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Mims v. University of Toledo Medical Center

Court of Appeals of Ohio, Tenth District

December 12, 2017

Marie Boyd Mims, Individually, and as Legal Guardian of Daniel Boyd, Plaintiff-Appellant,
v.
University of Toledo Medical Center, Defendant-Appellee.

         APPEAL from the Court of Claims of Ohio Ct. of Cl. No. 2016-00680

         On brief:

          Reminger Co., L.PA., Brian D. Sullivan, and Clifford C. Masch, for appellant.

          Michael DeWine, Attorney General, and Anne Berry Strait, for appellee.

         Argued:

          Clifford C. Masch.

          Anne Berry Strait.

          DECISION

          KLATT, J.

         {¶ 1} Plaintiff-appellant, Marie Boyd Mims, individually and as legal guardian of Daniel Boyd, appeals from the judgment of the Court of Claims of Ohio dismissing her complaint pursuant to Civ.R. 12(B)(6). Because appellant's medical negligence claim is barred by res judicata, we affirm.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} Appellant alleges that on July 17, 2012, Dr. Elsamaloty misread a CT scan of Daniel Boyd, appellant's son. As a result of that alleged negligence, Boyd suffered hemorrhaging of the brain and cardiac arrest leaving him in a persistent vegetative state. Appellant contends that had Dr. Elsamaloty properly read the CT scan, he would have recognized the malfunctioning shunt that caused the hemorrhaging and action could have been taken to avoid Boyd's injuries.

         {¶ 3} On December 12, 2013, Boyd timely filed an action in the Lucas County Court of Common Pleas asserting a medical negligence claim against Dr. Elsamaloty and the University of Toledo Medical Center ("UT").[1] Dr. Elsamaloty and UT jointly moved to dismiss the action arguing that only the Court of Claims has jurisdiction over a claim for medical negligence seeking money damages against a state university medical center and its employee. Apparently in response to the filing of the motion to dismiss, on February 27, 2014, Boyd filed a medical negligence action against UT and Dr. Elsamaloty in the Court of Claims based upon the same factual allegations contained in the Lucas County case. It is undisputed that the Court of Claims complaint contained no indication that Boyd was seeking an immunity determination for Dr. Elsamaloty. Boyd also sought and obtained a stay of the Lucas County case.

         {¶ 4} UT filed a Civ.R. 12(B)(6) motion to dismiss/motion for summary judgment in the Court of Claims case arguing that Boyd's medical negligence claim is barred by the one-year statute of limitations contained in R.C. 2743.16 and 2305.113(A). The Court of Claims granted this motion and entered summary judgment for UT. The Court of Claims also found that the statute of limitations was not extended by R.C. 2305.19(A), the savings statute, because the Lucas County case, although stayed, was still pending. Therefore, the savings statute was inapplicable. The Court of Claims further determined that the statute of limitations was not tolled because Boyd had not been adjudicated incompetent nor did Boyd present proper Civ.R. 56 evidence indicating that he had been confined in a hospital under a diagnosed condition rendering him of unsound mind. Boyd did not appeal this judgment. Instead, Boyd filed a Civ.R. 60(B) motion for relief from judgment. That motion was denied. Boyd then appealed the denial of the motion for relief from judgment.

         {¶ 5} On appeal, Boyd asserted two assignments of error: (1) the Court of Claims erred in granting summary judgment for UT based on the expiration of the statute of limitations; and (2) the Court of Claims erred in denying Boyd's motion for relief from judgment. This court overruled Boyd's first assignment of error on res judicata grounds because Boyd had not appealed the summary judgment in favor of UT. This court overruled Boyd's second assignment of error because he failed to present any admissible evidence from which the Court of Claims could infer that the statute of limitations ...


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