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Fortuna v. Ohio State University Hospitals10/25/2005
take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
{ } In order to determine whether an error affected a substantial right of a party, the reviewing court must weigh the prejudicial effect of the error and decide whether the fact finder would probably have reached the same decision but for the error taking place. Hallworth v. Republic Steel Corp. (1950), 153 Ohio St. 349, paragraph three of the syllabus. Therefore, in the case at bar, we must determine whether the trial court's error in permitting Dr. Martin to participate in the immunity-determination process was harmless error.
{ } Considering the ultimate factual issue in dispute at the hearing, we find that Dr. Martin's counsel was permitted to present substantively significant evidence at the immunity-determination hearing. For example, as stated above, at the immunity-determination hearing, Dr. Martin's counsel was permitted to present evidence through the direct examination of Dr. Martin. In said examination, Dr. Martin's counsel asked him questions regarding his involvement with Mr. Fortuna's care and his role as an attending physician supervising and teaching residents. Dr. Martin's responses provided support for the factual determination that he was acting within the scope of his employment with the state. Moreover, Dr. Martin's counsel also advocated a finding of immunity by filing briefs with the court and presenting closing arguments at the hearing. We conclude that Dr. Martin's participation, as if he was a party, was not harmless error.
{ } Based on the foregoing, we sustain plaintiff's second assignment of error.
{ } Plaintiff's third, fourth, fifth, and sixth assignments of error are rendered moot by our resolution of plaintiff's second assignment of error.
{ } Based on the foregoing, we overrule plaintiff's first assignment of error and sustain her second assignment of error. Our resolution of plaintiff's second assignment of error moots her third, fourth, fifth, and sixth assignments of error. Accordingly, the judgment of the Court of Claims of Ohio is reversed, and this cause is remanded to that court for further proceedings in accordance with law and consistent with this opinion.
Judgment reversed and cause remanded.
FRENCH and McGRATH, JJ., concur.
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