Siegel v. Univ. of Cincinnati College of Medicine , 2015 Ohio 441 ( 2015 )

[Cite as Siegel v. Univ. of Cincinnati College of Medicine, 2015-Ohio-441.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Frances B. Siegel, Individually and :
as Administratrix of the Estate of
Jessica Ann Siegel et al., :
Plaintiffs-Appellants, : No. 14AP-279
(Ct. of Cl. No. 2009-09531)
v. :
(REGULAR CALENDAR)
State of Ohio, d/b/a University of :
Cincinnati College of Medicine et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on February 6, 2015
John H. Metz, for appellants.
Michael DeWine, Attorney General, and Brian M. Kneafsey,
Jr., for appellee University of Cincinnati College of Medicine.
APPEAL from the Court of Claims of Ohio
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
No. 14AP-279 2
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
No. 14AP-279 3
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
No. 14AP-279 4
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 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
No. 14AP-279 5
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, ¶ 22. See
Remley v. Cincinnati Metro. Hous. Auth., 99 Ohio App.3d 573, 576 (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. See Eleton v. Conrad, 12th Dist. No.
CA83-02-018 (Jan. 30, 1984) (if record entries are "not an accurate reflection of the
events that transpired, it is appellant's responsibility to present a record that
demonstrates the alleged error, and without such a record, we must presume the
regularity of the trial court's proceedings"). The appointment and hearing on May 15,
2013 were procedurally proper. We find that the trial court did not violate appellants'
due process rights. See id. Appellants unquestionably had " 'a reasonable opportunity to
be heard after a reasonable notice of such hearing.' " Ohio Valley Radiology Assoc., Inc.
v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 125 (1986), quoting State ex rel. Allstate
Ins. Co. v. Bowen, 130 Ohio St. 347 (1936), paragraph five of the syllabus. Appellants
present no substantial argument that they were deprived of the requisite notice and
No. 14AP-279 6
opportunity for hearing appropriate to the nature of the case. Cleveland Bd. of Edn. v.
Loudermill, 470 U.S. 532, 542 (1985).
{¶ 10} Though the April 2, 2013 order of reference was specifically to Magistrate
Renick, appellants made no objection to the substitution of Magistrate Shaver on the date
of the hearing. Where a matter proceeds without an order of reference to a particular
magistrate, we agree with the opinion in Hines v. Amole, 4 Ohio App.3d 263 (2d
Dist.1982), and decisions following it to the effect that lack of an order of reference alone
is not jurisdictional and not prejudicial error in itself.
Although the trial court may commit error by not fully
complying with the procedural requirements of Civ.R. 53, that
failure does not affect the jurisdiction of the trial court to hear
and determine the action. Eisenberg v. Peyton (1978), 56
Ohio App.2d 144, 38 N.E.2d 1136. That a failure to comply
with Civ.R. 53 is not jurisdictional in nature is supported by
the decision in Lindsay v. Lindsay (1957), 106 Ohio App. 146,
146 N.E.2d 151, in which the court held that the question of
reference is not a jurisdictional matter, but one of procedure.
Id. at 152, 146 N.E.2d 151. Appellants do not contend that the
matter sub judice was one in which they were entitled to a jury
trial. Their objection is there was no journal entry of
reference. It is only in instances in which the trial court lacks
jurisdiction that a judgment is void rather than voidable.
Reversible error can only be attained by prejudice that affects
the substantial rights of the complaining party. Elser v. Parke
(1943), 142 Ohio St. 261, 51 N.E.2d 711. The mere failure to
properly journalize a referral to a referee does not produce
prejudice per se.
Id. at 265 (no objection to trial before magistrate until untimely filing of objections and no
finding of prejudicial error). See Schialdone v. Schialdone, 11th Dist. No. 93-T-5007
(Apr. 21, 1995) ("appellant failed to raise an objection in trial court to this procedural
anomaly"); Gem Sav. Assn. v. Edwards, 2d Dist. No. 10411 (Oct. 6, 1987) (no timely
objection and no prejudice from order of reference entered nunc pro tunc 14 days after
hearing); Schwalm v. Schwalm, 8th Dist. No. 51490 (Mar. 12, 1987) (delay in docketing
reference to magistrate held insufficient to warrant new trial; appellant demonstrated no
prejudice from delay). A timely objection was not made to Shaver's service as magistrate.
She was empowered only to make a recommendation. The Court of Claims issued a
detailed decision on the objections to the magistrate's report. No substantial rights of the
No. 14AP-279 7
appellants were denied by the nunc pro tunc order or lack of a formal reference to
Magistrate Shaver in advance of the hearing. Gem Sav.
{¶ 11} Pursuant to Civ.R. 53, as long as the reference permits it, a magistrate is
authorized to determine any motion, in any case, and to conduct the trial of any case that
will not be tried to a jury. See Civ.R. 53(C)(1)(a) and (b). Appellants' notion that
jurisdiction transferred from the court to the magistrate with the reference is inapposite.
Even if a trial court refers a matter to a magistrate, it retains
the ability to employ its own judgment in the case, according
to Civ.R. 53(D)(4)(b). The trial court judge retains jurisdiction
and may exercise its own decision-making power in several
ways. If objections are filed, the court must rule on those
objections. It may then offer its own analysis on the same
subjects. O'Bryan v. K & H Co. Lakeshore Apts., 181 Ohio
App.3d 741, 2009-Ohio-1417, 910 N.E.2d 1071, at ¶ 30; see
also Schultz v. Wurdlow, 10th Dist. No. 09 AP 301, 2010-
Ohio-1140, 2010 WL 1060648, at ¶ 12. If no objections are
filed or if the filed objections do not raise a particular issue,
the trial court can simply proceed with its own analysis. Id.Donofrio v. Whitman, 191 Ohio App.3d 727, 2010-Ohio-6406, ¶ 21 (7th Dist.).
{¶ 12} "A magistrate is an arm of the court, not a separate judicial entity with
independent judicial authority and duties." State ex rel. DeWine v. Ashworth, 4th Dist.
