Newton v. Ohio Univ. School of Osteopathic Medicine, s. 93AP-818

• Decision Date: 23 November 1993
• Docket Number: 93AP-841,Nos. 93AP-818,s. 93AP-818
• Citation: 633 N.E.2d 593,91 Ohio App.3d 703
• Parties: , 91 Ed. Law Rep. 294 NEWTON, Admr., et al., Appellants, v. OHIO UNIVERSITY SCHOOL OF OSTEOPATHIC MEDICINE; Seifer, Appellee.
• Court: Ohio Court of Appeals

Page 703

91 Ohio App.3d 703

633 N.E.2d 593, 91 Ed. Law Rep. 294

NEWTON, Admr., et al., Appellants, v. OHIO UNIVERSITY SCHOOL OF OSTEOPATHIC MEDICINE; Seifer, Appellee.

Nos. 93AP-818, 93AP-841.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Nov. 23, 1993.

Dwight D. Brannon & Assoc. and Dwight D. Brannon, Dayton, for appellants.

Lee Fisher, Atty. Gen., Susan M. Sullivan, Catherine M. Cola and Susan C. Walker, Asst. Attys. Gen., for appellee.

TYACK, Judge.

In 1988, the Ohio University School of Osteopathic Medicine, the Ohio University Osteopathic Medical Center, Inc., and William J. Seifer, D.O., entered into an arrangement under the terms of which Dr. Seifer would provide direct care for obstetrics and gynecology patients; would supervise interns, residents and medical students at a private hospital; and would prepare appropriate reports and other paperwork. Much of the work was to be performed at the private hospital, Grandview Hospital and Medical Center. The interns and residents were employees of the hospital. Some of the work was performed at an affiliated clinic run by Lebanon Family Practice Physicians, Inc., in Lebanon, Ohio.

On March 7, 1990, Tammy R. Newton first saw Dr. Seifer at the clinic managed by Lebanon Family Practice Physicians, Inc. Tammy was pregnant for the third time. She was expecting twins. Her "due date" was in late July 1990.

Tammy was monitored by Dr. Seifer from the March appointment onward. A series of ultrasounds were done. An ultrasound conducted on July 9, 1990 indicated that both twins were in transverse lie, meaning the lie of the fetus is perpendicular to the lie of the maternal abdomen.

Newton went into false labor on more than one occasion and was sent home from Grandview Hospital without delivering. On July 14, 1990, she presented herself to the hospital and was found to be in labor. Her care was initially monitored by staff from Grandview Hospital, including Cathy Coats, D.O., who was a first-year resident under the supervision of Dr. Seifer.

Attempts were made to contact Dr. Seifer on the afternoon of July 14, 1990, but he was either unavailable or unwilling to come to the hospital because he was participating in a golf tournament. After he became aware of Newton's presence at the hospital and apparently after his participation in the golf tournament was completed, Dr. Seifer went to the hospital to evaluate the situation. An ultrasound was conducted, followed by two flat plate x-rays. The results of the ultrasound and the x-rays are subject to varying recollection by different professionals. Dr. Coats later recalled one of the x-rays as showing that one twin was in a frank breech position and the other twin was in a transverse lie. These positions were noted in the hospital records at 9:25 p.m., on July 14, 1990.

Dr. Seifer left the hospital and went to dinner. He then engaged in other activities and, at approximately 2:00 a.m., he returned to the hospital. Newton had not yet delivered either twin. Dr. Seifer later claimed that at least one of the x-rays indicated that the first twin was in a breech position. The second twin he claimed was in a cephalic, or headfirst, position.

Dr. Seifer, although he was over sixty years of age and had spent many years as an OB/GYN, had never delivered a child by Caesarean section. Indeed, he claimed that he was incapable of performing a Caesarean section and that he was not licensed to perform the operation. As a result, he had entered into an agreement with physicians at Grandview Hospital that a surgeon or other physician capable of performing a Caesarean section would be on call to respond as his backup should a Caesarean section need to be performed. Under the agreement, the backup surgeon or physician was to respond to the hospital not later than thirty minutes after being summoned. No provision was made for a "crash" or immediate Caesarean section.

