The Court of Appeals of Ohio Third Appellate District Allen County (“Ohio Appellate Court”), in its decision filed on February 20, 2018, held that the defendant hospital in an Ohio medical malpractice case had waived its right to arbitrate the plaintiff’s medical malpractice claims against it.
The Ohio medical malpractice plaintiff, individually and as the executor of his deceased wife’s estate, filed a complaint against sixteen defendants on November 29, 2016, alleging claims of wrongful death, loss of consortium, and a survival claim for his wife’s pain and suffering prior to her death on December 2, 2015.
The Alleged Facts
The plaintiff’s wife was admitted to the defendant hospital on October 6, 2015 following her surgery. The Ohio medical malpractice complaint alleged that the defendants were negligent in their treatment of the plaintiff’s wife, which caused her to suffer permanent and substantial injuries, to endure agonal pain and suffering, and to no longer be able to independently perform life sustaining functions, which required intensive medical care and treatment.
On December 27 and 28, 2016, the defendant hospital and the other appellants filed their answers to the Ohio medical malpractice complaint raising numerous affirmative defenses and specifically asserting that the plaintiff’s claims were subject to a binding arbitration agreement requiring the trial court proceedings to be stayed, as well as asserting that the case had been filed in an improper venue.
On January 11, 2017, the appellants filed a motion to transfer venue to Allen County, where the alleged conduct of the appellants giving rise to the medical malpractice claims occurred. The Cuyahoga County trial court granted the appellants’ motion to transfer venue, and transferred the case to Allen County.
On August 24, 2017, the appellants filed a Motion to Stay Proceedings and Compel/Enforce the Alternative Dispute Resolution. On September 13, 2017, the trial court overruled the appellants’ motion to stay the proceedings and compel arbitration. The appellants subsequently filed their appeal.
The Ohio Appellate Court Decision
The Ohio Appellate Court stated that the parties conceded that the wrongful death claim and loss of consortium claims are not subject to the arbitration agreement. Therefore, the only issue before the Ohio Appellate Court was whether the trial court erred in concluding that the appellants waived their right to arbitration of the survival claim asserted by the estate.
The Ohio Appellate Court stated that a party asserting waiver must prove that the waiving party knew of the existing right to arbitrate and, based on the totality of the circumstances, acted inconsistently with that known right. In determining whether the totality of the circumstances includes actions inconsistent with the right to arbitrate, a court may consider: (1) whether the party seeking arbitration invoked the court’s jurisdiction by filing a complaint or claim without first requesting a stay, (2) the length of the delay, if any, in seeking arbitration, (3) the extent to which the party seeking arbitration has participated in the litigation, and (4) whether prior inconsistent acts by the party seeking arbitration would prejudice the party asserting waiver.
In the case it was deciding, the Ohio Appellate Court stated that the parties do not dispute that the appellants knew of their right to arbitrate. In addressing whether the appellants acted inconsistently with their known right, the Ohio Appellate Court held that considering the totality of the circumstances in this case, the trial court’s decision with regard to the appellants’ right to arbitrate is not unreasonable, arbitrary, or unconscionable: the appellants (1) failed to abide by its own terms set forth in the Arbitration Agreement, which required that “[t]he Arbitration shall convene not later than sixty (60) days after the conclusion or termination of mediation,” which the record indicates occurred on June 29, 2016, (2) invoked the trial court’s jurisdiction by filing a motion to transfer venue, despite referencing arbitration in its answer and without first requesting a stay of the litigation, and (3) waited nearly eight months before filing the motion for a stay after they filed their answer and successfully transferred the case to Allen County.
The Ohio Appellate Court found it compelling that there are eleven other defendants in the case whom the record suggests have continued to work towards a resolution on the same claims based upon the same facts asserted against the appellants through the judicial proceedings with the plaintiff in Allen County.
The Ohio Appellate Court held that the record indicates that enforcement of the arbitration agreement, assuming it to be valid, would engender contemporaneous proceedings in two different forums not only with respect to the non-arbitrable claims, but also with respect to the multiple parties involved in the case.
Source Goerlitz v. SCCI Hospitals of America, Inc., 2018-Ohio-633.
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