No. 11CA16, 2012-Ohio-5632, ¶ 38. The Court of Claims still must "undertake an
independent review as to the objected matters to ascertain that the magistrate has
properly determined the factual issues and appropriately applied the law." Civ.R.
53(D)(4)(d). The court retains the ultimate authority and responsibility over the
magistrate's findings and rulings. Hartt v. Munobe, 67 Ohio St.3d 3, 5-6 (1993).
Appellants' suggestion that a magistrate, whether by individual capacity of the magistrate
or by authorization from the court, is incapable of deciding the facts and weighing the
credibility of witnesses, lacks merit. In any event, "the court remains the ultimate finder
of fact, even on matters of credibility." DeWine at ¶ 37. "Although the trial court may
appropriately give weight to the magistrate's assessment of witness credibility in view of
the magistrate's firsthand exposure to the evidence, the trial court must still
independently assess the evidence and reach its own conclusions." Sweeney v. Sweeney,
10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 15, citing DeSantis v. Soller, 70 Ohio App.3d
226, 233 (10th Dist.1990). We, therefore, overrule appellants' first and second
No. 14AP-279 8
assignments of error challenging on constitutional and jurisdictional grounds the hearing
before Magistrate Shaver.
{¶ 13} In their fourth assignment of error, appellants assert that the Court of
Claims should have severed the malpractice claim or limited its finding of immunity to the
malpractice claim. They appear to argue that their claims that Dr. Ringer had engaged in
fraud, spoliation or other actionable conduct in "changing the medical records to obstruct
evidence" are not subject to immunity. (Appellant's Brief, 21.) Regardless of the legal
theories under which appellants seek to establish actionable liability for the alleged
conduct, it was incumbent on them to first establish that the immunity afforded under
R.C. 9.86 did not apply to Dr. Ringer. Botkin v. Univ. of Cincinnati College of Medicine,
10th Dist. No. 04AP-228, 2005-Ohio-1122, ¶ 37; Fisher v. Univ. of Cincinnati Med. Ctr.,
10th Dist. No. 98AP-142 (Aug. 25, 1998). Moreover, appellants were required to bring
this challenge in the Court of Claims.
{¶ 14} R.C. 2743.02(F) requires that all challenges to state officer or employee
immunity must be determined in the Court of Claims:
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 that 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.) In spite of appellants' dissatisfaction with the statutory scheme, their
dual assertions of error by the Court of Claims concerning alleged fraud and spoliation by
Dr. Ringer are inconsistent. On the one hand, appellants claim it was error below not to
sever from the immunity hearing their allegations of fraud and spoliation (relating to the
limited autopsy ordered by Dr. Ringer). On the other hand, appellants wish to use those
very same issues, taken alone, to defeat immunity and proceed directly against Dr. Ringer
on their malpractice claims as well, in the court of common pleas. However appellants
may couch their substantive liability claims against Dr. Ringer, immunity for any or all of
No. 14AP-279 9
those claims must be considered under R.C. 9.86. Only if the Court of Claims were to
determine that Dr. Ringer's actions were manifestly outside the scope of his employment,
or that he acted with malicious purpose, in bad faith, or in a wanton or reckless manner,
would there be no immunity for his actions. It is only at this point that appellants could
pursue their causes of action in the court of common pleas. Long v. Bowling Green State
Univ., 10th Dist. No. 96API12-1736 (June 30, 1997).
{¶ 15} R.C. 2743.02(F) vests exclusive original jurisdiction in the Court of Claims
to determine whether the defendant is immune from suit. Theobald v. Univ. of
Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, ¶ 13; Johns v. Univ. of Cincinnati Med.
Assoc., Inc., 101 Ohio St.3d 234, 2004-Ohio-824, ¶ 26-30; Conley v. Shearer, 64 Ohio
St.3d 284, 287 (1992). The court of common pleas is prohibited "from exercising
jurisdiction over the merits of the case until the Court of Claims has decided whether he
[in this case, Dr. Ringer] is entitled to personal immunity under R.C. 9.86 and whether
the common pleas court has jurisdiction over the malpractice action." State ex rel.
Sanquily v. Court of Common Pleas of Lucas Cty., 60 Ohio St.3d 78, 80-81 (1991).
Appellants' fourth assignment of error contravenes the clear mandate of R.C. 2743.02(F)
for exclusive, original jurisdiction in the Court of Claims for the initial determination of
immunity, and is overruled.
{¶ 16} In assignments of error seven, eight, and nine, appellants restate generic
arguments against the unavailability of a jury trial in the Court of Claims, which the
Supreme Court of Ohio rejected in Conley:
The question of whether [the defendant] is entitled to
immunity as a governmental employee is a question of law for
which there is no right to trial. A jury trial is necessary only
when the case requires resolution of factual issues which are
triable to a jury in comparable civil actions. See Erie Ins.
Group v. Fisher (1984), 15 Ohio St.3d 380, 381-382, 15 OBR
497, 498-499, 474 N.E.2d 320, 322. See, also, R.C. 2311.04
and Civ.R. 56(C). "Whether immunity may be invoked is a
purely legal issue, properly determined by the court prior to
trial, Donta v. Hooper (C.A.6, 1985), 774 F.2d 716, 719,
certiorari denied (1987), 483 U.S. 1019 [107 S.Ct. 3261, 97
L.Ed.2d 760], and preferably on a motion for summary
judgment." Roe v. Hamilton Cty. Dept. of Human Serv.
(1988), 53 Ohio App.3d 120, 126, 560 N.E.2d 238, 243.
No. 14AP-279 10
(Emphasis sic.) Id. at 292. This court has observed that "the question as to whether a
physician acted outside the scope of his or her employment is a question of fact." Botkin
at ¶ 17, citing Barkan v. The Ohio State Univ., 10th Dist. No. 02AP-436, 2003-Ohio-985,
¶ 11. See also Johnson v. Univ. of Cincinnati, 10th Dist. No. 04AP-926, 2005-Ohio-2203,
¶ 12; Smith v. Univ. of Cincinnati, 10th Dist. No. 01AP-404 (Nov. 29, 2001); Lynd v.
