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Rhoades v. University of Toledo Medical Center

Court of Claims of Ohio

April 18, 2018

SUSAN J. RHOADES Plaintiff
v.
UNIVERSITY OF TOLEDO MEDICAL CENTER Defendant

          Sent to S.C. Reporter 5/8/18

          DECISION

          PATRICK M. MCGRATH, JUDGE

         {¶1} Before the court are (1) a motion for an immunity determination filed by plaintiff Susan J. Rhoades that asks the court to determine whether Bernardo Martinez, M.D. should be entitled to personal immunity, and (2) a stipulation of facts regarding immunity entered into by Rhoades, defendant University of Toledo Medical Center (UTMC), and Dr. Martinez. For reasons set forth below, the court determines that Dr. Martinez is not entitled to personal immunity under R.C. 9.86.

         I. Relevant Background and Procedural History

         {¶2} On January 8, 2018, Rhoades sued UTMC, alleging that UTMC, through its agents and employees, departed from accepted standards of medical care by failing to remove a clamp, or surgical item, from Rhoades's right leg when UTMC's agents performed a surgical procedure on December 18, 2016. UTMC answered Rhoades's complaint, generally denying Rhoades's claim of medical negligence. Rhoades has filed a statement that indicates a connected case has been filed in the Lucas County Court of Common Pleas.

         {¶3} On February 9, 2018, Rhoades moved this court to determine whether Dr. Martinez, the physician whom Rhoades claims performed surgery on her on December 18, 2016, is entitled to personal immunity under R.C. 9.86. In her motion, Rhoades represented that in the connected case before the common pleas court Dr. Martinez asserted, as an affirmative defense, that he is entitled to personal or qualified immunity. And in a memorandum attendant to her motion, Rhoades requested a determination from this court that Dr. Martinez should not be entitled to personal or qualified immunity. UTMC did not file a timely memorandum in opposition to Rhoades's motion for an immunity determination.

         {¶4} The court initially held Rhoades's motion in abeyance. Later, in a conference with the parties' counsel the court discussed whether an immunity-determination proceeding relative to the civil immunity of Dr. Martinez should be held with a trial of the merits of the case, whether an immunity-determination hearing should be conducted apart from a trial of this matter, or whether the parties wanted the court to issue an immunity determination based on stipulated facts. Based on the court's discussion, the court ordered the parties to submit on or before May 2, 2018, necessary written materials for the court to decide the issue of Dr. Martinez's personal immunity. The court also directed defense counsel to notify Dr. Martinez of the submission date for materials relative to Rhoades's motion for an immunity determination.

         {¶5} On April 4, 2018, Rhoades, UTMC, and Dr. Martinez, by and through their counsel, filed a stipulation of facts regarding immunity. With their stipulation Rhoades, UTMC, and Dr. Martinez attached a copy of a letter dated March 22, 2011, addressed to Bernardo D. Martinez, M.D. from (1) Jeffrey P. Gold, M.D., Chancellor and Executive VP for Biosciences & Health Affairs, Dean, College of Medicine, University of Toledo College of Medicine, and (2) Gerald B. Zelenock, M.D., Professor and Chairman, Department of Surgery, University of Toledo College of Medicine. In this letter, Drs. Gold and Zelenock informed Dr. Martinez that the Board of Trustees of the University of Toledo (UT) at a meeting on January 24, 2011 approved his community-based volunteer faculty appointment. And Drs. Gold and Zelenock further informed Dr. Martinez that community-based volunteer faculty members "are not considered to be officers or employees of UT with respect to claims of professional liability."

          {¶6} In the parties' and Dr. Martinez's stipulation filed with the court, Rhoades, UTMC, and Dr. Martinez agree:

1. Bernardo Martinez, M.D., is a vascular surgeon who performs surgeries at several hospitals in Toledo, Ohio, including the University of Toledo Medical Center.
2. Dr. Martinez holds an appointment as a community-based volunteer Clinical Professor in the Department of Surgery of the University of Toledo. * * *
3. Dr. Martinez's community-based volunteer faculty appointment has been renewed annually for each succeeding academic year, and was in full force and effect in December, 2016 and at other all times relevant to this suit.
4. Under the express terms of Dr. Martinez's appointment, as a community-based volunteer faculty member he is not an officer or ...

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