IN THE SUPREME COURT OF OHIO

Theresa M. Shimp, pro seAppellant

vs

Dr. Robert J. Faflik, D.O.Walter Maciejewski, M.D.Emergency Medicine PhysiciansSumma Barberton HospitalSumma Health System

Appelles

Supreme Court Case No.

On Appeal from theSunimit County Conrt of Appeals

Ninth Appellate District

Court of Appeals Case No. CA 25121

Trial Court Case No. CV 2009 09 6831Summit County Common Pleas CourtCase of Malpractice/Negligence

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT, THERESA M. SHIMP, pro se

Theresa M. Shinip, pro se Appellant1333 Inman StAkron, Ohio 44306330-773-4060

Counsel For Appelles

Dr. Robert Faflik, D.O.Dr. Walter Maciejewski, M.D. andEmergency Medicine Physicians

Att. Donald H. Switzer, Esq. (#0017512)Att. Brett C. Perry, Esq. (#0073488)

1300 'East 9'h St. Suite 1950Cleveland, Ohio 44114-1501216-875-2767/Fax 216-875-1570

And: SummaHealth SystemSumma Barberton I-Iospital

Att. Frank G. Mazgaj, Esq. (#003 7910)Att. Crregg A. Peugeot, Esq. (#0076262)

P. O. Box 55213737 Embassy ParkwayAkron, Ohio 44334330-670-7300/Fax 330-670-7450

TABLE OF CONTENTS

Page

A. Explanation of why this case involves several substantial State and U.S. 1

Constitutional questions

B. Secondary: Explanation of why this case "also" is a case of Publie and 2

Generat Interest.

Statement of the Case and Facts 39 4

Argument in Support of Propositions of Law: 5-9

--Coost Si'caueY5,

1. The Affidavit of Merit constitutes Double Jeopardy, Ohio Const. Art. I Sec. 10, 5, 6U.S. Const. 5t" Amend., Ohio Const. I See. 16- justice without delay.

11. Rule 38A of the Ohio Rules of Court says that a right to trial by jury shall be held 6inviolate, as established by the State of Ohio and Art. I, Sec. 5 U.S. Const. 7t" Amend.

III. Art. I Sec. 10 Ohio Const. 5°i and 6th U.S. Const. Witnesses to be heard in favor 6,7Rule 10 Affidavit of Merit is a witness against oneself. And Jury trial denial U.S.7th Amend. And Ohio Const. Art. I Sec. 5

IV. Ohio Rule 38B. Ohio Rule 38C. and Ohio Rule 38D. CL Tuz-YTrl, /. 7

V. Ohio Art. I Sec. 16, U.S. 5" and 14s' No State shall deprive a citizen of due process 7, 8or equal protection of the law U.S. Const. 10 Amend.

-- Cci Se.5

VI (A). The first of two preeedernts used to obstruct justice in Ohio Courts is: Smart pages 8v. Ohio Morty 8`h District No. 83004, 2003 - Ohio - 7074

VI (B). Ward v. Summa FIealth System 9i" Dist. No 24567 2009 Ohio 4859 that says 8the dissrtissal does not aftcct a substantial right or fall within the exception anddetermine the action.

VII. Monica B Zeir v. Zimmer Inc. and'I'lieron S. Nichols, MD, Oklahoma Supreme 9Court Opinion No. 102472, Dec, l9`h, 2006. C? (^ 1 Q w^' v F rflev-i { f ^ i.v f xv^t^ ^

'FABLE OF CONTENTS (continued)

Page

Conclusion 10,11

Certificate of Service

Appendix 1: Appeals Court decision (Dismissal by Journal Entry)

Appendix 2: Trial Court decision (Dismissal by Coiut Order)

12

A. F,XPLANATION OF WI-IY THIS CASE INVOLVES SEVERAL SUBSTAN"I'IAL

CONSTITUTIONAL QIJESTIONS

This case appealed from the Ninth District Court of Appeals presents several State

Constitutional and several U.S. Constitutional, critical Rights issues that are being violated in the

