Theobald v. Univ. Of Cincinnati

• Decision Date: 31 March 2005
• Docket Number: No. 02AP-560.,02AP-560.
• Citation: 2005 Ohio 1510,827 N.E.2d 365,160 Ohio App.3d 342
• Parties: THEOBALD et al., Appellees, v. UNIVERSITY OF CINCINNATI, Appellant.
• Court: Ohio Supreme Court

827 N.E.2d 365

160 Ohio App.3d 342

2005 Ohio 1510

THEOBALD et al., Appellees, v. UNIVERSITY OF CINCINNATI, Appellant.

No. 02AP-560.

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

Decided March 31, 2005.

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Douglas C. Holland and James Sullivan, for appellees.

Jim Petro, Attorney General, and Karl W. Schedler, Assistant Attorney General, for appellant.

KLATT, Judge.

{¶ 1} Defendant-appellant, University of Cincinnati ("UC"), appeals from a judgment of the Ohio Court of Claims finding that Frederick A. Luchette, M.D., Jamal Taha, M.D., Harsha Sharma, M.D., and Maureen Parrott, C.R.N.A., were not entitled to personal immunity pursuant to R.C. 9.86 and 2743.02(F). For the following reasons, we reverse the judgment and remand for further proceedings.

{¶ 2} On October 23, 1998, Keith Theobald was involved in a multivehicle collision during which he was thrown from his pickup truck and seriously injured. Theobald was flown to University Hospital, the closest hospital that could handle the high degree of trauma that he had suffered. Dr. Luchette, the attending trauma surgeon, admitted Theobald to the hospital and began identifying his injuries. With the other members of the hospital's trauma team, Dr. Luchette determined that Theobald had upper rib fractures, a lacerated spleen, a right wrist fracture, and fractured vertebrae, resulting in paraplegia.

{¶ 3} Because Theobald had suffered a neurological injury, he was assigned to Dr. Taha, the interim director of the neurotrauma team. The morning after the accident, Dr. Taha and a neurotrauma resident examined Theobald and told him that based upon their initial assessment, he needed immediate surgery on his spine. Due to the extent and complexity of Theobald's spinal injury, Dr. Taha decided to involve Dr. Andrew J. Ringer, the chief resident in neurotrauma, in Theobald's care. Dr. Taha and Dr. Ringer discussed Theobald's case and examined his x-rays. After ordering and evaluating more x-rays, Dr. Taha and Dr. Ringer decided that Theobald's spinal injury did, indeed, require surgery. Dr. Ringer then contacted the critical care unit and asked them to determine if Theobald was stable enough to endure surgery. Dr. Luchette assessed Theobald's condition and concluded that he could tolerate the surgery.

{¶ 4} Both Dr. Luchette and Dr. Ringer then met with the Theobalds to discuss the surgery and obtain their consent. Jacqueline Theobald, Theobald's wife, signed two informed consent forms for the surgery: one authorizing treatment by Dr. Luchette and the other authorizing treatment by Dr. Taha.

{¶ 5} Prior to surgery, Amy Wehrman, a student nurse anesthetist, prepared a preoperative anesthesia note, which documented Theobald's history and physical condition. Nurse Parrott reviewed this note and the remainder of Theobald's chart, and then she discussed his history, current physical condition, and the plan for administering anesthesia during the surgery with Nurse Wehrman and Dr. Sharma, the anesthesiologist.

{¶ 6} Theobald's surgery began at approximately 8:00 p.m. on October 24, 1998, with Dr. Luchette opening with the assistance of Dr. Steven Giss, a trauma resident. After Dr. Luchette and Dr. Giss completed the first portion of the surgery, Dr. Taha and Dr. Ringer began freeing Theobald's spinal cord from bone that compressed it. During the surgery, complications arose, and Dr. Luchette reentered the operating room to insert a chest tube. When Dr. Taha and Dr. Ringer completed freeing and stabilizing the spinal cord, Dr. Luchette and Dr. Giss returned to close. The surgery ended at approximately 6:00 a.m. on October 25, 1998.

{¶ 7} Throughout the surgery, Dr. Sharma and Nurse Parrott administered anesthesia and monitored Theobald's medical condition. Nurse Wehrman observed and assisted by keeping records, monitoring vital signs, and drawing blood.

{¶ 8} When Theobald awoke from sedation, he discovered that he was blind and his arms were numb and had little mobility. Despite continued care, both conditions persisted.

