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Costell v. Toledo Hosp.11/18/1994
HANDWORK, Judge.
The basic facts of this medical malpractice case from the Lucas County Court of Common Pleas are that appellant, Frances Costell, sued appellee, Toledo Hospital, and several other parties, alleging that Toledo Hospital and the other named parties gave substandard medical care to her late husband, Donald Costell. Donald Costell entered Toledo Hospital for heart surgery. The surgery was complete, and the surgeon had already left the operating room when Donald had a heart attack. Appellant alleges that the anesthesiologist, who was still isthe operating room, failed to respond quickly enough. The surgeon returned to the operating room when he was located by hospital employees and informed of the situation. The surgeon was able to get Donald's heart beating again, but Donald had suffered a loss of oxygen to his brain, never recovered consciousness, and died in the hospital several months later.
This case has a long procedural history, which includes two previous appeals to this court and to the Supreme Court of Ohio. The result of the immediately preceding appeal was a reversal and remand. Costell v. Toledo Hosp. (1992), 82 Ohio App.3d 393, 406, 612 N.E.2d 487, 495. The basis of the reversal and remand was a finding by this court that (1) the trial court limited appellant's cross-examination of the former risk manager of the Toledo Hospital in a prejudicial way, and (2) the ruling of the trial court prohibiting appellant's attorney from using the terms "cover up" or "perjury" during opening statement to refer to the alleged actions of the risk manager for Toledo Hospital of coercing hospital employees to change their testimony that three minutes went by from the time of Donald Costell's heart attack to the time of any response from the anesthesiologist in the operating room was unreasonable. Id. at 404-406, 612 N.E.2d at 494-495.
After the case was remanded to the Lucas County Court of Common Pleas, Toledo Hospital filed a motion for summary judgment in which it argued that it was entitled to judgment as a matter of law, because the evidence and law presented by appellant, Frances Costell, (1) failed to meet the standards for demonstrating apparent agency between a hospital and a physician announced by the Supreme Court of Ohio in Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 553 N.E.2d 1038, (2) failed to show that Toledo Hospital had a duty to create policies or procedures regulating when a surgeon could leave an operating room, and (3) failed to show that hospital personnel did not act promptly enough in summoning the surgeon back to the operating room when his patient went into cardiac arrest following his departure.
Appellant opposed the motion for summary judgment, arguing that (1) the law of the case should be applied by the trial court to prevent the trial court from reconsidering the issue of whether the standard for apparent agency announced by the Supreme Court of Ohio was met by appellant, and (2) the evidence presented in the case showed that a dispute existed regarding the material issues of fact relating to whether an agency relationship existed between Toledo Hospital and the anesthesiologist who alleged[v rendered substandard care tsappellant's late husband. The trial court ruled in favor of Toledo Hospital, and appellant brought this appeal to challenge that ruling.
Appellant has presented two assignments of error for our consideration. The two assignments of error follow:
"I. The trial court erred in granting the hospital's motion for summary judgment asthere existed a genuine issue of material fact regarding the agency relationship between the Hospital and Dr. Stevens.
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