827 N.E.2d 365 | Ohio Ct. App. | 2005
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{¶ 1} Defendant-appellant, University of Cincinnati ("UC"), appeals from a judgment of the Ohio Court of Claims finding that Frederick A. Luchette, M.D., Jamal Taha, M.D., Harsha Sharma, M.D., and Maureen Parrott, C.R.N.A., were not entitled to personal immunity pursuant to R.C.
{¶ 2} On October 23, 1998, Keith Theobald was involved in a multivehicle collision during which he was thrown from his pick-up truck and seriously injured. Theobald was flown to University Hospital, the closest hospital that could handle the high degree of trauma that he had suffered. Dr. Luchette, the *347 attending trauma surgeon, admitted Theobald to the hospital and began identifying his injuries. With the other members of the hospital's trauma team, Dr. Luchette determined that Theobald had upper rib fractures, a lacerated spleen, a right wrist fracture, and fractured vertebrae, resulting in paraplegia.
{¶ 3} Because Theobald had suffered a neurological injury, he was assigned to Dr. Taha, the interim director of the neurotrauma team. The morning after the accident, Dr. Taha and a neurotrauma resident examined Theobald and told him that based upon their initial assessment, he needed immediate surgery on his spine. Due to the extent and complexity of Theobald's spinal injury, Dr. Taha decided to involve Dr. Andrew J. Ringer, the chief resident in neurotrauma, in Theobald's care. Dr. Taha and Dr. Ringer discussed Theobald's case and examined his x-rays. After ordering and evaluating more x-rays, Dr. Taha and Dr. Ringer decided that Theobald's spinal injury did, indeed, require surgery. Dr. Ringer then contacted the critical care unit and asked them to determine if Theobald was stable enough to endure surgery. Dr. Luchette assessed Theobald's condition and concluded that he could tolerate the surgery.
{¶ 4} Both Dr. Luchette and Dr. Ringer then met with the Theobalds to discuss the surgery and obtain their consent. Jacqueline Theobald, Theobald's wife, signed two informed consent forms for the surgery: one authorizing treatment by Dr. Luchette and the other authorizing treatment by Dr. Taha.
{¶ 5} Prior to surgery, Amy Wehrman, a student nurse anesthetist, prepared a preoperative anesthesia note, which documented Theobald's history and physical condition. Nurse Parrott reviewed this note and the remainder of Theobald's chart, and then she discussed his history, current physical condition, and the plan for administering anesthesia during the surgery with Nurse Wehrman and Dr. Sharma, the anesthesiologist.
{¶ 6} Theobald's surgery began at approximately 8:00 p.m. on October 24, 1998, with Dr. Luchette opening with the assistance of Dr. Steven Giss, a trauma resident. After Dr. Luchette and Dr. Giss completed the first portion of the surgery, Dr. Taha and Dr. Ringer began freeing Theobald's spinal cord from bone that compressed it. During the surgery, complications arose, and Dr. Luchette reentered the operating room to insert a chest tube. When Dr. Taha and Dr. Ringer completed freeing and stabilizing the spinal cord, Dr. Luchette and Dr. Giss returned to close. The surgery ended at approximately 6:00 a.m. on October 25, 1998.
{¶ 7} Throughout the surgery, Dr. Sharma and Nurse Parrott administered anesthesia and monitored Theobald's medical condition. Nurse Wehrman observed and assisted by keeping records, monitoring vital signs, and drawing blood. *348
{¶ 8} When Theobald awoke from sedation, he discovered that he was blind and his arms were numb and had little mobility. Despite continued care, both conditions persisted.
{¶ 9} In October 1999, Theobald and his wife, on behalf of herself and the couples' minor children, filed a medical malpractice claim in the Hamilton County Court of Common Pleas against Dr. Luchette, Dr. Taha, Dr. Sharma, and Nurse Parrott, among others. Because Dr. Luchette, Dr. Taha, Dr. Sharma, and Nurse Parrott all asserted the defense of personal immunity, the Hamilton County Court of Common Pleas granted a stay of appellees' malpractice action to allow the Court of Claims to determine if any or all of the health care practitioners were entitled to immunity pursuant to R.C.
{¶ 10} On November 29, 2001, the Court of Claims conducted an immunity hearing during which the court joined Dr. Taha, Dr. Sharma, and Nurse Parrott as parties to the immunity proceedings. In an order issued December 6, 2001, the Court of Claims also made Dr. Luchette a party to the immunity proceedings. The Court of Claims then issued an order stating that it would determine whether the health care practitioners were entitled to immunity based upon the hearing testimony, as well as any evidentiary materials and briefs the parties submitted.
{¶ 11} On April 23, 2002, the Court of Claims issued a judgment entry denying the health care practitioners personal immunity pursuant to R.C.
