Opinion
No. 82-1720
Decided July 13, 1983.
Physicians — Malpractice — Arbitration — Mandamus to compel trial judge to vacate order referring "medical claim" to arbitration — R.C. 2711.21 — Writ properly denied, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Relator-appellant, Alejandro Juguilon, M.D., is the defendant in a medical malpractice action pending in the Court of Common Pleas of Cuyahoga County, and assigned to respondent-appellee, Judge Fred J. Guzzo.
On June 14, 1982, appellee referred the medical malpractice action to arbitration pursuant to R.C. 2711.21. Appellant and the plaintiff in the pending action filed objections to appellee's order referring the case to arbitration. On June 30, 1982, the objections were overruled. The parties were subsequently notified of a date for hearing before an arbitration panel.
Appellant then brought this action in mandamus in the Court of Appeals for Cuyahoga County seeking the issuance of a writ to compel appellee to vacate his order referring the matter to arbitration and to schedule it for jury trial.
The court of appeals dismissed appellant's complaint and the cause is now before this court upon an appeal as of right.
Mr. Frank J. Kozelka, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Patrick Carroll, for appellee.
A writ of mandamus may issue only where the relator shows (1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to perform the act requested, and (3) that relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Butler, v. Demis (1981), 66 Ohio St.2d 123, 124 [20 O.O.3d 121]; State, ex rel. Akron Fire Fighters, v. Akron (1978), 54 Ohio St.2d 448, 450 [8 O.O.3d 443].
The underlying civil action was referred to arbitration pursuant to R.C. 2711.21 (A) which provides, in part: "Upon the filing of any medical claim as defined in division (D)(3) of section 2305.11 of the Revised Code, the controversy shall be submitted to an arbitration board consisting of three arbitrators to be named by the court. * * *" Appellant concedes that the pending action is a "medical claim" as defined in R.C. 2305.11 (D)(3). R.C. 2711.21 (A) imposes no duty upon appellee to dispense with arbitration and to proceed to trial.
Accordingly, the judgment of the court of appeals dismissing the complaint in mandamus is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.