Fisher v. State
2014 Ohio 2280
Ohio Ct. App.2014Background
- In April 2007, 14‑year‑old Jocelyne Fisher underwent surgery at Toledo Children’s Hospital; anesthesiology care was by Dr. Howard Black (private practice with ACT) and UT resident Dr. Christopher Lewis.
- Plaintiffs sued Toledo Hospital in Lucas County alleging malpractice; hospital sought dismissal as to Dr. Black asserting he was a state employee entitled to immunity under R.C. 9.86 and 2743.02(F).
- The common‑pleas court dismissed the anesthesia claim without prejudice for the Court of Claims to decide the immunity question; plaintiffs later sued the University of Toledo (UT) in the Court of Claims.
- At the Court of Claims evidentiary hearing, plaintiffs introduced hospital records, deposition/affidavit testimony, Dr. Black’s volunteer faculty appointment letter (UT, March 21, 2005), and UT Faculty Rules; UT and Dr. Black did not present evidence.
- The Court of Claims found Dr. Black was not a state "officer or employee" under R.C. 109.36(A) and therefore not entitled to personal immunity; the Tenth District Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Black was a state "officer or employee" at the time of the alleged malpractice | Dr. Black’s volunteer UT faculty appointment and compliance with UT Faculty Rules make him a state employee | Appointment was voluntary, unpaid, and did not create an employment contract; Dr. Black worked for a private practice and at a private hospital | Dr. Black was not a state "officer or employee" under R.C. 109.36(A) — no employment relationship found |
| Whether UT exercised sufficient control or paid Dr. Black (factors bearing on employee status) | UT’s faculty rules and appointment obligations show control and make him functionally an employee | Rules distinguish volunteer from salaried faculty; no evidence UT controlled schedule, patients, billing, or provided compensation/insurance | No evidence UT exercised requisite control or paid him; Engel factors support non‑employee status |
| Whether judicial estoppel prevents UT from opposing immunity (inconsistent positions) | UT previously argued immunity in Lucas County; should be estopped from denying immunity here | UT’s position in Court of Claims differs; issue not raised below or timely on appeal | Court declined to reach judicial‑estoppel claim (not raised in trial court and raised too late on appeal) |
Key Cases Cited
- Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541 (2006) (R.C. 9.86 applies regardless of simultaneous private employment; scope‑of‑employment analysis distinct from employee status)
- Engel v. Univ. of Toledo College of Medicine, 130 Ohio St.3d 263 (2011) (use non‑exhaustive factors—contract, control, payment—to determine whether volunteer clinician is a state employee)
- Nease v. Med. College Hosps., 64 Ohio St.3d 396 (1992) (Court of Claims has exclusive initial jurisdiction to decide R.C. 9.86 immunity)
- State ex rel. Sanquily v. Court of Common Pleas of Lucas Cty., 60 Ohio St.3d 78 (1991) (definition of "officer or employee" governed by R.C. 109.36)
- Greer‑Burger v. Temesi, 116 Ohio St.3d 324 (2007) (judicial estoppel doctrine precludes inconsistent positions accepted by a court)
- Griffith v. Wal‑Mart Stores, Inc., 135 F.3d 376 (6th Cir. 1998) (articulation of judicial estoppel standard)