{¶ 9} In October 1999, Theobald and his wife, on behalf of herself and the couples' minor children, filed a medical malpractice claim in the Hamilton County Court of Common Pleas against Dr. Luchette, Dr. Taha, Dr. Sharma, and Nurse Parrott, among others. Because Dr. Luchette, Dr. Taha, Dr. Sharma, and Nurse Parrott all asserted the defense of personal immunity, the Hamilton County Court of Common Pleas granted a stay of appellees' malpractice action to allow the Court of Claims to determine if any or all of the health care practitioners were entitled to immunity pursuant to R.C. 9.86 and 2743.02(F). Subsequently, appellees filed a malpractice action in the Court of Claims against UC alleging that Theobald was permanently injured by the health care practitioners' medical negligence. Specifically, appellees alleged that (1) Nurse Wehrman was negligent in the preparation of the preoperative assessment, (2) Dr. Sharma and Nurse Parrott were negligent in assigning the preoperative assessment to Nurse Wehrman, (3) Dr. Sharma and Nurse Parrott were negligent in not verifying the accuracy and completeness of the preoperative assessment, (4) all the health care practitioners were negligent in not obtaining the test and x-ray results necessary for an accurate preoperative assessment, and (5) all the health care practitioners were negligent in providing Theobald medical care during and after his October 25, 1998 surgery. Finally, appellees also alleged that the health care practitioners failed to provide appellees with sufficient, accurate information regarding Theobald's condition and the risks of surgery so that appellees could give informed consent for the October 25, 1998 surgery.

{¶ 10} On November 29, 2001, the Court of Claims conducted an immunity hearing during which the court joined Dr. Taha, Dr. Sharma, and Nurse Parrott as parties to the immunity proceedings. In an order issued December 6, 2001, the Court of Claims also made Dr. Luchette a party to the immunity proceedings. The Court of Claims then issued an order stating that it would determine whether the health care practitioners were entitled to immunity based upon the hearing testimony, as well as any evidentiary materials and briefs the parties submitted.

{¶ 11} On April 23, 2002, the Court of Claims issued a judgment entry denying the health care practitioners personal immunity pursuant to R.C. 9.86 and 2743.02(F). In an accompanying decision, the Court of Claims concluded that Dr Luchette and Dr. Sharma were not entitled to immunity because neither physician was acting within the scope of his employment when treating Theobald. Further, the Court of Claims held that Dr. Taha was not entitled to immunity because he was not an employee of the state and, even if he was an employee, he was not acting within the scope of his employment when he treated Theobald. Finally, the Court of Claims held that Nurse Parrott was not entitled to immunity because she was not an employee of the state. UC and each of the health care practitioners appealed from the April 23, 2002 judgment.

{¶ 12} On appeal, UC filed a motion to dismiss the health care practitioners' appeals, arguing that none of them had standing to appeal. This court granted UC's motion and, upon the motion of Dr. Sharma and Nurse Parrott, certified a conflict between the case law of this district and the First District Court of Appeals on the issue of a state employee's right to appeal from an immunity determination by the Court of Claims. This court later stayed proceedings in this appeal pending the Supreme Court of Ohio's determination of the certified conflict.

{¶ 13} On April 14, 2004, the Supreme Court of Ohio decided Theobald v. Univ. of Cincinnati, 101 Ohio St.3d 370, 2004-Ohio-1527, 805 N.E.2d 1084, in which it held that "a state employee has no right to participate in the immunity determination proceedings before the Court of Claims or to appeal that determination." Id. at ¶ 6. Once the Supreme Court issued its decision, this court vacated the stay of these proceedings, and we now consider this matter.

{¶ 14} On appeal, UC assigns the following errors:

[1.] The Court of Claims erred in joining Frederick Luchette, M.D., Harsha Sharma, M.D., Jamal Taha, M.D., and Maureen Parrott, C.R.N.A. as parties to the immunity hearing.

[2.] The Court of Claims erred in finding that Jamal Taha, M.D., was not an "employee" for purposes of R.C. 9.86.

[3.] The Court of Claims erred in finding that Maureen Parrott, C.R.N.A. was not an "employee" for purposes of R.C. 9.86.

[4.] The Court of Claims erred in finding that Frederick Luchette, M.D., is not entitled to immunity under R.C. 9.86.

[5.] The Court of Claims erred in finding that Harsha Sharma, M.D., is not entitled to immunity under R.C. 9.86.

[6.] The Court of Claims erred in finding that Jamal Taha, M.D., is not entitled to immunity under R.C. 9.86.

[7.] The Court of Claims erred in finding that Maureen Parrott, C.R.N.A., is not entitled to immunity under R.C. 9.86.

{¶ 15} By its first assignment of error, UC argues that the Court of Claims erred in joining Dr. Luchette, Dr. Taha, Dr. Sharma, and Nurse Parrott as parties to the immunity proceedings. We agree.

{¶ 16} In Johns v. Univ. of Cincinnati Med. Assoc., Inc., 101 Ohio St.3d 234, 2004-Ohio-824, 804 N.E.2d 19, the Supreme Court recently held that a state employee cannot be a party to an immunity determination. In so holding, the Supreme Court recognized that R.C. 9.86 provides state employees with immunity from personal liability under certain circumstances and that, pursuant to R.C. 2743.02(F), the Court of Claims has exclusive jurisdiction to determine if those circumstances exist in each case. The Supreme Court also noted, however, that only the state can be a defendant in original actions filed in the Court of Claims. R.C. 2743.02(E). Construing these...