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Rosenshine v. Medical College Hospitals10/25/2005
to intervene, and granted his motion for leave to file an amicus curiae brief.
{ } Under its first assignment of error, MCH argues that the Court of Claims of Ohio erred in permitting Dr. Grubb to participate in the immunity-determination hearing. Dr. Grubb, in his amicus curiae brief, argues that he did not participate in the immunity-determination hearing as a party, and therefore MCH's first assignment of error is without merit.
{ } "Pursuant to R.C. 2743.02(F), the Court of Claims has exclusive jurisdiction to determine whether a state employee is immune from liability under R.C. 9.86. Therefore, courts of common pleas do not have jurisdiction to make R.C. 9.86 immunity determinations." Johns v. Univ. of Cincinnati Med. Assoc., Inc., supra, at syllabus. A state employee has no right to participate in the immunity determination proceedings before the Court of Claims. Theobald v. Univ. of Cincinnati, 101 Ohio St.3d 370, 2004-Ohio-1527; Johns.
{ } In Gerschutz v. Med. College of Ohio Hosp., Franklin App. No. 04AP-794, 2005-Ohio-1158, at , this court determined that the Court of Claims had, "in effect, allowed [the doctors], through their counsel to participate in the immunity-determination hearing as parties." In Gerschutz, the doctors' counsel "presented evidence through direct and cross-examination of witnesses, introduced exhibits into evidence, and submitted briefs." Id. This court concluded that it was error for the Court of Claims to permit such participation. Id., citing both Johns and Theobald.
{ } This case is procedurally distinguishable from Gerschutz. In Gerschutz, the trial court held an evidentiary hearing, during which "the doctors' attorneys were permitted to present testimony and exhibits and to cross-examine witnesses as if the doctors were parties." Id. at . In this case, the trial court did not hold an oral evidentiary hearing, but it permitted the parties, as well as Dr. Grubb, to submit memoranda and evidence regarding the issue in dispute. The parties agreed that, in lieu of an evidentiary hearing, the issue of Dr. Grubb's immunity would be determined by the court on "briefs, depositions and affidavits filed." Essentially, the parties agreed that the immunity issue would be determined by the Court of Claims upon what is oftentimes considered a "non-oral hearing."
{ } Notwithstanding this distinction, the reasoning applied in Gerschutz remains instructive for purposes of the proper resolution of this appeal. Our review of the June 16, 2004 "stipulation" reveals Dr. Grubb's significant participation in the immunity-determination hearing process, which extended beyond merely submitting an "advisory brief" on the issue. The materials covered by the "stipulation" included memoranda and evidence filed by Dr. Grubb. The court, in effect, permitted Dr. Grubb's counsel to advocate her client's position, as if her client was a party.
{ } In view of the record in this case, we conclude that Dr. Grubb participated as if he was a party in the immunity-determination proceedings in the Court of Claims. Considering Johns, Theobald, and this court's decision in Gerschutz, the Court of Claims erred in permitting Dr. Grubb's participation in the immunity-determination proceedings. Dr. Grubb's participation in the proceedings cannot be considered harmless. Accordingly, we sustain MCH's first assignment of error.
{ } In its second assignment of error, MCH argues that the Court of Claims erred in failing to find that Dr. Grubb waived his claim for immunity because he did not timely assert it. MCH also argues that the issue was raised on the erroneous premise that the law had changed.
{ } Pursuant to R.C. 2743
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