[Cite as Johnson v. Erbeck,
2023-Ohio-3402.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
CHRISTINA JOHNSON, :
Appellant, : CASE NO. CA2023-05-038
: OPINION
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:
BRADLEY ERBECK, et al., :
Appellees. :
CIVIL APPEAL FROM MASON MUNICIPAL COURT
Case No. 21CVF00630
Christina Johnson, pro se.
Bruce D. Knabe, for appellee.
S. POWELL, P.J.
{¶ 1} Appellant, Christina Johnson, appeals the decision of the Mason Municipal
Court granting the Civ.R. 12(B)(6) motion to dismiss filed by appellee, Dr. Bradley Erbeck,
DDS, dismissing her dental malpractice claims levied against him. For the reasons outlined
below, we affirm the trial court's decision.
{¶ 2} On April 6, 2021, Johnson filed a complaint against Dr. Erbeck's dental
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practice, Erbeck Family Dental, alleging two claims: one styled as a breach of an implied
contract and the other styled as a claim of negligence. As set forth within her complaint,
Johnson’s claims arose from Dr. Erbeck’s alleged failure to provide Johnson with certain
dental treatment she requested he perform on June 25, 2020. This failure, according to
Johnson, caused a delay in her receiving the dental treatment that she needed and,
ultimately, in Johnson undergoing additional, more extensive dental treatment than what
she would have otherwise needed. There is no dispute that Johnson did not attach an
affidavit of merit to her complaint in accordance with Civ.R. 10(D)(2)(a), which provides:
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.
{¶ 3} On April 26, 2021, Erbeck Family Dental moved to dismiss Johnson’s
complaint pursuant to Civ.R. 12(B)(6). To support its motion, Erbeck Family Dental alleged
that, although styled as breach of an implied contract and negligence claims, Johnson’s
claims were in actuality claims for dental malpractice “arising out of her treatment or lack of
treatment as the case may be,” by Dr. Erbeck. Therefore, because Johnson’s claims
sounded in dental malpractice, and because Civ.R. 10(D)(2)(a) requires an affidavit of merit
be attached to a complaint alleging a claim of dental malpractice, Erbeck Family Dental
argued that Johnson’s complaint should be dismissed.
{¶ 4} On July 16, 2021, the trial court issued a decision dismissing Johnson’s
complaint without prejudice. In so doing, the trial court noted its agreement with the
argument advanced by Erbeck Family Dental, stating:
Having reviewed the motion and memoranda, the Court
concludes that Defendant is correct about the nature of
Plaintiff's claim and the defect in her Complaint. Specifically,
regardless of how Plaintiff postured the claim, it ultimately
sounds in dental malpractice and is governed by the mandate
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in … Civil Rule 10(D)(2). Consequently, for reasons stated in
Defendants' memoranda … this action is hereby dismissed
without prejudice at Plaintiff's costs.
(Emphasis sic.)
{¶ 5} On August 2, 2021, Johnson filed a notice of appeal from the trial court’s
decision. The following month, on September 13, 2021, this court dismissed Johnson's
appeal for lack of a final appealable order. Johnson v. Erbeck Family Dental Company,
12th Dist. Warren No. CA2021-08-070 (Sept. 13, 2021) (Entry of Dismissal). In so ruling,
this court stated:
An order is a final appealable order that may be reviewed,
affirmed, modified, or reversed when the order affects a
substantial right in an action which in effect determines the
action and prevents a judgment. R.C. 2505.02(B)(1). Because
the municipal court's order dismissed appellant's complaint
without prejudice, the order does not determine the action or
prevent a judgment and there is not a final appealable order.
This court does not have jurisdiction to review orders that are
not final.
{¶ 6} On October 25, 2021, Johnson filed an amended complaint, this time against
both Dr. Erbeck and Erbeck Family Dental, alleging the same basic claims as in her original
April 6, 2021 complaint. Johnson also included within her amended complaint a claim of
defamation against Dr. Erbeck. That same day, on October 25, 2021, Johnson filed a
motion for an extension of time to file an affidavit of merit in accordance with Civ.R.