State of Ohio by Ohio Rules of Court, Rule 10, Affidavit of Merit requirement; a rule also in

general conflict with Ohio Rule of Court "Rule 38". Such Rule 38 that does honor and

recognizes a persons rights under the above Constitutions, and of a right to Trial by .htry to be

beld inviolate, and to which there should be no "test", as there is unconstitutionally in Rule 10's

affidavit of merit requirement which bars persons whom are first injured and secondly indigent,

from access to the courts. Even if the case has been dismissed without prejudice, those indigent

plaintiffs would still not be able to comply financially with the high cost of secuiing the affidavit

of merit requirement needed in the refilling of their case. So that the dismissal "witb or without

prejudice" is a final judgment to the indigent. The affidavit of merit rule is a bar to the court.

The afl'idavit of merit rule deems all malpractice cases brought by the poor "frivolous law suits".

Doctors can name there own price for the afiidavit of merit when they research a hospital record

of suspect and deem it prejudicially a quality "standard of care" even though that record may not

be complete or accurate. The record does not contain testimony of any of the patients' witnesses

so the record is bias. The appellant has no legal remedy.

A Patient's testimony is barred even before filing the case in Trial Court. Then at the

Appeals Court level because of the deemed no appealable order. Appellants are barred fi•om

appealing the unconstitutionality of the Rule so that the Plaintiff/Appellant has no legal remedy

at law for their inji.tries.

B. THIS CASE APPEALED TO THE SUPREME COllRT OF OHIO IS A CASE OF

GREAT P[JBLIC AND GENERAL INTERESI'

'1'his case concerns the health, safety and welfare of between 50 aud 75% of Ohio's

population, and because Medicaid and Medicare as well as private insurance companies, are

paying the high cost of injuries upon these injured people when doctors and hospitals should be

paying for their own mistakes. These injuries are bankrupting the tax payer supported medical

insurauce industries of Ohio and the Federal Government.

Injured persons bringing cases of malpractice/negligence to the courts is a"checks and

balance" against corruption in the medical industty. These persons working under injury and

physical distress bring their cases to court under risk of retaliation from the medical industry. It

is why few cases actually coine before the courts eye. The exorbitant financial expense of

litigation, emotional burdens and the bias and prejudice of Rule 10, Affidavit of Merit

requirernent, is a bar against the poor and not a bar against frivolous law suits-a lot of frivolous

people have money to fight a frivolous law suit, but the legitimate injured poor are barred from

arry kind of justice by Rule 10, Affidavit of Merit requirernent.

2

STATEMENT OF T'HE CASE AN1} FACTS

This case arises from the attempt of the Appellant, Theresa M. Shimp, who first sought in

Sutnmit County Common Pleas Court to bring a legal suit of malpractice/negligence against the

Appellees, from when she was a patient at the ER of Sunima Barberton Hospital, in Barberton,

Ohio.

She was injured after severe ear infection with 103 degree fever and was neglected when

neither blood tests nor fluids were given this diabetic individual and she was sent home. Twenty

nine hours later after retuming by ambulance she was neglected for another eight hours in the ER

where she was tied to the bed screaming in pain. She was deemed only demented by hospital

doctors and personnel. The Appellants childt-en arxiving on the scene saved her life by

demanding care, tests and fluid for her. It was then found that she had been in critical condition

with Spinal Meningitis, respiratory failure, an enlarged heart, abnormal brain function, extrernely

high blood sugar, and a six day coma with I 1 days total hospitalization. Appellant has suffered

severely ever sinee and while representing this case still today, pro se.

Filing her case in the "Trial Court with a notarized complaint and two affidavits from her

children, she was dismissed without prejudice from that court after no trial or preliminaiy

hearings, because she could not come up with $1000 to $1500 for an Affidavit of Merit.

The Affidavit of Merit rule was the only issue that thc Trial Court would rule on, so that

the Appellant appealed the "rule" and "not the case' to the Ohio Appellate Court of ine Ninth

District. It wasn't the case that barred me but the Affidavit of Merit requirement of Rule 1.0. My

only remedy at law was to overcome the rule by appealing its unconstitutionality, bias and

prejudice to the Court of Appeals.

