Hans v. Ohio State Univ. Med. Ctr.
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[Cite as Hans v. Ohio State Univ. Med. Ctr., 2005-Ohio-4457.]
IN THE COURT OF CLAIMS OF OHIO
www.cco.state.oh.us
LINDA L. HANS, Indiv., etc.
:
Plaintiff
:
v.
CASE NO. 2001-10140
Judge Fred J. Shoemaker
:
DECISION
OHIO STATE UNIVERSITY
MEDICAL CENTER
:
:
Defendant
: : : : : : : : : : : : : : : : :
{¶ 1} An evidentiary hearing was conducted in this matter to
determine whether William J. Schirmer, M.D., is entitled to civil
immunity pursuant to R.C. 2743.02(F) and 9.86.
{¶ 2} R.C. 2743.02(F) states, in part:
{¶ 3} “A civil action against an officer or employee, as defined
in section 109.36 of the Revised Code, that alleges that the
officer’s or employee’s conduct was manifestly outside the scope of
his employment or official responsibilities, or that the officer or
employee acted with malicious purpose, in bad faith, or in a wanton
or reckless manner shall first be filed against the state in the
court of claims, which has exclusive, original jurisdiction to
determine, initially, whether the officer or employee is entitled
to personal immunity under section 9.86 of the Revised Code and
whether the courts of common pleas have jurisdiction over the civil
action.
***”
{¶ 4} R.C. 9.86 states, in part:
{¶ 5} “*** no officer or employee [of the state] shall be liable
in any civil action that arises under the law of this state for
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JUDGMENT ENTRY
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.
***”
{¶ 6} There is no assertion in this case that Dr. Schirmer acted
with malice, in bad faith, or in a wanton or reckless manner in his
care and treatment of plaintiff’s decedent, Calvin Hans (Hans).
Therefore, the only issue before the court is whether Dr. Schirmer
was acting within the scope of his state employment with The Ohio
State University (OSU) when the alleged injury occurred.
{¶ 7} In Theobald v. University of Cincinnati, 160 Ohio App.3d
342, 2005-Ohio-1510, the Tenth District Court of Appeals stated
that: “[a]lthough the term ‘scope of employment’ is an elusive
concept, both the Supreme Court of Ohio and this court have
provided some guidance as to its meaning in the context of R.C.
9.86.
Oye v. Ohio State Univ., Franklin App. No. 02AP-1362, 2003
Ohio 5944, at P6.
Primarily, a state employee is acting within the
scope of his employment if he is acting ‘in furtherance of the
interests of the state.’ [Citation omitted.]
In other words,
‘conduct is within the scope of employment if it is initiated, in
part, to further or promote the master’s business.’
Univ.
of
Akron,
Franklin
App.
No.
01AP-845,
2002
Patena v.
Ohio
1917.
Conversely, ‘actions that bear no relationship to the conduct of
the state’s business’ are outside of the scope of employment.
supra, at P7.”
Oye,
See Theobald, at 353-354.
{¶ 8} In the instant case, Dr. Schirmer was, at all times
pertinent to this case, employed by OSU as an assistant professor
of surgery.
As a member of the OSU faculty, Dr. Schirmer’s
Case No. 2001-10140
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JUDGMENT ENTRY
responsibilities consisted of teaching and research.
In addition,
Dr. Schirmer was a member of the Department of Surgery Corporation
(DOSC), a medical professional corporation consisting of medical
practitioners engaged in the private practice of medicine.
{¶ 9} Dr. Schirmer has not asserted that he is entitled to
personal
immunity.
Rather,
he
maintains
that
at
all
times
pertinent he was an attending physician rendering treatment to Hans
in his capacity as an employee of DOSC, his private practice group.
Defendant also contends that Dr. Schirmer is not entitled to
immunity.
Conversely, plaintiff insists that Dr. Schirmer was
acting within the scope of his employment with OSU at all times in
question because he was engaged in teaching students and residents.
{¶ 10}
The determination whether a physician is entitled to
personal immunity is a question of law.
Nease v. Medical College
Hosp., 64 Ohio St.3d 396, 1992-Ohio-97, citing Conley v. Shearer,
64 Ohio St.3d 284, 1992-Ohio-133.
However, the question whether
the physician acted manifestly outside the scope of his state
employment is one of fact.
Lowry v. Ohio State Highway Patrol
(Feb. 27, 1997), Franklin App. No. 96API07-835; Smith v. Univ. of
Cincinnati, Franklin App. No. 01AP-404, 2001-Ohio-3990.
{¶ 11}
After review of the evidence and testimony, including
the deposition of Dr. Schirmer, the court makes the following
determination.
{¶ 12}
Hans’ treatment at OSU began as a result of a referral
from his hometown physician who had diagnosed Hans as having a
retroperitoneal mass.
Hans
at
his
DOSC
Dr. Schirmer, a general surgeon, met with
office
defendant’s hospital.
one
time
before
admitting
him
to
Dr. Schirmer removed the retroperitoneal
mass, and performed a left nephrectomy and left adrenalectomy.
