Sheila Ann Kaiser, Administrator of Theestate of William E. Kaiser v. John B. Flege, M.D., and University of Cincinnati Hospital
| Decision Date | 22 September 1998 |
| Docket Number | 98-LW-5261,98AP-146 |
| Parties | Sheila Ann Kaiser, Administrator of theEstate of William E. Kaiser, Deceased, Plaintiff-Appellee, v. John B. Flege, M.D., and University of Cincinnati Hospital, Defendants-Appellants |
| Court | Ohio Court of Appeals |
APPEAL from the Ohio Court of Claims.
Wolske & Blue, Richard H.H. Troxell and Walter J. Wolske, Jr., for appellee.
Reminger & Reminger Co., and Stephen P. O'Keefe, for appellants.
John B. Flege, M.D., defendant-appellant, appeals from the judgment of the Ohio Court of Claims.[1] The Court of Claims determined that appellant was not entitled to personal immunity pursuant to R.C. 2743.02(F) and R.C. 9.86 for medical malpractice allegedly committed while he treated William E. Kaiser ("decedent"). We affirm.
In August 1985, decedent was referred to the University of Cincinnati Medical Center ("UC Medical Center") for heart bypass surgery. See Kaiser v. Flege (May 8 1991), Hamilton App. No. C-900231, unreported. After being admitted to UC Medical Center, decedent came under the care of appellant. Appellant performed the surgery on August 13 1985. Because of complications caused by the surgery, decedent developed adult respiratory syndrome and died on September 15, 1985.
Sheila Ann Kaiser, plaintiff-appellee and administrator of decedent's estate, filed a medical malpractice action against appellant. Appellant asserted that, because of his employment through UC Medical Center, he was personally immune because he was a state employee pursuant to R.C. 2743.02 and 9.86. On December 4, 1997, the Court of Claims held a hearing and addressed the issue of immunity under R.C. 2743.02(F). On January 9, 1998, the Court of Claims issued a decision holding that appellant was not entitled to personal immunity under R.C. 2743.02 and 9.86. The trial court found that appellant did not act within the scope of his state employment because he did not render medical services to decedent as an employee of UC Medical Center. Appellant appeals this judgment and presents the following assignment of error:
Appellant argues that his actions were not outside the scope of his employment at UC Medical Center and, therefore, he is entitled to immunity pursuant to R.C. 2743.02 and 9.86. A trial court's determination of whether or not a state employee was within the scope of his or her employment will not be overturned by an appellate court if it is "supported by some competent, credible evidence going to all essential elements of the case." Norman v. Ohio State Univ. Hosp. (1996), 116 Ohio App.3d 69, 73, 78, following C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus.
R.C. 9.86 states in part:
"*** [N]o officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer's or employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner."
A claimant may file a civil action in the Court of Claims for a determination of whether a state employee is entitled to personal immunity under R.C. 9.86 and whether the courts of common pleas have jurisdiction over the civil action. Fisher v. Univ. of Cincinnati Med. Ctr. (Aug. 25, 1998), Franklin App. No. 98AP-142, unreported (1998 Opinions 3065), following R.C. 2743.02(F).
The Ohio Supreme Court has stated:
Conley v. Shearer (1992), 64 Ohio St.3d 284, 287.
The two major determining factors to be used in finding whether a physician was acting outside the scope of his or her employment for a state university hospital are: (1) whether the patient was a private patient of the physician, rather than a patient of the university; and (2) the university's financial gain from the medical treatment at issue relative to the physician's financial gain therefrom. Norman, at 77.
In the present case, the following evidence was presented to the trial court concerning appellant's scope of his employment. Appellee testified that, in 1985, Dr. Bennett Werner, decedent's doctor in Wheeling, West Virginia, recom-mended that decedent should immediately have coronary bypass surgery performed after he had failed a stress test. Appellee also testified that they could have chosen which doctor to perform the surgery, but they chose Dr. Engel based upon a recommendation from Dr. Werner. Decedent was thereafter transported from Wheeling to Cincinnati by ambulance. Appellee testified that, after arriving at UC Medical Center, Dr. Engel told them that there was a "group of surgeons that operated there" and that appellant "would be the surgeon."
Decedent was billed by University Surgical Group of Cincinnati, Inc. ("USGC"), which is affiliated with UC Medical Center, and his hospital expenses were paid through his private medical insurance. Appellant testified that USGC was a corporation to administer a practice plan for doctors. Appellant further testified that the purpose of USGC was to provide: (1) billing services; (2) the use of facilities at UC Medical Center, which included secretaries, telephones and offices; and (3)...
To continue reading
Request your trial