10(D)(2)(a). Johnson filed this motion pursuant to Civ.R. 10(D)(2)(b), which provides:
The plaintiff may file a motion to extend the period of time to file
an affidavit of merit. The motion shall be filed by the plaintiff
with the complaint. For good cause shown and in accordance
with division (c) of this rule, the court shall grant the plaintiff a
reasonable period of time to file an affidavit of merit, not to
exceed ninety days, except the time may be extended beyond
ninety days if the court determines that a defendant or non-party
has failed to cooperate with discovery or that other
circumstances warrant extension.
{¶ 7} On November 22, 2021, both Dr. Erbeck and Erbeck Family Dental filed
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motions to dismiss Johnson's amended complaint. Just like Erbeck Family Dental's original
motion to dismiss, these motions were also filed pursuant to Civ.R. 12(B)(6). Both Dr.
Erbeck and Erbeck Family Dental supported their motions by arguing, among other things,
that Johnson's amended complaint must be dismissed because Johnson had once again
not attached an affidavit of merit to her complaint as required by Civ.R. 10(D)(2)(a).
{¶ 8} Several months later, and after Johnson filed a motion requesting the trial
court to issue a ruling on the matter, a trial court magistrate issued a decision granting both
Dr. Erbeck's and Erbeck Family Dental's motions to dismiss. In so doing, the magistrate
determined that, in regard to Erbeck Family Dental's motion to dismiss:
By any reading of the Rule 12(B)(6) standards for dismissal,
Johnson's claim against [Erbeck Family Dental] is easy to
decide. Johnson seeks to recover against a corporation that did
not exist until November 16, 2020. Yet, as stated in Paragraph
3 of Johnson's Amended Complaint, "All of the events recounted
in this complaint took place between December 19 and July
2020 BEFORE registration as a corporation." (Original
emphasis).
Because the non-existent [Erbeck Family Dental] could have
played no role in the events underlying Johnson's claims from
late 2019 through July 2020, Johnson has not stated a claim
against [Erbeck Family Dental, and its] motion to dismiss under
Civil Rule 12(B)(6) is granted.
{¶ 9} The magistrate thereafter also granted Dr. Erbeck's motion to dismiss
Johnson's defamation claim. The magistrate did this because, as set forth in the
magistrate's decision:
Johnson cannot identify any statement made by Dr. Erbeck that
would qualify as defamation. Not only is Johnson unable to
identify a false statement, she cannot identity any statement
uttered by Dr. Erbeck. Johnson has her beliefs and she has
made her assumptions, but none of that is evidence for a
defamation claim.
(Bold text sic.)
{¶ 10} The magistrate then ruled, as it relates to Dr. Erbeck's motion to dismiss
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Johnson's dental malpractice claims, the following:
As noted on page one above, Johnson filed a motion for
extension of time to file her Affidavit of Merit on the same day
she filed her Amended Complaint. With this Magistrate
unpersuaded that dismissal is required at this stage for any
defense raised by Dr. Erbeck [i.e., a statute of limitations
violation], the question of the necessity of the Affidavit of Merit
remains.
Consistent with a recent decision of this Court in another case
addressing the necessity of an Affidavit of Merit where the need
for expert testimony was disputed by the plaintiff, this Magistrate
will grant Johnson 30 days from the date of the file stamp on this
Decision or, if either party files an objection to this decision, 30
days from the date on the file stamp on any Order disposing of
the Objections, to file [an] Affidavit of Merit in compliance with
Civ.R. 10(D).
{¶ 11} On November 28, 2022, Johnson filed a motion entitled "Motion to Set Aside
Magistrate's Order." In this motion, Johnson argued the magistrate erred by granting Dr.
Erbeck's motion to dismiss her defamation claim against him. Johnson also noted within
this motion that she would begrudgingly "comply" with the magistrate's decision requesting
she provide the trial court with an affidavit of merit "so that the case can proceed." Johnson
noted that she would do this even though she disagreed with the magistrate's decision
finding her claims did not fall under the "common knowledge exception" to the affidavit of
merit requirement set forth in Civ.R. 10(D)(2)(a). Johnson, however, requested the trial
court provide her with "sufficient time to obtain the affidavit." Johnson also demanded the
trial court "be reasonable in its 30-day requirement to provide the affidavit," because "[t]he
requirement to provide the affidavit in less than 30 days after the case was 'under
advisement' for well over a year puts [her] in an unfair position."
