John Norman, Individually and as Executor of the Estate of Sandy Norman v. the Ohio State University Hospitals, 96-LW-5551
| Decision Date | 03 December 1996 |
| Docket Number | 96API04-403,96-LW-5551,96API04-404 |
| Parties | John Norman, Individually and as Executor of the Estate of Sandy Norman, Deceased, Plaintiff-Appellee, v. The Ohio State University Hospitals, Defendant-Appellant. John Norman, Individually and as Executor of the Estate of Sandy Norman, Deceased, Plaintiff-Appellant, v. The Ohio State University Hospitals, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Wolske & Blue, and Walter J. Wolske, for plaintiff.
Emens, Kegler, Brown, Hill & Ritter, William J. Brown, R. Kevin Kerns and Karl W. Schedler, for defendant.
Jacobson, Maynard, Tuschman & Kalur, Karen L. Clouse, Gayle E. Arnold and Maurice N. Milne, III, for Donald K. Bryan, M.D.
APPEALS from the Ohio Court of Claims.
Plaintiff-appellant, John Norman, individually and as the executor of the estate of his spouse, Sandra K. Norman, and defendant-appellant, The Ohio State University Hospitals ("University Hospitals"), appeal separately from a judgment of the Ohio Court of Claims finding that Donald K. Bryan, M.D. ("Dr. Bryan"), was acting within the scope of his employment with University Hospitals when he treated Sandra Norman, thus rendering University Hospitals liable and Dr. Bryan personally immune from suit under R.C. 9.86 and 2743.02(F) for medical malpractice allegedly committed in the course of that treatment.
On the evening of Saturday, December 10, 1988, Sandra Norman was admitted to University Hospitals' clinic in labor. The clinic provides medical care to the public and is staffed by residents; however, because residents have not completed their post-doctoral education, they must be supervised by physicians who are fully accredited in their respective areas of specialization. At the time of Norman's admission to the clinic, Dr. Bryan, a board certified obstetrician/gynecologist ("OB/Gyn"), was the supervising OB/Gyn on call in the clinic. Dr. Bryan is employed by University Hospitals as an assistant clinical professor in University Hospitals' OB/Gyn department, and maintains a successful private practice.
Norman's pregnancy was complicated by the fact that she was partially paralyzed and had very limited breathing capacity as a result of having had polio. Consequently, Ann Wurst, M.D. ("Dr. Wurst"), the chief OB/Gyn resident on duty took charge of her case. Dr. Wurst was familiar with Norman's condition, as Norman had been seen regularly in the clinic during her pregnancy. Dr. Wurst notified Dr. Bryan of Norman's admission, briefed him on her condition, and presented him with a treatment plan which called for Norman to deliver her baby vaginally. Dr. Bryan approved the treatment plan.
During the early morning hours of December 11, 1988, Dr. Bryan was notified by Dr. Wurst that Norman was having trouble delivering her baby vaginally. After examining Norman, Dr. Bryan determined that it would be necessary for Dr. Wurst to deliver Norman's baby by cesarean section. During the course of the cesarean section, Dr. Wurst experienced difficulty in removing the baby from Norman's uterus and requested assistance from Dr. Bryan. Dr. Bryan temporarily took charge of the procedure and delivered the baby. Subsequently, Norman was transferred to intensive care where she died on December 25, 1988.
On May 24, 1990, plaintiff filed a medical malpractice action against Dr. Bryan and others in the Franklin County Court of Common Pleas. On that same date, plaintiff filed an action based upon the same conduct against University Hospitals in the Ohio Court of Claims. Subsequently, plaintiff's action in the court of common pleas was stayed pending a determination by the Court of Claims regarding whether Dr. Bryan is immune for his alleged malpractice in treating Norman.
On March 4, 1994, the Court of Claims scheduled a non-oral hearing to determine whether Dr. Bryan is entitled to immunity. On June 17, 1994, Dr. Bryan filed a motion in the Court of Claims requesting an evidentiary hearing on the issue of his immunity. The Court of Claims overruled Dr. Bryan's motion, noting that he was "not a party" to plaintiff's action in the Court of Claims. Nevertheless, on December 15, 1994, and September 29, 1995, the Court of Claims held an evidentiary hearing to determine whether Dr. Bryan was immune. As there was no allegation that Dr. Bryan had acted with malicious purpose, in bad faith, or in a wanton or reckless manner in treating Norman, the sole issue for the Court of Claims was whether Dr. Bryan was within the scope of his employment with University Hospitals when he treated Sandra Norman.
On February 29, 1996, the Court of Claims issued a decision wherein it found that Dr. Bryan was acting within the scope of his employment when he treated Norman. Accordingly, the court concluded that Dr. Bryan is immune from suit for his treatment of Norman pursuant to R.C. 9.86 and 2743.02(F). Plaintiff appeals therefrom assigning the following error:
"The Trial Court Erred To The Substantial Prejudice Of Plaintiff-Appellant In Ordering That Donald K. Bryan, M.D., Is Entitled To Civil Immunity Pursuant To R.C. §9.86 And §2743.02(F)."
University Hospitals appeals therefrom assigning the following error:
"The Trial Court erred in granting Appellee civil immunity pursuant to Sections 9.86 and 2743.02(F), Ohio Revised Code."
Prior to addressing the parties' assignments of error, we must consider plaintiff's motion to strike all reference to Dr. Bryan as "appellee" in University Hospitals' brief and to prohibit Dr. Bryan from filing a brief in this appeal. Essentially, plaintiff argues that, because Dr. Bryan was not a party to the proceedings in the Court of Claims, he should not be permitted to participate in the appeal from those proceedings.
Although the Court of Claims held that Dr. Bryan was not a party to the proceedings therein, the court nonetheless permitted Dr. Bryan to present evidence and to examine and cross-examine witnesses during the evidentiary hearing on the question of his immunity. Loc.R. 4.1 of the Ohio Court of Claims provides in relevant part as follows:
Regardless of whether the Court of Claims properly determined that Dr. Bryan was not a party to the immunity determination, he was permitted to participate therein as a party. Having partici-pated in the proceeding from which this appeal is taken, Dr. Bryan is entitled to participate in the appeal. Plaintiff's motion is overruled.
Although plaintiff and University Hospitals have each raised a separate assignment of error, the crux of both is that the Court of Claims' finding that Dr. Bryan was within the scope of his employment when he treated Norman is against the manifest weight of the evidence. Therefore, we will address these two assignments together.
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. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus.
Pursuant to R.C. 9.86 and 2743.02(F), a state employee may be entitled to personal immunity for ordinary negligence. R.C. 9.86 provides:
R.C. 2743.02(F) provides in relevant part:
"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 his 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, which 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."
Beginning with Katko v. Balcerzak (1987), 41 Ohio App.3d 375, this court began outlining a framework for addressing "scope of employment" cases involving physicians who hold faculty positions at state universities while, also, maintaining private medical practices. In Katko, plaintiff appealed from a grant of summary judgment holding that Dr. Stanley Balcerzak, a member of University Hospitals' faculty who also maintained a private medical practice through a medical partnership, was within the scope of his employment with University...
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