Costell v. Toledo Hosp.

• Decision Date: 18 November 1994
• Docket Number: No. L-93-245,L-93-245
• Citation: 649 N.E.2d 35,98 Ohio App.3d 586
• Parties: COSTELL, Admr., Appellant, v. TOLEDO HOSPITAL, Appellee, et al.
• Court: Ohio Court of Appeals

Page 586

98 Ohio App.3d 586

649 N.E.2d 35

COSTELL, Admr., Appellant, v. TOLEDO HOSPITAL, Appellee, et al.

No. L-93-245.

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided Nov. 18, 1994.

E.J. Leizerman, Toledo, for appellant.

Rudolph A. Peckinpaugh, Jr., Toledo, for appellee.

HANDWORK, Judge.

The basic facts of this medical malpractice case from the Lucas County Court of Common Pleas are that appellant, Frances Costell, sued appellee, Toledo Hospital, and several other parties, ¹ alleging that Toledo Hospital and the other named parties gave substandard medical care to her late husband, Donald Costell. Donald Costell entered Toledo Hospital for heart surgery. The surgery was complete, and the surgeon had already left the operating room when Donald had a heart attack. Appellant alleges that the anesthesiologist, who was still in the operating room, failed to respond quickly enough. The surgeon returned to the operating room when he was located by hospital employees and informed of the situation. The surgeon was able to get Donald's heart beating again, but Donald had suffered a loss of oxygen to his brain, never recovered consciousness, and died in the hospital several months later.

This case has a long procedural history, which includes two previous appeals to this court and to the Supreme Court of Ohio. The result of the immediately preceding appeal was a reversal and remand. Costell v. Toledo Hosp. (1992), 82 Ohio App.3d 393, 406, 612 N.E.2d 487, 495. The basis of the reversal and remand was a finding by this court that (1) the trial court limited appellant's cross-examination of the former risk manager of the Toledo Hospital in a prejudicial way, and (2) the ruling of the trial court prohibiting appellant's attorney from using the terms "cover up" or "perjury" during opening statement to refer to the alleged actions of the risk manager for Toledo Hospital of coercing hospital employees to change their testimony that three minutes went by from the time of Donald Costell's heart attack to the time of any response from the anesthesiologist in the operating room was unreasonable. Id. at 404-406, 612 N.E.2d at 494-495.

After the case was remanded to the Lucas County Court of Common Pleas, Toledo Hospital filed a motion for summary judgment in which it argued that it was entitled to judgment as a matter of law, because the evidence and law presented by appellant, Frances Costell, ² (1) failed to meet the standards for demonstrating apparent agency between a hospital and a physician announced by the Supreme Court of Ohio in Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 553 N.E.2d 1038, (2) failed to show that Toledo Hospital had a duty to create policies or procedures regulating when a surgeon could leave an operating room, and (3) failed to show that hospital personnel did not act promptly enough in summoning the surgeon back to the operating room when his patient went into cardiac arrest following his departure.

Appellant opposed the motion for summary judgment, arguing that (1) the law of the case should be applied by the trial court to prevent the trial court from reconsidering the issue of whether the standard for apparent agency announced by the Supreme Court of Ohio was met by appellant, and (2) the evidence presented in the case showed that a dispute existed regarding the material issues of fact relating to whether an agency relationship existed between Toledo Hospital and the anesthesiologist who allegedly rendered substandard care to appellant's late husband. The trial court ruled in favor of Toledo Hospital, and appellant brought this appeal to challenge that ruling.

Appellant has presented two assignments of error for our consideration. The two assignments of error follow:

"I. The trial court erred in granting the hospital's motion for summary judgment asthere [sic] existed a genuine issue of material fact regarding the agency relationship between the Hospital and Dr. Stevens.

"II. The trial court erred in refusing to apply the law of the case doctrine to the case at bar."

Ohio courts are governed by Civ.R. 56(C) when determining whether summary judgment must be granted in a case. Civ.R. 56(C) states:

"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

We must apply the standard announced in Civ.R. 56(C) to this case to determine whether summary judgment is appropriate.

