674 N.E.2d 721 | Ohio Ct. App. | 1996
Lead Opinion
Claude E. Smith was an inmate under the control of the Ohio Department of Rehabilitation and Correction. Apparently, as the result of confusing Smith with another inmate with a similar name, unnecessary surgery was performed on Smith. As a result, Smith filed a lawsuit.
The Ohio Department of Rehabilitation and Correction has a contract with the Ohio State University Hospitals ("University Hospitals"). University Hospitals in turn has a contract with a variety of corporations to provide the medical services to the inmates. The corporation then employs the physicians and other medical providers.
Jeffrey York, M.D., performed the surgery on Claude E. Smith. The Ohio Court of Claims had the responsibility to determine whether York was an employee of the state of Ohio at the time he provided medical care to Smith and whether York was entitled to at least some immunity under the provisions of R.C.
Both Smith and University Hospitals have appealed from the trial court's finding. Smith has assigned two errors for our consideration:
"Assignment of Error No. 1
"The Court of Claims erred in finding that Dr. York was entitled to immunity because he was an employee of the state at the time of the alleged malpractice. *414
"Assignment of Error No. 2
"The Court of Claims erred in concluding that Dr. York did not act with malicious purpose, in bad faith, or in a wanton or reckless manner by completely failing to consider whether Dr. York withheld from appellant after his operation the true facts regarding appellant's medical condition, or lack thereof, as alleged by appellant in count two of his amended complaint."
University Hospitals has assigned a single error:
"The Court of Claims erred in finding that Jeffrey York, M.D. was acting as an `employee' of the state, as defined by R.C.
Because Smith's first assignment of error and University Hospitals' sole assignment of error present the same issue, the two assignments of error will be addressed together.
R.C.
"If a claimant proves in the court of claims that an officer or employee, as defined in section
R.C.
"(A) `Officer or employee' means any person who, at the time a cause of action against him arises, * * * is employed by the state or any person that, at the time a cause of action againstthe person, partnership, or corporation arises, is rendering medical * * * services pursuant to a personal services contractor purchased service contract with a department, agency, or institution of the state * * *." (Emphasis added.)1
Thus, pursuant to R.C.
R.C.
R.C.
We note that the trial court found that York was entitled to immunity under either version of the statute. However, for purposes of this opinion, we will focus on the language of the prior version of R.C.
"`Officer or employee' means any person who, at the time a cause of action against him arises, * * * is employed by the state or * * * is rendering medical * * * services pursuant to a personal services contract * * * with a department, agency, or institution of the state. * * *"
The crucial issue becomes whether York was rendering medical services pursuant to a personal services contract. If York was not rendering services pursuant to a personal services contract, then he was not an employee of University Hospitals.
This issue is not simply resolved. The corporation which employed York is the Department of Surgery Corporation ("DSC"). DSC is a professional corporation comprising all the members of the faculty of the Department of Surgery in the College of Medicine at the Ohio State University. York was both an employee and a shareholder of DSC. He testified that he was required to be both an employee and a shareholder of DSC in order to be accepted for his other employment, that of an assistant professor of urology/surgery at the Ohio State University. Thus, the relationship between University Hospitals and DSC did not keep the entities at arm's length. However, the contract between University Hospitals and DSC which resulted in the medical care for Smith did not dictate which of the various doctors affiliated with DSC would provide the care. University Hospitals simply paid a lump sum of approximately $900,000 a year and DSC then made the specific arrangements.
The phrase "personal services contract" is not defined by statute. The case law interpreting the phrase is sparse. InYellow Cab of Cleveland, Inc. v. Greater Cleveland RegionalTransit Auth. (1991),
Reduced to its essence, a personal services contract suggests a degree of control exercised by the purchaser over the services to be performed by a chosen individual or individuals; a purchased services contract indicates, as the name implies, a purchase of services without regard to the specific individual to provide the service.
Under the facts of this case, York was not functioning under a personal services contract with a department, agency or institution of the state, and was not a state employee as defined by R.C.
We sustain the sole assignment of error of University Hospitals and the first assignment of error of Smith.
In light of our previous finding as to immunity, we need not address Smith's second assignment of error. That assignment of error is moot.
As a result of the foregoing, we reverse the judgment of the Ohio Court of Claims as to immunity for York. We remand the case to enter a finding that York is not immune and for further appropriate proceedings.
Judgment reversedand cause remanded.
PEGGY BRYANT, J., concurs.
JOHN C. YOUNG, J., dissents.
Dissenting Opinion
Because I do not agree with the conclusion reached by the majority, I respectfully dissent. The crucial issue in this case is whether Jeffrey York, M.D., was acting as an employee of the Ohio State University Hospitals when he performed surgery on the plaintiff, Claude E. Smith. As noted by the majority, the relevant statutes for purposes of determining whether one is entitled to *417
immunity are R.C.
"(A) `Officer or employee' means any person who, at the time a cause of action against him arises, * * * is employed by the state or any person that, at the time a cause of action againstthe person, partnership, or corporation arises, is rendering medical * * * services pursuant to a personal services contractor purchased service contract with a department, agency, or institution of the state * * *." (Emphasis added.)
Thus, pursuant to R.C.
Although I agree that this court should apply the prior version of R.C.
Before it was amended in October 1994, R.C.