Univ. of Cincinnati, 10th Dist. No. 99AP-37 (Nov. 23, 1999); Lowry v. Ohio State Hwy.
Patrol, 10th Dist. No. 96API07-835 (Feb. 27, 1997).
{¶ 17} As we stated in Lippert v. Med. College of Ohio, 10th Dist. No. 92AP-741
(Dec. 1, 1992):
While the Supreme Court has characterized R.C. 2743.02(F)
proceedings as involving a legal issue, we recognize that, in
some instances, a factual dispute underlies the primary issue
of law involved in determining the state's responsibility for an
employee's actions. To the extent a factual dispute underlies
the predominant legal determination of immunity, the trial
court should conduct an evidentiary hearing to resolve that
factual dispute.
Accordingly, the May 15, 2013 hearing was held by the magistrate to resolve the disputed
factual issues and rule on Dr. Ringer's legal entitlement to immunity.
{¶ 18} We followed the pertinent part of the opinion in Conley in Fisher, Botkin,
Schultz v. Univ. of Cincinnati College of Medicine, 10th Dist. No. 09AP-900, 2010-Ohio-
2071, ¶ 33, and also in Ashcraft v. Univ. of Cincinnati Hosp., 10th Dist. No. 02AP-1353,
2003-Ohio-6349, ¶ 22. In these cases we overruled challenges to R.C. 2743.02(F),
including the instant claims that the statute deprives appellants of a constitutional right to
a jury trial and due process of law. We are constrained to do so here as well.
{¶ 19} Appellants suggest that because under R.C. 2743.11 "[n]o claimant in the
[C]ourt of [C]laims shall be entitled to have his civil action against the state determined by
a trial by jury," with respect to their claims against Dr. Ringer, they are denied due
process. But, Conley interprets and applies the statute so as to determine that the denial
of a jury trial before the Court of Claims involves a procedural process and not a
substantive right:
If the Court of Claims determines that a state employee was
acting outside the scope of employment and, therefore, is
personally responsible for his or her acts and is subject to suit
No. 14AP-279 11
in a common pleas court, the plaintiff and the state employee
retain the right to have a jury hear and determine all factual
issues presented at trial. Thus, any right to a jury trial which
Conley may have had was not infringed by the procedure
found in R.C. 2743.02(F). Alternatively, because R.C.
2743.02(F) is procedural in nature, it does not violate any
substantive rights, including the right to a trial by jury. Shew
v. Greene (Apr. 24, 1989), Warren App. No. CA88-09-070,
unreported, 1989 WL 38943.
Id. at 292.
{¶ 20} Consistent with the statutorily mandated unavailability of a jury trial in the
Court of Claims, appellants made no demand for a jury at the time of the Court of Claims'
proceedings. When they did move for a jury trial, it was after the immunity hearing by
the magistrate, at a time long after that permitted by Civ.R. 38(B), were a jury trial
available, and, according to statute, it was not. While we have recognized that "an
appellate court has discretion to consider constitutional challenges to the application of
statutes even where the waiver is clear," we decline to exercise such discretion in this case.
Ohio Am. Health Care, Inc. v. Ohio Bd. of Nursing, 10th Dist. No. 13AP-1020, 2014-Ohio-
2422, ¶ 40, citing In re M.D., 38 Ohio St.3d 149 (1988), syllabus. The time for objecting
to the statutory scheme denying a jury trial or for even demanding a trial by jury was
before the hearing. Appellants' attempts to stretch that to any conceivable post-hearing
time burst credulity when such objections occur beyond the time provided in Civ.R. 38.
This court finds that appellants' waiver of objection to unavailability of a jury hearing in
the Court of Claims is not saved by their constitutional challenge. This is not a specific
case of plain error where the rights and interests involved may warrant consideration of
the constitutional challenge. M.D. at 151 ("due process considerations of appellant's
arguments [against prosecution of juveniles under 13 as delinquents for "playing doctor,"
allegedly constituting felony sex crimes] are apparent, and sufficient to avoid the waiver
issue"). In appellants' case, Conley resolved appellants' challenge to the unavailability of a
jury trial, and assignments of error seven, eight, and nine are overruled.
B. Exclusion of Coroner's Office Administrator Affidavit
{¶ 21} In their third assignment of error, appellants complain that Magistrate
Shaver improperly excluded an affidavit dated May 9, 2013 (six days before the hearing)
from the Hamilton County Coroner's office administrator, stating that Jessica's death was
No. 14AP-279 12
not reported on August 23 or 24, 2006, contrary to chief resident Dr. Nicholas Levine's
discharge summary and Dr. Ringer's testimony. Defense counsel objected that he would
not have the opportunity to depose or cross-examine the affiant, and the magistrate
sustained the objection to the affidavit.
{¶ 22} Overruling appellants' objection to exclusion of the affidavit, Judge
McGrath held that the affidavit was hearsay, not subject to any exception. The affidavit
may have been admissible under Evid.R. 803(10) "[t]o prove the absence of a record,
report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence
of a matter of which a record, report, statement, or data compilation, in any form, was
regularly made and preserved by" the coroner's office. Civ.R. 44(B) provides: "A written
statement that after diligent search no record or entry of a specified tenor is found to exist
in the records designated by the statement * * * is admissible as evidence that the records
contain no such record or entry." However, the magistrate, in her discretion, could have
excluded the affidavit for undue delay under Evid.R. 403(B), and exclusion would be
mandatory insofar as the affidavit's probative value was substantially outweighed by the
danger of unfair prejudice under Evid.R. 403(A).