{¶ 12} On appeal, UC filed a motion to dismiss the health care practitioners' appeals, arguing that none of them had standing to appeal. This court granted UC's motion and, upon the motion of Dr. Sharma and Nurse Parrott, certified a conflict between the case law of this district and the First District Court of Appeals on the issue of a state employee's right to appeal from an immunity determination by the Court of Claims. This court later stayed proceedings in this appeal pending the Supreme Court of Ohio's determination of the certified conflict.
{¶ 13} On April 14, 2004, the Supreme Court of Ohio decidedTheobald v. Univ. of Cincinnati,
{¶ 14} On appeal, UC assigns the following errors:
[1.] The Court of Claims erred in joining Frederick Luchette, M.D., Harsha Sharma, M.D., Jamal Taha, M.D., and Maureen Parrott, C.R.N.A. as parties to the immunity hearing.
[2.] The Court of Claims erred in finding that Jamal Taha, M.D., was not an "employee" for purposes of R.C.
9.86 .[3.] The Court of Claims erred in finding that Maureen Parrott, C.R.N.A. was not an "employee" for purposes of R.C.
9.86 .[4.] The Court of Claims erred in finding that Frederick Luchette, M.D., is not entitled to immunity under R.C.
9.86 .[5.] The Court of Claims erred in finding that Harsha Sharma, M.D., is not entitled to immunity under R.C.
9.86 .[6.] The Court of Claims erred in finding that Jamal Taha, M.D., is not entitled to immunity under R.C.
9.86 .[7.] The Court of Claims erred in finding that Maureen Parrott, C.R.N.A., is not entitled to immunity under R.C.
9.86 .
{¶ 15} By its first assignment of error, UC argues that the Court of Claims erred in joining Dr. Luchette, Dr. Taha, Dr. Sharma, and Nurse Parrott as parties to the immunity proceedings. We agree. *350
{¶ 16} In Johns v. Univ. of Cincinnati Med. Assoc., Inc.,
{¶ 17} Nevertheless, this error is not a basis for reversal because the error was harmless under these circumstances. A reviewing court will not disturb a judgment unless the error contained within is materially prejudicial to the complaining party. Fada v. Information Sys. Networks Corp. (1994),
{¶ 18} In the case at bar, the Court of Claims' error — the joinder of Dr. Luchette, Dr. Taha, Dr. Sharma, and Nurse Parrott as parties to the immunity determination — was beneficial, rather than prejudicial, to UC, the complaining party. Like UC, the health care practitioners argued that they were immune from liability for appellees' injuries. Thus, the interests of UC and the practitioners were aligned, and the inclusion of the practitioners as parties in the proceedings only strengthened UC's position. As the trial court found against UC and the practitioners even with the practitioners' participation, exclusion of the practitioners from the immunity determination proceedings would not have changed the outcome of the proceedings. Therefore, the joinder of the practitioners *351 was not materially prejudicial to UC and did not adversely affect a substantial right of UC.
{¶ 19} Accordingly, we overrule UC's first assignment of error.
{¶ 20} By its second assignment of error, UC argues that the trial court erred in concluding that Dr. Taha was not an UC employee. We agree.
{¶ 21} Pursuant to R.C.
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 malicious manner.
Thus, state employees are immune from tort and other liability for wrongs they commit, as long as those wrongs are committed in furtherance of the interests of the state. Conley v. Shearer
(1992),
{¶ 22} Accordingly, before finding that a person is entitled to immunity under R.C.
{¶ 23} A state employee is "[a] person who, at the time a cause of action against the person arises, * * * is employed by the state." R.C.
{¶ 24} Despite this evidence, appellees assert that no employment contract existed between Dr. Taha and UC, and that Dr. Taha worked for UC only at the behest of the Mayfield Clinic. Appellees maintain that UC entered into a contract with the Mayfield Clinic for Dr. Taha's expertise and UC compensated the Mayfield Clinic, not Dr. Taha, for his work. Although we conducted a thorough review of the record, we cannot find the contract, or testimony regarding the contract, purportedly executed by UC and the Mayfield Clinic. Further, Dr. Taha testified that UC issued paychecks naming him, not the Mayfield Clinic, as the payee. Therefore, based upon the evidence in the record, we can only conclude that the weight of the evidence proves that Dr. Taha was an employee of UC.
{¶ 25} Accordingly, we sustain UC's second assignment of error.
{¶ 26} By UC's third assignment of error, it asserts that the Court of Claims erred in concluding that Nurse Parrott was not a UC employee. We agree.
{¶ 27} In its decision, the Court of Claims found that Nurse Parrott worked exclusively for University Anesthesia Associates ("UAA"), a private practice plan; that she was not employed by UC; and that she never received any pay from UC. Indeed, in her deposition, Nurse Parrott testified that she never worked for UC and never received pay from UC. However, Nurse Parrott also testified that she was a volunteer clinical instructor for UC during 1998 and, in that position, she was required to supervise nurse-anesthetist students.
