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Fortuna v. Ohio State University Hospitals10/25/2005
{ } Plaintiff-appellant, Vicki Fortuna, individually and as Executor of the Estate of Stephen J. Fortuna, appeals from a judgment of the Court of Claims of Ohio, finding Dr. Larry C. Martin to be entitled to civil immunity pursuant to R.C. 9.86 and 2743.02(F). For the following reasons, we reverse the judgment of the Court of Claims and remand this matter to that court.
{ } On June 12, 2001, plaintiff filed, in the Court of Claims of Ohio, a medical malpractice action against The Ohio State University Hospitals ("OSUH"). An amended complaint was filed on July 5, 2001. Plaintiff filed a companion case in the Franklin County Court of Common Pleas against multiple defendants, including Larry Martin, M.D. Following a status conference, the Court of Claims filed an entry on August 24, 2001, stating in part, "No immunity issues exist at this time." In said entry, the Court of Claims stayed the action, pending the final disposition of the connected action. As indicated by subsequent entries filed by the Court of Claims, additional status conferences were held in the Court of Claims to discuss the status of the connected action. In said entries, there is no mention of the issue of immunity.
{ } On October 3, 2003, Dr. Martin moved the Court of Claims to hold an evidentiary hearing to determine whether he is entitled to immunity pursuant to R.C. 9.86 and 2743.02(F). The record does not reveal any objection to this motion. On October 28, 2003, the Court of Claims granted Dr. Martin's motion and scheduled an immunity-determination hearing. Additionally, the October 28, 2003 entry states, "Dr. Martin may participate in the January 15, 2004, evidentiary hearing either with counsel or pro se, if he so desires[.]" (Emphasis sic.)
{ } On January 15 and February 4, 2004, the Court of Claims held an evidentiary hearing to determine whether Dr. Martin is entitled to immunity pursuant to R.C. 9.86 and 2743.02(F). Dr. Martin's counsel participated in the proceedings. Said participation included conducting a direct examination of Dr. Martin and making closing arguments at the hearing, as well as filing a brief in support of a finding of immunity. On March 10, 2004, the Supreme Court of Ohio issued its decision in Johns v. Univ. of Cincinnati Med. Assoc., Inc., 101 Ohio St.3d 234, 2004-Ohio-824. In Johns, the court stated that a state employee has no right to participate in the immunity-determination proceedings before the Court of Claims.
{ } On March 24, 2004, plaintiff moved the Court of Claims for a determination that Dr. Martin is not entitled to immunity based on Johns. In plaintiff's motion, she argued that the issue of immunity had already been "considered" by the court, that the court lacked authority to hold an immunity hearing at Dr. Martin's request, and that Dr. Martin had not timely raised the immunity issue. Plaintiff also argued, at least implicitly, that the Court of Claims erroneously permitted Dr. Martin to participate in the immunity-determination hearing, in violation of Johns. On June 18, 2004, the Court of Claims denied plaintiff's March 24, 2004 motion. On June 23, 2004, plaintiff filed a motion for reconsideration of the court's denial of her March 24, 2004 motion.
{ } On July 16, 2004, the Court of Claims rendered a decision and judgment entry. The Court of Claims found that Dr. Martin acted within the scope of his employment with defendant at all times relevant to the action, and that he did not act with malicious purpose, in bad faith, or in a wanton or reckless manner toward Mr. Fortuna. The Court of Claims stated in part:
The court is persuaded for the following reasons that Dr. Martin was acting within the scope of his uni
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