Schultz v. Univ. of Cincinnati College of MedicineSchultz v. Univ. of Cincinnati College of Medicine
Rendered on May 11, 2010
John H. Metz, for appellants.
Richard Cordray, Attorney General, and Brian M. Kneafsey, Jr., for appellee University of Cincinnati College of Medicine.
APPEAL from the Ohio Court of Claims.
BROWN, J.
{¶1} Plaintiffs-appellants, James W. Schultz and his wife, Julie Ann, appeal from a judgment of the Ohio Court of Claims finding that Stewart Dunsker, M.D., is entitled to personal immunity, pursuant to
{¶3} On January 13, 1997, Dr. Dunsker, through his private practice group, performed surgery on Schultz at Christ Hospital. Dr. Dunsker operated on Schultz‘s cervical spine to relieve pain and pressure originating from a vertebrаe in Schultz‘s neck. Schultz alleges that he suffered injury to his laryngeal nerve during the operation and that such injury has permanently affected his ability to speak in a normal tone of voice.
{¶4} On July 7, 1998, appellants filed a medical malpractice action in the Hamilton County Court of Common Pleas against Dr. Dunsker and Mayfield. The case was dismissed and refiled twice, the last refiling occurring December 20, 2005. Trial was scheduled for June 4, 2007. On May 23, 2007, Dr. Dunsker filed a motion asserting personal immunity pursuant to
{¶5} Thereafter, on May 22, 2008, appellants filed a medical malрractice action in the Court of Claims against UC, Dr. Dunsker, and Mayfield, alleging that Schultz was permanently injured by Dr. Dunsker‘s medical negligence. Appellants also asserted that Dr. Dunsker failed to provide Schultz with sufficient, accurate information regarding the risk of injury to the laryngeal nerve so that he could give informed consent for the surgery.
{¶6} On June 17, 2008, UC filed a motion to dismiss appellants’ complaint, pursuant to Civ.R. 12(B)(6), asserting, as relevant here, that appellants’ action was time-barred by the four-year statute of limitations set forth in
{¶7} On August 13, 2009, the Court of Claims conducted an immunity hearing at which Dr. Dunsker testified. Following the hearing, the Court of Claims issued a decision concluding that Dr. Dunsker‘s position as a full professor at UC qualified as state employment and that he was acting within the scope of his employment while treating Schultz, principally because he was furthering the education of a neurosurgical resident during the treatment of and surgery performed on Schultz. Accordingly, the Court of Claims determined that Dr. Dunsker is entitled to immunity, pursuant to
- [1]. The trial court erred to the prejudice of plaintiffs-appellants in granting immunity to the [sic] Dr. Dunsker.
- [2]. The trial court еrred to the prejudice of plaintiffs-appellants in not finding defendant had waived the issue of immunity.
- [3]. The trial court erred to the prejudice of plaintiffs-appellants in dismissing plaintiffs’ case and not applying the “loaned servant doctrine” to the facts.
- [4]. The trial court erred to the prejudice of plaintiffs-appellants in applying the Ohio Court of Claims Act and Theobald to create an unconstitutional denial of Due Process and Equal Protection of the laws.
- [5]. The trial court erred to the prejudice of plaintiffs-appellants by dismissing plaintiffs’ case on the basis of the statute of limitations.
- [6]. The trial court erred to the prejudice of plaintiffs-appellants in failing to find that defendant‘s breach of contract and violation of informed consent did not entitled [sic] him to personal immunity.
- [7]. The trial court erred to the prejudice of plaintiffs-appellants by failing to apply fundamental agency law to the case which would not result in immunity.
- [8]. The trial court erred to the prejudice of plaintiffs-appellants in finding immunity for defendant Dunsker and in dismissing plaintiffs’ complaint since such application of the law violates the [sic] Equal Protection of the laws guaranteed under the Ohio and Federal Constitutions.
- [9]. The trial court erred to the prejudice of plaintiffs-appellants in finding immunity for defendant Dunsker and in dismissing plaintiffs’ complaint by applying the law retroactively.
- [10]. The trial court erred to the prejudice of plaintiffs-appellants in dismissing plaintiffs’ complaint by considering factual matters outside the pleadings while applying Civil Rule 12(B)(6).
{¶10} A personal immunity determination is governed by the application of
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 unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶11} The Court of Claims has exclusive, original jurisdiction to determine whether a state employee is personally immune from liability in a civil action under
{¶12} Thus, in determining that a person is entitled to personal immunity under
{¶13} The determination as to whether or not a person is entitled to immunity under
{¶14} As noted, the first step in an immunity analysis is to determine whether the person is a state employee.
