Is Dismissal of Medical Malpractice Suit 'With Prejudice' If Dismissal Entry Fails to State That It Is Without Prejudice?

When Dismissal Is Based on Failure to Include Affidavit of Merit

Donald P. Troyer et al. v. Leonard J. Janis, DPM, Case no. 2011-1162

Tenth District Court of Appeals (Franklin County)

ISSUE: When a trial court grants a defense motion to dismiss the plaintiff's complaint in a medical malpractice case because it was not accompanied by a required affidavit of merit, and the entry recording that action fails to indicate that such a dismissal is "without prejudice," does the plaintiff's failure to timely appeal the defect in the dismissal notice convert the dismissal to a "dismissal on the merits," and therefore waive the plaintiff's right to later refile his or her complaint?