"`Officer or employee' means any person who, at the time a cause of action against him arises, * * * is employed by the state or * * * is rendering medical * * * services pursuant to a personal services contract * * * with a department, agency, or institution of the state. * * *"
I would find that the prior version of R.C.
At oral argument, and in the briefs, both appellants argue that the language "pursuant to a personal services contract" essentially requires that York be a party to a personal services contract. Appellants also argue that a corporation, such as DSC, cannot be a party to a personal services contract, given DSC's corporate nature. Therefore, appellants argue that, even if York was rendering medical services pursuant to the contract between DSC and University Hospitals, the contract did not qualify as a "personal services" contract, since DSC is a corporation and not an individual. Research has revealed only one case that addressed the issue of whether a corporation could be a party to a personal services contract, and that case specifically stated that a personal services contract existed notwithstanding the corporate nature of one of the parties. See Ford, Bacon Davis,Inc. v. Holahan (C.A.5, 1962),
Moreover, I would note that the language of R.C.
The majority takes note of the fact that the agreement between University Hospitals and DSC did not dictate which of the various doctors affiliated with DSC would provide the care. The majority also notes that if York had a personal services contract with anybody, it would have to be with his direct employer, DSC. Apparently, the majority is convinced that, in order to constitute a personal services contract, someindividual must either be a party to the contract or, at a minimum, be named in the contract.
I believe the flaw in this argument is that it centers on the actual parties to a contract or individuals named therein, rather than the nature of the contract, i.e., a contract forpersonal services. Generally speaking, a personal services contract is one in which the provider of the services is vested with discretion in accomplishing *419
the assigned tasks because his skills, knowledge, experience and expertise are unique to the area and cannot be duplicated by others not similarly qualified. See Yellow Cab of Cleveland,Inc. v. Greater Cleveland Reg. Transit Auth. (1991),
Clearly a surgeon's skills, knowledge, experience and expertise are unique and cannot be duplicated by others not similarly qualified. University Hospitals entered into an agreement with DSC because it was seeking out DSC's expertise in providing qualified surgeons to help University Hospitals meet its contractual obligation to DRC.
Moreover, given that the nature of the contract between University Hospitals and DRC was to provide specialized skills, and given that York was operating on Smith pursuant to and because of that very contract, I would find that York is entitled to immunity.
As noted by the majority, the issue in this case is not simply resolved, because the relationship between University Hospitals and DSC, given these facts, is unusual. Most of the cases cited by the parties involve fact patterns where a physician wears two hats: one when he or she works as an employee for the benefit of the state hospital, and one when he or she works as an employee of the private corporation for the private corporation's benefit.
This is not a case where York performed surgery on a private patient for a fee, no part of which was paid over to University Hospitals. See Klingel v. Ohio State Univ. Hosp. (1995),
In the instant action, York was conducting business, via DSC, in order to fulfill University Hospitals' contractual obligations to DRC. Moreover, DSC was paid a lump sum each month; DSC was not getting paid on a fee-for-service basis. More important, York's efforts in this case were not solely to improve the financial condition of DSC, as they were in theKlingel case; rather, York's efforts were to help University Hospitals fulfill its contractual obligation to DRC. Arguably, York's efforts did not improve the financial condition of DSC insofar as DSC provided those services for approximately thirty to thirty-five percent per patient of what DSC would charge a private patient.
Thus, I would find that the instant action does not involve a "scope of employment" question, insofar as York was not handling patients on a fee-for-service basis and handing the profits over to DSC. Cf. Nichols v. Villarreal (1994),
For those reasons, I believe that the above factors support the trial court's conclusion that York was acting pursuant to a personal services contract, and was acting as an employee of University Hospitals for purposes of R.C.
However, I would sustain Smith's second assignment of error. R.C.
York testified that he performed the prostatectomy on Smith in July 1992 based on an ultrasound-assisted biopsy of April 1992. The biopsy report identified the patient as Claude E. Smith. York testified that the name and identification numbers on the patient's chart all indicated that Claude E. Smith was the patient with cancer and was the patient in need of surgery. Unfortunately, the record does not contain this chart, nor is there anything in the record to reflect whether Claude E. Smith consented (or refused to consent) to this surgery. The record does not contain any testimony by Claude E. Smith, and, again, there is no consent form in the record to demonstrate that Claude E. Smith consented to this surgery. The only testimony pertaining to this issue is York's, and he did not affirmatively testify that he received consent; nor did he testify that Claude E. Smith ever refused consent. Given the state of the record, and given that the weight to be given the evidence and the credibility of witnesses are primarily for the trier of fact, I would affirm the trial court's finding that York acted within the scope of his employment when he operated on Smith. State v.DeHass (1967),
However, I would also find that the trial court failed to address the issue raised in Smith's second assignment of error.
In his second assignment of error, Smith argues that York failed to advise him of his suspicion that the wrong person had been operated upon. It is Smith's contention that York withheld true facts regarding his medical condition and that this constitutes malicious purpose, bad faith, and/or a wanton or reckless manner for purposes of R.C.
I would find that there is evidence to support the trial court's conclusion that York did not act outside the scope of his employment when he operated on Smith. However, the trial court failed to make any finding as to whether York's actions after the operation were within the scope of his employment and/or whether York acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Thus, I would sustain Smith's second assignment of error and remand for the sole purpose of having the trial court determine whether York's actions after the surgery were within the scope of employment and are entitled to immunity.
For all of the above reasons, I respectfully dissent.