{¶15} Despite this evidence, appellants argue that Dr. Dunsker was not a state employee when he performed the surgery because he was simultaneously employed by Mayfield. Dr. Dunsker‘s employment with a private practice group does not negate his status as a state employee. In Theobald, 2005-Ohio-1510, this court found that a physician was a state employee for purposes of
{¶16} As there is no assertion on appeal that Dr. Dunsker acted with malice, in bad faith, or in a wanton or reckless manner in his care and treatment of Schultz, the issue resolves to whether he was acting within the scope of his state employment at the time the alleged negligence occurred. In Theobald, 2006-Ohio-6208, the Supreme Court of Ohio noted that, “for purposes of personal immunity under
{¶18} The court conducted an exhaustive analysis of this court‘s previous jurisprudence on the scope of employment issue. The court noted that, in early cases, this court 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. Id. at ¶17, citing Katko v. Balcerzak (1987), 41 Ohio App.3d 375; York v. Univ. of Cincinnati Med. Ctr. (Apr. 23, 1996), 10th Dist. No. 95API09-1117; and Kaiser v. Flege (Sept. 22, 1998), 10th Dist. No. 98AP-146. In cases focusing on financial factors, the physician was inevitably found not to be immune.
{¶19} The court observed that, in Norman v. Ohio State Univ. Hosp. (1996), 116 Ohio App.3d 69, we expanded our analysis to examine the physician‘s relationship with the patient in addition to the university‘s financial benefit. Theobald, 2006-Ohio-6208, ¶18. Continuing its review, the Supreme Court of Ohio noted that, in Ferguson v. Ohio State Univ. Med. Ctr. (June 22, 1999), 10th Dist. No. 98AP-863, this court explained that billing practices, although relevant, do not necessarily establish when a physician is acting within his or her scope of employment with the state. We determined that the key issue is whether the physician ” ‘saw the patient only in his capacity as an attending physician
{¶20} The court then examined our decision in Theobald, 2005-Ohio-1510. The court noted that we found the financial factors generally had little bearing on whether a physician is acting within the scope of employment. Theobald, 2006-Ohio-6208, ¶22, citing Theobald, 2005-Ohio-1510, ¶46. The court agreed, stating that “[t]he financial factors may be relevant to the practitioner‘s status as a state employee; however, they do not necessarily establish whether he or she was within the scope of that employment at the time a cause of action arose. Instead, the question of scope of employment must turn on what the practitioner‘s duties are as a state employeе and whether the practitioner was engaged in those duties at the time of an injury.” Theobald, 2006-Ohio-6208, ¶23.
{¶21} The court noted both our conclusion that the physician‘s duties included the education of students and residents and our instructions to the Court of Claims to ” ‘first identify the aspect of the course of treatment that the plaintiff alleges gave rise to damage or injury,’ then to ‘inquire whether the practitioner was educating a student or resident while rendering the allegedly negligent care to the patient.’ ” Theobald, 2006-Ohio-6208, ¶24, quoting Theobald, 2005-Ohio-1510, ¶46, 48. The court approved this approach, finding that it “follows the language and intent of
{¶22} The Supreme Court of Ohio distinguished the above cases from those where the “employee‘s actions are self-serving or have no relationship to the employer‘s business.” Theobald, 2006-Ohio-6208, ¶28. In such cases, the conduct is ” ‘manifеstly outside the scope of employment,’ and
{¶23} Following its examination of this court‘s jurisprudence on the scope of employment issues, the court concluded that, once a court determines that a health-care practitioner is a state employeе, “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
{¶24} In the instant case, the Court of Claims, applying Theobald, 2006-Ohio-6208, concluded that Dr. Dunsker is entitled to personal immunity because his duties as a professor of clinical neurosurgery at UC included the education of residents and a resident was present for the purpose of education at the time the alleged negligence occurred. Appellants claim that the Court of Claims erred in retrospectively applying Theobald, a 2006 decision, to the instant case, the facts of which occurred in 1997. Appellants argue that the Court of Claims should have applied the case law as it existed in 1997, and determined Dr. Dunsker‘s personal immunity by examining billing procedures to determine whether Mayfield or UC had the most significant financial involvement in the provided treatment, rather than considering whether Dr. Dunsker was engaged in the education of a resident while treating Schultz.