Case No. 2001-10140
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JUDGMENT ENTRY
During the surgical procedure a resident, Barbara Howard, M.D.,
and a medical student, Brandon Lu, were present.
Due to the
complexity of the surgery, Dr. Schirmer performed almost the entire
procedure.
Consequently, he dictated the operative report.
Dr.
Schrimer followed up with Hans for several post-surgery visits.
Dr. Lu also followed up with Hans’ care after the procedure.
{¶ 13}
payable,
DOSC coordinated the billing, collections, accounts
payroll,
members.
and
business
operations
for
its
physician
DOSC billed Hans for the treatment rendered by Dr.
Schirmer and
received the payment/monies for those services.
Dr.
Schirmer
a
the
was
corporation.
shareholder
with
was
and
held
stock
in
DOSC paid the premiums for Dr. Schirmer’s medical
malpractice insurance coverage.
surgery
DOSC
performed,
DOSC
For the year in which Hans’
paid
Dr.
Schirmer
approximately $150,000 for rendering patient care.
a
salary
of
In that same
year, Dr. Schirmer earned a salary of approximately $35,000 from
OSUMC for his faculty position.
{¶ 14}
It has been frequently recognized that there is no
bright-line rule for determining whether or not a physician acted
within the scope of state employment.
However, in Theobald
v.
University of Cincinnati, supra, the Tenth District Court of
Appeals reviewed at length its previous decisions on the issue and
discussed
the
factors
to
be
considered
Specifically, the court stated that:
in
the
analysis.
“[s]ince Katko v. Balcerzak
(1987), 41 Ohio App.3d 375, 536 N.E.2d 10, this court has struggled
with identifying the appropriate analysis for resolving this issue.
In our earlier cases, we reasoned that a practitioner was acting
within the scope of employment for whichever employer had the most
significant financial involvement in the provided treatment.
Thus,
Case No. 2001-10140
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JUDGMENT ENTRY
our analysis centered primarily upon “financial" factors ***.”
Theobald at 354-355 citing, e.g., Balson v. Ohio State Univ.
(1996), 112 Ohio App.3d 33; Harrison v. Univ. of Cincinnati Hosp.
(June 28, 1996), Franklin App. No. 96API01-81, 1996 Ohio App. LEXIS
2762.
{¶ 15}
However, the Court of Appeals noted that in each of the
cases that focused upon financial factors the inevitable result was
that the physician was found not to be immune.
that:
The court concluded
“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.”
{¶ 16}
Id. at 355.
The court in Theobald continued its review of prior
holdings by noting that:
“[b]eginning with Norman v. Ohio State
Univ. Hosps. (1996), 116 Ohio App.3d 69, 686 N.E.2d 1146, we
introduced a new factor into the scope of employment analysis:
whether the practitioner only saw the patient in the course of
supervising or instructing a resident (the ‘education’ factor).
***
When a practitioner was treating a ‘private patient’ he was
acting outside of the scope of his employment with the university.
Conversely, a practitioner treating a ‘patient of the university’
was acting within the scope of his employment.”
citations omitted.)
{¶ 17}
(Additional
Id. 355-356.
The Theobald analysis then turned to the Court of
Appeals’ attempts to synthesize the education factor with the
financial factors, as set forth in the two-part test espoused in
Kaiser v. Flege (Sept. 22, 1998), Franklin App. No. 98AP-146.
However, the court concluded that, although the education-plusfinancial-factors test “properly summarized the factors we had
previously used to determine whether a practitioner was acting
Case No. 2001-10140
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JUDGMENT ENTRY
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.”
{¶ 18}
Id. at 356.
The Court of Appeals acknowledged that it then took a
somewhat different tact in Ferguson v. Ohio State Univ. Med. Ctr.
(June 22, 1999), Franklin App. No. 98AP-863, wherein it listed 15
factors that it had historically examined in determining whether a
practitioner
was
acting
within
the
scope
of
employment
and
concluded that, even though billing could be a relevant factor, it
was not always the determinative factor.
Id.
After further
discussion of that decision, the court held that, despite its
listing of 15 relevant factors, “our holding in Ferguson elevated
the education factor as the paramount factor in the analysis.”
Id.
at 357.
{¶ 19}
The
court
in
Theobald
went
on
to
note
that
the
importance of the education factor had been reiterated in its
decision in Kaiser v. Ohio State Univ., Franklin App. No. 02AP-316,
2002-Ohio-6030,
because
it
had
recognized
that
the
financial
aspects of the cases it reviewed were all essentially the same.
The court stated that:
“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.”
{¶ 20}
Id. at 357.
Thus, the Court of Appeals provided the following
guidance for this court:
“to determine whether a practitioner is
acting within the scope of employment, the 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,
Case No. 2001-10140
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JUDGMENT ENTRY
then the practitioner was acting within the scope of his employment
and, thus, is immune from liability.”
{¶ 21}
Id. at 357-358.
