Until recently, there was uncertainty surrounding the question of whether an affidavit of merit was required for medical negligence claims asserted under Ohio law filed in a Federal District courts. This uncertainty was resolved by the Sixth Circuit Court of Appeals in its recent decision in Gallivan v. United States of America, Case No. 18-3874. On November 7, 2019, the Sixth Circuit Court of Appeals held that medical claims filed in Ohio District courts do not need to be supported by an affidavit of merit.
Under Ohio law, virtually every lawsuit filed against a healthcare provider arising out of medical care and treatment must be supported by an affidavit of merit from a qualified healthcare professional. The purpose of this requirement is to ensure Ohio healthcare providers are not forced to expend time and money defending frivolous cases. If a medical claim is filed in an Ohio State court without an affidavit, that claim is subject to dismissal. Because a failure to comply with this Rule could result in the dismissal of a complaint, many Ohio District courts held this Rule was substantive law rather than a mere procedural rule. As substantive law, the affidavit of merit requirement applied to state law claims asserted in Ohio Federal courts. As a result of the Gallivan decision, this has changed. There is no requirement that state law medical claims filed Ohio Federal District courts be supported by an affidavit.
The Plaintiff in Gallivan, Dennis Gallivan, is an inmate in federal prison. While incarcerated, Gallivan underwent a surgery on his hand. When this surgery did not go as planned, Gallivan sought redress. First, Gallivan filed a Complaint with the Bureau of Prisons. When the Bureau of Prisons found no evidence of wrongdoing, Gallivan filed suit in federal court and alleged a claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1). Under the FTCA, the U.S. government may be held liable “under circumstances where… a private person… would be liable to the claimant in accordance with the law of the place where” the claim arose. Gallivan’s Complaint in the District Court was not accompanied by an affidavit of merit. The U.S. government argued that under Ohio law a defendant on a medical claim cannot be liable unless an affidavit of merit is attached to the Complaint. Thus, the U.S. government could not be held liable on an FTCA claim in the absence of an affidavit of merit. The District Court accepted the U.S. government’s position and dismissed the claim.
The Sixth Circuit Court of Appeals reversed the decision of the District Court and found that Gallivan’s claim could proceed, even without an affidavit from a qualified medical professional. This decision relied on cases where the Supreme Court determined that when state and federal procedural rules conflict with each other, the Federal Rules of Civil Procedure controls. In reaching its decision, the Gallivan Court found that Rule 8 of the Federal Rule of Civil Procedure controls the requirements for a valid complaint. Rule 8 does not contain a requirement for an affidavit substantiating a claim. The Gallivan Court also noted that Federal Rules 9 and 12 also address the requirements for what must be contained in a complaint and neither rule imposes any obligation that an affidavit attesting to the merits of the claim be provided.
Notably, the decision in Gallivan conflicts with decisions reached by other Circuit Courts who have ruled on similar questions involving affidavit requirements imposed by other states. For instance, in Hahn v. Walsh, 762 F.3d 617 (7th Cir. 2014), the Seventh Circuit Court of Appeals determined that an Illinois law requiring an affidavit of merit to be provided with certain complaints did not conflict with Rule 8. In Hahn, the Court determined that an affidavit of merit is a separate document that is not part of a complaint. The Gallivan Court rejected this analysis by summarily concluding the Hahn Court had “reached the wrong answer because it asked the wrong questions.”
While the Gallivan case involved a claim against the U.S. Government asserted under the FTCA, the language of the decision makes it clear that Ohio’s Affidavit of Merit requirement will not apply to any claim asserted in federal court. Because of the Gallivan decision, plaintiffs with dubious medical claims may choose to file their claims in federal court, rather than face an early dismissal in a state court. Moreover, in the absence of an affidavit of merit requirement, plaintiffs with medical claims may employ a “shotgun” approach to naming defendants, naming all providers who interacted with a patient, rather than identify the specific providers who are directly tied to the claimed injury.
If you would like a full copy of the Gallivan decision, or if you have any questions regarding the implications of this case, please contact one of our Medical Malpractice Practice Group members.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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