Barbara to support her 

claims, and Barbara cannot now attempt to litigate her claims based on exhibits E and F for 

the first time on appeal. See White at ¶ 24 (because the appellant “failed to raise this issue 

below” he “therefore, forfeited the issue on appeal”); Quaye v. N. Mkt. Dev. Auth., Inc., 10th 

Dist. No. 15AP-1102, 2017-Ohio-7412, ¶ 28-29 (explaining why the appellant is not entitled 

to change the theory of his case on appeal); Tucker v. Leadership Academy for Math & 

Science of Columbus, 10th Dist. No. 14AP-100, 2014-Ohio-3307, ¶ 20 (explaining that 

arguments raised for the first time on appeal are improper even under the de novo standard 

of review employed in appeals of summary judgment).

{¶ 35} While “[c]ourts are cautioned to construe the evidence in favor of the 

nonmoving party * * * summary judgment is appropriate where the nonmovant fails to 

respond with proper evidence supporting the essential elements of the claim.” Gabriel v. 

Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 29. Here, without 
No. 23AP-254 15

an expert report sufficiently opining on the causation element of her medical claim against 

Heartland, Barbara failed to satisfy her reciprocal burden of presenting evidence to 

demonstrate that a genuine issue of material fact exists in this case. Accordingly, on this 

record, Heartland was entitled to judgment as a matter of law. Kinasz at ¶ 22; Havenar at 

¶ 17. The trial court did not err in granting summary judgment in favor of Heartland and, 

accordingly, Barbara’s second assignment of error is overruled.

V. Conclusion

{¶ 36} Having overruled appellant’s two assignments of error, the judgment of the 

Franklin County Court of Common Pleas is affirmed.

Judgment affirmed. 

DORRIAN and LUPER SCHUSTER, JJ., concur.