3

The Appellant filed two briefs before the Appeals Court, and before the Appellees, on an

extension of time, could 6le their brief, the case was dismissed, "because there was no final

order from thc Trial Court as it was dismissed without prejudice" (the whole case was dismissed

even though the whole case was never heard, because the rule was barring the case from beinig

heard due to the Plaintiff's poverty in the Trial Court).

It has been asked of me by attorneys "How would I obtain an expert witness without an

Affidavit of Merit?" My answer was "by subpoena" as was always used before the Affidavit of

Merit rule, and where such "expert" could be "tested" before a jury as "part" of the case and not

be the whole case as in the Affidavit of Merit requirement. Doctors being vulnerable to the

hospitals that employ them and their insurers have become hostile witnesses under the Rule and

they fear retaliation if they reveal injuries of patients in an Affidavit of Merit. They would more

likely reveal injuries on oath as either a witness or a hostile witness as they sat in front of a j my.

The Appeals Court refused to consider any and all of the Appellant's constitutional rights

as listed in her Appeals Brief and even before in her motion in support of jurisdiction, and would

not speak on the issue of the Affidavit of Merit requirements constitutionality.

4

ARGUMENT IN SLTPPflRT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: The Affidavit of Merit constitutes Double Jeopardy, OhioConst. Art. I See. 10, U.S. Const. 51h Amend., Ohio Const. I See. 16- justice withoutdelay.

An Action in the 'Trial Court is a remedy at law protected by both State and U.S. Consts.

that cannot be barred by arbitrary and ainbiguous tests, but are rights legislated to "persons" by

law and inalienable. When "persons" are injured by medical practices of professionals and

hospitals they have a right to a trial by juiy for their injuries. It is unconstitutional to bar the jury

by inflicting a test within the medical field first "before" and "without" a jiuy. The "test"

"Affidavit of Merit" imposes on the injured is "double jeopardy" - to be once physically injured

and again suffer a further financial burden with a laborious imposition of finding a doctor

"expert" to go against his peers about your malpractice; a test of skill and finance inipossible for

most people, who aren't even injuted.

Hospitals, doctors, etc., Insurance Companies and other medical agencies and

corporations are set up protectively by corporations and attorneys, calling themselves "persons"

under the law. A naturat born citizen is a"person" but not set up with corporate attorneys

protectionism. Yet we have to compete in court against corporate attorneys, hospitals, and

doctors who have teamed up with the courts and judges to bar us fi-om a day in court before a

jury, by the "Affidavit of Merit requirement", an extravagantly made "corporate instniment"

unconstitutionally perpetrated on the individual injured "person" especially the poor, by judges

and courts.

Even on a dismissal without prejudice - when you can bring the case up again with the

same bars perpetrated against you, this is "delayed justice" and unconstitutional as in T'rial Court

5

of record in this case. "Delayed justice is no justice." - and again double jeopardy. The

"Affidavit of Merit requirement" should be abolished in the State of Ohio. [Ohio Const. Art. I

Sec. 16 that grants justice without "delay" or denial.]

Proposition of Law No. It: Rule 38A of the Ohio Rules of Court says that a right totrial by jury shall be held inviolate, as established by the U.S. Const. 7te Amend. andArt. I Sec. 5 of the Ohio Const.

Rule 10 "Affidavit of Merif' requirement has no backing of either Const. and is contrary

to our civil rights because it is "a bar to justice at the court room door." Oklahoma Supreme

Court No. 102472 decided Dec. 19"', 2006.1t also conflicts with Ohio Rule 38. The Ohio and

U.S. Consts. are a legal contract between the government and the people in the bill of rights, and

is ineat to "constrain" abusive government on the people, "persons" under the law, whom are

born or naturalized and not those artificially constructed as to over power and manipulate the

people and their rights as citizens.