{¶25} The Theobald court had discretion to apply its decision only prospectively. DiCenzo v. A-Best Prods. Co., Inc., 120 Ohio St.3d 149, 2008-Ohio-5327 (holding in paragraph two of the syllabus that an Ohio court has discretion to apply its decision only prospectively after weighing certain factors). Nothing in Theobald suggests that the court intended its decision to be applied prospectively only. Cf. Medcorp, Inc. v. Ohio Dept. of Job & Family Servs., 124 Ohio St.3d 1215, 2009-Ohio-6425, ¶4 (“[t]he holding in Medcorp, Inc. v. Ohio Dept. of Job & Family Servs., 121 Ohio St.3d 622, 2009-Ohio-2058] shall apply only to cases filed on and after June 15, 2009, the date on which the
{¶26} As noted, Theobald, 2006-Ohio-6208, instructs that a physician acts within the scope of his state employment when the physician‘s duties include the education of students and residents and the physician was in fact educating a student or resident when the alleged negligence occurred. Here, the Court of Claims found that Dr. Dunsker‘s duties as a professor of clinical neurosurgery at UC included the education of residents and that a resident was present for the purpose of education at the time the alleged negligence occurred. The evidence presented at the immunity hearing supports this conclusion. Dr. Dunsker testified that his faculty responsibilities at UC included the supervision and instruction of neurosurgery residents who rotated through Christ Hospital. He further testified that, although he did not expressly recall Schultz‘s surgery, the “Record of Operation” completed by the circulating nurse during surgery indicated that one of his neurosurgery residents, Dr. Kokkino, was present. Dr. Dunsker produced the “Record of Operation,” which confirms his testimony. Dr. Dunsker further testified that his
{¶27} In short, the evidencе provided by Dr. Dunsker at the immunity hearing supports the Court of Claims’ conclusion that he is entitled to personal immunity under
{¶28} Appellants’ second assignment of error contends that the Court of Claims erred in failing to find that Dr. Dunsker waived the issue of immunity. At the immunity hearing, appellants introduced the September 1, 1999 deposition of Dr. Dunsker taken in the Hamilton County case. During the deposition, Schultz‘s counsel noted that Dr. Dunsker had asserted the defense of immunity in his answer. When counsel аsked Dr. Dunsker what the term “immunity” referred to, Dr. Dunsker‘s counsel interjected, stating “I threw that in as I always do in these cases. I doubt very much immunity applies in this case.” Sept. 1, 1999 Depo., at 99. Schultz‘s counsel then averred, “Then we won‘t have to get into that.” Sept. 1, 1999 Depo., at 99. Dr. Dunsker‘s counsel replied, “We can talk
{¶29} “Waiver is a voluntary relinquishmеnt of a known right and is generally applicable to all personal rights and privileges, whether contractual, statutory or constitutional.” Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553, ¶49. A party asserting waiver must prove it by establishing a clear, unequivocal, decisive act by the other party demonstrating the intent to waive. N. Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173, 180, citing White Co. v. Canton Transp. Co. (1936), 131 Ohio St. 190, 198-99. The Court of Claims found the colloquy between counsel insufficient to support a finding that Dr. Dunsker communicated his intent to waive the defense of immunity. However, while the Court of Claims has exclusive jurisdiction to determine the issue of immunity, the issue of waiver should have been determined by the court of common pleas.
{¶30} In Cooperman v. Univ. Surgical Assoc., Inc. (1987), 32 Ohio St.3d 191, the Supreme Court of Ohio held that courts of common pleas have jurisdiction to make
{¶31} In amending
{¶32} Appellants’ third assignment of error contends the Court of Claims erred in failing to address the issue of “loaned servant.” Appellants maintain that Dr. Dunsker, as a “loaned servant” of Christ Hospital, had no immunity despite his state employment with UC. The Supreme Court of Ohio rejected an identical argument in State ex rel. Sanquily v. Lucas Cty. Court of Common Pleas (1991), 60 Ohio St.3d 78, 79 (stating that “[i]rrespective of whether Sanquily was a ‘loaned servant,’ he was employed by the state
{¶33} Appellants’ fourth and eighth assignments of error allege that the Court of Claims’ application of
{¶34} Appellants contend in their fifth assignment of error that the Court of Claims erred by dismissing their complaint against UC on statute of limitations grounds. We disagree.
{¶35} In deciding whether to dismiss a complaint, pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, the trial court must presume all factual allegations in the complaint are true and construe the complaint in a light most favorable to the appellants, drawing all reasonable inferences in their favor. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. Before the court may dismiss the complaint, it must appear beyond doubt from the complaint that appellants can prove no set of facts entitling them to recovery. O‘Brien v. Univ. of Community Tenants Union (1975), 42 Ohio St.2d 242, syllabus.
{¶36} The Court of Claims determined that the applicable statute of limitations bars the medical negligence allegations of appellants’ complaint. A complaint may be dismissed under Civ.R. 12(B)(6) as time-barred under the statute of limitations if the face
{¶37} Appellants’ complaint plainly presents allegations of medical negligence. The complaint likewise plainly sets forth the date when appellants contend the medical negligence occurred. Accordingly, the applicable statute of limitations may be applied to the dates presented in appellants’ complaint to determine whether the appropriatе statute of limitations time-bars appellants’ complaint.
