Siegel v. State

28 N.E.3d 612

Frances B. SIEGEL, Individually and as Administratrix of the Estate of Jessica Ann Siegel et al., Plaintiffs–Appellants

v.State of Ohio, d/b/a UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE et al., Defendants–Appellees.

No. 14AP–279.

Court of Appeals of Ohio, Tenth District, Franklin County.

Feb. 6, 2015.

John H. Metz, Columbus, for appellants.

Michael DeWine, Attorney General, and Brian M. Kneafsey, Jr., for appellee University of Cincinnati College of Medicine.

Opinion

BRUNNER, J.

{¶ 1} Plaintiffs-appellants, Frances B. Siegel, individually and as administratrix of the estate of Jessica Ann Siegel, and Daniel Siegel, appeal the judgment of the Court of Claims of Ohio, following an evidentiary hearing finding defendant-appellee Dr. Andrew Ringer, a neurosurgeon and professor at the University of Cincinnati College of Medicine, was a state employee entitled to civil immunity, pursuant to R.C. 2743.02(F) and 9.86, and that the courts of common pleas do not have jurisdiction over any civil actions that may be filed against him based on the allegations in this case.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Jessica, the minor decedent, had a congenital malformation in the arteries of her brain, a condition known as arteriovenous malformation (“AVM”). She had been treated for hemorrhaging because of her condition at Cincinnati Children's Hospital. However, this procedure, known as coil embolization, was unsuccessful. Hemorrhaging occurs with AVM when high-pressure arterial blood flow directly enters the low-pressure vein system and causes the veins to rupture. Jessica had been referred for further treatment to Dr. Ringer, who performed a liquid “Onyx” glue embolization on July 19, 2006 at Good Samaritan Hospital. Dr. Ringer achieved only a partial occlusion or repair, and noted an asymptomatic AVM pedicle branch perforation as a complication. He performed a second, staged embolization on August 14, 2006, and reported as complications a right frontal AVM branch extravasation prior to embolization, and a right anterior parietal middle cerebral artery branch glue embolus without occlusion. His follow-up communications to referring physicians contained contradictory statements that the July 19 and August 14, 2006 procedures were uncomplicated; Dr. Ringer explained at the hearing that the July 19, 2006 event was asymptomatic, and the August 14, 2006 communication simply went out early, the very day of the procedure.

{¶ 3} Following the August 14, 2006 procedure, a hematoma developed, and Jessica's brain began to swell with increased intracranial pressure. On August 19, 2006, Dr. Ringer performed an emergency decompressive craniectomy to relieve the pressure. Following a planned tracheostomy on August 23, 2006, Jessica's body temperature rose to 108 degrees. She suffered blood pressure and cardiac collapse. Dr. Ringer believed her condition had stabilized, but her heart stopped and she died later the same day.

{¶ 4} At the hearing, Dr. Ringer testified that he did not know specifically why Jessica had developed the extremely high fever and died. After the time during which Jessica's family could be with their daughter's body post mortem, Dr. Ringer expressed his concerns over her sudden death and the potential causes to her father, Daniel Siegel. Dr. Ringer expressed that a pulmonary embolus was a potential though unlikely cause. Also, malignant hyperthermia, due to a congenital condition, may have developed as a reaction to anesthesia, and this would be medically important knowledge for other members of her family. Dr. Ringer suggested an autopsy and ordered an examination limited to the thorax and abdomen, to look for evidence of a pulmonary embolus and cardiac problems, as well as a muscle biopsy to test for malignant hyperthermia. Plaintiffs contend that Dr. Ringer's limitation of the autopsy to the thorax and abdomen, excluding the brain, was fraudulent and, as a result, deprived him of the statutory immunity he would enjoy as an employee of a public institution. Dr. Daniel Beckman conducted the autopsy on August 24, 2006, and ruled out a pulmonary embolus and cardiac problems, but genetic testing for malignant hyperthermia was not conclusive.

{¶ 5} In addition to the present action, plaintiffs sued Dr. Ringer and others in the Hamilton County Court of Common Pleas. After case No. 0900450 was dismissed for lack of an affidavit of merit, plaintiffs filed suit again in that same court, case No. 0907503, and that case was stayed pending the Court of Claims' determination on Dr. Ringer's entitlement to immunity. On April 2, 2013, Judge Patrick McGrath appointed Anderson Renick as magistrate to govern further proceedings. On the day of the hearing, May 15, 2013, Magistrate Holly True Shaver was assigned to hear the case and recommended immunity in favor of Dr. Ringer in her report. Plaintiffs objected to the magistrate's decision, and Judge McGrath adopted it, rendering judgment in favor of Dr. Ringer.

