Marycatherine L. Krause, M.D. v. Gerard D. Klein
| Decision Date | 03 July 1997 |
| Docket Number | 97-LW-2785,71539 |
| Parties | MARYCATHERINE L. KRAUSE, M.D., Plaintiff-appellant v. GERARD D. KLEIN, ET AL., Defendant-appellees CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Court of Common Pleas Case No. 299175.
FOR PLAINTIFF-APPELLANT: Marycatherine L. Krause, M.D., Pro se, 5124 Mayfield Road, Lyndhurst, Ohio 44124.
FOR DEFENDANTS-APPELLEES GERARD D. KLEIN; ANN MOSES, R.N. AND THE NURSING STAFF OF THE EMERGENCY DEPT. OF MEMORIAL HOSPITAL OF GENEVA: Francis X. Gardner, Esq., Reminger & Reminger Co L.P.A.,
The 113 St. Clair Building, Cleveland, Ohio 44114.
FOR DEFENDANTS-APPELLEES COASTAL EMERGENCY SERVICES OF OHIO, INC. AND TERRY ATKINS: Gary D. Hermann, Esq., Margaret M. Pauken Esq., Hermann, Cahn & Schneider, 1301 East Ninth Street, #500, Cleveland, Ohio 44114.
FOR DEFENDANTS-APPELLEES JAMES HAUCK, M.D., GENEVA EMERGENCY GROUP AND VISHORE DESAI, M.D.: Gary L. Pasqualone, Esq., Curry and Pasqualone, 302 South Broadway, Geneva, Ohio 44041.
Plaintiff-appellant Dr. Marycatherine L. Krause, acting pro se as she did in the trial court, appeals from the trial court orders which dismissed her various causes of action against defendants-appellees Dr. Gerard D. Klein, Dr. James Hauck, Geneva Emergency Group, Dr. Vishore Desai, and nurse Ann Moses.
Appellant contends the trial court erred in the following particulars: 1) failing to determine that a copy of a physician work time-schedule for the month of November 1995 constituted a written contract of employment; 2) separating the parties against whom she had alleged breach of an oral contract of employment and then dismissing her claims against two of them; and 3) dismissing her libel claim.
This court has reviewed the record and finds the trial court correctly considered the physician work time-schedule to be insufficient, properly dismissed appellant's claims for breach of oral contract against Dr. Hauck and Geneva Emergency Group and rightly dismissed appellant's libel claim.
On November 29, 1995, appellant filed a complaint in the Cuyahoga County Court of Common Pleas naming the aforementioned appellees and three others as defendants.[1] In her first count, she alleged she had a written contract of employment with Dr. Klein, chief executive officer of the Memorial Hospital of Geneva, Ohio ("MHG"), Dr. Hauck, Dr. Desai, Geneva Emergency Group ("GEG") and Coastal Emergency Services ("CES") to provide her professional services in the hospital's emergency room for the month of November 1995. She further alleged that a physician's work time-schedule attached as an exhibit to the complaint constituted the written contract of employment.
In her second count, appellant set forth a narrative of events which she alleged "culminated" in an oral contract of employment between herself and Dr. Klein, GEG, Dr. Hauck and Dr. Desai.
Appellant stated the contract was created on October 6, 1995. She was to provide physician emergency room services at the hospital, without using CES as her contracting agent, "in a split twelve hour Friday time block and a twenty-four Saturday time block sequence." Appellant stated her rate of pay in the following count of her complaint. However, she stated neither a commencement date for nor the duration of her services. She stated only that she was told CBS' contract would expire in February 1996. Thus, although appellant alleged she was interested in "long-term employment," she did not allege any of the appellees promised this. Finally, appellant alleged that four days later, Dr. Desai "breached" the contract by reducing the number of hours she was expected to work each weekend due to contractual constraints with CES."
In count three, which she labeled "False Statement or Entry" appellant alleged that by the terms of her written and oral contracts with appellees, she was to provide services for "at least three months" at a pay rate of $55.00 per hour for each hour of "coverage" of the emergency room but that she was required to give appellees copies of her credentials in order to secure a position there. She alleged she had concerns that appellees would permit the copies to be misused in some manner.
