Nease v. Medical College Hosp.

• Decision Date: 19 August 1992
• Docket Number: No. 91-1183,91-1183
• Parties: NEASE et al., Appellees, v. MEDICAL COLLEGE HOSPITALS; Baker, Appellant.
• Court: Ohio Supreme Court

Page 396

64 Ohio St.3d 396

596 N.E.2d 432

NEASE et al., Appellees, v. MEDICAL COLLEGE HOSPITALS; Baker, Appellant.

No. 91-1183.

Supreme Court of Ohio.

Submitted May 6, 1992.

Decided Aug. 19, 1992.

Appellee David R. Nease ("Nease") was born in 1983. Several months after his birth it was determined that Nease required surgery to correct a congenital heart defect. Nease was admitted to the Medical College of Ohio Hospital on September 9, 1984. The operation was performed two days later. After the operation, Nease experienced cardiac arrest, which caused neurological damage.

On April 22, 1986, Nease and his parents, appellees herein, filed suit in the Lucas County Common Pleas Court, naming as defendants the Medical College of Ohio and its hospital, nurse Linda Baker of the hospital ("Baker"), appellant herein, four physicians and two other nurses of the hospital, and the Associated Physicians of MCO, Inc. The complaint alleged negligence and medical malpractice. An amended complaint filed by the Neases added the allegation of "wanton or reckless" misconduct on the part of Baker and the other state employees.

Pursuant to R.C. 2743.03 and a petition by the physician defendants, the common pleas court removed the case to the Court of Claims. After removal, a third amended complaint was filed in the Court of Claims. A settlement agreement dismissed the Neases' claims against the Medical College of Ohio and its hospital, and other nurse defendants, but excluded from settlement all claims against Baker and one of the physicians for "wanton or reckless" misconduct. Thereafter, the Court of Claims conducted a trial to determine whether Baker was entitled to immunity pursuant to R.C. 9.86 for the claims against her. The Court of Claims determined that Baker's actions were not wanton or reckless and granted her immunity. Baker then filed a motion for costs pursuant to Civ.R. 54(D). The Court of Claims ruled that the motion for costs was premature because the Neases were entitled to relitigate the issue of Baker's immunity before a jury in the common pleas court. The court of appeals affirmed the Court of Claims' decision, holding that the issue of whether Baker acted in a wanton or reckless manner is a question of fact to be determined by a jury.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Schnorf & Ferguson, Brandon G. Schnorf, Jr. and Kevin M. Ferguson, Toledo, for appellees.

Fuller & Henry, Stephen J. Stanford and Donna B. Wood, Toledo, for appellant.

Lee I. Fisher, Atty. Gen., Simon B. Karas and Dianne Goss Paynter, Columbus, urging reversal for amicus curiae, Ohio Atty. Gen.

Eric R. Boyd, Columbus, urging reversal for amicus curiae, Ohio Council 8, AFSCME, AFL-CIO.

MOYER, Chief Justice.

The issue presented is whether the Court of Claims erred in remanding this case to the court of common pleas for a second determination of whether Baker is immune from liability. For the reasons that follow, we hold remand was improper.

Initially, we must determine what version of the Court of Claims Act is applicable to this action. Effective October 20, 1987, the General Assembly amended the Court of Claims Act to add R.C. 2743.02(F). Appellant argues it is this amended version that applies to the instant matter. Appellees maintain the amendment is not retrospective and therefore has no application to this case, which was initiated April 22, 1986.

The method of determining retrospectivity of a statute was set out in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489. In Van Fossen, this court stated:

"The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply. Upon its face, R.C. 1.48 establishes a threshold analysis which must be utilized prior to inquiry under Section 28, Article II of the Ohio Constitution. (Kiser v. Coleman [1986], 28 Ohio St.3d 259, 262, 28 OBR 337, 339-340, 503 N.E.2d 753, 756, approved and followed; Wilfong v. Batdorf [1983], 6 Ohio St.3d 100, 6 OBR 162, 451 N.E.2d 1185; and French v. Dwiggins [1984], 9 Ohio St.3d 32, 9 OBR 123, 458 N.E.2d 827, to the extent inconsistent herewith, modified.)" Id. at paragraph one of the syllabus.

There must be a clear indication by the General Assembly that a statute is intended to apply retrospectively and absent such indication only prospective application may be made. Van Fossen, 36 Ohio St.3d at 106, 522 N.E.2d at 495. The 1987 amendment to R.C. 2743.02 is devoid of language expressing an intention that the statute be retrospective. As stated in Van Fossen, such a finding upon a threshold analysis eliminates the need for a determination of whether the statute is substantive or merely remedial. We therefore must review the decision of the court of appeals with the guidance of the Court of Claims Act as it existed at the time the Neases' claims arose.

The Neases' complaint was originally filed in the court of common pleas, but was removed to the Court of Claims pursuant to R.C. 2743.03(A). Removal was required because the Court of Claims, as stated in former R.C. 2743.03(A), now renumbered R.C. 2743.03(A)(1), "has exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in section 2743.02 * * *." The Neases sued the state and therefore should have filed their complaint in the Court of Claims originally. That error, however, was cured by the subsequent removal of the case. Thereafter, appellees did in fact file an amended complaint in the Court of Claims.

The result of filing an action against the state in the Court of Claims is "complete waiver of any cause of action, based on the same act or omission, which the filing party has against any state officer or employee." R.C. 2743.02(A)(1). Consequently, by filing an action against the state, the Neases waived their claims against Baker.

R.C. 2743.02(A)(1) also states, however, that "[t]he waiver shall be void if the court determines that the act or omission was manifestly outside the scope of the officer's or employee's office or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner." "[T]he court" as referred to in R.C. 2743.02(A)(1) means the Court of Claims. See McIntosh v. Univ. of Cincinnati (1985), 24 Ohio App.3d 116, 119, 24 OBR 187, 190, 493 N.E.2d 321, 324, fn. 7.

Yet, appellees assert that the common pleas court also had jurisdiction to make such a determination and cite Cooperman v. Univ. Surgical Assoc., Inc. (1987), 32 Ohio St.3d 191, 513 N.E.2d 288, as authority. Although Cooperman held that under R.C. 2743.02(A)(1), a court of common pleas did not lack jurisdiction over state employees merely because the Court of Claims had not yet determined the employee's immunity, the Cooperman decision has no application to the instant action. In Cooperman, the state was never named as a defendant. Therefore, "the waiver provision of R.C. 2743.02(A)(1) does not apply, and the court of common pleas retains its jurisdiction, if such jurisdiction is otherwise proper." Cooperman at 197, 513 N.E.2d at 295. Because the Neases sued the state in the case at bar, the action was properly filed only in the Court of Claims, and the Neases' claims against Baker were waived pending a determination by the Court of...