{¶ 28} Neither Nurse Parrott's admission that she was not a UC employee nor her testimony that she was not compensated by UC is dispositive of her employment status. Potavin v. Univ. Med.Ctr. (Apr. 19, 2001), Franklin App. No. 00AP-715,
{¶ 29} In Potavin, we held that a volunteer clinical instructor for UC's Department of Obstetrics and Gynecology ("OBGYN Department") was an *353 employee of the state. There, UC had such a high degree of control over the instructor's practice plan that the dean of the College of Medicine had to approve the amount of compensation the practice-plan employees received. Also, the private practice plan contributed a significant amount of money to the OBGYN Department. Further, the OBGYN Department director testified that the practice plan would not exist if not for its relationship with UC and that UC could not pay its employees if not for its relationship with the practice plan. Given this symbiotic relationship, this court concluded that UC and the practice plan functioned as one entity, even though they were separate legal entities. Therefore, this court held that the volunteer clinical instructor was an employee of the state.
{¶ 30} In the case at bar, UC had significant control over UAA, the private practice plan at issue here, during 1998. Dr. Phillip Bridenbaugh, M.D., the Chairman of the Department of Anesthesia within the UC College of Medicine and president of UAA, testified that UAA was "the practice plan portion of the academic Department of Anesthesia of the College of Medicine." UAA's purpose was to bill and collect payment for clinical services provided by its employees and disburse the revenue collected to the Department of Anesthesia to meet the Department's expenses. Without the revenue collected by UAA, UC would not have had any means to compensate the Department's clinical faculty members. Further, UC exerted control over the outlay of the funds UAA collected by requiring UAA to receive the approval of the Dean of the College of Medicine for its budget and the amount of the salaries it paid its employees. Therefore, we conclude that although UC and UAA were separate legal entities, their relationship was sufficiently close that UAA-employee Nurse Parrott, even though only a volunteer clinical instructor for UC, was an employee of the state for purposes of immunity.
{¶ 31} Accordingly, we sustain UC's third assignment of error.
{¶ 32} By its remaining assignments of error, UC argues that Dr. Luchette, Dr. Taha, Dr. Sharma, and Nurse Parrott were all acting within the scope of their employment with UC when treating Theobald and, therefore, they are immune from personal liability.
{¶ 33} Generally, in cases involving health care practitioners who are also clinical faculty members, immunity hinges upon whether the practitioners were acting within the scope of their employment. As we stated above, a state employee is entitled to immunity, unless that employee is manifestly outside of the scope of employment. R.C.
{¶ 34} In cases such as this, determining whether a health care practitioner is within the "scope of employment" is particularly difficult given the dual nature of the practitioner's employment.2 On one hand, the practitioner is a university faculty member, charged by the university with furthering the education of students and residents in a real-world setting. On the other hand, the practitioner is the patient's caregiver, providing treatment for compensation from a private practice plan. In many instances, the line between these two roles is blurred because the practitioner may be teaching by simply providing the student or resident an opportunity to observe while the practitioner treats a patient. In this situation, is the practitioner acting within the scope of his employment with the state or his private employer?
{¶ 35} Since Katko v. Balcerzak (1987),
{¶ 36} In each of the cases that focused upon financial factors in determining whether the practitioner was within the scope of employment with the state university at the time of the alleged wrongful act, the result was the same: the practitioner was not immune. Generally, we reached this result because the private practice plan typically had significantly greater financial involvement in the provided care. Most, if not all, Ohio state medical schools affiliate with separate corporations run and staffed by clinical faculty members to deal with the income generated from the clinical faculty members' practices. These corporations, or practice plans, employ the medical school clinical faculty and provide the majority of the clinical faculty members' salaries. Additionally, the practice plans are responsible for billing and collecting payments for the services the clinical faculty members provide as part of their practice of medicine. Often, the practice plans also provide the practitioner's malpractice insurance.
{¶ 37} The universities benefit in two ways from this arrangement. First, without tapping university funds, the medical schools are able to attract highly regarded clinical faculty members with salaries comparable to those offered in the private sector. Students and residents then benefit from working with these clinical faculty members, learning to practice medicine by observing and assisting them in the treatment of patients. Second, the medical schools receive contributions from the practice plans, allowing them to maintain their departments.
{¶ 38} Although medical schools exercise a high degree of control over these practice plans and benefit from their profitability, the schools themselves have little direct involvement with the financial aspects of the practice of medicine. Therefore, the use of the financial factors to determine whether a practitioner is within the scope of his employment with the medical school will almost always result in a negative answer. Furthermore, the financial factors generally do not address the core scope of employment issue: whether the practitioner was acting to further the medical school's interests.