Appellant labeled the fourth count "Antitrust, Restraint of Trade." She alleged her written contract was breached by Dr. Hauck in that she was "forcibly removed" from the work time-schedule and the hours she would have worked were then "distributed" to Dr. Hauck and CES.
In the fifth count, appellant alleged "[i]f any of the individuals in the [hospital] Emergency Department presented themselves as registered technicians, licensed nurses or licensed physicians when, in fact, they are not," their procurement from her of copies of her credentials constituted "fraud."
Appellant, in her sixth count, alleged appellees' refusal to accede to her proposal that she work a time-block of thirty-six consecutive hours when another doctor was permitted to do so Constituted "wage discrimination."
In her seventh count, appellant alleged the hospital's emergency room nursing staff and nurse Ann Moses failed to comply with her orders on November 4, 11 and 18, 1995. She further alleged their actions "interfered" with her obligation to deliver physician services, that she admonished them, and that they "may have retaliated" to cause the other appellees to breach their written and oral contracts with appellant. Appellant labeled this cause of action as "Libel."
Thereafter, the trial court granted the defendants several extensions of time in which to file a responsive pleading to the complaint. On February 12 and 14, 1996, appellees filed separate motions to dismiss. On February 27, 1996, appellant filed a brief in opposition to the motions.
On May 15, 1996, the trial court issued an opinion and order granting the motions to dismiss of several of the defendants in the action, including Dr. Klein, Dr. Hauck, GEG, and nurse Ann Moses. In its order, the trial court denied only Dr. Desai's motion to dismiss with respect to count two of the complaint. Therefore, appellant's action for breach of an oral contract of employment proceeded as to Dr. Desai.
The record reflects appellant was uncooperative with Dr. Desai's subsequent attempts at discovery. In July 1996, appellant filed a motion for a continuance of the trial date until August 27, 1996. The trial court granted appellant's motion.
On the date set for trial, appellant appeared. However, she was unprepared. When questioned on the matter by the trial court, appellant admitted she had not thoroughly read the materials the trial court had given to her concerning trial procedure. Thus, she was unaware of her responsibility to issue subpoenas to her witnesses in order to compel their attendance. Appellant requested another continuance.
The trial court granted appellant's request. However, on the record, the trial court also admonished appellant for her "cavalier" attitude toward the proceedings. As a consequence, appellant was ordered to pay a thousand dollar fine and also ordered to pay Dr. Desai's costs for appearing for trial. The trial court told appellant she had thirty days to pay these fees; at that point, she would receive a new trial date. The trial court notified appellant her case would be dismissed if she failed to comply.
On October 7, 1996, the trial court issued a journal entry dismissing appellant's remaining claim pursuant to Civ.R. 41(B)(1) for failure to comply with the court order and failing to prosecute her case.
Appellant has filed a timely appeal and presents five assignments of error for this court's review. Appellant's first two assignments of error are almost identical; therefore, they are addressed together as follows:
Appellant argues the trial court improperly dismissed her claim for breach of a written contract of employment. She asserts the copy of the emergency room physician work time-schedule is "traditionally used in the `emergency medicine industry' as a bilateral binding agreement" between physicians and their employers. Appellant cites portions of R.C. 1301.11[2] to support this assertion. This court notes, however, appellant failed to raise her assertion in the trial court; hence, she has waived it for purposes of appeal. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207.
In any event, appellant's argument remains unpersuasive since the copy of the physicians work time-schedule has none of the necessary elements of a written contract.
In its legal sense, the word "contract" includes every description of agreement or obligation, whether verbal or written, whereby one party becomes bound to another to pay a sum of money or to perform or omit to do a certain act. National Glass & Lens Co. v. Parsons (App. 1928), 28 Ohio Law Rptr. 573, 574.
Terex Corp. v. Grim Welding Co. (1989), 58 Ohio App.3d 80. (Emphasis added.)
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