In malpractice/negligence cases the Affidavit of Merit Rule is a torturous, physically

draining, and horrendous financial barrier against a "persons" right to a trial by jnry. It breaks the

legal contract between govt. and "persons" and can no longer exist, if our contract with

government be "repaired" and "persons" be again able to defend Life and Liberty.

Proposition of Law No. iII: Art. I See. 10 Ohio Const. and 5td and 6"' Amend. U.S.

Const. Witnesses to be heard in favor Rule 10 Affidavit of Merit is a witness againstoneself. And Jury trial denial U.S. 7th Amend. And Ohio Const. Art. I Sec. 5

'The "Affidavit of Merit" is p•epared on the doctors and hospitat record alone, and such

record has been allowed to be "cleaned up" to reflect "no malpractice, and not wrong doing by

them." Information can be deleted or hid from the record. Witness testimony and family

testimony is excluded from the rccord. The court sanctions this "record" then as a witness against

6

the injured "person" and bars them from court without the jury's knowledge - an obstruction of

justice, and jury tampering. Persons are barred form the court and denied jurisdiction.

Proposition of Law No. IV: Ohio Rule 38B. Ohio Rule 38C. and Ohio Rule 38I).

All parties requested a jury trial in this case. Ohio Rule 38C. The pardes had 14 days to

narrow the issues that would be heard by such jury. Because the parties did not narrow the

issues, all issues should have been heard and not just about the "Affidavits of Merit." Rule 38D.

A demand for a trial by "jury" may "not" be withdrawn unless by "all" parties. Note: After the

jury was requested by both parties the question of dismissal was in the "5ury's" hands, not the

judge to dismiss according to Rule 38D.

Proposition of Law No. V: Ohio Art. I Sec. 16, U.S. 5"' and 14'h No State shalldeprive a citizen of due process or equal protection of the law. U.S. Const.14o'

Amend.

The Appellant was deprived of the equal protection of the law because a born or

naturalized citizen of this State and Country cannot be equal to a robot "person" manufactured

under corporate law that contains multiple powers, rnoney and influence that stacks the "legal

deck of cards" against us. Corporations are "much more" than the individual person made of

flesh and blood. They are "multiple persons" and not "one person." They are "equal" as a whole

with other corporations; "more powerful" today than the "England" we fought to win for our

original independence as a nation.

And as such we do not have equal protection of the law to obtain due process in the

courts especially as the "Affidavit of Merit rule" conspires in the law to keep us off the steps of

the court houses. So that the Appellant hopes to impress upon the court the need to abolish the

"special privilege" of protectionism that has weighed down the scales of justice against the

7

"individual flesh person" that our forefathers intended in the Bill of Rights, by abolishing the

Affidavit of Merit Rule.

Proposition of Law No. VI (A): The first of two precedents used to obstruct justicein Ohio Courts is: Smart pages v. Ohio Mortg. S"' District No. 83004, 2003 - Ohio -

7074

One of the precedents is used to keep persons from seeking an appeal or further remedy

when it is impossible for them to proceed any other way. The Affidavit of Merit requirement is

impossible for the poor to get past, whether a case is dismissed "with" or "without prejudice." It

is impossible for a person on Medicaid or SSI to find money to pay for an "expert.s" expensive

researeh into their case. On top of that they are sick and/or injured and they do not have the

stamina to pursue this instrument from one doctor to the next. 'There are many advantages for the

doctor not to give you the Affidavit at any price, as it is a conflict of interest for them. So the

Affidavit constitutes a"final judgment" to these poor that they are denied to appeal. Our

Constitution protects our right to appeal a grievance and a judicial denial -- that's what

constitutions are for.

Proposition of Law No. Vl (B): Ward v. Summa Health System 9th IDist. No 24567

2009 Ohio 4859 that says the dismissal does not affect a substantial right or fallwithin the exception and determine the action.

It's not the job of a court precedent to determine for citizens what of their rights are

"substantial." The State and U.S. Consts. Give us the grace to figure that out for ourselves. The

dismissal also "determined" the trial of the case because the case was never heard, nor could be

heard on appeal because of the rule itsel£ The dismissal was based on the Affidavit of Merit rule

and the State Dist. Court of Appeals knows that is true and bar to the courts. These two

precedents are effective obstruction of Justice.

