Background
Melissa Raza filed a complaint in Franklin County Court of Common Pleas on September 25, 2025, alleging medical malpractice against Dr. Brian K. Dorner and Dorner Plastic Surgery arising from surgeries performed in February and March 2025. The complaint omitted a required affidavit of merit. On October 8, 2025, Melissa filed a motion for a 90-day extension to obtain the affidavit, stating she was retaining a qualified medical expert. Seven days later, on October 15, 2025, she filed an amended complaint adding her husband Mohammed as a plaintiff and the surgical practice as a defendant, but the amended complaint also lacked the affidavit of merit. No extension motion was filed for the amended complaint.
On November 24, 2025, defendants filed a motion for judgment on the pleadings under Ohio Civ.R. 12(C), arguing that the failure to include an affidavit of merit as required by Civ.R. 10(D)(2) mandated dismissal. The trial court granted the motion on December 17, 2025, and dismissed all claims “WITHOUT PREJUDICE.” The Razas appealed, arguing the trial court had no authority to dismiss based on an affidavit-of-merit timing requirement and that the court erred by not ruling on their pending extension motion.
The Court’s Holding
The court of appeals dismissed the appeal for lack of subject-matter jurisdiction, holding that it had no power to review the trial court’s order. The court explained that a dismissal without prejudice is not a “final appealable order” under Ohio law unless the plaintiff cannot refile the claim. Here, the trial court’s order explicitly stated dismissal was “WITHOUT PREJUDICE,” allowing the plaintiffs to pursue their claims again.
Applying Ohio’s one-year statute of limitations for medical malpractice claims, the court noted that the original complaint was filed approximately seven months after the alleged malpractice, well within the limitation period. Under Ohio’s savings statute, R.C. 2305.19(A), plaintiffs may refile a claim dismissed “otherwise than on the merits” within one year of dismissal, even if the claim would otherwise be time-barred. Because the Razas retained the ability to refile their medical malpractice claims, the trial court’s dismissal was not a final order affecting a substantial right, and the appellate court lacked jurisdiction to hear the appeal.
Key Takeaways
- A dismissal without prejudice for failure to include an affidavit of merit in a medical malpractice case is not a final appealable order if the plaintiff can still refile within the statute of limitations.
- Ohio’s savings statute permits refiling within one year of dismissal “otherwise than on the merits,” even if the underlying claim would be time-barred under the general statute of limitations.
- Appellate courts lack subject-matter jurisdiction to review non-final orders, and this jurisdictional defect cannot be waived by the parties.
- The affidavit of merit requirement under Civ.R. 10(D)(2) serves to deter frivolous medical malpractice claims, and noncompliance results in dismissal without prejudice, preserving the plaintiff’s right to refile.
Why It Matters
This decision reinforces a critical distinction in Ohio appellate practice: dismissals without prejudice do not constitute final, reviewable orders when a plaintiff retains the legal ability to refile. The court’s ruling prevents premature appellate review of procedural dismissals, ensuring that parties resolve such issues through refiling rather than through interlocutory appeals. For medical malpractice plaintiffs, the decision clarifies that a procedural misstep—such as filing an amended complaint without timely seeking an extension for the affidavit of merit—is not fatal; the claim may be refiled and prosecuted properly.
The case also illustrates how Ohio’s savings statute operates as a safeguard, providing a second window for filing beyond the standard statute of limitations when a case is dismissed on procedural rather than substantive grounds. Practitioners must recognize that the appellate route may not be available for such dismissals, and refiling within the statutory window is the appropriate remedy.