{¶ 23} In any event, we find that any error in the exclusion of the coroner's office
administrator's affidavit was harmless under Civ.R. 61 and R.C. 2309.59. While the
affidavit may have impeached Dr. Ringer's testimony that the coroner had been
contacted, appellants' attorney was permitted to refer to the affidavit, and the statement
that Jessica's case was not reported on August 23 or 24, 2006, in his cross-examination of
Dr. Ringer.
{¶ 24} The magistrate as the trier of fact retained the discretion to weigh credibility
and to accept or reject the hospital discharge summary and Dr. Ringer's testimony
concerning contacting the coroner.
Decisions regarding the admissibility of evidence are within
the broad discretion of the trial court. State v. Hymore (1967),
9 Ohio St.2d 122, 128, 38 O.O.2d 298, 224 N.E.2d 126. A
decision to admit or exclude evidence will be upheld absent an
abuse of discretion. O'Brien v. Angley (1980), 63 Ohio St.2d
159, 164-165, 17 O.O.3d 98, 407 N.E.2d 490. Even in the event
of an abuse of discretion, a judgment will not be disturbed
unless the abuse affected the substantial rights of the adverse
party or is inconsistent with substantial justice. Id.No. 14AP-279 13
Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, ¶ 20. "An abuse of
discretion involves more than an error of law or of judgment; it connotes an attitude on
the part of the court that is unreasonable, unconscionable or arbitrary." Franklin Cty.
Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506 (1992). The record is
devoid of the indication that the magistrate acted unreasonably, unconscionably or
arbitrarily in refusing to admit a late-submitted affidavit. Appellants have not shown that
the affidavit's admission into evidence could have affected the Court of Claims'
determination of whether or not Dr. Ringer acted outside his employment or otherwise
"with malicious purpose, in bad faith, or in a wanton or reckless manner" to avoid his civil
immunity under R.C. 9.86. Appellants' third assignment of error is overruled.
C. Limitation of Discovery to Immunity Issue
{¶ 25} As to the fifth assignment of error, we perceive no abuse of discretion in the
Court of Claims' limitation of discovery to the immunity issue. This was the necessary and
entire scope of the determination below, given appellants' intention to pursue their claims
against Dr. Ringer in the court of common pleas if they prevailed on the immunity issue.
There is nothing to suggest that appellants would not have been permitted further
discovery if the Court of Claims had rejected Dr. Ringer's claim of civil immunity.
{¶ 26} Nor were appellants deprived of any opportunity to pursue medical facts
pertinent to the issue of immunity before the court. The protective order states: "Dr.
Ringer shall be deposed only with regard to immunity issues, [appellants'] allegations of
fraud and spoliation of evidence, and such limited inquiry into the allegations of medical
malpractice as may be necessary for the immunity determination." (R. 52.) The Court of
Claims did not protect from discovery matters related to appellants' allegations of fraud
and spoliation by Dr. Ringer. In fact, it appears that the Court of Claims afforded
appellants wide berth in seeking information that could lead to admissible evidence that
would tend to prove that Dr. Ringer was not entitled to immunity. Nor do appellants
identify any particular areas of inquiry during Dr. Ringer's deposition, or otherwise in
discovery, where they were limited or deprived, and that could have helped them
overcome immunity. Appellants obtained, presented, and continue to rely on medical
testimony from Dr. Beckman regarding the advisability of a complete autopsy and
concerning contacting the coroner. We are satisfied that appellants' counsel was not
No. 14AP-279 14
limited in discovery in pursuing any matters related to Dr. Ringer's treatment of Jessica
and its aftermath, including the limited autopsy. The evidence in the record supports the
findings of the magistrate and the Court of Claims on the issue of immunity.
{¶ 27} " 'A trial court has broad discretion to regulate discovery proceedings. * * *
This discretion extends to the issuance of protective orders made to pursuant to Civ.R.
26(C). * * * Absent an abuse of discretion, an appellate court must affirm a trial court's
disposition of discovery issues.' " Hahn v. Satullo, 156 Ohio App.3d 412, 2004-Ohio-1057,
¶ 79 (10th Dist.), quoting Van-American Ins. Co. v. Schiappa, 132 Ohio App.3d 325, 330
(7th Dist.1999). See Dehlendorf v. Ritchey, 10th Dist. No. 12AP-87, 2012-Ohio-5193, ¶ 23
("appellant fails to demonstrate how the requested depositions could lead to admissible
evidence related to the issue of collateral estoppel and its application to the matter at
hand. Thus, we conclude the trial court did not abuse its discretion in granting appellee's
motion for a protective order").
{¶ 28} We find that the protective order in the Court of Claims was neither
unreasonable, arbitrary, nor unconscionable. We therefore overrule appellants' fifth
assignment of error.
D. Weight of the Evidence
{¶ 29} Appellants' challenge of the Court of Claims' decision that Dr. Ringer is
entitled to civil immunity, based on the claim that it is against the weight of the evidence,
is found in their sixth assignment of error. On the standard of review, this court stated in
Long:
[I]mmunity is a question of law. Nease v. Medical College
Hosp. (1992), 64 Ohio St.3d 396, 400, 596 N.E.2d 432, citing
Conley v. Shearer (1992), 64 Ohio St.3d 284, 595 N.E.2d 862.
While the issue of immunity is a question of law,
consideration of the specific facts is necessary. See Lowry v.
Ohio State Highway Patrol (Feb. 27, 1997), Franklin App. No.
96API07-835, unreported (1997 Opinions 524 at 533). In this
regard, matters involving credibility should be resolved by the
trial court, and judgments supported by some competent,
credible evidence going to all essential elements of the case
will not be reversed as being against the manifest weight of
the evidence. Id. at 533-534; Brooks v. Ohio State Univ.
(1996), 111 Ohio App.3d 342, 350, 676 N.E.2d 162, citing C.E.
Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376
N.E.2d 578.
