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Thomas v. Wright State University School of Medicine

Court of Appeals of Ohio, Tenth District

July 30, 2013

Deidre Marie Thomas et al., Plaintiffs-Appellees,
v.
Wright State University School of Medicine, Defendant-Appellee. Wright State Physicians, Inc. and Daniel J. Lacey, M.D., Appellants,

APPEAL from the Court of Claims of Ohio, Ct. of Cl. No. 2011-10886

Leppla Associates, Ltd., Gary J. Leppla and Philip J. Leppla, for appellees Deidre Marie Thomas and Hezekiah Calvin Rucker, Jr.

Michael DeWine, Attorney General, and Brian M. Kneafsey, Jr., for appellee Wright State University School of Medicine.

The Triona Firm, James P. Triona and Paul J. Vollman, for appellants.

DECISION

KLATT, P.J.

{¶ 1} Appellants, Daniel J. Lacey, M.D., and Wright State Physicians, Inc. ("WSPI"), appeal a judgment of the Court of Claims of Ohio that found Lacey personally immune from liability and denied WSPI's motions for intervention and an immunity determination. For the following reasons, we dismiss this appeal.

{¶ 2} On September 2, 2011, plaintiffs-appellees, Deidre Marie Thomas and Hezekiah Calvin Rucker, Jr., filed a medical malpractice suit against the Children's Medical Center of Dayton ("Dayton Children's"), WSPI, and Lacey in the Montgomery County Court of Common Pleas. According to the complaint, Lacey failed to timely diagnose and treat plaintiffs' son when he presented at Dayton Children's emergency room. Plaintiffs also alleged in the complaint that WSPI was Lacey's employer.

{¶ 3} Five days after bringing their common pleas action, plaintiffs filed a second malpractice suit arising out of the same alleged negligence in the Court of Claims. In their second complaint, plaintiffs named as defendants Wright State University School of Medicine ("Wright State"), Lacey, and WSPI. Plaintiffs indicated in their complaint that Lacey and WSPI might claim immunity as agents or employees of Wright State.

{¶ 4} Within days of the filing of the second complaint, the Court of Claims dismissed Lacey and WSPI as parties because neither was a state agency or instrumentality. As the Court of Claims stated in its entry, pursuant to R.C. 2743.02(E), only state agencies and instrumentalities can be defendants in original actions in the Court of Claims.

{¶ 5} Shortly thereafter, the Court of Claims issued an entry finding that any recovery in the common pleas action might be partially or wholly dispositive of the Court of Claims action as a collateral recovery under R.C. 2743.02(D). Thus, the Court of Claims stayed litigation of the action's merits pending the resolution of the common pleas action. The Court of Claims also scheduled a status conference to discuss any immunity issues.

{¶ 6} On March 5, 2012, Lacey and WSPI filed an assertion of personal immunity in the common pleas action. In response to Lacey's assertion of immunity, plaintiffs dismissed him from their action in the common pleas court. Plaintiffs maintained their common pleas action against WSPI based on the theory of respondeat superior.

{¶ 7} After filing their assertion of immunity in the common pleas court, Lacey and WSPI filed a trio of documents in the Court of Claims: (1) a motion to intervene, (2) a complaint for immunity, and (3) a motion for a personal immunity determination under L.C.C.R. 4.1. By these documents, Lacey sought a determination under R.C. 9.86 and 2743.02(F) that he was immune from liability for injury to plaintiffs' son caused in the performance of his duties as a state employee. WSPI sought to join the action so that it could obtain a determination that it was an instrumentality of the state. WSPI contended that if it was a state instrumentality, it would also be entitled to immunity. Both plaintiffs and Wright State opposed Lacey and WSPI's motions.

{¶ 8} At the Court of Claims' status conference regarding immunity issues, plaintiffs and Wright State agreed to file a stipulation regarding Lacey's immunity. The parties then stipulated on the record that Lacey was an employee of both Wright State and WSPI and that "[a]t all times during [the] treatment relevant to the allegations made in this suit, Dr. Lacey was acting within the course and scope of his employment with the Wright State University, as well as Wright State Physicians, Inc." (R. 24 at ¶ 3.)

{¶ 9} In an entry dated August 24, 2012, the Court of Claims approved the parties' stipulation and found that Lacey was entitled to personal immunity under R.C. 9.86 and 2743.02(F). Given its determination that Lacey had immunity, the Court of Claims denied Lacey's motions for intervention and an immunity determination as moot. Turning to WSPI, the Court of Claims refused to hold a hearing to determine WSPI's immunity because no personal immunity arises from status as a state instrumentality. The Court of Claims denied WSPI's motion for intervention because it found ...


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