Theobald v. Univ. Of Cincinnati

Citation857 N.E.2d 573,111 Ohio St.3d 541,2006 Ohio 6208
Decision Date13 December 2006
Docket NumberNo. 2005-0896.,2005-0896.
CourtUnited States State Supreme Court of Ohio
PartiesTHEOBALD et al, Appellants, v. UNIVERSITY OF CINCINNATI, Appellee.

James P. Sullivan and Douglas C. Holland, for appellants.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Stephen P. Carney, Senior Deputy Solicitor, for appellee.

Jerome A. McTague, urging affirmance for amicus curiae, Medical College of Ohio Physicians.

LUNDBERG STRATTON, J.

{¶ 1} The issue before us involves personal immunity from liability, pursuant to R.C. 9.86 and 2743.02(F), of a physician or other health-care practitioner who is employed by a state facility and in the private sector. The court of appeals remanded the matter to the Court of Claims to determine whether the health-care practitioners who allegedly injured the plaintiff were acting within the scope of their state employment by educating a resident or student at the time of the injury. For the following reasons, we affirm the judgment of the court of appeals.

{¶ 2} Plaintiff-appellant, Keith Theobald, was seriously injured in an automobile accident. He was taken to University Hospital in Cincinnati. Dr. Frederick A. Luchette was the attending trauma surgeon on duty who admitted and began treating Theobald. Dr. Luchette contacted the neurotrauma department, and Theobald's care was assigned to Dr. Jamal Taha, the interim director of the hospital's neurotrauma team. Because of the extent of Theobald's injuries, Dr. Taha involved Dr. Andrew J. Ringer, the hospital's chief neurotrauma resident. They decided that surgery was necessary, so Dr. Taha and Dr. Ringer met with the Theobalds to obtain their consent to the surgery.

{¶ 3} Prior to the surgery, a student nurse anesthetist, Amy Wehrman, prepared a preanesthesia note setting forth Theobald's history and physical condition. Maureen Parrott, a certified registered nurse anesthetist, reviewed Wehrman's note and discussed the plan for administering anesthesia during the surgery with Wehrman and Dr. Harsha Sharma, the anesthesiologist.

{¶ 4} Theobald underwent ten hours of surgery in which Dr. Luchette, assisted by Dr. Steven Giss, a trauma resident, opened and closed the incision, and Dr. Taha, assisted by Dr. Ringer, performed the neurosurgical procedure. Dr. Sharma and Parrott, assisted by Wehrman, administered the anesthesia and monitored Theobald's condition.

{¶ 5} When Theobald awoke, he could not see, he had lost the use of his right arm, and he had little mobility in his left arm. In October 1999, Theobald and his wife, Jacqueline, individually and on behalf of their two minor children, filed an action for medical malpractice in the Hamilton County Court of Common Pleas against Dr. Luchette, Dr. Taha, Dr. Sharma, and Parrott, among others, in which they alleged that these defendants were negligent in providing medical care to Theobald during and after his surgery. These four defendants, who claimed that they were state employees, asserted the defense of personal immunity pursuant to R.C. 9.86.

{¶ 6} The common pleas court stayed the malpractice action to allow the Court of Claims to determine whether the defendants were entitled to immunity. Pursuant to R.C. 2743.02(F), the Theobalds filed an action in the Court of Claims against the University of Cincinnati to determine the issue of the four defendants' personal immunity. The Court of Claims allowed the defendants to join the proceedings, and then conducted a hearing to determine whether they were immune from suit as state employees.

{¶ 7} On April 23, 2002, the Court of Claims concluded that the defendants were not entitled to personal immunity. The court determined that Dr. Luchette and Dr. Sharma were employed by the state but that they were acting outside the scope of their employment when they treated Theobald because their private-practice plans had billed the Theobalds and received the money from the services rendered, and Theobald was treated at a private hospital. The Court of Claims also concluded that Dr. Taha and Parrott were not state employees because they worked for and were paid by private corporations that merely contracted with the state. The University of Cincinnati appealed.1

{¶ 8} The Tenth District Court of Appeals concluded that all four individuals were employed by the state and reversed and remanded for the Court of Claims to reconsider whether each one was acting manifestly outside the scope of employment when the alleged negligence occurred. See R.C. 9.86. The appellate court disagreed with the Court of Claims' examination of the issues based only on the financial factors. The court reasoned that if the state's interest is promoted when a health-care practitioner furthers the education of students and residents, then the Court of Claims had to determine whether the practitioner was educating a student when the alleged negligence occurred.

