Gerschutz v. Med. College of Ohio Hosp.
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[Cite as Gerschutz v. Med. College of Ohio Hosp., 2004-Ohio3825.]
IN THE COURT OF CLAIMS OF OHIO
MELINDA F. GERSCHUTZ, et al.
:
Plaintiffs
:
v.
CASE NO. 2003-04783
Judge Fred J. Shoemaker
:
DECISION
MEDICAL COLLEGE OF OHIO
HOSPITAL
:
:
Defendant
: : : : : : : : : : : : : : : : :
{¶1}
An evidentiary hearing was conducted in this matter to determine whether
Bashar Kahaleh, M.D. and Henry Goitz, M.D. are entitled to civil immunity pursuant to R.C.
2743.02(F) and 9.86. The court notes that the evidentiary hearing was conducted on
February 19, 2004, and that the court granted the parties’ request to keep the record open
until March 15, 2004, to allow additional testimony.
{¶2}
As a preliminary matter, the court must address motions that were filed by the
parties as a result of the decision of the Supreme Court of Ohio in Johns v. Univ. of
Cincinnati Med. Assocs., Inc., 101 Ohio St.3d 234, 2004-Ohio-824, wherein on March 10,
2004, the Court found that “excluding a state employee from participating in the immunitydetermination proceedings does not violate his or her due process rights or deny him or her
access to Ohio’s courts.” Id. at paragraph 41.
{¶3}
On March 11, 2004, counsel for Drs. Kahaleh and Goitz filed two depositions
and affidavits in support of their claims of immunity. On April 14, 2004, the Supreme Court
of Ohio issued its decision in Theobald v. Univ. of Cincinnati, 101 Ohio St.3d 370, 2004Ohio-1527, finding that “a state employee has no right to participate in the immunity
determination proceedings before the Court of Claims or to appeal that determination.” Id.
at paragraph 6. On April 16, 2004, the doctors’ counsel filed a brief in support of
immunity. On that same date, defendant filed motions both to strike the “evidence”
submitted on March 11, 2004, on behalf of Drs. Kahaleh and Goitz and to admit additional
exhibits and deposition testimony. On April 20, 2004, defendant filed a motion to strike the
doctors’ brief in support of immunity. Upon review, defendant’s April 16, 2004, motion to
admit exhibits and testimony is GRANTED and its motions to strike are DENIED.
{¶4}
At all times relevant to this action, Drs. Kahaleh and Goitz were full-time
faculty members at the Medical College of Ohio (MCO) School of Medicine. The doctors
were also employed through Associated Physicians of MCO, Inc. (APMCO), a private forprofit corporation which operates as the practice plan for the clinical faculty members of
defendant’s medical school. Dr. Kahaleh served as the division chief of Rheumatology
and Immunology.
Dr. Goitz served as the division chief of Sports Medicine in the
Department of Orthopaedic Surgery. Neither doctor maintained a private practice outside
the clinic and both spent all their professional time working at defendant’s hospital or
clinic.
{¶5}
Prior to the incidents that gave rise to this case, plaintiff had been diagnosed
and treated by her family physician for rheumatoid arthritis and fibromyalgia. Plaintiff was
referred to defendant’s rheumatology clinic by her family physician and was treated by Dr.
Kahaleh, defendant’s residents, and students at the clinic. In October 2001, plaintiff fell at
her home and was treated for those injuries by Dr. Kahaleh and subsequently referred to
Dr. Goitz. Plaintiff alleges that Drs. Kahaleh and Goitz failed to diagnose her hip fracture.
{¶6}
There is no assertion that either Dr. Kahaleh or Dr. Goitz acted with malice, in
bad faith, or in a wanton or reckless manner in their care and treatment of plaintiff.
Therefore, the issue before the court is whether the physicians were acting within the
scope of their state employment with MCO when the alleged injury occurred.
{¶7}
R.C. 2743.02(F) states, in part:
{¶8}
“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 the officer’s or employee’s 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. ***”
{¶9}
R.C. 9.86 states, in part:
{¶10} “*** no officer or employee [of the state] 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 determination of 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 of 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.
{¶12} The Tenth District Court of Appeals has identified 15 factors that it has
routinely considered in determining whether or not a physician acted within the scope of
state employment. Ferguson v. The Ohio State University Med. Ctr. (June 22, 1999),
Franklin App. No. 98AP-863. Subsequently, that court found that the Ferguson factors
could be viewed in terms of two essential considerations: 1) whether the patient was the
physician’s private patient or a patient of the university medical facility; and 2) the relative
financial gain for the university as compared to that of the physician. Wayman v. University
of Cincinnati Med. Ctr. (June 22, 2000), Franklin App. No. 99AP-1055. The court stated
that “the key factor” is whether or not the patient was essentially the doctor’s private
patient. Barkan v. The Ohio State Univ. Franklin App. No. 02AP-436, 2003-Ohio-985; see,
also, Verhoff v. Ohio State Univ. Med. Ctr., 125 Ohio Misc.2d 30, 2003-Ohio-4795.