Further, the court stated that:
“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
[Citations
in
the
patient’s
omitted.]
Notably,
treatment
the
degree
during
of
the
that
visit.
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.”
Id. at 358.
{¶ 22} Based upon these principles, the court first finds that,
in the instant case, the aspects of the course of treatment that
gave rise to plaintiff’s claims were the surgical procedures
performed
by
allegations
Dr.
are
Schirmer
whether
it
at
OSU.
was
More
specifically,
appropriate
to
remove
the
the
retroperitoneal mass, or whether it could have been effectively
managed
through
chemotherapy,
and
whether
performing
the
nephrectomy compromised Hans’ ability to withstand chemotherapy.
Clearly, Dr. Schirmer was engaged in teaching a student and a
resident
at
the
time,
regardless
of
experience they received in the process.
how
little
“hands-on”
This is confirmed in Dr.
Case No. 2001-10140
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JUDGMENT ENTRY
Schirmer’s deposition, wherein he responded to questioning as
follows:
{¶ 23} “Q: So if, in fact, if Brandon Lu was there, he was there
for purposes of the $35,000 a year you received from Ohio State to
teach medical students, wasn’t he?
{¶ 24} “Q:
Isn’t that correct, Doctor?
{¶ 25} “Q:
He would have no other purpose for being there,
would he?
{¶ 26} “A:
Well, the way it—if you are interested, the way it
worked is medical students were on our service, on our rotation.
We would assign them to patients, and they would follow the
patients through their care and treatment from before surgery,
during surgery and after surgery.
That’s how they learned surgery.
So Brandon Lu, I take it, would be in that capacity in this part
of his education for medical school.
{¶ 27} “Q:
And that was your job as his mentor, then, to teach
him about this complex surgical procedure which, in fact, you
dictated the operative report on and didn’t even let the resident
have any part in it because it was so unique and complex; isn’t
that correct?
{¶ 28} “A:
It was a big operation that I did.
(Joint Exhibit
A, at pp. 33-34.)
{¶ 29} “Q:
Okay.
And this is all part of the education process
at Ohio State University isn’t that correct?
Doctors don’t learn
by themselves, they learn as a result of people who are experienced
and are then taught the procedures.
They learn from them; is that
correct?
{¶ 30} “A:
at p. 36.)
I think it is a fair statement.
(Joint Exhibit A,
Case No. 2001-10140
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JUDGMENT ENTRY
{¶ 31} In light of the above-quoted testimony, and in accordance
with Theobald, this court must conclude that, because education was
the university’s interest and because both a student and a resident
were involved with Hans’ care and treatment, Dr. Schirmer was
acting within the scope of his university employment when rendering
the care and treatment in question.
Further, even though Dr.
Schirmer himself is not claiming immunity, the court in Theobald
has held that even an individual who works for a university on a
volunteer basis, not as an employee and not receiving compensation,
can be deemed a state employee for purposes of immunity.
352.
Id. at
Accordingly, for all the foregoing reasons, the court finds
that Dr. Schirmer is entitled to civil immunity pursuant to R.C.
2743.02(F) and 9.86.
IN THE COURT OF CLAIMS OF OHIO
www.cco.state.oh.us
LINDA L. HANS, Indiv., etc.
:
Plaintiff
:
v.
CASE NO. 2001-10140
Judge Fred J. Shoemaker
:
JUDGMENT ENTRY
OHIO STATE UNIVERSITY
MEDICAL CENTER
:
:
Defendant
: : : : : : : : : : : : : : : : :
The court held an evidentiary hearing to determine civil
immunity pursuant to R.C. 2743.02(F) and 9.86.
Upon hearing all
Case No. 2001-10140
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JUDGMENT ENTRY
the evidence and for the reasons set forth in the decision filed
concurrently herewith, the court finds that William J. Schirmer,
M.D., is entitled to civil immunity pursuant to R.C. 2743.02(F) and
9.86.
Therefore,
the
courts
of
common
pleas
do
not
have
jurisdiction over civil actions against Dr. Schirmer based upon the
alleged actions and inactions in this case.
The clerk shall serve
upon all parties notice of this judgment and its date of entry upon
the journal.
________________________________
FRED J. SHOEMAKER
Judge
Entry cc:
N. Gerald DiCuccio
Gail M. Zalimeni
50 West Broad Street, Suite 700
Columbus, Ohio 43215-3337
Attorneys for Plaintiff
Christopher J. Weber
Attorneys for Defendant
Timothy T. Tullis
Traci A. McGuire
Special Counsel to Attorney General
65 East State Street, Suite 1800
Columbus, Ohio 43215
Information copy:
Theodore M. Munsell
175 South Third Street
Columbus, Ohio 43215
William J. Schirmer, M.D.
241 Paddock Court
Delaware, Ohio 43015
Attorney for William J.
Schirmer, M.D.
Case No. 2001-10140
LH/cmd
Filed August 2, 2005
To S.C. reporter August 29, 2005
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JUDGMENT ENTRY
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