^^.^ 31^a^1 IN THE SUPREME COURT OF OHIO CASE NO. JAMES W. SCHULTZ And JULIE SCHULTZ Plaintiffs-Appellants On Appeal from the V. Tenth Appellate District No. 09AP-900 UNIVERSITY OF CINCINNATI College of Medicine, Defendant-Appellee --- ----------- APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION Respectfully submitted, lohn ITfIVIetz [O)Yro)t#0019039] 1117 Edwards Ro Cincinnati, Ohio 45208-3412 (513) 321-8844 JUN 2,4 2010 Fax: (513) 321-6389 e-mail: [email protected] CLERK OF COIiHT Attorney for Plaintiffs-Appellants LSU2RE9GOURT OF 0HI0 Opyosing Counsel: Brian M. Kneafsey, Jr., [#00614411 James P. Triona [#00142721 Asst. Attorney General 2021 Auburn Avenue Court of Claims Defense Section Cincinnati, Ohio 45219 150 E. Gay Street, 18th Floor (513) 576-1060 Columbus, Ohio 43215 Fax: (513) 576-8792 (614) 466-7447 Fax: (614) 644-9185 jtrionana tcl-law.net bkneafseynn ae.state.oh.us Personal Counsel -Dr. Dunsker Attorney for defendants-appellees TABLE OF CONTENTS AND PROPOSITIONS OF LAW L WIIY THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION AND WHY IT IS PUBLIC OR GREAT GENERAL INTEREST ........................................................................... 1 A. PROCEDURAL POSTURE ....................................................... 6 B. STATEMENT OF THE FACTS .................................................. 7 U. ARGUMENT ... ..... .... ...... ........ .......... ... ............ ...... ............ .... 8 PROPOSITION OF LAW NO.1 ................................................................8 1. In making a determination of "immunity" the Court of Claims must consider the entire set of circumstances including any admissions by the defendant. 2. When a state employee swears that his activity which brought about a lawsuit against them is "outside activity" from their State employment, they cannot disavow such sworn representation and claim immunity pursuant to ORC 9.86. PROPOSITION OF LAW NO. 2 ................................................................9 Statements by an attorney concerning a matter within his employment are admissible and binding admissions as to that party. Hake v. Geo. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 262 N.E.2d 703........9 United States v. McKeon, 738 F.2d 26, 30 (2"a Cir. 1984) .....................................9 Civil Rule I ...........................................................................................9 PROPOSITION OF LAW NO. 3 ...............................................................10 It may be possible for a employee to be acting on behalf of two employers, but "on whose behalP" he was working at the time he committed the tort determines responsibility. Kelley v. Rossi, 395 Mass. 659, 481 N.E.2d 1340 (1985) ....................................10 Lattea v. Citv ofAkron, 9 Ohio App.3d 118 ....................................................10 Smith v. SteinberQ, 481 N.E.2d 1344, 395 Mass. 666 (1985) .................................10 PROPOSITION OF LAW NO. 4 ...........................................................10 1. The Ohio Court of Claims Act and Theobald create an unconstitutional denial of Due Process and Equal Protection of the laws under the Ohio and U.S. Constitutions. 2. The fundamental right to trial by jury cannot be abridged by subterfuge, non-disclosure or implied waiver. Byers v. Printine Co. (1911), 84 Ohio St. 408 ..................................................11 O.R.C. 2743 (Ohio Court of Claims Act) . ......................................................11 Ohio State Constitution, Article I, § 5 [Trial by Jury]; Article I, § 16 [Open Courts].....11 United States Constitution Amend. VII [Right of trial by jury] and XIV [due process] and the right to "equal protection" Article I, Section 2 of Ohio Constitution and U.S. Constitutional Amendment XIV] .................................................................11 PROPOSITION OF LAW NO. 5 ..............................................................12 A statute of limitations does not begin to run as against a specific defendant until the patient discovers the identity or existence of that defendant. Akers v. Alonzo (1992), 65 Ohio St.3d 422, 605 N.E.2d 1 .................................12 PROPOSITION OF LAW NO. 6 .............................................................12 When a physician does not disclose his employment status with the State of Ohio to a patient which works a denial of their trial by jury such consent is not "informed" and is invalid and a breach of contract between the patient and doctor. Heffern v. University of Cincinnati (Court of Claims #C-1998-02988; 8/14/2000 judgment) ...................................12 Schloendorv. Society ofNew YorkHospital (1914), 211 N.Y. 125, 105 N.E. 92.......13 Hayes v. The Oakrfdge