{¶13} The parties assert that plaintiff was a private patient of both Drs. Kahaleh and
Goitz because APMCO, rather than defendant, billed plaintiff for all of the medical services
provided by the doctors at the clinic. However, the Tenth District Court of Appeals stated
that “billing may be a relevant factor, but it is not always determinative in deciding whether
a physician is acting within the scope of his duties as a private physician or as an
employee of a university at the time he or she rendered medical services to a patient.”
Hopper v. Univ. of Cincinnati (Aug. 3, 2000), Franklin App. No. 99AP-787, citing Ferguson
v. Ohio State Univ. Med. Ctr. (June 22, 1999), Franklin App. No. 98AP-863.
{¶14} Article 1 Section(E)(4) of defendant’s faculty rules for medical staff requires
all full-time faculty within the medical college who engage in clinical practice to participate
in the practice plan administered by APMCO “or other practice plans as approved by the
Board.” (Defendant’s Exhibit A.)
{¶15} The evidence shows that defendant’s physicians who worked at the clinic
received income for the treatment of patients under their practice plan. The physicians are
paid separately by the university for their faculty responsibilities. In 2002, Dr. Kaheleh
received $87,605.62, almost one-half of his total salary, from defendant; he earned
$89,697.82 from treating patients through APMCO. Dr. Goitz’s salary from defendant
totaled $80,227.92, whereas he received $320,000 through APMCO, because defendant
desired to establish a “sports medicine” program with Goitz as director.
{¶16} The evidence shows that defendant considered salary received from APMCO
when it formulated employment offers to potential medical faculty members.
The
“physician employment request form” that was completed for Dr. Goitz included an annual
salary figure from both MCO and APMCO and the form was signed by both the dean of
defendant’s school of medicine and the president of APMCO. (Doctors’ Exhibit C.) The
letter from the chairman of defendant’s Department of Orthopaedic Surgery that offered
Dr. Goitz a faculty appointment explained that his $320,000 salary from APMCO was
guaranteed by both defendant’s hospital ($120,000) and by the department ($200,000).
(Doctors’ Exhibit D.) The trial testimony also established that a portion of APMCO
revenue was transferred to defendant for use by the medical departments. Based upon
the foregoing, the court concludes that defendant had at least some influence with regard
to APMCO and the salary that it paid to the medical staff.
{¶17} Furthermore, with regard to the treatment of plaintiff, both Drs. Kahaleh and
Goitz testified that all of their medical services were rendered at defendant’s clinic. Dr.
Kahaleh testified that all of his medical practice and most of his teaching duties were
performed at the clinic. Dr. Kahaleh explained that he did not have a private office at the
clinic; that all appointments were made by MCO staff; and that almost all of the patients
were first examined by a resident or a medical student. According to Dr. Kahaleh, the two
rheumatologists assigned to the clinic treated the referred patients on a rotational basis.
Dr. Kahaleh stated that his responsibilities to supervise, teach, and treat patients were
inseparable. Similarly, Dr. Goitz testified that his only office is on defendant’s campus
and much of his practice involved teaching and supervising residents. According to Dr.
Goitz, most of the surgical procedures that were assigned to him were completed by MCO
residents under his direct supervision; that his records showed that residents were present
when he treated plaintiff.
{¶18} Based upon the totality of the evidence presented at the hearing, the court
finds that Drs. Kahaleh and Goitz saw plaintiff as a patient of MCO rather than as a private
patient. As such, the court finds that Drs. Kahaleh and Goitz acted within the scope of their
employment with defendant during all interactions regarding plaintiff that are at issue in this
case. Consequently, Drs. Kahaleh and Goitz are entitled to personal immunity pursuant to
R.C. 9.86 and the courts of common pleas do not have jurisdiction over civil actions against
them based upon their alleged actions or inactions in this case.
IN THE COURT OF CLAIMS OF OHIO
MELINDA F. GERSCHUTZ, et al.
:
Plaintiffs
:
v.
:
CASE NO. 2003-04783
Judge Fred J. Shoemaker
JUDGMENT ENTRY
MEDICAL COLLEGE OF OHIO
HOSPITAL
:
:
Defendant
: : : : : : : : : : : : : : : : :
This court held an evidentiary hearing to determine civil immunity pursuant to R.C.
9.86 and 2743.02(F). Upon hearing all the evidence, and for the reasons set forth in the
decision, the court finds Bashar Kahaleh, M.D. and Henry Goitz, M.D. are entitled to
immunity pursuant to R.C. 9.86. Therefore, the courts of common pleas do not have
jurisdiction over this matter. Pursuant to Civ.R. 54(B), this court makes the express
determination that there is no just reason for delay. 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:
Lawrence Landskroner
Charles W. Bennett
55 Public Square, Suite 1040
Cleveland, Ohio 44113-1904
Attorneys for Plaintiffs
[Cite as Gerschutz v. Med. College of Ohio Hosp., 2004-Ohio3825.]
Anne B. Strait
Attorneys for Defendant
Karl W. Schedler
Assistant Attorneys General
150 East Gay Street, 23rd Floor
Columbus, Ohio 43215-3130
Information Copy:
Steve Skiver
Jerome A. McTague
30025 East River Road
Perrysburg, Ohio 43551
AMR/cmd
Filed July 8, 2004
To S.C. reporter July 19, 2004
Attorneys for Drs. Bashar
Kahaleh and Henry Goitz
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