{¶ 12} On January 17, 2023, the trial court issued an entry denying Johnson's motion
to set aside the magistrate's decision. The trial court instead affirmed and adopted the
magistrate's decision in its entirety. In so holding, the trial court stated:
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This matter is before the court on [Johnson's] motion to set aside
magistrate's order, filed November 28, 2022. The motion is
overruled. The court agrees with the magistrate's analysis of
the defamation claim and conclusion that the claim should be
dismissed. The court also agrees with the magistrate's order
that [Johnson] file her affidavit of merit within 30 days of the file
stamp date on this order. However, this order is without
prejudice to [Johnson's] seeking additional time if she can
demonstrate her inability to obtain the affidavit within the 30-day
period notwithstanding her diligent efforts to do so.
(Bold text sic.)
{¶ 13} On February 6, 2023, Johnson filed a motion entitled "Plaintiff Response to
Judgment Entry to Adopt Magistrate Decision and Plaintiff Motion to Request Court to Issue
Final Order." In this motion, Johnson expressly stated that she would not be providing the
trial court with the necessary affidavit of merit so that her dental malpractice claims to
proceed as required by Civ.R. 10(D)(2)(a). Johnson instead requested the trial court "issue
a final judgment so that an appeal may be filed immediately." Five weeks later, on March
13, 2023, the trial court issued a judgment entry granting Dr. Erbeck's earlier Civ.R. 12(B)(6)
motion to dismiss Johnson's dental malpractice claims levied against him. In so doing, the
trial court stated:
With Plaintiff now on record affirmatively stating her intention not
to file an Affidavit of Merit, it is clear that Plaintiff has not met the
condition for keeping her malpractice claims alive, and those
claims should be dismissed. Consequently, Dr. Erbeck's motion
to dismiss Plaintiff's claim for dental malpractice is hereby
granted and this action is hereby dismissed with prejudice at
Plaintiff's costs.
{¶ 14} On April 6, 2023, Johnson filed a notice of appeal from the trial court's
decision. Johnson's appeal now properly before this court for decision, Johnson has raised
three assignments of error for review.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT['S] MOTION
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FOR 90-DAY EXTENSION TO OBTAIN AN AFFIDAVIT OF MERIT.
{¶ 17} In her first assignment of error, Johnson argues the trial court erred by denying
her October 25, 2021 motion requesting a 90-day extension to file an affidavit of merit in
accordance with Civ.R. 10(D)(2)(a). However, as the record indicates, Johnson has since
made it known that she would not be filing any such affidavit with the trial court. Johnson
did this as part of her February 6, 2023 motion titled "Plaintiff Response to Judgment Entry
to Adopt Magistrate Decision and Plaintiff Motion to Request Court to Issue Final Order."
Specifically, as Johnson stated within that motion, "Plaintiff will not provide the Court with
an affidavit." Under these circumstances, we can find no error in the trial court's decision
to deny Johnson's request for a 90-day extension that she requested in a motion she filed
on October 25, 2021. This is particularly true here when considering the record is devoid
of any evidence to indicate Johnson was denied the opportunity to file an affidavit of merit
in the intervening 469 days between when she filed her October 25, 2021 and February 6,
2023 motions. "It is well-established that in order to support a reversal of a judgment, the
record must show affirmatively not only that error occurred but that such error was to the
prejudice of the party seeking reversal." Heritage Realtors v. Kahmann, 12th Dist. Warren
No. CA92-09-082, 1993 Ohio App. LEXIS 2259, *8 (Apr. 26, 1993). The record in this case
shows neither. Therefore, given the record properly before this court, Johnson's first
assignment of error lacks merit and is overruled.
{¶ 18} Assignment of Error No. 2:
{¶ 19} THE TRIAL COURT ERRED BY CONSIDERING APPELLANT'S ORIGINAL
COMPLAINTS OF NEGLIGENCE AND BREACH OF CARE AS MEDICAL MALPRACTICE
REQUIRING AN AFFIDAVIT OF MERIT.
