575 N.E.2d 516 | Ohio Ct. App. | 1991
This is an original action in prohibition brought by relator Donald E. Glass against the respondent, the Honorable M. David Reid, Judge of the Greene County Common Pleas Court. This case comes before the court for disposition upon the merits, upon the complaint, the respondent's response to this court's order to show cause why a writ of prohibition should not issue, Glass's responsive memorandum and a hearing before this court on April 17, 1991.
There is no dispute concerning the relevant facts in this case. Glass has a medical malpractice action pending before Judge Reid in the Greene County Common Pleas Court. Judge Reid referred the matter to arbitration pursuant to R.C.
Greene County Common Pleas Court Local Rule 11, pursuant to which the arbitration has been ordered, is a general provision for mandatory non-binding arbitration, adopted pursuant to C.P.Sup.R. 15. That rule, which is not a rule of procedure adopted pursuant to Section
"(A) Upon the filing of any medical, dental, optometric or chiropractic claim as defined in division (D) of section
"(B) The arbitration proceedings shall be conducted in accordance with sections
"(C) If the decision of the arbitration board is not accepted by all parties to the medical, dental, optometric, or chiropractic claim, the claim shall proceed as if it had not been submitted to nonbinding arbitration pursuant to this section. The decision of the arbitration board and any dissenting opinion written by any board member are not admissible into evidence at the trial.
"Nothing in this section shall be construed to limit the right of any person to enter into an agreement to submit a controversy underlying a medical, dental, optometric, or chiropractic claim to binding arbitration."
Glass contends that R.C.
The respondent points out that there were other changes in the 1987 amendment. For example, the respondent points out that the previous statute had permitted testimony by arbitrators at the ensuing trial, whereas the present statute does not permit arbitrators to testify. However, we agree with Glass that a fundamental aspect of the amendment was to change the *331 medical arbitration from a mandatory procedure to a procedure that requires the permission of all the parties.
The respondent contends that although the arbitration provided for in R.C.
Glass points out that R.C.
Additionally, we find the last paragraph of R.C.
We conclude that the mandatory reference of a medical claim to arbitration is inconsistent with the statutory scheme for the permissive arbitration of medical claims set forth in R.C.
At the hearing in this court, counsel for the respondent argued that Glass had failed to exhaust all of his available remedies because he had failed to take exception to the reference to general arbitration. However, counsel for the respondent was forced to concede that the reference to general *332 arbitration, after two defendants had objected to the initial reference to medical arbitration, would support an inference that it would have been a vain and useless act for Glass to have excepted to the reference to general arbitration. We find that it would have been futile for Glass to have excepted to the reference to general arbitration under the circumstances of this case. We also find that Glass has no adequate remedy at law, by way of an appeal, from the ultimate disposition of his medical claim. The arbitration ordered is non-binding arbitration, so that neither the reference to arbitration, nor any error occurring during the arbitration, would be cognizable in an appeal from the judgment of the trial court finally deciding the claim. Furthermore, the harm that Glass seeks to avoid — his forced participation in the expensive arbitration of a medical claim, with expensive expert witnesses — can only be avoided through the issuance of the extraordinary writ of prohibition.
Because we conclude that Glass has clearly established his entitlement, as a matter of law, to the relief he is seeking, the writ of prohibition is granted.
Writ granted.
BROGAN and WOLFF, JJ., concur. *333