{¶38} Under
{¶39} Appellants contend that it is unfair and unreasonable to expect a medical malpractice plaintiff to bring suit in the Court of Claims before the plaintiff knows of the existence of a resident or has reason to believe that there is any other issue making the Court of Claims the appropriate forum in which to file suit. More specifically, appellants contend they did not discover the existence of Dr. Kokkino, the neurosurgery resident, or had any other reason to believe there was any issue making the Court of Claims the appropriate forum in which to file suit until Dr. Dunsker filed his motion asserting personal immunity on May 23, 2007. Appellants thus contend their claim was not time-barred because they filed it within one year of Dr. Dunsker‘s assertion оf immunity.
{¶40} Appellants’ argument is without merit. The discussion between counsel during Dr. Dunsker‘s September 1999 deposition clearly establishes that he asserted a claim of immunity in his answer to appellants’ 1998 complaint. Further, Schultz‘s medical chart includes a “Record of Operation” completed by the circulating nurse during Schultz‘s surgery indicating that a neurosurgery resident, Dr. Kokkino, was present during the surgery. Medical malpractice appellants have a duty to examine medical records to ascertain the identity of medical personnel who may have rendered negligent care. Hans v. Ohio State Univ. Med. Ctr., 10th Dist. No. 07AP-10, 2007-Ohio-3294. Dr. Dunsker‘s assertion of immunity in his answer to appellants’ 1998 complaint, along with thе “Record of Operation” listing Dr. Kokkino as a resident, provided ample reason for appellants to believe there might be an issue making the Court of Claims an appropriate forum in which to file suit.
{¶42} We also stated in Clevenger that, because the plaintiff was on notice that issues regarding immunity might well have been present in the case, “[t]he prudent course 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.” Id. at ¶17. Although the facts of Clevenger differ from those in the instant case, i.e., Clevenger‘s surgery was performed in 2007, after Theobald was decided, we believe this court‘s assertion applies to the instant case.
{¶43} As noted, Dr. Dunsker‘s 1999 deposition demonstrates that he asserted a claim of immunity in his answer to appellants’ 1998 complaint. Appellants and counsel were thus on notice that issues regarding immunity might well have been present in this case. Thus, as this court averred in Clevenger, appellants’ prudent course of action would have been to file suit in both the Ohio Court of Claims and the Court of Common Pleas for
{¶44} Appellants further contend they were not provided an opportunity to address UC‘s motion to dismiss prior to the Court of Claims rendering its decision granting the motion. We construe appellants’ argument to contend that the Court of Claims abused its discretion in failing to conduct an evidentiary hearing on the motion. As UC points out, appellants filed a response to the motion, but never requested a hearing. Further, appellants did not mention the pending motion at Dr. Dunsker‘s August 13, 2009 immunity hearing. Because a trial court is confined to the allegations in the pleadings, a trial court does not abuse its discretion in failing to conduct an evidentiary hearing as factual findings are not required to determine the merits of a Civ.R. 12(B)(6) motion. Savage v. Godfrey (Sept. 28, 2001), 10th Dist. No. 01AP-388 (holding that a trial court did not err in denying a motion for oral hearing on a Civ.R. 12(B)(6) motion to dismiss, as “motions may be decided wholly on papers, and the dismissal of a complaint without an oral hearing does not violate due process“).
{¶45} Accordingly, the Court of Claims did not err in concluding that the one-year statute of limitations applicable to medical malpractice actions against the state barred the allegations in appellants’ complaint. We thus overrule appellants’ fifth assignment of error.
{¶46} Appellants’ sixth and seventh assignments of error contend the Court of Claims erred in failing to address the issues of “fundamental agency law” and “informed consent.” We note initially that the arguments presented in these twо assignments of error are essentially the same, that is, that Schultz was never informed of Dr. Dunsker‘s state employment and, therefore, could not have consented to be treated by a state
{¶47} Appellants’ tenth and final assignment of error contends the Court of Claims erred in granting UC‘s Civ.R. 12(B)(6) motion to dismiss appellants’ complaint by considеring factual matters outside the pleadings. Appellants have taken out of context portions of the court‘s decision and judgment entry pertaining to the determination of Dr. Dunsker‘s immunity in arguing that the Court of Claims looked outside the pleading when applying Civ.R. 12(B)(6). A thorough reading of the decision and judgment entry demonstrates that the Court of Claims applied the proper standard in granting UC‘s motion to dismiss. Accordingly, we overrule appellants’ tenth assignment of error.
{¶48} Based upon the foregoing, appellants’ first, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth assignments of error are overruled, the second assignment of error is rendered moot, and the judgment of the Ohio Court of Claims is affirmed.
Judgment affirmed.
TYACK, P.J., and FRENCH, J., concur.
_______________________