{¶ 20} In her second assignment of error, Johnson argues the trial court erred by
construing her two claims, one styled as a breach of an implied contract and the other as a
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claim of negligence, as dental malpractice claims that required her to file an affidavit of merit
with the trial court in accordance with Civ.R. 10(D)(2)(a). This is because, according to
Johnson, "[m]alpractice requires treatment or action," whereas her "complaint is negligence
and breach of care" that "does not arise from the provision of dental treatment," but instead
from "failing to treat her dental condition." However, contrary to Johnson's assertions, a
claim of dental malpractice can be based on either a dentist's overt act or failure to act. See
Stewart v. Vivian, 12th Dist. Clermont No. CA2015-05-039, 2016-Ohio-2892, ¶ 93 (setting
forth the elements of a general medical malpractice claim), citing Bruni v. Tatsumi,
46 Ohio
St.2d 127 (1976), paragraph one of the syllabus; see also R.C. 2305.113(E)(6) (defining
the term "dental claim" as used in Civ.R. 10[D][2][a] to mean "any claim that is asserted in
any civil action against a dentist … that arises out of a dental operation or the dental
diagnosis, care, or treatment of any person").
{¶ 21} This is why, in order to establish a claim of dental malpractice, the plaintiff can
demonstrate either that the injury was proximately caused by a dentist's act or by a dentist's
omission. Morgan v. Ohio State Univ. College of Dentistry, 10th Dist. Franklin No. 13AP-
287, 2014-Ohio-1846, ¶ 23 (setting forth the specific elements of a dental malpractice claim
to include a requirement that mandates the plaintiff show by a preponderance of the
evidence that "injury was proximately caused by a dentist's act or omission" and that "the
act or omission was one that a dentist of ordinary skill, care, and diligence would not have
taken under like or similar conditions or circumstances"). Therefore, regardless of how
Johnson may have styled her two claims within her complaint, the trial court did not err by
recasting her breach of an implied contract and negligence claims as claims of dental
malpractice that required her to file an affidavit of merit with the trial court in accordance
with Civ.R. 10(D)(2)(a). Accordingly, Johnson's second assignment of error also lacks merit
and is overruled.
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{¶ 22} Assignment of Error No. 3:
{¶ 23} THE TRIAL COURT ERRED BY DISREGARDING THE COMMON
KNOWLEDGE EXCEPTION PRESENTED BY THE APPELLANT.
{¶ 24} In her third assignment of error, seemingly as an alternative to the argument
raised in her second assignment of error, Johnson argues the trial court erred by not
applying the "common knowledge exception" to her dental malpractice claims, thereby
obviating the need for her to file an affidavit of merit with the trial court pursuant to Civ.R.
10(D)(2)(a). We disagree.
{¶ 25} As noted above, Civ.R. 10(D)(2)(a) requires an affidavit of merit be attached
to a complaint that alleges a claim of dental malpractice for each defendant who requires
expert testimony to establish his or her liability. See McHugh v. Frasher, 7th Dist. Jefferson
18 JE 0020, 2019-Ohio-3733, ¶ 44. Specifically, 10(D)(2)(a) provides, in pertinent part,
that:
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.
{¶ 26} This requirement is designed to prevent the filing of medical claims that are
not supported by an expert's opinion and deter plaintiffs from filing actions against all
medical providers who furnished them with care. Erwin v. Bryan, 125 Ohio St.3d 519, 2010-
Ohio-2202, ¶ 19. It is also "designed to ease the burden on the dockets of Ohio's courts
and to ensure that only those plaintiffs truly aggrieved at the hands of the medical profession
have their day in court." Fletcher v. Univ. Hosps. of Cleveland,
120 Ohio St.3d 167, 2008-
Ohio-5379, ¶ 10. The purpose behind the rule is therefore clear. Washburn v. Ohiohealth
Corp., 3d Dist. Marion No. 9-22-08,
2022-Ohio-4453, ¶ 19. It is "to deter the filing of frivolous
medical-malpractice claims." Fletcher.