8

Proposition of Law No. VII: Monica B Zeir v. Zimmer Inc. and 'Theron S. Nichols,

MD, Oklahoma Supreme Court Opinion No.102472, Dec. 19th, 2006.

This case has estimated the cost of between $500 and $5000 for an Affidavit of Merit

which creates an economic bar at the courthouse door that impedes less wealthy claimants'

access to redress, thus depriving thcm of due process of the law; declaring the Affidavit of Merit

Rule unconstitutional.

9

CONCLUSION

Recognizing that the State and U.S. Constitutions are awesome and beautiful gifts of our

forefat.hers, that protected "flesh and blood persons," it is apparent that in recent intcrpretations

of the coints that the scales of justice have ever more been tipped against flesh and blood

"persons" in favor of "manufactured persons" of corporations who have extraordinaiy power,

attorneys, and financial resources, to initiate legislation to quash the rights of the less powerful

"flesh and blood persons": who were intended to have the constitutional riglits they have

assunied, through court provocation, and financial influence.

It is repugnant to see the poor and injured exploited in malpractice cases because their

abuse in this way is the ] st step to complete tyranny before the rest of the citizenry are

disfranchised of their rights. Worse unless you are suing for malpractice you do not know your

rights are gone. So that the act of disfeanchisement of the poor and disabled is even more

diabolical, despicable, and underhanded as it has all been done in secret. With rule 10, that the

medical establislnnent is allowed to keep malpractice injuries out of the eyes of juries, is a

corrupt and heinous crime against the people.

The right to bring suit for injuries in Ohio cannot be legally obstracted by innuendo and

whim as regards arbitrary rules and court precedents, where they are used to cover up mistakes

by careless doctors, unscrupulous medical agencies, greedy corporations and their attorneys.

It is obvious to this appellant that the trial court judge felt poweriess to attempt to

dismantle Rule 10's Affidavit of Merit requirement because of his footnote at the bottom of his

decision to dismiss.

10

The Court of Appeals was afraid to out guess the Supreme Court of Ohio on the issue of

the rule. But the Appellant in this memorandmn for jurisdiction begs this court to scrutinize the

Rule that has failed in practice in the lower courts, and that is injurious to the health, safety and

welfare of a whole state, and the health of our Constitutions.

Respectfully submitted,

^1`UTheresa M. Shimp, pro 4e

11

CERTIFICATE OF SERVICE

I certify that a copy of this forgoing Memorandum in Support of Jurisdietion is being served this

16 day of March, 2010, by regular U.S. Mail to all appellees attorneys of record as listed below:

Dr. Robert Faflik, D.O.Dr. Walter Maciejewski, M.D. andEmergency Medicine Physicians

Att. Donald H. Switzer, Esq. (#0017512)Att. Brett C. Perry, Esq. (#0073488)

1300 East 9th St. Suite 1950Cleveland, Ohio 441 ] 4-1501216-875-2767/Fax 216-875-1570

And: Sumina Health SystemSumma Barberton Hospital

Att. Frank G. Mazgaj, Esq. (#0037910)Att. Gregg A. Peugeot, Esq. (#0076262)

P. O. Box 55213737 F,mbassy ParkwayAkron, Ohio 44334330-670-7300/Fax 330-670-7450

-^L^i9rj4)Theresa M. Shimp, pro se1333 Inman St.Akron, Ohio 44306330-773-4060

12

STATE OF OHIO

COUNTY OF SUMMIT }

THERESA M. SHIMP

Appellant

V.

