Menardi v. Petrigalla
| Decision Date | 19 September 1983 |
| Parties | , 11 O.B.R. 21 MENARDI et al., Appellees, v. PETRIGALLA, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
Where the parties to a medical malpractice action agree to voluntarily submit the controversy to an arbitration panel for binding arbitration, pursuant to R.C. 2711.21(E), the parties are bound by the arbitration panel's decision and are precluded from seeking judicial review of the matter provided there was no fraud or bad faith on the part of the arbitration panel and they acted according to the instructions given to them.
Richard W. Dunn and Kerry B. DeWolfe, Cleveland, for appellees.
Michael R. Gareau and James M. Dubelko, North Olmsted, for appellant.
This appeal is raised from the Court of Common Pleas of Cuyahoga County, in which the appellant herein, Maria Petrigalla, M.D., takes exception to the final judgment entered by the trial court, following a medical claims arbitration granting the appellees, Reba Menardi et al., an award of $17,500. Finding no merit in appellant's assigned errors, we affirm the judgment of the trial court.
This action commenced on March 23, 1977 with the appellees' filing of a complaint in medical malpractice against the appellant and a second physician, Walter B. Wozniak. Pursuant to an agreement of the parties, Dr. Wozniak was dismissed from this action, and in accordance with Local Rule 37 of the Court of Common Pleas of Cuyahoga County, General Division ("Local R. 37") and R.C. 2711.21(E), this matter was referred, by an agreed journal entry, to binding medical malpractice arbitration.
On September 11, 1981, appellant provided the trial court with a notice of withdrawal of her consent to binding arbitration, predicated upon a claim that appellees had failed to provide appellant with the written report of the expert medical witness whom they expected to call at the arbitration hearing to testify on the issue of proximate causation, or inter alia, to provide the identity of said expert witness, thereby allowing appellant the opportunity to depose such witness prior to the arbitration hearing. The record reflects that appellees' expert witness with regard to the issue of proximate causation, Dr. Keith P. Smith, M.D., was deposed by appellees on October 27, 1981. Appellant's counsel was present at this deposition and actively cross-examined Dr. Smith on the issues raised regarding appellee Reba Menardi's claimed injuries.
Thereafter, on June 25, 1982, this matter proceeded to arbitration, at which time the October 27, 1981 deposition of Dr. Smith was submitted to the arbitration panel in support of appellees' position regarding the issue of proximate causation. Judgment was rendered in favor of the appellees and journalized by the trial court on July 1, 1982. It is upon that judgment and the foregoing facts and circumstances that appellant has raised this instant appeal, assigning three errors for this court's review:
Prior to reaching the merits of appellant's above-assigned errors, we initially note that appellant on July 16, 1981, as journalized on July 20, 1981, executed a journal entry of binding medical malpractice arbitration in accordance with Local R. 37 and R.C. 2711.21(E), which provided in pertinent part that:
In addressing appellant's contentions, we therefore note that this review shall be limited to the express terms of the above agreed journal entry, as executed by the respective parties, and final judgment thereon.
I
Initially, appellant contends that the trial court committed prejudicial error in failing to rule upon appellant's motions for sanctions, filed on July 10, 1981 and September 11, 1981, in which appellant sought to prohibit the introduction of the testimony or report of appellees' medical expert witness, concerning the issue of proximate causation with regard to appellee Reba Menardi's alleged injuries. As noted above, the July 20, 1981 agreed journal entry, committing appellant to binding arbitration, expressly stated:
Though appellant may argue prejudice in the trial court's failure to pass upon the submitted motions for sanctions, the agreed journal entry belies appellant's position. The entry contains no qualifications or exceptions therein conditioning the validity of the journal entry upon receipt of further discovery matter. Appellant is estopped from now claiming that such a condition existed. See Rosser v. Hochwalt (1967), 12 Ohio App.2d 129, 231 N.E.2d 334 . Accordingly, we hold appellant's first assigned error to be without merit.
It is next argued that the trial court erred in entering judgment upon the report and award of the arbitrators, when such...
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