The State Ex Rel. Sawicki v. Lucas County Court Of Common Pleas .

Decision Date21 July 2010
Docket NumberNo. 2009-1649.,2009-1649.
Citation931 N.E.2d 1082,126 Ohio St.3d 198
PartiesThe STATE ex rel. SAWICKI, Appellee, v. LUCAS COUNTY COURT OF COMMON PLEAS et al., Appellants.
CourtOhio Supreme Court



Barkan & Robon, Ltd., James M. Tuchsman, and R. Ethan Davis, Maumee, OH, for appellee.

Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell, Assistant Prosecuting Attorney, for appellants.

Skiver & Associates, L.L.C., Perrysburg, OH, Elizabeth E. Baer, and Kristen A. Connelly, urging reversal for amicus curiae, Associated Physicians of MCO, Inc.


{¶ 1} This is an appeal from a judgment granting a writ of procedendo to compel a common pleas court and its judge to vacate a stay and to proceed in a pending medical-malpractice case. Because the court and judge erroneously stayed the case, we affirm the judgment of the court of appeals.

I. Facts
Medical-Malpractice Case, Sawicki v. Temesy-Armos

{¶ 2} In September 2004, appellee, Henry J. Sawicki Jr., filed a medical-malpractice action in the Lucas County Court of Common Pleas against Peter N. Temesy-Armos, M.D., and Associated Physicians of MCO, Inc. (“Associated”), a private corporation. Sawicki's claim alleged that his primary-care physician referred him to the former Medical College of Ohio Hospital 1 in early October 2003 after he was diagnosed with atrial flutter. Temesy-Armos had prescribed anticoagulant medication, which was stopped due to Sawicki's severe groin pain. The anticoagulant therapy was interrupted twice more and was finally discontinued after a CT scan of his abdomen revealed internal bleeding. Sawicki was then transferred to the hospital's intensive-care unit, where a neurologist noted that he had developed an unstable gait, a loss of sensation over the anterolateral thigh, and a decreased sensation of the inner right thigh. After being discharged from the hospital, Sawicki continued to experience severe pain, impairment of function, and significant numbness of the leg. He was eventually diagnosed with a proximal femoral nerve lesion causing atrophy of his leg. {¶ 3} Sawicki's suit alleged medical negligence against Temesy-Armos and asserted that as his employer, his private employer, Associated, was liable on the theory of respondeat superior. When he treated Sawicki, Temesy-Armos was both a state employee of the medical college hospital and a private employee of Associated. Significantly, the hospital was not named as a party.

{¶ 4} In 2006, the trial court dismissed the claims against Temesy-Armos, finding that because the doctor was a state employee during the alleged malpractice, the Court of Claims had exclusive jurisdiction to determine whether he was acting within the scope of his employment at the time and thus was immune from liability. The trial court refused, however, to dismiss Associated from the case because if the doctor was immune, Associated-as his private employer-could still be liable for Temesy-Armos's actions under the doctrine of respondeat superior.

{¶ 5} The case was dismissed without prejudice and then refiled in the common pleas court. The newly assigned judge, Judge Gene A. Zmuda, dismissed Temesy-Armos once again on grounds that he was a state employee and stayed the remaining respondeat superior claim against Associated pending a ruling from the Court of Claims on whether the doctor was acting within the scope of his state employment during Sawicki's treatment and was subject to personal immunity as a state employee.

{¶ 6} In his brief, Sawicki conceded that he had not filed in the Court of Claims and that such an action would now be time-barred.

Procedendo Case

{¶ 7} Sawicki has filed this case in the Court of Appeals for Lucas County for a writ of procedendo to compel appellants, Lucas County Court of Common Pleas and Judge Zmuda, to vacate the stay and proceed to judgment on the respondeat superior claim against Associated. The Sixth District Court of Appeals initially granted the writ of procedendo and ordered Judge Zmuda to proceed. State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, Lucas App. No. L-07-1386, 2008-Ohio-2479, 2008 WL 2152571, ¶ 8. We reversed and remanded for further proceedings. State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 32 (Sawicki I”).