DR. ROBERT' J. FAFLIK, D.O., et al

Appellees

IN THE COURT OF APPEALSNINTH JUDICIAL DISTRICT

C.A. No. 25121

JOURNAL ENTRY

Upon review of the initial filings in the appeal, along with appellees' motion to

dismiss and appellant's response in support of jurisdiction, the Court concludes that the

order appealed is not final and appealable. Specifically, the order dismisses the

complaint without prejudice. A "dismissal without prejudice * * * is not a final

detertnination of the rights of the parties and does not constitute a judgment or final order

when re-filing or amending of the complaint is possible." Sniart Pages v. Ohio Morig.,

8th Dist. No. 83004, 2003-Ohio-7074, at 115. Nor does the dismissal order fall within the

exception to the above rule, as it fails to affect a substantial right and effectively

determine the action. See Ward v. Sulnma 1-lealth Sys. 9`h Dist. No. 24567, 2009-Ohio-

4859.

The appeal is dismissed. Costs are taxed to appellant.

The clerk of courts is ordered to mail a notice of entry of this judgment to the

parties and make a notation of the mailing in the docket, pursuant to App.R. 30, and to

provide a certified copy of the order to the clerk of the trial court. The clerk of the trial

JOURNAL ENTRY, C.A. No. 25121Page 2 of 2

court is ordered to providc a copy of this order to the judge who presided over the trial

court action.

Judge

Concur:Belfance, J.Carr, J.

1.}-;^. 's^sp^ r rs

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V^f^,jijvli { ,lil+{{l: ( C

^ TSC4 Er^^ ^^- i,`r%}JR

IN THE COURT OF COMMON PLEAS

COUNTY OF SL3MMIT

THERESA M. SIIIMP,

Plaintiff-vs--

DR. ROBERT J. FAFLIK. D.O., et al.,

Defendants

) CASE NO. CV 2009-09-6831

)} JIIDGE PARKER

))) ORDER

))

This matter is before the court on the motion of the defendants, Robert 7. Faflik,

D.O., Walter Masciejewsid, M.D. and Emergency Room Physicians, to dismiss the case, filed

pursuant to Civ.R. 12(B)(6) and Civ.R. 10(D)(2)(d), on the brief in opposition to plaintiff's

motion for extension of time to affidavit o€merit, and on plaintiff s responsive brief in

support of her motion and contra the motion to dismiss.

Civ. R. 10(D)(2)(d) provides that "[a]n affidavit of merit is required to establish

the adequacy of the complaint and shall not otherwise be adnussible as evidence or used for

purposes of impeachment. Any dismis&al for the failure to comply with this rule shall operate

as a failure otherwise than on the merits."

It is clear under the present state of the law that a complaint for medical

negligence that is not properly supported by an affidavit of merit fails to state a claim upon

which relief can be granted. See Fletcher Y. Univ. Hosps. of CleveTared,120 Ohio St.3d 167,

2008-Ohio-5379.

p

In the present matter, the plaintiff did not attach an affidavit of merit as required

by the nale. Therefore, the court rg ants the defendants' motion to dismiss and notes that such

dismissal is without prejudice.1

This order terminates this case.

IT IS SO ORDERED.

JUDGE TOM PARKER

cc: Plaintiff Theresa M. ShimpAttorney Donald H. SwitzerAttorney Brett PerryAttorney Michael7. Fuchs

W W:Icb09-6831

' The court is not unsympathetic to plainiifPs position. However, the court is constrained to follow the law as itis rather than as individual parties to lawsuits believe it shoutd be.

2

^k^^ C' Yl G^1 k

STATE OF OI-it0 IN 'I'HE COURT OF APPEALSNINTH JUDICIAL DISTRIC'I'

COUNTY OF SLJN)I't

TNERESA M. SH

Appellant

DR. ROBERT J. FAFLIK, D.O., et al

Appellees

C.A. No. 25121

JOURN'AL ENT'RY

Appellant has movect for reconsideration of this Court's order dismissing the

appeal for lack of jurisdiction. In determining whether to grant a motion for

reconsideration, a court of appeals nlust revieva the motion to see if it calls to the

attention of the court an obvious error in its decision or if it raises issues not considered

properly by the court. Garfield Flts. City School Dist. ». State Bd. of Edn. (1992), 85

Ohio App.3d 117. Upon review of appellant's motion, we find no obvious error or issue

that we did not properly consider.

The motion for reconsicleration is denied.

Judge

Concur:Belfance, J.Carr, J.

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