No. 14AP-279 15
Applying the facts in a manner consistent with these principles, we determine whether
or not Dr. Ringer was entitled to immunity as a matter of law. In doing so, we also
consider our earlier decisions in Young v. Univ. of Akron, 10th Dist. No. 04AP-318, 2004-
Ohio-6720, Caruso v. State, 136 Ohio App.3d 616 (10th Dist.2000), Jodrey v. Ohio Dept.
of Rehab. & Corr., 10th Dist. No. 12AP-477, 2013-Ohio-289, and Lewis v. Cleveland State
Univ., 10th Dist. No. 10AP-606, 2011-Ohio-1192, concerning "weight of the evidence"
challenges to the Court of Claims' adoption of magistrates' reports concerning R.C. 9.86
immunity.
1. Immunity Generally Under R.C. 9.86
{¶ 30} R.C. 9.86 provides in relevant part:
[N]o officer or employee shall be liable in any civil action that
arises under the law of this state for damage or injury caused
in the performance of his duties, unless the officer's or
employee's actions were manifestly outside the scope of his
employment or official responsibilities, or unless the officer or
employee acted with malicious purpose, in bad faith, or in a
wanton or reckless manner.
Appellants do not take issue with the facts supporting Dr. Ringer's formal and working
status as a state employee under R.C. 109.36(A)(1)(a) or that he "was acting on behalf of
the state when the patient was alleged to have been injured." Theobald at ¶ 31. At all
relevant times Dr. Ringer was employed and paid by the University of Cincinnati. Dr.
Levine and Endovascular Surgical Neuroradiology Fellow Dr. Shah-Naz Khan
participated with Dr. Ringer throughout Jessica's treatment. Appellants urge that Dr.
Ringer's conduct is not shielded by immunity because his conduct was motivated by
actual malice or other such reasons giving rise to punitive damages. Appellants urge that
on this basis the employer-employee relationship should be deemed severed, or that he
acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Elliott v.
Ohio Dept. of Rehab. & Corr., 92 Ohio App.3d 772, 775 (10th Dist.1994).
{¶ 31} We delineated these grounds to defeat immunity in Caruso:
In the context of immunity, an employee's wrongful act, even
if it is unnecessary, unjustified, excessive, or improper, does
not automatically take such act manifestly outside the scope of
employment. Elliott v. Ohio Dept. of Rehab. & Corr. (1994),
92 Ohio App.3d 772, 775, 637 N.E.2d 106, 107-108, citing
Thomas v. Ohio Dept. of Rehab. & Corr. (1988), 48 Ohio
No. 14AP-279 16
App.3d 86, 89, 548 N.E.2d 991, 994; and Peppers v. Ohio
Dept. of Rehab. & Corr. (1988), 50 Ohio App.3d 87, 90, 553
N.E.2d 1093, 1095-1096; Brooks [v. Ohio State Univ., 111
Ohio App.3d 342,] 350, 676 N.E.2d at 166-167. It is only
where the acts of state employees are motivated by actual
malice or other such reasons giving rise to punitive damages
that their conduct may be outside the scope of their state
employment. James H. v. Dept. of Mental Health and Mental
Retardation (1980), 1 Ohio App.3d 60, 61, 1 OBR 6, 7-8, 439
N.E.2d 437, 438-439. The act must be so divergent that it
severs the employer-employee relationship. Elliott, at 775, 637
N.E.2d at 107-108, citing Thomas, at 89, 548 N.E.2d at 994,
and Peppers, at 90, 553 N.E.2d at 1095-1096.
Malicious purpose encompasses exercising "malice," which
can be defined as the willful and intentional design to do
injury, or the intention or desire to harm another, usually
seriously, through conduct that is unlawful or unjustified.
Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio
App.3d 448, 453-454, 602 N.E.2d 363, 366-367, citing
Teramano v. Teramano (1966), 6 Ohio St.2d 117, 118, 35
O.O.2d 144, 144-145, 216 N.E.2d 375, 376-377; and Bush v.
Kelley's Inc. (1969), 18 Ohio St.2d 89, 47 O.O.2d 238, 247
N.E.2d 745.
"Bad faith" has been defined as the opposite of good faith,
generally implying or involving actual or constructive fraud or
a design to mislead or deceive another. Lowry, supra, quoting
Black's Law Dictionary (5 Ed. 1979) 127. Bad faith is not
prompted by an honest mistake as to one's rights or duties,
but by some interested or sinister motive. Id.
Finally, "reckless conduct" refers to an act done with
knowledge or reason to know of facts that would lead a
reasonable person to believe that the conduct creates an
unnecessary risk of physical harm and that such risk is greater
than that necessary to make the conduct negligent.
Hackathorn v. Preisse (1995), 104 Ohio App.3d 768, 771, 663
N.E.2d 384, 386, citing Thompson v. McNeill (1990), 53 Ohio
St.3d 102, 104-105, 559 N.E.2d 705, 707-708, citing 2
Restatement of the Law 2d, Torts (1965) 587, Section 500.
The term "reckless" is often used interchangeably with the
word "wanton" and has also been held to be a perverse
disregard of a known risk. Jackson, citing Thompson, at 104,
559 N.E.2d at 708, fn. 1, and Poe v. Hamilton (1990), 56 Ohio
App.3d 137, 138, 565 N.E.2d 887, 888-889. As to all of the
above terms, their definitions connote a mental state of
No. 14AP-279 17
greater culpability than simple carelessness or negligence. See
Jackson, supra, at 454, 602 N.E.2d at 367.
Id. at 620-21.
{¶ 32} We further discussed in Wrinn v. Ohio State Hwy. Patrol, 10th Dist. No.
11AP-1006, 2013-Ohio-1141, ¶ 13, that the Supreme Court has clarified the differences
between willful, wanton, and reckless conduct in the context of political subdivision
employee immunity afforded by R.C. 2744.02(B)(1)(b) and 2744.03(A)(6)(b).
1. "Willful," "wanton," and "reckless" describe different and
distinct degrees of care and are not interchangeable.
(Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705(1990), modified.)
2. Willful misconduct implies an intentional deviation from a
clear duty or from a definite rule of conduct, a deliberate
purpose not to discharge some duty necessary to safety, or
purposefully doing wrongful acts with knowledge or
appreciation of the likelihood of resulting injury. (Tighe v.
