Clevenger v. Univ. of Cincinnati College of MedicineClevenger v. Univ. of Cincinnati College of Medicine
Rendered on January 14, 2010
Santen & Hughes, John D. Holschuh, Jr., and Sarah Tankersley, for appellant.
Richard Cordray, Attorney General, and Brian M. Kneafsey, Jr., for appellee.
APPEAL from the Ohio Court of Claims
TYACK, P.J.
{¶1} Betty Clevenger is appealing from the judgments rendered to her detriment by the Ohio Court of Claims. She assigns three errors for our consideration:
FIRST ASSIGNMENT OF ERROR: THE COURT OF CLAIMS ERRED IN THE STANDARD IT APPLIED WHEN DETERMINING WHETHER DR. TEW WAS ACTING WTHIN THE SCOPE OF HIS STATE EMPLOYMENT.
SECOND ASSIGNMENT OF ERROR: THE COURT OF CLAIMS DETERMINATION THAT DR. TEW IS ENTITLED TO IMMUNITY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
THIRD ASSIGNMENT OF ERROR: THE COURT OF CLAIMS ERRED IN DISMISSING CLEVENGER‘S COMPLAINT AGAINST THE STATE AS BARRED BY THE STATUTE OF LIMITATIONS.
{¶2} Following surgery performed on her face by John Tew, M.D, Betty Clevenger filed suit in the Court of Cоmmon Pleas for Hamilton County, Ohio. She did not immediately file suit in the Ohio Court of Claims.
{¶3} Counsel for Dr. Tew eventually asserted a defense that Dr. Tew was a state employee at the time he treated Ms. Clevenger and that, as such, Dr. Tew was entitlеd to immunity from any claim asserted by Ms. Clevenger.
{¶4} As required by statute, the issue of Dr. Tew‘s immunity was submitted to the Ohio Court of Claims for resolution. A judge for the Ohio Court of Claims found that Dr. Tew was an employee of the University of Cincinnati College of Medicine and that Dr. Tew was acting within the scope of his employment while treating Ms. Clevenger, principally because he wаs furthering the education of one or more medical interns during his treatment of and surgery performed on Ms. Clevenger. As а result, the judge of the Ohio Court of Claims found that Dr. Tew was entitled to immunity from a claim for medical negligence in state сourt.
{¶5} Having found that Dr. Tew was entitled to immunity, the judge next addressed the issue of whether or not Ms. Clevenger had filed suit in the appropriate court, the Ohio Court of Claims, within the one-year period allowed for medical claims.
{¶6} In the first assignment of error, counsel for Ms. Clevenger asserts that the trial court was mistaken in finding that Dr. Tew was entitled tо immunity. Resolution of this issue turns upon the analysis of the case of Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208 and its potential applicability to the facts оf Ms. Clevenger‘s case.
{¶7} In the Theobald case, the Ohio Court of Claims initially decided that the doctors who treated Keith Theobаld were not immune from suit in the Court of Common Pleas because the doctors received the majority of their income from private corporations. The Tenth District Court of Appeals vacated that finding and directed the Ohio Court of Claims to decide the immunity issue based upon an analysis of what duties the doctors were performing when rendering treatment, not based upon how the doctors were paid. The Tenth District Court of Appeals found that the doctor who treated Theobald had duties which included supervising medical students and interns. We directed the Court of Claims to аddress whether or not the doctors were at least partially supervising or educating interns and medical students while trеating Theobald.
{¶8} The Supreme Court of Ohio accepted the case for review and agreed with this court‘s аnalysis and resolution of the pertinent issues. Although counsel for Ms. Clevenger strongly disagrees with the language of the majоrity for the Supreme Court of Ohio, we are bound by the Supreme Court‘s opinion.
{¶10} The first assignment of error is overruled.
{¶11} In the second assignment of error, counsel for Ms. Clevenger asserts that the finding that Dr. Tew was entitled to immunity was against the manifest weight of the evidence. Judgments which are supported by some competent, credible evidence will not be overturned by an appellate court as being against the manifest weight of the evidence. See C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, and the lengthy list of cases which have followed it.
{¶12} The evidence before the Court of Claims includes a neurosurgery admission and consultation form signed by a resident. The evidence also includes a department of radiоlogy invasive procedure record which indicated the presence of an intern during the surgery performed on Ms. Clevenger. The documents support the finding of the Ohio Court of Claims that Dr. Tew was involved in educating interns while he treated Ms. Clevenger. The deposition testimony of Dr. Tew is also consistent with the finding of the lower court.
{¶13} The trial court‘s finding of immunity was supported by competent, credible evidence.
{¶14} The second assignment of error is overruled.
{¶16} The fact that litigation was not initiated in the Ohio Court of Claims within the one-year period set forth in
{¶17} Further, the Theobald case was decided in 2006. Ms. Clevenger received her treatment from Dr. Tew in 2007 and hаd her surgery performed in 2007. Counsel was on notice that issues regarding immunity might well be present in this case. The prudent coursе of action would have been to file suit in both the Ohio Court of Claims and the Court of Common Pleas for Hamilton County, Ohio and then submit the immunity issue to the Court of Claims in order to determine which court was the appropriate forum.
{¶18} The trial cоurt did not err in granting judgment based upon a finding that the time permitted by the one-year statute of limitations for medical claims had elapsed. The third assignment of error is overruled.
Judgment affirmed.
KLATT and McGRATH, JJ., concur.
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