460 N.E.2d 1161 | Ohio Ct. App. | 1983
This is an appeal from a judgment of the Court of Common Pleas of Allen County which affirmed the findings of a medical malpractice arbitration panel and entered judgment in favor of the defendant-appellee, Dr. Thomas Leech, M.D.
The plaintiff-appellant, Betty Frysinger, filed a complaint against the defendant alleging medical malpractice (negligence) in the performance of certain surgical procedures. On April 8, 1981, the trial court ordered, pursuant to R.C.
On October 27, 1982, some seven days before this case was to go to trial, the appellant scheduled a deposition of an expert witness. On October 26, 1982, the appellee secured an ex parte protective order (Civ. R. 26) blocking the taking of the deposition for trial on the grounds of inadequate notice. Appellant then made a motion for an order voluntarily dismissing the case without prejudice pursuant to Civ. R. 41(A)(2). The court denied the request. Appellant thereafter dismissed the case without prejudice pursuant to Civ. R. 41(A)(1) on October 29, 1982 (8:13 a.m.). On the same day (9:48 a.m.) and after the cause of action had been dismissed the appellee made a motion to confirm the arbitration award and to order judgment thereon. On November 19, 1982, the court ordered judgment in favor of the appellee based on the arbitrators' findings.
The appellant raises two similar assignments of error, to wit:
"1. After a plaintiff had timely dismissed her case pursuant to Civil Rule 41(A)(1)(a), the trial court's subsequent entry of an order confirming a malpractice arbitration award and reducing the award to judgment, was contrary to law, was rendered without jurisdiction, was prejudicial to plaintiff's rights to a jury trial and amounted to a denial of due process.
"2. The trial court erred in granting an order confirming a malpractice arbitration award and reducing the award to judgment after the plaintiff had timely appealed the award pursuant to O.R.C.
Appellee asserts that the Civil Rules do not apply to medical malpractice cases *151 because they are special statutory proceedings within the meaning of Civ. R. 1(C)(7). Appellee has further stated that this is a question of first impression with no authority. We would not agree with this assertion.
In Graley v. Satayatham (1976), 74 O.O. 2d 316, 318, the Court of Common Pleas of Cuyahoga County stated:
"It is obvious that R.C. §
In Simon v. St. Elizabeth Medical Center (1976), 3 O.O. 3d 164, 166, the Court of Common Pleas of Montgomery County stated:
"Neither Civil Rule 1(C) nor the Staff Notes explaining the rule provide an exhaustive list of special statutory procedures. Only a few actions, such as Small Claims, Forcible Entry and Detainer and Commitment of the Mentally Ill are specifically listed. Due to the substantial differences between R.C. §
In Hensley v. Henry (1980),
"The judgment of the Court of Appeals is thus reversed and the cause remanded to the trial court with instructions that it vacate its Civ. R. 41(B)(1) involuntary dismissal and reinstateplaintiff's Civ. R. 41(A)(1)(a) voluntary dismissal withoutprejudice."
The Supreme Court's order in and of itself rebuts the argument that the Civil Rules do not apply to medical malpractice cases. See, also, State, ex rel. Henry, v. Britt (1981),
We further note the inconsistency of appellee's argument in that he utilized Civ. R. 26(C) in obtaining a protective order against the expert witness deposition.
We would agree with the court in the Simon case, supra. An action in medical malpractice is essentially a tort claim. The provision for limitations of time upon the bringing of such actions is concerned with what are essentially tort claims (R.C.
Moreover, Civ. R. 1(C) does not without qualification make the civil rule inapplicable to special statutory proceedings. It does so only "to the extent that they would be by their nature clearly inapplicable." There is nothing in the pleading provisions of R.C.
We conclude that the Civil Rules governing dismissals are applicable to the action herein concerned. Whether they are applicable to the arbitration proceeding itself is not before us.
Further, Civ. R. 41(A)(1) provides that an action may be dismissed without prejudice without order of the court by "filing a notice of dismissal at any time before the commencement of trial * * *." This is an absolute right with no pertinent qualification and was appropriately exercised by the appellant.
We thus conclude that when the appellant invoked Civ. R. 41(A)(1)(a), regardless of reason or motive, the cause of action was properly dismissed without prejudice. Necessarily, once the cause of action was dismissed the case was over, and the court did not have power or jurisdiction to make any further order.
Appellee raises the issue of the injustice of losing the effect of the arbitration panel's finding. Understandably appellee's concern is the effect of those findings, when this cause of action is filed again. The res judicata issue inherent in any subsequent case, however, must be saved for another day.
To this extent, and without reaching the constitutional jury question (Greenhills Home Owners Corp. v. Village of Greenhills
[1966],
Judgment reversed.
MILLER, P.J., and GUERNSEY, J., concur.