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Garcia v. O'Rourke3/8/2005
DECISION AND JUDGMENT ENTRY
{ } Carlos O. Garcia, guardian ad litem for Carrie Christina Wheeler and Samuel Louis Wheeler, appeals the Gallia County Court of Common Pleas' decision entering summary judgment in favor of the defendants-appellees on their claim for loss of consortium of their mother due to the defendants' medical malpractice. Garcia contends that the trial court erred in granting summary judgment because the defendants did not object to the parents' failure to join their children in their underlying medical malpractice action. Because we find that Civ.R. 19 governs the requirement that a child join his claim with his injured parent's claims "whenever feasible," and because Civ.R. 19 specifically provides that a defendant waives the failure to join exception if he does not raise it in the underlying action, we agree. Accordingly, we reverse the judgment of the trial court.
I.
{ } In 1990, the children's mother, Carolyn Wheeler, went to the Holzer Medical Center because she was in active labor. Holzer personnel delivered Samuel by Cesarean section. Because of complications during the surgery, Carolyn Wheeler suffered brain damage, physical abnormalities, and the loss of her right hand.
{ } In 1992, Carolyn and Charles Wheeler filed suit in the United States District Court against the doctors and other Holzer personnel involved in Carolyn Wheeler's care, against Holzer Clinic, Inc., and against Holzer Medical Center (collectively, "the defendants"). At the time, the State of Ohio did not recognize a cause of action by a child for loss of parental consortium. See High v. Howard (1992), 64 Ohio St.3d 82, syllabus. In their answers to the Wheeler's complaint, the defendants asserted the defense of failure to join a party or parties necessary for just adjudication of the claim. However, the defendants did not indicate who the necessary parties might be, and did not pursue the defense further in court.
{ } In 1993, the Ohio Supreme Court reversed itself and held that a minor child has a cause of action for loss of parental consortium against a tort-feasor who causes physical injury to the child's parent. Gallimore v. Children's Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, paragraph two of the syllabus. Shortly thereafter, the Wheelers prepared a motion to join the children as parties to their suit. However, they never filed the motion. During settlement negotiations, the parties' formal demands and offers included specific provisions for each of the children. However, the settlement agreement that the parties executed did not mention the children. After the parties settled, the federal district court dismissed the Wheelers' complaint with prejudice.
{ } In October 2000, Charles Wheeler, as the father and natural guardian of the minor children, filed a complaint against the defendants in the Gallia County Court of Common Pleas. Garcia later replaced Wheeler as guardian of Carrie and Samuel. The complaint alleged the same factual background as the complaint filed by Carolyn and Charles Wheeler in the federal district court. The complaint asserted a cause of action based upon the children's loss of "society, companionship, affections, comfort, guidance, and counsel of their mother, Carolyn Wheeler," and averred that the children suffered and expect to suffer a loss of services, extreme emotional distress, and mental anguish.
{ } Holzer Medical Center filed an answer. The remaining defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted. These defendants attached several exhibits to their motion, including a copy of the settlement agreement between the Wheeler parents and the defen
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