The Supreme Court of Ohio ruled today that a doctor who had preserved his defense that he had not been properly served with the complaint against him did not waive that defense by actively participating in the proceedings for two years.

A Supreme Court majority decided that the Hamilton County Common Pleas Court properly dismissed a medical malpractice case against Dr. Muhammad Riaz Ahmad and his employer because the doctor had not been served with the complaint. Ahmad’s participation in the proceedings for two years did not eliminate his defense. The decision affirmed the judgment of the First District Court of Appeals.

The daughter of Ahmad’s patient argued that because the doctor had actively participated in the case, he had waived his right to claim as a defense that he had not been served with the complaint. Writing for the Court majority, Justice Joseph T. Deters explained that as the Supreme Court had ruled in a 2007 case, the Ohio Rules of Civil Procedure provide specific instances in which a defense of failure of service of a lawsuit is waived. Active participation by a party is not one of them.

“[S]ince the adoption of the Civil Rules, this court has rejected the notion that a service defense may be waived by a defendant’s participation in the litigation when that defense is properly raised and preserved,” Justice Deters wrote. “And there is no reason to depart from this principle now.”

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer and R. Patrick DeWine joined Justice Deters’ opinion.

In a concurring opinion, Justice Michael P. Donnelly wrote that while Ahmad’s attorneys followed the procedural rules, the attorney’s actions “smacks of gamesmanship,” and  affronted “the goals and values of the civil-justice process.” Ahmad waited until after the one-year statute of limitations on filing a malpractice lawsuit had run before he raised the failure of service issues. Justice Donnelly wrote that the Court should consider changing the civil rules to prevent similar efforts to dismiss a case before a court can consider the merits. Justice Melody Stewart joined Justice Donnelly’s concurrence.

In a dissenting opinion, Justice Jennifer Brunner wrote that Ahmad forfeited his right to claim he did not receive a copy of the lawsuit when he participated in depositions and other legal proceedings without taking any “meaningful efforts to have the case dismissed” until after the statute of limitations expired in the case. She argued that the court should adopt a position similar to the federal courts, which would consider Ahmad’s participation as a waiver of his argument that he was not properly served.

Daughter Files Malpractice Lawsuit
In 2019, Janet Sollman died after having been treated months earlier by Ahmad at Mercy Hospital West in Cincinnati. In February 2020, Janet Ackman, as the administrator of Sollman’s estate, filed a lawsuit against Ahmad, his employer, Hospitalist Medicine Physicians of Ohio, Mercy Hospital, and Medicare. She alleged Ahmad and the hospital failed to accurately diagnose and treat her mother for a stroke.

Ackman attempted to serve a copy of the complaint to Ahmad and Hospitalist by certified mail. Hospitalist received the complaint, but Ahmad was not served because Ackman used the wrong address. The attorney for Hospitalist and its employee, Ahmad, filed an answer to the complaint and raised the defense of insufficiency of service of process because it was mailed to the doctor’s wrong address.

About a month after the response, the Hamilton County Clerk of Courts placed a notation on the case docket. The notice informed Ackman’s attorney that the service attempt to Ahmad was undelivered and listed the reason as “vacant.”

Case Proceeds Until Dismissal
Over the next two years, the parties participated in the case, doing such things as attending case management conferences, jointly requesting that the court amend the case schedule, and appearing for the depositions of some witnesses. Throughout the time, Ackman did not follow the civil rules to serve Ahmad with a copy of the complaint.

In June 2022, Ahmad and Hospitalist sought summary judgment from the trial court, arguing that since Ahmad had not been served with a copy of the complaint, the lawsuit against him had not actually been initiated within the statute of limitations. Because the claims against Hospitalist were based on Ahmad’s actions, the physician group could not be found liable if the case against Ahmad was dismissed. Ackman argued Ahmad waived his right to service by actively participating in the case. The trial court agreed with Ahmad and dismissed the complaint against him and Hospitalist.