Diamond, 149 Ohio St. 520, 80 N.E.2d 122 (1948), approved
and followed.)
3. Wanton misconduct is the failure to exercise any care
toward those to whom a duty of care is owed in circumstances
in which there is great probability that harm will result.
(Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977),
approved and followed.)
4. Reckless conduct is characterized by the conscious
disregard of or indifference to a known or obvious risk of
harm to another that is unreasonable under the circumstances
and is substantially greater than negligent conduct. (2
Restatement of the Law 2d, Torts, Section 500 (1965),
adopted.)
Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraphs one, two, three,
and four of the syllabus.
2. Admissibility of Hospital Discharge Summary as it Relates to
Immunity
{¶ 33} Appellants particularly assail the Court of Claims' reliance on the hospital
discharge summary to support its finding that Jessica's death was reported to the
Hamilton County Coroner's office. In addition to exclusion of the administrator's
No. 14AP-279 18
affidavit, as to which we have found no abuse of discretion, appellants object to the
hospital discharge summary as inadmissible hearsay. However, at the magistrate's
hearing, appellants agreed to admission of the medical records into evidence, including
the discharge summary. Failing to object at the hearing to admissibility of any part of the
medical record, including the discharge summary, appellants have waived this argument
on appeal. See Jefferson v. CareWorks of Ohio, Ltd., 193 Ohio App.3d 615, 2011-Ohio-
1940, ¶ 9 (10th Dist.).
{¶ 34} Dr. Ringer was uncertain whether he or another member of the medical
staff had contacted the coroner, and he acknowledged that it is customary to notify the
coroner's office when a patient dies after a procedure. Further, considering the hospital
discharge summary under the "business records" exception to the hearsay rule, Evid.R.
803(6), we are constrained to uphold the Court of Claims' ruling on its admissibility
because appellants interposed no objection to admissibility to any of this part of the
record. "Failure to timely advise a trial court of possible error, by objection or otherwise,
results in a waiver of the issue for purposes of appeal." Claffey v. Natl. City Bank, 10th
Dist. No. 11AP-95, 2011-Ohio-4926, ¶ 15, citing Goldfuss v. Davidson, 79 Ohio St.3d 116,
121 (1997). Consistent with having stipulated to the records' admissibility, appellants
presented no argument that any portion of the records, including the discharge summary,
was not admissible under Evid.R. 803(6). See OhioHealth Corp. v. Ryan, 10th Dist. No.
10AP-937, 2012-Ohio-60, ¶ 34 (appellant did not move to strike account evidence
potentially subject to objection and a finding of inadmissibility under Evid.R. 803(6) and
therefore waived any error in consideration of exhibit on summary judgment); Lambert v.
Shearer, 84 Ohio App.3d 266, 278 (10th Dist.1992) (expert properly allowed to testify on
basis of medical records stipulated as authentic and admitted under Evid.R. 803(6)).
{¶ 35} Additionally, we do not find that the asserted error holds any serious effects
for the " 'basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.' " Claffey at ¶ 15,
quoting Goldfuss at 123. Claffey informs us that there is no plain error compelling
reversal.
{¶ 36} As we view it, appellants misplace their reliance on McQueen v. Goldey, 20
Ohio App.3d 41 (12th Dist.1984). The statements at issue in McQueen concerned the way
No. 14AP-279 19
in which the motor vehicle accident occurred and for which the plaintiff was treated for
injuries. In McQueen, the court did not find a business records hearsay exception existed
pursuant to Evid.R. 803(6). Nor did it find exception for statements made for purposes of
medical diagnosis or treatment as would be permissible pursuant to Evid.R. 803(4). The
Twelfth District held that the alleged error in admitting the statements was not
prejudicial, because "[t]he statements were merely cumulative and corroborative of the
testimony of other witnesses." Id. at 44. Likewise, the discharge summary report
corroborates Dr. Ringer's testimony at the hearing.
{¶ 37} " '[M]atters involving credibility should be resolved by the trial court, and
judgments supported by some competent, credible evidence going to all essential
elements of the case will not be reversed as being against the manifest weight of the
evidence.' " Botkin at ¶ 17, quoting Scarberry v. Ohio State Univ. Hosps., 10th Dist. No.
98AP-143 (Dec. 3, 1998).
{¶ 38} The hospital discharge summary, dictated by Dr. Levine, includes the
following language: "The appropriate parties including the patient's family and the
coroner were notified. The coroner declined an autopsy; however, at the physician's
request and the patient's family's approval an autopsy will be obtained." (Defendant's
exhibit D, 18.) It was appellants' attorney who elicited the corroborating testimony from
Dr. Ringer that one member of his team would have contacted the coroner. In his direct
testimony, Dr. Ringer stated, consistent with the discharge summary, that Dr. Levine had
indicated that the coroner was not planning an autopsy. He continued, "[T]hat's when I
felt we should approach the Siegels about doing one ourselves." (Tr. 216.) Dr. Levine did
not testify, and regardless of the magistrate's decision to exclude the coroner's affidavit, it
was within the province of the Court of Claims to accord Dr. Ringer's testimony the weight
it deserved and to judge his credibility.
{¶ 39} Finally, appellants' untimely objection to the discharge summary does not
avail their claim that the Court of Claims' decision is against the weight of the evidence.
Appellants grafted their first-time arguments against admissibility of the discharge
summary onto their weight-of-the-evidence claims, which we reject on account of waiver
and McQueen.
