Marotto v. Ohio State Univ. Med. Ctr.Marotto v. Ohio State Univ. Med. Ctr.
Rendered on December 27, 2012
Leeseberg & Valentine, Gerald S. Leeseberg and Susie L. Hahn, for appellees Mario Marotto, Deborah Marotto and Howie Marotto.
Michael DeWine, Attorney General, and Karl W. Schedler, for appellee The Ohio State University Medical Center.
The Triona Firm, James P. Triona and Paul J. Vollman, for appellant David Bell, M.D.
APPEAL from the Court of Claims of Ohio
BRYANT, J.
{¶1} David Bell, M.D., appeals from a judgment of the Court of Claims of Ohio denying him immunity pursuant to
I. Facts and Procedural History
{¶3} Pursuant to
{¶4} Dr. Bell filed an appeal from the Court of Claims’ entry denying him immunity. OSUMC responded with a motion to dismiss, arguing Dr. Bell is not a party to the action and does not have standing to file an appeal. This court denied the motion to dismiss, noting Dr. Bell‘s ability to appeal was consistent with legislative revisions of
II. Assignments of Error
{¶5} On appeal, Dr. Bell assigns two errors:
I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY MISINTERPRETING THE REQUIREMENTS OF
R.C. §2743.02(F) THEREBY DENYING APPELLANT DAVID BELL MD THE RIGHT TO “FULLY PARTICIPATE” IN HIS IMMUNITY DETERMINATION.
II. THE TRIAL COURT ERRED WHEN IT RULED THAT APPELLANT DAVID BELL MD WAS NOT ENTITLED TO IMMUNITY UNDER
R.C. §9.86 ANDR.C. §2743.02(F) .
III. First Assignment of Error – Right to Participate Under R.C. 2743.02(F)
{¶6} Dr. Bell‘s first assignment of error contends the Court of Claims erred as a matter of law by misinterpreting the requirements of
A. R.C. 9.86 , R.C. 2743.02(F) and Immunity
{¶7}
{¶8}
{¶9} Accordingly, whether a doctor is entitled to personal immunity from liability under
{¶10} The Court of Claims’ analysis of immunity is divided into two parts. Theobald at ¶ 14. The court initially must determine whether the individual was a state employee. Id. If so, the court secondly must determine whether the individual was acting within the scope of employment when the cause of action arose. Whether the individual was acting within the scope of employment requires consideration of the specific facts. Scarberry v. The Ohio State Univ. Hosps., 10th Dist. No. 98AP-143 (Dec. 3, 1998), citing Lowry v. Ohio State Highway Patrol, 10th Dist. No. 96API07-835 (Feb. 27, 1997), and Brooks v. The Ohio State Univ., 111 Ohio App.3d 342, 350 (10th Dist.1996).
B. Dr. Bell‘s Ability to Participate
{¶11} Given the language of
{¶12} The Marottos respond to Dr. Bell‘s contentions concerning the stipulation by noting Dr. Bell had the opportunity to present evidence and to otherwise participate but voluntarily limited his own participation when he failed to appear for the hearing or submit his direct testimony through transcript or video. As an indication of the latitude afforded Dr. Bell, they further note Dr. Bell, through counsel, was able to proffer Dr. Bell‘s affidavit at the hearing. They lastly point out that since the court‘s judgment entry states the court relied on the evidence presented at the hearing and the case of Engel v. Univ. of Toledo College of Medicine, 130 Ohio St.3d 263, 2011-Ohio-3375, Dr. Bell cannot demonstrate prejudicial error in the court‘s relying on the stipulation.
{¶13} The stipulation at issue resolves Dr. Bell‘s first assignment of error. The stipulation states that “[t]he parties, plaintiffs Mario Marotto (through his mother,
{¶14} Prior to the amendment, a state employee had no right to participate in immunity determination proceedings before the Court of Claims or to appeal that determination. Theobald v. Univ. of Cincinnati, 101 Ohio St.3d 370, 2004-Ohio-1527. In amending the statute, the legislature did not state the employee is a party to immunity decision; nor did it require the employee to be named or joined as a party to the proceeding. The language the legislature used in amending the statute nonetheless reflects its intent that employees subject to immunity proceedings under
{¶15} After the Marottos and OSUMC presented the stipulation to the court, counsel for OSUMC noted that “if there‘s going to be any proffer of evidence made, * * * we would also proffer the deposition of Dr. Bell, in addition to the stipulation. But the stipulation * * * kind of closes the door on the factual issue of whether or not he‘s an officer or employee.” (Tr. 6.) The court responded, “[t]hat was the basis of my deciding that there‘s no reason to go forward with any more hearing, unless [Dr. Bell‘s counsel] had specific evidence that he was ready to present at the hearing, which apparently he does not.” (Tr. 6-7.) When Dr. Bell‘s counsel suggested he would proffer Dr. Bell‘s deposition, the court stated, “[w]ell, we have Dr. Bell. We will receive that into evidence, for whatever purpose it is. I have that.” (Tr. 7.) The court did not allow Dr. Bell‘s affidavit to be admitted; nor did the court give Dr. Bell‘s counsel the opportunity to submit an argument. At the end of the hearing, Dr. Bell‘s counsel proffered Dr. Bell‘s affidavit and OSUMC‘s counsel proffered rebuttal evidence.
{¶17} Although the Marottos point out that the Court of Claims’ judgment entry cites evidence in the hearing to support its determination, the hearing transcript indicates the court deemed the evidence significant until it received the stipulation. Once the Marottos and OSUMC submitted the stipulation, the court indicated the stipulation resolved the immunity issue. Although the court, in a seeming contradiction, asked Dr. Bell‘s counsel if he had further evidence, the court‘s judgment entry was filed the same day as the hearing, a factor suggesting the court likely did not rely on the deposition transcript or any other evidence admitted at the hearing. Because a determination based heavily on the stipulation deprives Dr. Bell of his statutory opportunity to participate in the proceedings that determine his own immunity from liability, the Court of Claims erred in deciding the immunity issue primarily on the stipulation.
{¶18} In response to Dr. Bell‘s first assignment of error, OSUMC contends the language of amended
{¶20} Dr. Bell‘s first assignment of error is sustained.
IV. Second Assignment of Error
{¶21} Dr. Bell‘s second assignment of error contends the Court of Claims erred when it ruled that he was not entitled to immunity under
V. Disposition
{¶22} Having sustained Dr. Bell‘s first assignment of error, rendering his second assignment of error premature, we reverse and remand this matter to the Court of Claims for further proceedings in accordance with law and consistent with this decision.
Judgment reversed and cause remanded.
TYACK and SADLER, JJ., concur.