Ackman appealed to the First District. The appellate court noted it was “compelled to apply binding precedent” set by the Supreme Court in its 2007 Gliozzo v. Univ. Urologists of Cleveland Inc. decision. It affirmed the trial court’s decision.

Ackman appealed to the Supreme Court, which agreed to hear the case. Mercy West and Medicare did not participate in the Supreme Court case.

Supreme Court Analyzed Service Rules
Justice Deters noted that although Ackman understood the lower courts were bound by the precedent set by Gliozzo, she asked the Supreme Court to overrule the decision. The facts of the Gliozzo case were similar to Ackman’s. A doctor raised the service defenses and never agreed to waive them while also participating in the case. In Gliozzo, the Court ruled that Civ.R. 12(H)(1), which describes the circumstances in which a defense that had been raised could be waived, did not include active participation in the case as one of the methods of waiver.

Ackman argued the Court read the civil rule too narrowly. She noted that the state rule is similar to a federal rule and that the Sixth U.S. Circuit Court of Appeals, which includes Ohio, has twice ruled that a service defense can be waived when conduct indicates there is “a reasonable expectation that the defendant will defend the suit on the merits.” Ackman maintained that Ahmad’s active participation in the case for years gave her the reasonable expectation that he would challenge the case on the merits.

Justice Deters wrote that the Sixth Circuit has recognized that its rule had not provided lower federal courts much guidance on what constituted enough participation to consider the service defense waived. The opinion explained that the Court would not “introduce uncertainty by adding another means of waiving one’s defenses to those provided by Civ.R. 12(H).“

Under Ohio law, a medical malpractice lawsuit must “commence” one year after the alleged malpractice occurred. Ahmad needed to be properly served with a notice of the complaint before the case could commence, the opinion stated. Because the doctor was not served within the one-year period, the trial court correctly dismissed the case against him and his employer, the Court concluded.

Justice Deters noted that regardless of whether Ahmad’s actions constituted gamesmanship or good legal strategy, he and his employer followed the civil rules that had not changed since Gliozzo was decided 17 years ago. “[I]t would hardly be just to excuse Ackman’s noncompliance with the rules relating to service while penalizing Dr. Ahmad’s compliance with the rules relating to waiver,” Justice Deters wrote.  As the Court had stated in Gliozzo, “If such behavior should not be permitted in the future, the proper avenue for redress would be to seek a change in the rules.”

Concurrence Advocates for Rule Change
In his concurrence, Justice Donnelly wrote he is sympathetic to the concerns raised in the case and that unjust results might flow from the Court’s interpretation of the rules. He noted the responsibility of ensuring that civil lawsuits are served rests solely on the plaintiffs and their attorneys. Ackman did not follow the rules, and Ahmad and his employer did, and they should not be punished for doing what the rules allow, he wrote.

However, the civil rules are to be applied in a way that leads to “just results,” the concurrence stated, and this was not a just result for Ackman. This case and Gliozzo expose a loophole in the rules, the concurrence stated, and the Court should ask the Commission on the Rules of Practice and Procedure to determine if a change is necessary.

Doctor Waived Rights, Dissent Maintained
Justice Brunner stated this case demonstrates how the Gliozzo decision leads to “both waste and unjust results.” She noted that the parties invested much time, effort, and presumably money for years before Ahmad raised his defense and sought to have the case dismissed. She wrote the Court has recognized many instances where a defense is forfeited and echoed that the federal courts would have most likely determined that Ahmad waived his rights to raise the service defense.

“His conduct, or lack thereof, caused Ackman to reasonably believe that he intended to defend the suit on the merits. This supplies a just reason for Ackman’s failure to perfect service of the complaint on Dr. Ahmad,” she wrote.

2023-0975. Ackman V. Mercy Health W. Hosp. LLC, Slip Opinion No. 2024-Ohio-3159.

View oral argument video of this case.

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