No. 14AP-279 20
3. Decision to Limit Autopsy and Changes to Consent Form
{¶ 40} Appellants chiefly argue that Dr. Ringer's decision not to order a complete
autopsy bespoke fraud, spoliation, and other conduct sufficient to avoid immunity. They
believe that the court ignored Dr. Beckman's deposition testimony that exclusion of the
brain from the autopsy appeared unusual since Dr. Ringer had performed a brain
operation. However, Dr. Beckman made it clear that it was Dr. Ringer's "call" to define
the scope of the autopsy. Dr. Beckman accordingly limited the autopsy to the thorax and
abdomen to check for a pulmonary embolus, and a test of the muscle tissue for malignant
hyperthermia. Dr. Ringer had informed Dr. Beckman at the time that the intracranial
pressure was normal, so Dr. Ringer did not want an autopsy of the brain. While he agreed
that normal intracranial pressure would not rule out a cause of death within the brain
itself, nothing in Dr. Beckman's testimony or elsewhere in the record suggests that an
autopsy of the brain would have revealed information not already available in the imaging
studies and other records, or anything at variance with the complications identified
following the August 14, 2006 procedure, including the hematoma resulting in increased
intracranial pressure.
{¶ 41} Dr. Beckman allowed through his testimony that it would have been of use
to examine the brain, but he could not say whether it was unusual to forgo a brain autopsy
for Jessica's specific condition. Dr. Beckman did not indicate or intimate any desire to
conceal information by Dr. Ringer, or any type of wrongdoing by him, let alone conduct
sufficient to overcome immunity.
{¶ 42} Appellants dispute the Court of Claims' finding that "Dr. Ringer's requested
correction of the autopsy consent form does not demonstrate actual malice, particularly
when the document had not yet been completed." (R. 90, at 5.) At the evidentiary hearing,
Mr. Siegel acknowledged that Dr. Ringer had explained the genetic concern for Jessica's
family members about malignant hyperthermia relating to the proposed muscle biopsy.
But Mr. Siegel claimed that he had asked for an autopsy of Jessica's brain also, and that
Dr. Ringer agreed. Mr. Siegel further stated that he had signed the form in the presence
of Drs. Ringer and Levine, and was in no hurry to leave the hospital after his daughter's
death.
No. 14AP-279 21
{¶ 43} In her deposition testimony, which appellants moved into evidence, Nurse
Amie Smith averred to the contrary that Mr. Siegel had signed the autopsy request form
while it was still blank because the family did want to leave the hospital. Smith filled out
the form, indicating a complete autopsy, including head and brain, but Dr. Ringer
corrected her. Dr. Ringer told Smith that he was looking for the two specific conditions
and it was not necessary to risk further disfigurement of the brain.
{¶ 44} On cross-examination, defense counsel elicited that Mr. Siegel had not read
the autopsy report until approximately one year after Jessica's death, and at his
deposition in the family's lawsuit against the LifeCenter Organ Donor Network, Mr. Siegel
said that his main concern was that Jessica's eyes had been harvested for transplantation.
His position that the Siegels had denied consent to donate Jessica's eyes but wanted an
autopsy of her brain raised a point of credibility. The Court of Claims resolved the
conflicting testimony over whether appellants had asked for an autopsy of the brain in
favor of Dr. Ringer, and further found that "if Dr. Ringer were trying to mislead or deceive
[appellants], he would not have requested an autopsy at all." (R. 90, at 3-4.)
{¶ 45} As we stated in Romano's Carryout, Inc. v. P.F. Chang's China Bistro, Inc.,
196 Ohio App.3d 648, 2011-Ohio-4763, ¶ 7 (10th Dist.):
Under the manifest-weight-of-the-evidence standard, when
competent, credible evidence exists supporting the findings
and conclusions of the trial court, an appellate court must
affirm the trial court's judgment. Myers v. Garson (1993), 66
Ohio St.3d 610, 614, 614 N.E.2d 742. The manifest-weight-of-
the-evidence standard requires an appellate court to presume
that the findings of a trier of fact are correct. State v. Wilson,
113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24;
Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80,
461 N.E.2d 1273. This presumption arises because the trier of
fact, who can observe the witnesses' demeanor, gestures, and
voice inflections, is best able to weigh and judge the credibility
of the proffered testimony. Id. Consequently, an appellate
court cannot reverse a decision simply because it holds a
different opinion regarding the credibility of the witnesses and
evidence before the trial court. Wilson at ¶ 24; Seasons Coal
Co. at 81, 461 N.E.2d 1273.
Despite Mr. Siegel's insistence that he had asked for an autopsy of Jessica's brain, and
appellants' argument that his consent required nothing less than a complete autopsy, the
No. 14AP-279 22
testimony of Smith, Drs. Beckman and Ringer on the circumstances resulting in a limited
autopsy provided competent, credible evidence that Dr. Ringer did not act outside the
scope of his employment, with malicious purpose, in bad faith, or in a wanton or reckless
manner.
{¶ 46} In Botkin, we affirmed the Court of Claims' decision that an appellee
physician did not act with malicious purpose, in bad faith, or in a wanton or reckless
manner. We did so under circumstances where an addendum was made to the initial
operative report, deposition testimony provided a reasonable explanation for the
subsequent report, and there was evidence that the appellee had no part in the creation of
that document. Id. at ¶ 20. In Botkin, the appellants' attorney sought to raise the
inference that the later report was part of a broader scheme by others, including the
appellee physician, to falsify records and conceal the original report. Here, appellants
similarly maintain that Dr. Ringer's failure to arrange for a complete autopsy at the
hospital or by the coroner was part of a plan and "cover up" by Dr. Ringer.
{¶ 47} Beyond insinuation, appellants did not identify what they believe Dr. Ringer
was attempting to conceal. Taking into account the Court of Claims' decision to not limit
discovery as to appellants' fraud and spoliation claims, appellants could have presented
one or more expert witnesses or other medical evidence to establish that a full autopsy
could have revealed what was not already apparent from the pre-death brain imaging
studies and other records available to them. Dr. Ringer has maintained that the
hematoma and increased intracranial pressure did not cause Jessica's death. Yet,
appellants seem to make the assertion that, had the autopsy ordered included an analysis
of Jessica's brain, it could have shown evidence of malpractice beyond what may be
gathered already from the records and imaging studies. Appellants appear to contend
that Dr. Ringer was at fault for the hematoma and increased intracranial pressure, but
they did not establish before the Court of Claims that avoiding an autopsy may have
concealed that these conditions proximately caused death. Nor did they offer evidence to
rule out that already existing records relating to Jessica's brain in the form of imaging
studies conducted in the course of Jessica's treatment failed to fulfill the purpose that an
autopsy would, toward proving their allegations that Dr. Ringer's conduct was such to
prevent a finding of immunity.