Home, 122 Ohio.St.3d 63, 2009-Ohio-2054 . ......................13 ii See Section 10, Clause 1, Article I, United States Constitution; Section 28, Article II, Ohio Constitution ......................................................13 42 U.S.C. §1983 ...................................................................................13 PROPOSITION OF LAW NO. 7 ............................................................13 When a physician does not disclose his principal to a third party, the physician himself is liable for any negligence, not the undisclosed principle. James G. Smith & Associates, Inc. v. Everett (1981), 1 Ohio App.3d 118...........13 Davis v. Harness (1882), 38 Ohio St. 397 .................................................13 PROPOSITION OF LAW NO. 8 ............................................................14 A statute that confers "special privileges or immunities" upon one class of persons to the exclusion of other Citizens is unconstitutional. Amendment XIV. Rights Guaranteed: Privileges and Immunities of Citizenship, Due Process, and Equal Protection ... 14 Ohio Revised Code § 109.36 (A)(1) ......................................................14 PROPOSITION OF LAW NO. 9 ...........................................................14 A court decision that announces a new legal principle should not be applied retroactively to extinguish vested legal rights then existing. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 .....................15 DiCenzo v. A-Best Products Company, Inc. 120 Ohio St.3d 149 2008-Ohio-5327, 897 N.E.2d 132. 2008-Ohio-5327 .................................15 Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 129 N.E.2d 467 ...................15 III. CONCLUSION .....................................................................15 IV. CERTIFICATE OF SERVICE ................................................. 16 iii V. APPENDIX Tenth District Court of Appeals Decision (May 11, 2010) Tenth District Court of Appeals Judgment Entry (May 11, 2010) Court of Claims Decision (Sept. 1, 2009) iv WI3Y THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION AND WHY IT IS PUBLIC OR GREAT GENERAL INTEREST Theobald v. University of Cincinnati. (2006), 111 Ohio St.3d 541. The Ohio Supreme Court's decision of Theobald v. Universitv of Cincinnati. (2006), 111 Ohio St.3d 541, 857 N.E.2d 573, held that in determining "immunity" the Court of Claims must determine: 1) whether the practitioner is a state employee; and 2) was acting on behalf of the state when the patient was alleged to have been injured. This case presents this court with an important new factual issue which was not factually presented to this court previously which may have previously misled this court in permitting wrongdoers to have the taxpayers pay for their negligence while all the time keeping any profits from private surgeries. The application of Theobald has worked a great injustice to many Ohio citizens who are victims of malpractice. Theobald's elimination of the due process rights of patients is of public and great general interest as is evidenced by the news organizations interest in bringing this situation to the public. (I-Team Preview: "Suit- Proof Physicians"; http://www.wcpo.com/dpp/news/local_news/investigations/I- Team%3A-Suit-Proof-Physicians). Unlike the prior caselaw in this case, this record includes an affidavit wherein the defendant physician swears to the University of Cincinnati that his clinical medical services were an "outside activity." In fact Defendant Exhibit D: "University of Cincinnati - Annual Renort of Outside Activity for Full-time Faculty" a form required to be filled-out by State employees is most telling. It states: "Summary of all outside activity (Please list and briefly describe. Include the organization or person for whom the activity was performed, an estimate of the total time spent over what period, and any use of University resources. Use extra sheets, if necessary.): 1 "From September 1, 1996 through August 31, 1997, I performed [sic] at various times clinical medical services for which I am licensed on behalf of the Mayfield Clinic, the practice plan corporation in conjunction with the Department of Neurosurgery. If substantial University resources were used, what provisions were employed for compensatory/reimbursement? "Any necessary reimbursement was handled between the Mayfield Clinic and the University of Cincinnati, College of Medicine." It is understood that activities listed did not interfere with my obligation to the University as a full-time faculty member, that there were in accordance with Rule 3361:30-21-02 of the Board of Trustees as distributed annually, and that it does not violate the Oho Ethics Law found in ORC 2921.42 and 2921.34." Not only does