Ries v. Ohio State Univ. Med. Ctr. , 2011 Ohio 6850 ( 2011 )


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  • [Cite as Ries v. The Ohio State Univ. Med. Ctr., 
    2011-Ohio-6850
    .]
    Court of Claims of Ohio
    The Ohio Judicial Center
    65 South Front Street, Third Floor
    Columbus, OH 43215
    614.387.9800 or 1.800.824.8263
    www.cco.state.oh.us
    MATTHEW RIES, Admr., et al.,
    Plaintiffs,                                         Case No. 2010-10335
    v.                                                  Judge Joseph T. Clark
    THE OHIO STATE UNIVERSITY
    MEDICAL CENTER,
    Defendant.                                          JUDGMENT ENTRY
    {¶1} This matter came before the court for an evidentiary hearing to determine
    whether Syed Husain, M.D. is entitled to civil immunity pursuant to R.C. 2743.02(F) and
    9.86.
    {¶2} R.C. 2743.02(F) states, in part:
    {¶3} “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 the officer’s or employee’s 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.”
    {¶4} R.C. 9.86 states, in part:
    {¶5} “[N]o officer or employee [of the state] 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.”
    {¶6} “[I]n an action to determine whether a physician or other health-care
    practitioner is entitled to personal immunity from liability pursuant to R.C. 9.86 and
    Case No. 2010-10335                        -2-                                    ENTRY
    2743.02(A)(2), the Court of Claims must initially determine whether the practitioner is a
    state employee. * * * If the court determines that the practitioner is a state employee, the
    court must next determine whether the practitioner was acting on behalf of the state
    when the patient was alleged to have been injured. If not, then the practitioner was
    acting ‘manifestly outside the scope of employment’ for purposes of R.C. 9.86.”
    Theobald v. Univ. of Cincinnati, 
    111 Ohio St.3d 541
    , 
    2006-Ohio-6208
    , ¶30-31.
    {¶7} Plaintiffs’ decedent, Michael McNew, was referred to Dr. Husain for
    treatment of a hemorrhoidal blood clot. On September 15, 2009, Dr. Husain removed
    the clot during an outpatient procedure at defendant’s University Hospital East, and they
    later spoke via telephone to discuss McNew’s condition. Plaintiffs allege that the care
    and treatment rendered by Dr. Husain fell below the standard of care, and that, as a
    result, McNew died on September 19, 2009, of “a cerebral hemorrhage from
    thromdotytotenia, which went undiagnosed until after his death.” (Complaint, ¶17.)
    {¶8} At the hearing, Dr. Husain testified that he has been employed by defendant
    since September 2008 as a clinical assistant professor in the department of surgery,
    specializing in colo-rectal surgery. According to Dr. Husain, his duties as an assistant
    professor include providing clinical care to patients, as well as teaching medical
    students and residents in a clinical setting. Dr. Husain stated that he could neither
    recall nor derive from the medical records whether students or residents were present
    when he rendered care to McNew, but that he considered his treatment of McNew at
    University Hospital East to be within his job duties nonetheless.
    {¶9} According to Dr. Husain, his practice is directed entirely by defendant, he is
    not permitted to practice outside of defendant’s facilities, and he maintains no private
    practice of medicine inasmuch as his employment agreement requires that all of his
    professional activities be devoted to serving defendant.            Indeed, Dr. Husain’s
    employment agreement with defendant states, in part: “You should understand that this
    Case No. 2010-10335                          -3-                                 ENTRY
    is a full-time offer with 100 percent of your professional efforts being devoted to the
    Department of Surgery.” (Defendant’s Exhibit A.)
    {¶10} Dr. Husain acknowledged that as a condition of his employment with
    defendant, he is also required to maintain employment with Ohio State University
    Physicians (OSUP), but he described OSUP as an auxiliary entity that exists to
    administer billing and collections for all of the clinical care rendered by defendant’s
    practitioners.
    {¶11} Dr. Robert Bornstein, defendant’s Vice Dean of Academic Affairs, testified
    that he is familiar with the duties and responsibilities of defendant’s faculty physicians,
    and he explained that plaintiff’s position as a clinical assistant professor encompasses
    two main duties – patient care and education. Dr. Bornstein explained that Dr. Husain
    is required by defendant to provide clinical care regardless of whether residents or
    students are present, and that Dr. Husain’s job performance is evaluated, in part, based
    upon his clinical competence. According to Dr. Bornstein, the chair of the department of
    surgery controls all aspects of Dr. Husain’s practice, including the type of work that he
    performs and his work location. With regard to OSUP, Dr. Bornstein testified that it was
    created by defendant’s board of trustees to administer the billing and collections
    associated with the clinical care rendered by defendant’s practitioners, and that Dr.
    Husain must belong to OSUP as a condition of his employment with defendant.
    {¶12} “[T]he question of scope of employment must turn on what the
    practitioner’s duties are as a state employee and whether the practitioner was engaged
    in those duties at the time of an injury.” Id. at ¶23.
    {¶13} Dr. Husain’s duties as a state-employed faculty physician include teaching
    residents, and the evidence does not demonstrate that he was doing so when the
    alleged negligence occurred. However, the court finds that Dr. Husain was a full-time
    faculty physician who was required by defendant to provide clinical care, that his clinical
    activities were controlled by defendant, that he was required to devote all of his
    Case No. 2010-10335                        -4-                                    ENTRY
    professional time and effort to the service of defendant, that OSUP functioned as the
    business arm of defendant, and that Dr. Husain did not maintain a private practice.
    Accordingly, the court concludes that Dr. Husain’s duties of employment included
    providing clinical care and that he was engaged in such duties at the time of the alleged
    negligence.
    {¶14} Therefore, the court finds that Dr. Husain was acting within the scope of his
    state employment at all times pertinent hereto. Consequently, Dr. Husain is entitled to
    civil immunity pursuant to R.C. 9.86 and 2743.02(F). Therefore, the courts of common
    pleas do not have jurisdiction over any civil actions that may be filed against him based
    upon the allegations in this case.
    {¶15} On a related matter, defendant’s November 1, 2011 motion for a protective
    order, to prohibit plaintiffs from deposing Dr. Husain until such time as the court
    determines whether he is entitled to civil immunity, is DENIED as moot.
    _____________________________________
    JOSEPH T. CLARK
    Judge
    cc:
    Daniel R. Forsythe                            David I. Shroyer
    Karl W. Schedler                              536 South High Street
    Assistant Attorneys General                   Columbus, Ohio 43215
    150 East Gay Street, 18th Floor
    Columbus, Ohio 43215-3130
    Filed November 7, 2011
    To S.C. reporter December 30, 2011
    

Document Info

Docket Number: 2010-10335

Citation Numbers: 2011 Ohio 6850

Judges: Clark

Filed Date: 11/7/2011

Precedential Status: Precedential

Modified Date: 3/3/2016