{¶ 8} On remand, the court of appeals again granted a writ of procedendo. Sawicki, Lucas App. No. L-07-1386, 2009-Ohio-3909, 2009 WL 2414171, ¶ 8. It found “no authority that requires a claimant to file suit against the state when his or her claims against a dual status employee are not based upon claims against the state, but are, rather, based on allegations that the employee's negligent acts were within the scope of his private employment.” Id. at ¶ 7. The court held that “a stay was improper and the trial court unnecessarily delayed proceeding to judgment.” Id. at ¶ 8.

{¶ 9} This case is now before the court on the appeal as of right of the common pleas court and Judge Zmuda.

II. Legal Analysis

{¶ 10} The common pleas court and Judge Zmuda assert that the court of appeals erred in granting the writ of procedendo to compel them to vacate their stay of Sawicki's medical-malpractice case and to proceed in the common pleas action.

{¶ 11} To be entitled to the requested writ of procedendo, Sawicki must establish (1) a clear legal right to have Judge Zmuda proceed to the merits and try the medical-malpractice case, (2) a clear legal duty on the part of the judge to try the case, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Weiss v. Hoover (1999), 84 Ohio St.3d 530, 531-532, 705 N.E.2d 1227. A ‘writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment.’ State ex rel. CNG Fin. Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, 855 N.E.2d 473, ¶ 20, quoting Weiss, 84 Ohio St.3d at 532, 705 N.E.2d 1227.

{¶ 12} [T]he requirements for a writ of procedendo are met if a judge erroneously stays a proceeding.” State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270, ¶ 15. Consequently, “a writ of procedendo will issue to require a court to proceed to final judgment if the court has erroneously stayed the proceeding.” State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio St.3d 532, 535, 696 N.E.2d 1079.

Erroneous Stay of Medical-Malpractice Case

{¶ 13} The common pleas court and Judge Zmuda assert that R.C. 2743.02(F) requires the stay and that the Court of Claims must initially determine whether Temesy-Armos was acting in his capacity as a state employee when he treated Sawicki. We must therefore determine whether the statute, which grants exclusive jurisdiction to the Court of Claims in particular instances, applies to a medical-negligence case in which a claim is brought solely against a private employer on grounds of respondeat superior. R.C. 2743.02(F) provides:

{¶ 14}A civil action against an officer or employee, as defined in section 109.36 of the Revised Code, that alleges that the officer's or employee's conduct was manifestly outside the scope of the officer's or employee's employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims,

which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action.” (Emphasis added.)

{¶ 15} We have held that “the Court of Claims has exclusive jurisdiction to determine whether a state employee is immune from liability under R.C. 9.86.” Johns v. Univ. of Cincinnati Med. Assoc., Inc., 101 Ohio St.3d 234, 2004-Ohio-824, 804 N.E.2d 19, syllabus. But Sawicki's respondeat superior claim against Associated is not a civil action against Temesy-Armos as a state employee; it is a suit against the doctor's private employer only. This is not a case in which a plaintiff has sued the state-employed physician. See State ex rel. Sanquily v. Court of Common Pleas of Lucas Cty. (1991), 60 Ohio St.3d 78, 573 N.E.2d 606. Nor is it a case in which the plaintiff has waived a claim against the state to avoid the application of R.C. 2743.02(F) and pursue an action against a state employee individually. Conley v. Shearer (1992), 64 Ohio St.3d 284, 595 N.E.2d 862. Although Sawicki did initially include a claim against the physician himself, he did not “waive” it to circumvent R.C. 2743.02(F). Instead, the claim was dismissed by the common pleas court.

{¶ 16} An immunity determination by the Court of Claims is unnecessary in this case because neither the state nor its employee is the subject of the suit. Sawicki also does not allege that Temesy-Armos's conduct was either “manifestly outside the scope of” the doctor's state “employment or official responsibilities” or that the doctor had “acted with malicious purpose, in bad faith, or in a wanton or reckless manner.” R.C. 2743.02(F). None of the conditions in R.C. 2743.02(F) are satisfied; the statute does not apply in this case.

Dual Agency

{¶ 17} According to appellants, either the state or Associated may be vicariously liable for the tortious acts of Temesy-Armos under the doctrine of respondeat superior. In other words, a physician may act either for the state or for a private employer, but not for both at the same time. Yet the Restatement of the Law 2d, Agency (1958), Section 226 provides, “A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.” [A] single act may be done to effect the purposes of...

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