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{¶ 27} There is an exception to this rule, however. This exception is generally
referred to as the "common knowledge exception."1 This exception applies in
circumstances where the plaintiff's medical malpractice claim, including a claim of dental
malpractice, is in actuality a claim of simple negligence given that it does not require the
plaintiff to establish the appropriate standard of care and the proximate cause of his or her
injury by expert testimony. See Franks v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin
No. 12AP-442, 2013-Ohio-1519, ¶ 8. "Expert testimony is necessary to prove the elements
of medical malpractice 'whenever those elements are beyond the common knowledge and
understanding of the jury.'" Adams v. Kurz, 10th Dist. Franklin No. 09AP-1081, 2010-Ohio-
2776, ¶ 11, quoting Williams v. Lo, 10th Dist. Franklin No. 07AP-949,
2008-Ohio-2804, ¶
11. This occurs "'where the inquiry pertains to a highly technical question of science or art
or to a particular professional or mechanical skill.'" Rose v. Tievsky, 2d Dist. Montgomery
No. 29024,
2021-Ohio-3051, ¶ 46, quoting Jones v. Hawkes Hosp. of Mt. Carmel,
175 Ohio
St. 503 (1964), paragraph one of the syllabus. The exception is therefore rather limited in
its scope. Chalmers v. HCR ManorCare, Inc., 6th Dist. Lucas No. L-16-1143, 2017-Ohio-
5678, ¶ 37.
{¶ 28} Given these principles, it should come as no surprise that "'[r]elatively few
courts in Ohio have found the common knowledge exception applicable so as to obviate
the need for expert witness testimony on the malpractice issue.'" Cunningham v. Children's
Hosp., 10th Dist. Franklin No. 05AP-69, 2005-Ohio-4284, ¶ 20, quoting Buerger v. Ohio
Dept. of Rehab. & Corr.,
64 Ohio App.3d 394, 399 (10th Dist.1989). This is likely because,
as noted by the Tenth District Court of Appeals nearly 20 years ago, we live in a world of
"increasing medical complexity."
Id. Rather, "[m]ost of the cases in which courts have
1 Our research indicates this exception is also sometimes referred to as the "common knowledge and
experience exception."
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found the exception to apply involve falls in a medical facility." Horn v. Cherian, 8th Dist.
Cuyahoga No. 111821, 2023-Ohio-931, ¶ 38. This may include an unattended patient
falling from a bed or from a gurney. Rose,
2021-Ohio-3051 at ¶ 46; Wallace v. OhioHealth
Corp., 10th Dist. Franklin No. 18AP-279,
2018-Ohio-4293, ¶ 6. The exception did not apply,
therefore, in a case where the "importance of comparing previous abnormal films" from a
prior MRI was at issue because "[t]he field of radiology involves professional skill and highly
technical scientific questions" and "is not within the common knowledge of jurors."
Rose at
¶ 44, 47. Expert testimony would instead be needed to establish liability.
Id.
{¶ 29} The field of dentistry also involves professional skill and highly technical
scientific questions that are not within the common knowledge of jurors. This would include
the question of whether Dr. Erbeck's refusal to provide Johnson with the dental treatment
she requested he perform on June 25, 2020 fell below the appropriate standard of care.
This would also include the question of whether Dr. Erbeck's refusal was the proximate
cause of Johnson's purported injuries. This is because, generally speaking, the standard
of care and skill expected of a dentist must be determined from the testimony of dental
experts. Adkinson v. Alex Bell Dental – Daniel Cobb DDS, L.L.C., 2d Dist. Montgomery No.
28708, 2020-Ohio-5269, ¶ 19.
{¶ 30} Turning then to the facts of this case, we find the trial court did not err by
failing to apply the "common knowledge exception" to Johnson's dental malpractice claim
levied against Dr. Erbeck. The trial court was instead correct in its decision finding Johnson
was required to file an affidavit of merit pursuant to Civ.R. 10(D)(2)(a) before her dental
malpractice claim against Dr. Erbeck could proceed. The trial court was also correct in its
decision to grant Dr. Erbeck's motion to dismiss based on Johnson's apparent refusal to file
the necessary affidavit of merit with her complaint as required by Civ.R. 10(D)(2)(a).
Therefore, finding no error in the trial court's decision, Erbeck's third assignment of error
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likewise lacks merit and is overruled.
{¶ 31} Accordingly, finding no merit to any of Johnson's three assignments of error
raised herein, Johnson's appeal from the trial court's decision granting Dr. Erbeck's Civ.R.
12(B)(6) motion to dismiss is denied.
{¶ 32} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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