Marie Boyd Mims, Individually, and as Legal Guardian of Daniel Boyd, Plaintiff-Appellant,
University of Toledo Medical Center, Defendant-Appellee.
from the Court of Claims of Ohio Ct. of Cl. No. 2016-00680
Reminger Co., L.PA., Brian D. Sullivan, and Clifford C.
Masch, for appellant.
Michael DeWine, Attorney General, and Anne Berry Strait, for
Clifford C. Masch.
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.
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
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"). 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 ...