{¶ 9} Thus, the appellate court instructed the Court of Claims to identify what the practitioner was doing when the alleged injury occurred and whether the practitioner was advancing the state's interest at the time. The Theobalds appealed.

{¶ 10} This cause is before this court upon our acceptance of a discretionary appeal.

Personal Immunity for State Employee

{¶ 11} The issue of personal immunity of a state employee is governed by the application of R.C. 9.86 and R.C. 2743.02(F). R.C. 9.86 provides:

{¶ 12} "Except for civil actions that arise out of the operation of a motor vehicle and civil actions in which the state is the plaintiff, no 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 the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner."

{¶ 13} The Court of Claims has exclusive, original jurisdiction to determine whether a state employee is personally immune from liability in a civil action under R.C. 9.86 or whether the conduct was manifestly outside the scope of employment at the time the cause of action arose.2 R.C. 2743.02(F); Johns v. Univ. of Cincinnati Med. Assoc., Inc., 101 Ohio St.3d 234, 2004-Ohio-824, 804 N.E.2d 19. If the Court of Claims determines that the state employee is immune from personal liability under R.C. 9.86, the claimant must assert his or her claims against the state and the state shall be liable for the employee's acts or omissions. R.C. 2743.02(A)(2).

{¶ 14} Thus, the Court of Claims' analysis of personal immunity has two parts: Was the individual a state employee, and if so, was the individual acting within the scope of employment when the cause of action arose? The Theobalds have not appealed the appellate court's holding that these individuals were state employees for purposes of R.C. 9.86. A "state employee," for purposes of R.C. 9.86, is defined in R.C. 109.36(A)(1) as a "person who, at the time a cause of action against the person arises, is * * * employed by the state." Thus, the issue before us involves the second part of the immunity analysis. Although the issue of personal immunity is a question of law, whether an individual acted manifestly outside the scope of employment is a question of fact. Hopper v. Univ. of Cincinnati (Aug. 3, 2000), Franklin App. No. 99AP-787, 2000 WL 1059672.

{¶ 15} The Revised Code does not define "scope of employment." The concept generally denotes an agency relationship in which the agent or employee is engaged in an activity that is logically related to the business of the principal or employer. See Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, 120, 689 N.E.2d 917; Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 278, 74 O.O.2d 427, 344 N.E.2d 334. For purposes of personal immunity under R.C. 9.86, a state employee acts within the scope of employment if the employee's actions are "in furtherance of the interests of the state." Conley v. Shearer (1992), 64 Ohio St.3d 284, 287, 595 N.E.2d 862. Thus, a state employee's duties should define the scope of employment.

Dual Employment

{¶ 16} A health-care practitioner who has dual status as a private practitioner and as an employee of a state medical institution is potentially immune from liability for medical malpractice only when he or she is performing duties for the state. Unless he or she acted "with malicious purpose, in bad faith, or in a wanton or reckless manner" or manifestly outside the scope of employment, the state employee is not liable for injury caused in the performance of those duties. R.C. 9.86. Because of this dual nature, courts have struggled to identify an appropriate analysis of the scope of employment for purposes of personal immunity. "In many instances, the line between these two roles is blurred because the practitioner may be teaching by simply providing the student or resident an opportunity to observe while the practitioner treats a patient." Theobald v. Univ. of Cincinnati, 160 Ohio App.3d 342, 2005-Ohio-1510, 827 N.E.2d 365, at ¶ 34.

{¶ 17} In early cases, courts analyzed billing procedures and other financial factors including the comparison of a practitioner's financial gain with the university's financial gain from the medical treatment. Katko v. Balcerzak (1987), 41 Ohio App.3d 375, 536 N.E.2d 10; York v. Univ. of Cincinnati Med. Ctr. (Apr. 23, 1996), Franklin App. Nos. 95API09-1117, 95API09-1127, 1996 WL 200324; Kaiser v. Flege (Sept. 22, 1998), Franklin App. No. 98AP-146, 1998 WL 655392. The courts reasoned that if the state directly received the financial benefits from the medical services rendered, or if it received a greater proportion of the fee than did the individual practitioner, then the practitioner was acting within the scope...

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