II. ASSIGNMENTS OF ERROR

{¶ 6} Plaintiffs now appeal assigning the following ten assignments of error:

[I.] The trial court erred to the prejudice of appellants by entering judgment on findings of a magistrate who did not have jurisdiction to conduct the immunity hearing.

[II.] The trial court erred to the prejudice of appellants by affirming a referral of the case to a magistrate for factual and credibility findings since to do so denies due process.

[III.] The trial court erred to the prejudice of the appellants in refusing to admit affidavit.

[IV.] The trial court erred by exceeding its jurisdiction by not severing or limiting the claim for fraud from the issue of immunity.

[V.] The trial court erred to the prejudice of the appellants in unreasonably restricting discovery contrary to Ohio Supreme Court precedent.

[VI.] The trial court erred to the prejudice of appellants in overruling plaintiffs' objections to the magistrate's findings and in adopting the magistrate's findings and ruling against the manifest weight of competent evidence that Ringer is entitled to immunity.

[VII.] The trial court erred to the prejudice of appellants by refusing to grant a jury trial for the factual issues.

[VIII.] The scheme evolved from R.C. 2743 and Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208 [857 N.E.2d 573] have worked an unconstitutional deprivation of the fundamental rights of Ohioans.

[IX.] ORC 2743 and 9.96 [sic] are unconstitutional and violates the separation of powers of the government.

[X.] The trial court erred by granting immunity to an individual who acted under false pretenses.

We first address and reject the procedural, jurisdictional, and constitutional arguments appellants have infused among assignments of error one, two, four, seven, eight, and nine.

A. Reference to Magistrate and Jurisdiction in Court of Claims

{¶ 7} In their first assignment of error, appellants take issue with the timing of the Court of Claims' June 21, 2013 docket entry reflecting the appointment of Magistrate Shaver to conduct the May 15, 2013 immunity hearing. They do not demonstrate or even explain how, in particular, the retrospective nature of the docket entry, or as they argue in the second assignment of error, the referral to any magistrate in this or any case involving fact-finding and credibility determinations, deprived them of due process under the Fifth and Fourteenth Amendments to the United States Constitution and Ohio Constitution, Article I, Section 16.

{¶ 8} Appellants raised no objection to the Court of Claims' appointment of a magistrate as ordered, “without limitation of authority specified in Civ.R. 53(C).” (R. 72.) They did not object to the Court of Claims' transfer of the immunity hearing to Magistrate Shaver on the date of the hearing, as they do now on appeal. Their failure to challenge the constitutionality of the reference to a magistrate in any respect under Civ.R. 53 operates as a waiver of the issue on appeal.

“[T]he question of the constitutionality of a statute must generally be raised at the first opportunity.” State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524. “Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal.” State v. Awan (1986), 22 Ohio St.3d 120, 489 N.E.2d 277, syllabus. See, also, App.R. 12(A)(2) (providing that an appellate court may disregard an assignment of error if the party raising it “fails to argue the assignment separately in the brief, as required under App.R. 16(A) ”). But, see, In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, syllabus (holding that the waiver doctrine in Awan is discretionary and that “[e]ven where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it”).

Haver v. Accountancy Bd. of Ohio, 10th Dist. No. 05AP–280, 2006-Ohio-1162, 2006 WL 620920, ¶ 22. See Remley v. Cincinnati Metro. Hous. Auth., 99 Ohio App.3d 573, 576, 651 N.E.2d 450 (1st Dist.1994) (Bettman, J., concurring) (separately with opinion questioning whether Supreme Court's discretion to review constitutional challenge not raised below applies to civil as well as criminal cases and extends to courts of appeals).

{¶ 9} Appellants' constitutional arguments provide no grounds to depart from the waiver doctrine. The late docket entry has no connection to their rights to notice and opportunity to be heard. Appellants were present at the hearing and had their opportunity to be heard and present evidence. There is nothing in the record to suggest irregularity surrounding the order of reference or other, related proceedings, or the validity of the judgment in the Court of Claims. Se...