The delivery of twins involves risks which are not present in situations involving a single fetus. One of the risks is that after the delivery of the first twin, the changes in the uterus which follow may cause the placenta, which surrounds the second twin, to separate partly or totally from the uterine wall. This separation, known as an abruption, causes blood and oxygen which flows down the umbilical cord from the mother to the fetus to be reduced or, in the worst case, to be cut off completely. The fetus then can go immediately into acute fetal distress. A lack of oxygen soon causes brain cells to die, leading to serious harm to the fetus and possibly to death.

Dr. Seifer did not arrange for a physician who was capable of performing a Caesarean section to be present before he began trying to extract the first twin, who was in a breech position. Nor did Dr. Seifer request such a physician to deliver both twins by Caesarean section. He also made no effort to have a physician available to perform a crash Caesarean section.

Dr. Seifer proceeded to deliver the first twin. After that twin was delivered, he did not notice that the external fetal monitor which was placed over the second twin was no longer recording any heartbeat. He still made an attempt to deliver the second twin vaginally. During this time frame, he was increasing the doses of Pitocin being administered to Newton.

Despite the 9:25 entry in the hospital records, Dr. Seifer would later claim that he did not know that the second twin was in a transverse lie until the arm of the twin emerged from the uterus (at approximately 2:50 a.m., on July 15, 1990). A fetus in the transverse lie position cannot normally be delivered vaginally and must be delivered by Caesarean section.

Dr. Seifer, after viewing the child's arm, left the delivery room and called the physician who was to be his backup. The backup physician arrived approximately thirty minutes later, but the delivery room was not completely prepared for a Caesarean section. The second twin was delivered by Caesarean section over thirty minutes after the backup physician was summoned and over forty-five minutes after the twin had gone into acute fetal distress as a result of an abruption. The second twin survived for twenty days before dying as a result of the complications attendant to its birth.

On May 22, 1991, Tammy Newton and the other family members filed a lawsuit against Dr. Seifer, Grandview Hospital, Dr. Coats, the physician who finally delivered the second twin and various other parties. The lawsuit was filed in Montgomery County, Ohio, where the hospital is located and where the deliveries occurred.

Dr. Seifer filed a motion asking that he be dismissed from the lawsuit on the theory that he was a full-time employee of the Ohio University School of Osteopathic Medicine and, therefore, a full-time employee of the state of Ohio. As a result, he alleged, he was immune from suit.

The trial court in Montgomery County sustained the motion, ruling that the lawsuit could not proceed until the Ohio Court of Claims had made a final determination as to whether Dr. Seifer was immune.

The Newton family then filed a lawsuit against Dr. Seifer and the Ohio University School of Osteopathic Medicine in the Court of Claims. The Ohio Court of Claims eventually found that Dr. Seifer was immune and that no just cause for delay existed. The family (hereinafter "appellants") have now pursued an appeal to this court, assigning six errors for our consideration:

"1. The Court of Claims' determination that defendant is entitled to immunity was against the manifest weight of the evidence.

"2. O.R.C. § 2743.02(F) is unconstitutional as it relates to actions and claims for wrongful death that are asserted against state employees and/or entities.

"3. A determination of immunity made by the Court of Claims regarding a state employee is a final appealable order pursuant to O.R.C. § 2505.02 and Civ.R. 54(B).

"4. The procedure of having to first proceed in the Court of Claims, and then proceeding in the court of common pleas, or of having a companion action pending in a court of common pleas stayed pending the Court of Claims outcome, provides an inadequate remedy at law, as it is unduly burdensome, prejudicial, and time consuming, so as to be inherently unfair to tort plaintiffs such as those in the instant action.

"5. The determination by the Court of Claims that defendants are immune from liability is in conflict with and offends the Ohio Rules of Civil Procedure.

"6. The Court of Claims erred procedurally by not providing appellants an opportunity for an evidentiary hearing to make their case that appellees [sic] are not immune from tort liability."

Such other facts as are pertinent will be discussed under the applicable assignment of error.

The third assignment of error sets forth an initial hurdle to be cleared by appellants before the other assignments of error can be addressed. If the judgment entry in the Court of Claims granting immunity to Dr. Seifer is not a final appealable order, then no appeal can be pursued at this time. "Final appealable orders" are defined by R.C. 2505.02 as follows:

"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial.

"When a court issues an order that vacates or sets aside a judgment or grants a new trial, the court, upon the request of either party, shall state in the order the grounds upon which the new trial is granted or the judgment vacated or set aside."

The meaning of R.C. 2505.02 has recently been clarified by the Ohio Supreme Court by its ruling in Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213. The syllabus to the Poliko...