{¶ 39} Beginning with Norman v. Ohio State Univ. Hosps.
(1996),
{¶ 40} In an attempt to synthesize this new factor with the financial factors, we articulated a two-part test in Kaiser v.Flege (Sept. 22, 1998), Franklin App. No. 98AP-146,
The two major determining factors to be used in finding whether a physician was acting outside the scope of his or her employment for a state university hospital are: (1) whether the patient was a private patient of the physician, rather than a patient of the university; and (2) the university's financial gain from the medical treatment at issue relative to the physician's financial gain therefrom.
{¶ 41} Although this test properly summarized the factors we had previously used to determine whether a practitioner was acting within the scope of his employment, the test did not render a predictable result. Rather, the outcome of each case depended upon which factor we stressed.
{¶ 42} This lack of predictability quickly became apparent and is illustrated in Scarberry, supra,
{¶ 43} In Ferguson v. Ohio State Univ. Med. Ctr. (June 22, 1999), Franklin App. No. 98AP-863,
{¶ 44} With the exception of Smith, supra,3 the cases following Ferguson turned upon the education factor. When evidence existed that a practitioner was supervising or instructing students or residents while rendering care to the patient, we concluded that the practitioner was acting within the scope of his employment. See, e.g., Hopper v. Univ. ofCincinnati (Aug. 3, 2000), Franklin App. No. 99AP-787,
{¶ 45} In Kaiser v. Ohio State Univ., Franklin App. No. 02AP-316, 2002-Ohio-6030,
{¶ 46} As the above discussion demonstrates, since Ferguson, this court has implicitly and explicitly retreated from applying the financial factors as determinative factors and, instead, the outcome of each case essentially has turned upon the education factor. Therefore, we conclude that although the financial factors may be relevant to determine whether a practitioner is an employee of the state, the financial factors generally have little bearing upon whether a practitioner is acting within the scope of his employment. Instead, to determine whether a practitioner is acting within the scope of employment, the *358 Court of Claims must primarily inquire whether the practitioner was educating a student or resident while rendering the allegedly negligent care to the patient. If the practitioner was educating a student or resident, then the practitioner was acting within the scope of his employment and, thus, is immune from liability.
{¶ 47} Making the education of students and residents the primary factor is consistent with the general definition of "scope of employment." As reflected by testimony, employment contracts, letters of appointment, and other evidence, the "master's business" in these cases is the education of students and residents in a real-world setting.4 Therefore, any time a clinical faculty member furthers a student or resident's education, he promotes the state's interest. Because the state's interest is promoted no matter how the education of the student or resident occurs, a practitioner is acting within the scope of his employment if he educates a student or resident by direct instruction, demonstration, supervision, or simple involvement of the student or resident in the patient's care.
{¶ 48} Accordingly, in order to determine whether a practitioner is acting within the scope of his employment, the Court of Claims must first identify the aspect of the course of treatment that the plaintiff alleges gave rise to damage or injury. Then, if education is the university's interest, the Court of Claims must determine whether a student or resident was somehow involved with the patient's care during that aspect of the course of treatment. Thus, for example, if during a patient's visit to the emergency room a physician is negligent, that physician was acting within the scope of his employment, and is immune, if a resident or student was involved in the patient's treatment during that visit. Kaiser v. Flege, supra,
{¶ 49} Notably, the degree of the student or resident's involvement is not significant in this analysis as long as the practitioner was teaching at the time of the alleged wrongful act. Further, it is irrelevant how the patient views his relationship with the practitioner.
{¶ 50} In the case at bar, UC introduced evidence that a student and at least three residents were involved with Theobald's treatment. However, in determining that the practitioners were not acting within the scope of their employment, the Court of Claims did not concentrate on this evidence but, instead, relied solely upon the financial factors. Therefore, we must remand this case to the Court of Claims for it to make a determination whether a student or *359 resident was involved during each aspect of Theobald's course of treatment that allegedly resulted in appellees' damages and injuries.
{¶ 51} Accordingly, we sustain UC's fourth through sixth assignments of error to the extent that the Court of Claims erred in determining whether the physicians were acting within the scope of their employment without considering whether students or residents were involved in each aspect of the course of treatment during which appellees allege they were damaged and injured. Further, we sustain UC's seventh assignment of error to the extent that the Court of Claims failed to make any determination regarding whether Nurse Parrott was acting within her scope of employment.
{¶ 52} For the foregoing reasons, we overrule UC's first assignment of error and sustain UC's second and third assignments of error. Further, we sustain UC's fourth, fifth, sixth, and seventh assignments of error to the extent noted above. Finally, we reverse the Court of Claims of Ohio's judgment and remand this cause to that court for further proceedings in accordance with law and this opinion.
Judgment reversed and cause remanded.
PEGGY L. BRYANT and SADLER, JJ., concur.