No. 14AP-279 23
4. Finding of Immunity Supported by Competent and Credible
Evidence
{¶ 48} "When presented with a manifest weight of the evidence argument, an
appellate court will not overturn a judgment which is supported by some competent,
credible evidence going to all essential elements of the case." Norman v. Ohio State Univ.
Hosps., 116 Ohio App.3d 69, 73 (10th Dist.1996), citing C.E. Morris Co. v. Foley Constr.
Co., 54 Ohio St.2d 279 (1978), syllabus. As we further discussed in Young:
Under this standard of review, the appellate court weighs the
evidence in order to determine whether the trier of fact
"clearly lost its way and created such a manifest miscarriage of
justice that the [judgment] must be reversed and a new trial
ordered ." Caldwell v. Ohio State University, Franklin App.
No. 01AP-997, 2002-Ohio-2393, at ¶ 56, quoting State v.
Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. A
judgment is not against the manifest weight of the evidence
merely because inconsistent evidence was presented at trial.
Cf. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-
958, at ¶ 21. The appellate court must bear in mind the trier of
fact's superior, first-hand perspective in judging the demeanor
and credibility of witnesses. Caldwell, supra; see, also, State v.
DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph
one of the syllabus. The power to reverse on manifest weight
grounds should only be used in exceptional circumstances,
when "the evidence weighs heavily against the [judgment]."
Caldwell, supra, quoting Thompkins, supra, at 387, 678
N.E.2d 541.
Id. at ¶ 25. Evidence at the hearing sufficed to support the magistrate's findings and
recommendations, adopted by the Court of Claims, that Dr. Ringer was a state employee,
acting on behalf of the state and within the scope of his employment, and did not act with
malicious purpose, in bad faith, or in a wanton or reckless manner during his treatment
and care of Jessica.
{¶ 49} In summary, the testimony of Dr. Beckman and Smith, along with Dr.
Ringer's testimony, supported the finding that Dr. Ringer's purpose in requesting the
autopsy, however limited, was to determine the cause of Jessica's death. In addition to
Dr. Ringer's testimony, Dr. Levine's discharge summary supports the finding that the
coroner's office was contacted but declined to perform an autopsy. The imaging studies
and other hospital records documented the condition of Jessica's brain during her
No. 14AP-279 24
treatment by Dr. Ringer. Appellants did not establish what information a brain autopsy
would have yielded additionally to show a diversion from protocol and post-mortem
activity to place his actions outside the scope of his employment, let alone find clear
grounds for a finding of malicious purpose, bad faith, or wanton or reckless conduct, as
described in Caruso and Anderson to justify reversal. We cannot conclude that the
evidence weighs heavily against the judgment that Dr. Ringer is entitled to civil immunity.
The sixth assignment of error is overruled.
E. Appellants' Claim of Non-disclosure of Facts Affecting Immunity
{¶ 50} Finally, in the tenth assignment of error, appellants claim that the finding of
immunity was erroneous because Dr. Ringer did not disclose the details and
consequences of his state employee status and immunity. In Fisher, we held that
"whether appellant was informed and/or consented to [the physician] treating her as a
'loaned servant,' [is] irrelevant to the determination of whether [the physician] was
employed by the state pursuant to R.C. 2743.02(F)." In Schultz, we rejected the assertion
that since he was never informed of the physician's state employment, the plaintiff could
not have consented to be treated by a state employee. Id. at ¶ 46. As to the legal
ramifications, including civil immunity for state employees, "[i]t is an ancient maxim that
all are conclusively presumed to know the law." State v. Pinkney, 36 Ohio St.3d 190, 198
(1988).
{¶ 51} In this matter, appellants' counsel unfortunately formulates the charges
more audaciously (though without legal explication) as false and misleading
misrepresentations, and failure to disclose a claimed unnamed principal insofar as Dr.
Ringer was employed by the state while treating his patient at a hospital that was not
owned by the state. In Lowry, we rejected the suggestion that similarly uninformed
plaintiffs were deprived of their First Amendment right of redress on the basis that they
were still afforded the opportunity to pursue their claims against state entities.
{¶ 52} Appellants identify no legal or evidentiary basis for a duty to disclose the
facts of the physician's status as a state employee. We reiterate that information received
by appellants regarding Dr. Ringer's employee status is irrelevant to the determination of
the Court of Claims as to immunity, that is, whether he actually was a state employee and
acting on behalf of the state when the patient was alleged to have been injured. As we
No. 14AP-279 25
have found in our review of other assignments of error, appellants are unable to point to
evidence that malice, bad faith, a failure to exercise any care at all (wanton misconduct),
or conscious disregard of or indifference to a known or obvious risk of harm
(recklessness) lay behind their not being specifically informed of his employment status.
See Wrinn at ¶ 12-13. Despite their further remonstrance that Dr. Ringer never informed
Mr. Siegel that he could obtain the test for malignant hyperthermia but still request an
autopsy of the brain, and that Dr. Ringer did not disclose to the Siegels that he limited the
autopsy in any way, the record contains ample support for the conclusion that appellants
were unable to prove at the Court of Claims, and in our review of that court's decision,
that Dr. Ringer acted outside the scope of his employment, with malicious purpose, in bad
faith, or in a wanton or reckless manner during his care and treatment of Jessica.
Appellants' tenth assignment of error is overruled.
III. CONCLUSION
{¶ 53} We thus overrule appellants' ten assignments of error, and the judgment of
the Court of Claims of Ohio is affirmed.
Judgment affirmed.
CONNOR, P.J., concurs.
DORRIAN, J., concurs in judgment only.