We begin by considering the second assignment of error first. Appellant contends that the doctrine of the law of the case should have been applied by the trial court to prevent the reopening of the issue of whether the evidence was sufficient to establish an apparent agency between the anesthesiologist and Toledo Hospital. Appellant argues that exactly the same issue was raised and argued by Toledo Hospital on three separate occasions before the immediately preceding appeal was filed in this court on April 11, 1991.

The three separate occasions to which appellant refers are (1) a motion for summary judgment filed by Toledo Hospital on February 5, 1990, (2) a motion for a directed verdict presented by Toledo Hospital at the close of appellant's case-in-chief when this case went to trial, and (3) a renewed motion for a directed verdict presented by Toledo Hospital at the close of the evidence in defense of all the parties sued by appellant. Appellant contends that on each of the three occasions, Toledo Hospital argued that no agency existed, and relied upon the rulings, first from this court, and then from the Supreme Court of Ohio, in Albain v. Flower Hosp., supra, 50 Ohio St.3d 251, 553 N.E.2d 1038; and Albain v. Flower Hosp. (Nov. 4, 1988), Lucas App. No. L-87-290, unreported, 1988 WL 118609. Appellant contends that Toledo Hospital was prohibited from raising the issue of agency by motion for summary judgment after the case was reversed and remanded by this court, and that the trial court's rulings on the motions for summary judgment and directed verdict which were made before the case was appealed, and ultimately reversed by this court, were binding, and could not be reconsidered or changed by the trial court after the case was reversed on appeal and remanded.

Toledo Hospital responds that exactly the same issue was not previously raised and argued in the trial court before the immediately preceding appeal was filed in this court. Toledo Hospital states that when the motion for summary judgment was filed in the trial court and was ruled upon, the binding decision was the decision from this court in Albain v. Flower Hosp. (Nov. 4, 1988), Lucas App. No. L-87-290, unreported, 1988 WL 118609. Toledo Hospital then argues that when an extraordinary circumstance occurs, such as an intervening decision from the Supreme Court, a trial court may disregard a previous decision. Toledo Hospital states that the decision from the Supreme Court of Ohio in Albain v. Flower Hosp., 50 Ohio St.3d 251, 553 N.E.2d 1038, was an extraordinary circumstance.

This court has carefully reviewed the record and has determined that Toledo Hospital is correct that the decision from this court in Albain v. Flower Hosp. (Nov. 4, 1988), Lucas App. No. L-87-290, unreported, 1988 WL 118609, was the law which governed when the trial court denied the motion for summary judgment filed by Toledo Hospital prior to the trial of this case. However, the record also shows that appellant is correct that the decision of the Supreme Court of Ohio in Albain v. Flower Hosp., 50 Ohio St.3d 251, 553 N.E.2d 1038, was released prior to the time this case went to trial, and was the law which governed when the trial court denied the two motions for a directed verdict that were made by Toledo Hospital. Furthermore, the record shows that Toledo Hospital was aware of the decision of the Supreme Court of Ohio, and based its arguments in support of the motion for a directed verdict upon the law established in the decision.

However, even assuming arguendo that the doctrine of the law of the case applied in this case, ³ an intervening decision from the Supreme Court of Ohio has been issued, see Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435, 628 N.E.2d 46, which would require the waiver of the application of the doctrine of law of the case, and which would permit the trial court to reconsider the issue of agency between the anesthesiologist and Toledo Hospital. Accordingly, we find appellant's second assignment of error not well taken.

We therefore proceed to consider the issues argued in support of the first assignment of error. Appellant argues that summary judgment was inappropriate in this case because she presented sufficient evidence to show that a material question of fact remains as to whether (1) a direct actual agency relationship existed between the anesthesiologist and Toledo Hospital, or (2) an apparent agency or agency by estoppel relationship existed between the anesthesiologist and Toledo Hospital. Appellee responds that (1) the issue of whether a direct actual agency exists was not argued or ruled upon in the trial court, and even if the issue was raised, the evidence shows no direct actual agency relationship existed between the anesthesiologist and...